Alton and Janos
[2017] FCCA 3222
•21 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALTON & JANOS | [2017] FCCA 3222 |
| Catchwords: FAMILY LAW – Parenting – relocation – disproportionate use of resources of parties and the Court in dispute of relatively narrow compass – doubts about the Mother’s genuineness to promote the child’s relationship with the Father – principal issues relate to intense but unproductive communication between the parties – Mother’s conduct manipulative regarding the Father’s time with the child – restraint on Mother relocating to (omitted) New South Wales for a period of time due to Court’s concern about the Mother promoting and facilitating the child’s time with the Father – facilitated monthly parenting meeting ordered – property issues also following a short marriage – modest pool – Father’s income significantly greater than the Mother – Mother is primary carer of the child but has yet to establish her business to a stage where it is income-generating. |
| Legislation: Family Law Act 1975, (Cth) ss.60CC(2) & (3)(a) – (m), 61DA, 65DAA, 75(2) |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Blanding v Blanding (2017) 55 Fam LR 218 Martha C Nussbaum, The fragility of goodness: Luck and ethics in Greek tragedy and philosophy (New York: Cambridge University Press, 1986 [reprint 1995]) |
| Applicant: | MR ALTON |
| Respondent: | MS JANOS |
| File Number: | CAC 931 of 2014 |
| Judgment of: | Judge Neville |
| Hearing dates: | 18 - 20 June 2016; 5 - 6 December 2016; 27 - 28 March 2017 |
| Date of Last Submission: | 1 May 2017 |
| Delivered at: | Canberra |
| Delivered on: | 21 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Batey (withdrew prior to final 2 days of hearing) |
| Solicitor/Advocate for Applicant: | Ms D Simpson (for remaining two days of hearing) |
| Solicitors for the Applicant: | Dobinson Davey Clifford Simpson |
| Counsel for the Respondent: | Mr N James (withdrew prior to final 4 days of hearing) |
| Solicitor/Advocate for Respondent: | Mr D Ridge |
| Solicitors for the Respondent: | Barker & Barker |
| Solicitor/Advocate for the Independent Children’s Lawyer: | Mr K Robinson |
| Solicitors for the Independent Children's Lawyer: | Robinson + McGuinness |
ORDERS
Property
In accordance with Section 90MT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on the behalf of MR ALTON from his interest in (omitted) Super, MS JANOS is entitled to be paid by the Trustee of (omitted) Super the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001,using a base amount of $130,000 and there is a corresponding reduction in the entitlement MR ALTON would have had but for these Orders.
Order 1 has effect from the operative time.
The operative time for Orders 1 and 2 is 32 days after service of a sealed final Order on the Trustee of (omitted) Super, absent any objection to the Order by (omitted) Super.
The Trustee of (omitted) Super, and the parties, have liberty to apply in respect to the implementation of Order 1 to 3 (inclusive), provided such Application is made within 28 days of the operative time.
In relation to the remaining funds held in trust, they should be divided 52% in favour of the Wife and 48% to the Husband.
Parenting
The parties have equal shared responsibility for the child X (born: (omitted) 2012).
Subject to these Orders (or agreement in writing between the parties) the Mother be restrained for a period of 2 years from the date of these Orders, being until 31 December 2019, from relocating outside a radius of 50 kilometres from CANBERRA.
Thereafter, subject to the Mother being certified by the Mediator mentioned in these Orders as having satisfactorily completed the regime of Facilitated Parenting Meetings set out at Order 19 of these Orders (and provided this certification to the Court), the Mother be permitted to relocate to (omitted) on the (omitted) of New South Wales, but otherwise thereafter be restrained from moving the child’s residence within 20 kilometres of the city of (omitted).
Time with the Father while the Mother remains in Canberra
That unless otherwise agreed, and prior to the Mother relocating, X spend time with his Father as follows:
(a)For six months from the date of these Orders being until 30 June 2018,
(i)in week one, from 3:00 p.m. Friday until 9.00 a.m. Monday and, in the event that Monday is a public holiday, to 4.00 p.m. Monday;
(ii)In week two, from 4:00 p.m. Tuesday until 5:00 p.m. Wednesday;
(b)From 1 July 2018 until 31 December 2018,
(i)in week one from 4.00 p.m. Friday to 9.00 a.m. Monday and, in the event that Monday is a public holiday, to 4.00 p.m. Monday; and
(ii)in week two, from 4.00 p.m. Tuesday to 4.00 p.m. Thursday.
(c)From the start of 2019,
(i)in week one from after school Thursday to before school on the following Tuesday; and
(ii)in week two from after school on Tuesday to before school on Thursday.
For the purposes changeover while X is in Canberra, this will occur absent agreement at either daycare, pre-school, school, (omitted) Contact Centre, or at an agreed public place.
Time with the Father after the Mother relocates (from 1 January 2020)
The child spend time with the Father as agreed, but failing agreement:
(a)During school terms on the third, sixth and ninth weekend of each NSW school term with changeovers alternating between Canberra and the (omitted);
(b)For half of each term school holiday period as agreed and failing agreement for the first half in odd numbered years and the second half in even numbered years with changeovers at the commencement of the child’s time with the Father to be on the (omitted) and at the conclusion of time to be in Canberra.
Parenting Orders irrespective of X’s location
X shall spend from 5:00 p.m. Christmas Eve to 10:00 a.m. on Boxing Day with the Father in 2017 and each alternate year thereafter, and from 5:00 p.m. Friday to 5:00 p.m. Sunday on the weekend that immediately precedes Christmas in 2017 and each alternate year thereafter.
In the first year that X attends school, he will spend the Christmas school holidays with his Mother and Father as follows:
(a)For the first two weeks with his Father;
(b)For the second two weeks with his Mother;
(c)A further week with his Father; and
(d)The last week of the school holidays with his Mother.
If X is not in the care of his Father for the following periods:
(a)In the event that X's birthday, or the Father's birthday, falls on a weekday, X will spend from 1:00 p.m. to 5:00 p.m. in the care of his Father on those days;
(b)Once X commences school, if his birthday, or the Father's birthday, falls on a weekday, he will spend from the end of school until 7:00 p.m. in the care of his Father on those days; and
(c)In the event that X's birthday, or the Father's birthday, falls on a weekend, X shall spend a period of not less than four hours on those days with his Father at such times to be agreed, but in default of agreement, from 1:00 p.m. to 5:00 p.m.
X will spend the whole weekend on which Father's Day falls with his Father (Friday 5:00 p.m. to Sunday 5:00 p.m.).
X will spend the whole weekend on which Mother's Day falls with his Mother (Friday 5:00 p.m. to Sunday 5:00 p.m.).
In those even numbered years that Easter does not fall during a term school holiday, X will spend from 5:00 p.m. Easter Saturday to 5:00 p.m. Easter Monday with his Father and in those odd numbered years that Easter does not fall during a term school holiday, X will spend from 5:00 p.m. Good Friday to 5:00 p.m. Easter Sunday with his Father.
That the Father be at liberty to communicate by electronic means and telephone each Monday, Wednesday and Friday and at any reasonable time initiated by the child.
Facilitated Parenting Meetings
Both parties shall attend facilitated parenting meetings as follows:
(a)Arrange and attend, every month for 12 months, a facilitated parenting business meeting. It shall be facilitated by an accredited mediator (or other recognised professional). The cost of the mediator (and any associated costs) shall be borne ⅔ by the Father (because of his greater income) and ⅓ by the Mother;
(b)For each meeting, in the absence of an agreed agenda, each party shall provide the mediator with an agenda of no more than 6 items. At the conclusion of each mediation session, the mediator/facilitator shall provide the Court with the agreed or individual agenda and a note (of no more than one paragraph) regarding what:
(i)matters were agreed and what were not;
(ii)what (if any) the stumbling blocks were encountered; and
(iii)why and who, in the view of the mediator, was responsible for the agreement or disagreement.
(c)At the end of the first 12 months, provided the mediator certifies to the Court that the parties are ready to move to a reduced mediation regime, the parties shall then commence a 12 month period of mediation (with the same mediator or otherwise as agreed in writing) which will take place every second month. The earlier outlined process at Order 19(b) shall apply – agreed or individual agendas (limited to six items), report after each mediation regarding outcomes, the re-commencement of the 12 month period if it is interrupted, and a certification by the mediator at the end of the 12 month period, in this instance, that the parties can reasonably communicate in a business-like manner in relation to parenting.
(d)If there is any interruption in the process (except for medical or other independently verified reasons, and apart from the express written consent of both parties otherwise), the 12 month period of monthly mediation sessions shall re-commence.
(e)The costs of these facilitated parenting meetings shall be borne ⅔ by the Husband, and ⅓ by the Wife.
Other Parenting Orders
At any time, if the Mother is unable to care for the child while the child is in her care, the Father will be given the first option to care for the child before any other care arrangements are made.
The child’s school shall be that which is reasonably closest to the Mother’s residence, subject only to any other agreement in writing between the parties.
That if the Father is unable to spend time with the child when scheduled pursuant to these orders, the Father shall advised the Mother by e-mail or text message not less than 7 days prior to the schedule time.
That neither party shall say derogatory things about the other party or the other party’s family to or in the hearing of the child or allow any other person to do so.
That both parties shall keep the other informed of any medical appointments or similar for the child within 48 hours of becoming aware of same.
That both parties advise the other of any serious illness or injury suffered by the child, as soon as practicable, including the name and contact details of any treating medical or practitioner and provide authority for the other parent to communicate with the child’s medical practitioner including providing information, diagnoses and treatment.
The balance of the outstanding invoice of Ms C should be paid by the party who has not already paid his or her share.
Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Alton & Janos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 931 of 2014
| MR ALTON |
Applicant
And
| MS JANOS |
Respondent
REASONS FOR JUDGMENT
Introduction
Respectfully, in terms of hearing-time and the consumption of other public resources of the Court,[1] as well as the lamentably large legal fees for both sides, most unfortunately this parenting and property matter assumed the proportions and tragic-comedy dimensions usually associated with some of the lesser melodramatic Jacobean novels. That said, respectfully, at times (especially on the Mother’s side) it had a certain intensity, and moral and existential angst, of the kind usually found in dark, brooding literature like Dostoyevsky’s The Brothers Karamazov.
[1] See AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, especially at [5] and [23] – [27] (French CJ); [93] – [101] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
By any measure, the litigation should not have assumed such almost gargantuan proportions. At the end of the many and almost needless day(s), however, as it was at the beginning of the litigation, the only issues really were:
(a)whether the Mother could/should relocate with young X (now aged 5½ years [born (omitted) 2012]; regularly referred to by his parents as “X”, as will I) to the (omitted) of New South Wales;
(b)what should the “time-with” arrangements between X and his Father be (i) if the Mother relocated and (ii) if she did not; and
(c)what is the just and equitable division of the somewhat limited property pool (now doubtless more depleted because of the expense of the litigation).
To speak generally, there was much needless procedural and other difficulty before and during the trial. A couple of signal examples will suffice at this stage.
There were three family reports (dated 26th January 2015, 12th November 2015 & 25th June 2016: Exhibits A1-3 respectively), at least one of which (the first) was rendered otiose because the Family Consultant (and others) was not advised of the Mother’s intention to relocate from Canberra to the (omitted) of New South Wales.
This lack of basic, critical information led to the first trial dates having to be vacated. Thus at least one significant “pot” of costs was incurred needlessly and thereby thrown away. To state the obvious: such a basic error should not have occurred. Surprisingly, the Father did not seek any Order in relation to costs arising out of this very unfortunate waste of resources, including time. If this was a commercial matter, the costs of that original, squandered exercise would have and should have been borne by the Mother. It was certainly an enervating dissipation of exceedingly scarce public (and doubtless other) resources.
There was also a contest, which I need not detail further, in relation to a valuation that was sought to be relied upon by the Mother, which should have been obtained much earlier in the proceeding.
Subject to what is said later in these reasons, it is apposite to make a comment or two also in relation to the discretionary nature of parenting proceedings more generally (noting that there is a property dimension to the proceedings as well) and in relation to the evidence of the parties.
Before doing so, it is apt to note the following basic information:
(a)Mr Alton is aged 36 years, and Ms Janos 35 years;
(b)The parties married on (omitted) 2010, and separated in March 2013. They remained living under the one roof for some months after separation (perhaps 6 months or thereabouts);
(c)The Applicant works as an (occupation omitted); the Respondent states that she is a full time Mother. However, she also deposed that for a time she worked as a (occupation omitted) on a contract basis, and further, according to her oral evidence, more recently she has started her own (omitted) business;
(d)There are no health issues in relation to either parent.
Should it need to be stated: to speak generally, these parties are young, smart and engaging. It only makes it all the more sad and concerning that what promised to be an ideal if not idyllic relationship soured so relatively quickly. At one stage in the long-running hearing, the highly experienced Counsel for the Father suggested that the parties could reasonably readily resolve the matter precisely because they were young and intelligent people. Alas, his optimism was not realised.
Discretionary Nature of Parenting Orders & Preliminary Comments on the Evidence
In CDJ v VAJ, McHugh, Gummow and Callinan JJ observed at [152] (emphasis added):[2]
152 The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G, Lord Fraser of Tullybelton pointed out:
“The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.”
(Footnotes omitted)
[2] CDJ v VAJ (1998) 197 CLR 172.
More recently in Bondelmonte v Bondelmonte the High Court again discussed judicial discretion at [31] - [33], and observed at [32] (emphasis added):[3]
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
[3] Bondelmonte v Bondelmonte (2017) 341 ALR 179.
Of course, there are many other cases by the High Court, and by the Full Court of the Family Court, which make similar comments.
Indeed, in the current matter, doubtless other judges would have, perhaps, different views of the extensive evidence that was presented. However, what was clear, after the many days in Court observing and listening to both parties including, to the degree apposite, during the very large number of multiple Court events prior to the hearing, was the utter inability of the parties to agree on almost anything.[4] From all of these occasions, the following comments may be made, subject to what is said later in these reasons.
[4] In this regard, I note in particular the comments by the High Court in Fox v Percy (2003) 214 CLR 118 in relation to the singular benefit of a trial judge to hear and to observe witnesses. Of course, this does not confer any infallibility or omniscience, but it does allow, especially where there has been very long periods of scrutiny of witnesses, the trial judge to form an even more considered and measured view of all witnesses.
First, the Applicant Father presented and his evidence was given in a relatively unadorned manner. He was factual and gave no indication of carrying any relevant “baggage”, so to speak, from his previous relationship with the Respondent Mother. He gave answers generally in a very straightforward manner. Like the rest of humanity, he was not without fault and obviously sought, from time to time over the course of the litigation, to ensure that his view and or his wishes in relation to spending time with his son were clearly known to the Court and to the Mother.
By way of observation only (as opposed to fact or “finding”), a reasonable assumption regarding the Father’s measured responses is likely to be because (a) he has “moved on”, so to speak, from the relationship with the Respondent Mother, (b) to the degree that he can, he seems to try to minimise his engagement with the Respondent as much as possible (some reasons for this sensible approach are set out later in these reasons), and (c) he has re-partnered and is in a stable and happy relationship.
On the other hand, the Mother has not re-partnered – I do not say this critically. She seems regularly, and even during the trial, very much to oscillate between (a) teasingly engaging with, almost at times coquettishly, the Father as if either to tease or to win him back, (b) being much more overtly antagonistic towards the Father and, to some degree, blaming him for the evaporation of her “dream” of a happy life with him, which leads to (c) the Mother being, from time to time, in my view, clearly obstructive in the co-parenting relationship with Mr Alton regarding “negotiating” arrangements with the Father in relation to X, and (d) hostile towards the Father because of him re-partnering. While each and all of these features of the Mother’s evidence are perfectly understandable from a human perspective, it made and makes the Court’s determination of what Orders are in X’s best interests rather more problematic precisely because there was a decided and obvious level of unpredictability about the Mother and whether and how she could or would promote and foster the child’s relationship with the Father, should she be permitted to relocate to the (omitted) of New South Wales. Children, and their parents, need predictability, certainty and stability. In my view, as noted below, in a significant number of respects, and on a not insignificant number of occasions, the Mother has plainly set out to thwart the child’s time with his Father. While I do not doubt the Mother’s good intentions in relation to what she considers to be in the child’s best interests, sometimes I had the clear impression that the litigation was perceived by her to be something of a game (which she seemed to enjoy at times), and part of the ongoing jousting with the Father, a slightly more refined, but still blunt means of “jerking his chain”, to speak in the vernacular.
In my view, respectfully, over the very long time the Mother spent in the witness box (the Mother’s oral evidence was given over five days), the crucial traits of parenting (and much else) to which I have just referred were not often on display. From one time to the next, even on the same day, in the course of her cross-examination, there was no certainty or predictability what “mood” was going to predominate: the scorned former partner, the smart engaging person who has many talents but is sort of “marking time” in her life, waiting for the next opportunity but currently, is reasonably content to play something of a “spoiling game” with and or against the Father. At other times, she was the almost vivacious lady ready to take on what she clearly perceived to be some sort of “[male] bullying tactics” in the cross-examination by a highly experienced Counsel. Such a course did her cause little good, and usually some harm, but she did not see this at all, or was deliberately oblivious to it. Indeed, often she was the cause of her own unfortunate plight. Regularly she did not, or refused to, answer straight-forward questions put to her about relatively uncontroversial matters. Such engagement was an opportunity, as she seemed to see it, to display her wit, cunning and capacity to “best” Counsel. All it did was to show that often did not see the wood for the trees either in relation to basic questions in the course of cross-examination, and/or in the parenting responsibilities and issues relating thereto regarding X’s best interests for which the Court was desperately seeking.
In contrast, the Father’s partner, Ms S, who gave her evidence by telephone from (country omitted) because of being on secondment in that city, was very straight-forward and utterly convincing. I fear that such a description of the Father’s partner the Mother would only find even more galling.
In the light of the parties’ evidence noted below, and in the light of the more general observations just given, unless plainly supported by documentation to the contrary, I prefer the Father’s evidence to that of the Mother wherever there is any relevant inconsistency. This is not to say, of course, that the Father was or is always correct. It is more to say that the Mother’s evidence was often so oscillating and so variable, no Court could safely rely on it.
Orders sought by the Applicant Father
The Father filed a Minute of Orders sought on 28th November 2016. The solicitor for the Father confirmed via e-mail to Chambers on 27th March 2017 that these remained the Orders he was seeking. They were as follows:
Parenting Orders
1) That should the mother choose to live within 40km of Canberra the child, X born (omitted) 2012 (“the child”) live with the Mother.
2) That each parent will have day to day parental responsibility for the child whilst in their care.
3) That the parents shall have equal shared parental responsibility for the long term care, welfare and development of the child.
4) That unless otherwise agreed X spend time with his Father as follows:
4.1) For three months from the date of these Orders,
4.1.1) in week one, from 3:00 p.m. Friday until 9.00 a.m. Monday and, in the event that Monday is a public holiday, to 4.00 p.m. Monday;
4.1.2) In week two, from 4:00 p.m. Tuesday until 5:00 p.m. Wednesday;
4.2) Until the end of 2017,
4.2.1) in week one from 4.00 p.m. Friday to 9.00 a.m. Monday and, in the event that Monday is a public holiday, to 4.00 p.m. Monday; and
4.2.2) in week two, from 4.00 p.m. Tuesday to 4.00 p.m. Thursday.
4.3) From the start of 2018,
4.3.1) in week one from after school Thursday to before school on the following Tuesday; and
4.3.2) in week two from after school on Tuesday to before school on Thursday.
5) For the purposes of these Orders, until such time as X commences school, he will be collected and/or delivered to or from day-care (if he is attending day-care), or pre-school, or at the (omitted) Contact and Changeover Centre. Should (omitted) not be available for any reason, changeover will occur at an agreed public place.
6) Until such time as X commences school, he shall spend up to four weeks in each calendar year with the Father by way of holiday time, with the Father to provide the Mother with four weeks' written notice of his intention to exercise time with X. The periods X is to spend with his father shall not exceed 14 days duration at a time.
7) Once X commences school, X shall spend time with the Father for one half of all school term holiday periods, the first half in even-numbered years and the second half in odd-numbered years.
8) That X spend from 5:00 p.m. Christmas Eve to 10:00 a.m. on Boxing Day with the Father in 2016 and each alternate year thereafter, and from 5:00 p.m. Friday to 5:00 p.m. Sunday on the weekend that immediately precedes Christmas in 2017 and each alternate year thereafter.
9) In the first year that X attends school, he will spend the Christmas school holidays with his Mother and Father as follows:
9.1) For the first two weeks with his Father;
9.2) For the second two weeks with his Mother;
9.3) A further week with his Father; and
9.4) The last week of the school holidays with his Mother.
10) Upon X commencing his second year of school, he will spend one half of the Christmas school holidays with his Mother and Father, in addition to one half of all mid-term school holiday periods, in accordance with the pattern set out in Order 7.
11) If X is not in the care of his Father for the following periods:
11.1) In the event that X's birthday, or the Father's birthday, falls on a weekday, X will spend from 1:00 p.m. to 5:00 p.m. in the care of his Father on those days;
11.2) Once X commences school, if his birthday, or the Father's birthday, falls on a weekday, he will spend from the end of school until 7:00 p.m. in the care of his Father on those days; and
11.3) In the event that X's birthday, or the Father's birthday, falls on a weekend, X shall spend a period of not less than four hours on those days with his Father at such times to be agreed, but in default of agreement, from 1:00 p.m. to 5:00 p.m.
12) Once X commences school, all handovers will take place either at X's school, or, an agreed public place. In default of agreement, handover will take place at the home of either parent.
13) X will be able to communicate freely with either parent during periods he is not in their care. X will communicate with his father by telephone, mobile, Skype, or other internet-based communication application at 5.00 p.m. in week one on Wednesday and week two on Sunday at 5:00 p.m.
14) X will spend the whole weekend on which Father's Day falls with his Father (Friday 5:00 p.m. to Sunday 5:00 p.m.).
15) X will spend the whole weekend on which Mother's Day falls with his Mother (Friday 5:00 p.m. to Sunday 5:00 p.m.).
16) In those even numbered years that Easter does not fall during a term school holiday, X will spend from 5:00 p.m. Easter Saturday to 5:00 p.m. Easter Monday with his father and in those odd numbered years that Easter does not fall during a term school holiday, X will spend from 5:00 p.m. Good Friday to 5:00 p.m. Easter Sunday with his father.
17) At any time, if the mother is unable to care for the child while the child is in her care, the father will be given the first option to care for the child before any other care arrangements are made.
18) In the alternative, should the mother choose to move to a location more than 40km away from Canberra:
19) That the child, X, born (omitted) 2012 (“the child”) lives with the father.
20) That each parent will have day to day parental responsibility for the child whilst in their care.
21) That the parents shall have equal shared parental responsibility for the long term care, welfare and development of the child.
22) That the mother shall spend time with the child in accordance with the following orders or as agreed to by the parties:
22.1) Each third weekend from 6pm on Friday until 4:00pm on Sunday.
22.2) Half of each gazetted ACT school holidays, being the first half in years ending in zero or an even number, and the second half in years ending in an odd number.
23) That changeover for the purposes of Order 22 above to take place at the (omitted) roadside rest stop.
24) That unless otherwise agreed if the child is due to be in the father's care on Mother's day then the child will spend the weekend with the mother in accordance with Order 22. This weekend is to be in addition to the weekend that the child would ordinarily spend with the parent under these Orders.
25) That unless otherwise agreed if the child is due to be in the mother's care on Father's day then time with the mother is suspended and the child will remain in the father's care that weekend. The child will spend the following weekend with the mother.
26) The mother will not permit the child to be left in the care of Mr J, unless there is suitable other adult present at all times.
27) That each of the parties is retrained from speaking in derogatory manner about the other, either to the child or in their presence, or allowing any other person to do so.
28) That each of the parties is restrained from speaking about court related proceedings, either to the child or in their presence, or allowing any other person to do so.
29) That the mother, her servants and agents be restrained from removing the child from the Commonwealth of Australia without obtaining the consent of the father, and vice versa.
30) That neither party will unreasonably withhold consent in relation to Order 29 above.
31) That in the event that the child travels with either party overseas, the travelling parent will provide to the other parent the following:
31.1) A travel itinerary, including accommodation details, departure and arrival dates and airline details no less than 28 days prior to the proposed departure;
31.2) Copies of the child's fully paid return airfares within 28 days from the proposed departure date;
31.3) A copy of the travel insurance for the proposed holiday;
31.4) A copy of any relevant visas obtained on behalf of the child for the purpose of overseas travel;
31.5) A copy of any medical certificate evidencing travel immunisations or other medical treatment required for the child to facilitate overseas travel; and
31.6) Telephone contact details where the non-travelling parent can contact the child at all reasonable times while the child is overseas.
32) That in the event that the child travels with either parent overseas:
32.1) Prior to reaching school age the child will not be removed from the Commonwealth of Australia for more than two weeks each year;
32.2) After reaching school age the child will not be removed from the Commonwealth of Australia for more than three weeks each year.
33) That in the event the child travels with either parent overseas, the child communicate with the non-travelling parent via telephone once every three days, and for that purpose the travelling parent shall do all things necessary to ensure the child initiate such communication.
34) That the parent with whom the child lives hold the child's passport at all times when the child is in Australia and that parent will provide the passport to the travelling parent on receipt of the notice given in accordance with the order above.
35) That the parents do all such things and sign all documents as may be necessary to obtain or renew the child's passport six months before expiry.
36) In default of either parent doing all things and signing all documents necessary to give effect to this order, a Registrar of the Federal Circuit Court of Australia may be permitted to execute all such documents in the name of the refusing parent and do all such things and acts necessary to enable a passport to issue for the child.
37) That each party inform the other of the date and time of the child's appointment with any and all treating practitioners and specialists.
38) That this order is authority to any medical practitioner, dentist or therapist who provides treatment or diagnosis to the child to provide any and all information requested to by either parent.
39) That each party shall be at liberty to contact any school at which the child attends to obtain information about his academic progress and activities including school reports, school photos and each parent is at liberty to attend any school function or activity at which parents are normally invited to attend.
Property Orders
1) That the sale proceeds of the former matrimonial home currently held in trust be divided as to 60% to the applicant and 40% to the respondent.
2) That the parties are solely responsible for any liabilities in their names respectively.
3) That unless otherwise specified in these Orders and except for the purpose of enforcing payment of any money due under these or any subsequent orders:
a) Each party be entitled to the exclusion of the other all property (including choses-in-action) in the possession of such party at the date of these orders.
b) In accordance with section 90MT(1)(a) of the act, whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of the applicant from his interest in the (omitted) Super Fund, the respondent is entitled to be paid (by the Trustee of the (omitted) Super Fund) the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulation 2001, using a base amount of $100,000 and there is a corresponding reduction in the entitlement of the applicant would have but for these orders.
c) The operative time for order 7(b) above is four business days after the service of these orders on the Trustee.
d) All insurance policies to become the sole property of the beneficiary named hereunder.
e) All shares are deemed to be in the possession of the registered proprietor thereof.
Orders sought by the Respondent Mother
The Mother filed an Amended Minute of Order Sought on 6th December 2016. The solicitor for the Mother confirmed via e-mail to Chambers on 28th March 2017 that these Orders remained the Orders sought by the Mother. The Mother’s Orders in relation to parenting were as follows:
1) That the mother have sole parental responsibility for the child X born (omitted) 2012 in relation to religious, educational, and medical issues.
2) That in respect of any other major long term issues, the parents have equal shared parental responsibility.
3) That prior to implementing any long term major decision pursuant to the mother’s sole parental responsibility the mother shall consult with the father by means of the mother advising the father of the mother’s proposed decision by e-mail sent by the mother to the father and the father shall within 7 days reply to the mother by e-mail with any comments or queries regarding the mother’s proposed decision.
4) That for the purpose of Order 3, the mother shall send the e-mail to the father using an e-mail address notified by the father for such purpose.
5) That the child live with the mother.
6) That the mother be permitted to relocate immediately with the child to live on the (omitted) of New South Wales.
7) That the father shall spend time with the child as agreed between the parties, but failing agreement as follows:
7.1) Until the mother relocates each Wednesday from 1.45pm until 5.00pm and each alternate Friday from 3.00pm to Sunday 4.30pm.
7.2) That for the purposes of Order 7.1, all changeovers shall take place at (omitted), other than the days the child attends day-care, when the changeovers shall take place at the child’s day-care centre.
7.3) That if the mother is permitted to relocate, all changeovers in Canberra shall take place at (omitted) and all changeovers on the (omitted) shall take place at the (omitted) Children's Contact Service or the child’s school. If the (omitted) Children's Contact Service is not available for a changeover then changeovers will occur through (omitted) Contact Services.
7.4) That if the mother is not permitted to relocate, all changeovers shall take place at (omitted) or the child’s school.
7.5) That for the purposes of Order 7.3 and 7.4 the parties share equally any costs associated with the supervised changeovers.
7.6) From the time the mother relocates each third weekend alternating between Canberra and the (omitted)
7.6.1) Until 22 January 2018 when in Canberra from 4.00pm on Friday to 2.30pm on Sunday.
7.6.2) Until 22 January 2018 when on the (omitted) from 4.00pm on Friday to 5.30pm on Sunday.
7.6.3) From 1 February 2018 on the third, sixth and ninth weekend of each NSW school term with changeovers alternating between Canberra and the (omitted).
7.6.4) From 1 February 2018 when involving changeovers in Canberra from 4.00pm on Friday to 2.30pm on Sunday.
7.6.5) From 1 February 2018 when involving changeovers on the (omitted) from the end of school on Friday to 5.30pm on Sunday.
7.7) In the alternative if the mother is not permitted to relocate until the end of 2017:
7.7.1) Until the mother relocates, in accordance with paragraphs 7.8.1 to 7.8.3; and
7.7.2) Thereafter in accordance with paragraph 7.6.
7.8) In the alternative, if the mother is not permitted to relocate to the (omitted):
7.8.1) Until 31 January 2017 each Wednesday from 1.45pm until 5.00pm and each alternate Friday from 3.00pm to Sunday 4.30pm.
7.8.2) From 1st February 2017 each alternate Wednesday from 1.45pm until 5.00pm with changeover at (omitted) and every other Wednesday from 2:45pm with changeover to occur at preschool until 5:00pm with changeover to occur at (omitted) and each alternate weekend from end of preschool at 2:45pm on Friday to 4.30pm on Sunday.
7.8.3) From 1 Feb 2018 each alternate weekend from end of school on Friday until before school Monday.
7.9) From the end of Term 1 2018 during each term school holiday period as agreed, and failing agreement from the first week of the holiday period commencing end of school on Friday until 2:30pm on the following Wednesday for which purpose the father shall undertake the necessary travel to pick up from school on the (omitted) and the mother shall undertake the necessary travel to pick up the child in Canberra from (omitted).
7.10) From the end of Term 1 2019 during each term school holiday period as agreed, and failing agreement from the first week of the holiday period commencing end of school on Friday with the Father picking up from school until 2:30pm on the following Friday for which purpose the father shall undertake the necessary travel to pick up from school on the (omitted) and the mother shall undertake the necessary travel to pick up the child in Canberra from (omitted).
7.11) From the summer school holidays of 2018/19 as agreed and failing agreement in each alternate year thereafter with the father from 4:00pm on the 24 December to 4:00pm on the 31 December (being a period of 8 days), and from the summer school holidays of 2019/20 as agreed and failing agreement in each alternate year thereafter from 4:00pm on the 30 December to 4:00pm on the 6 January, with all changeovers to occur on the (omitted).
7.12) In each summer school holidays from 2018/19 from 4:00pm the second last week of the summer school holidays to 4:00pm 8 days thereafter, with all changeovers to occur in Canberra.
7.13) That the child shall spend time with the father from 3.00pm 23 December 2016 until 5.00pm on Christmas Day in 2016, for which purpose
the father shall undertake any necessary travelchangeovers on Christmas Day shall take place at (omitted).7.14) the child shall spend time with the mother from 4.00pm Christmas Eve until 5.00pm on Boxing Day in 2017, for which purpose the mother shall undertake any necessary travel.
7.15) That if the child is not due to be in the care of the father on the weekend proceeding Christmas in the odd year then the time on the weekend closest to Christmas when the child is due to be in the father’s care is suspended and time shall instead take place on the weekend preceding Christmas.
7.16) That if the child is due to be in the care of the father on the weekend proceeding Christmas in the even year then the time between the child and the father shall not take place on that weekend, but shall instead take place on the immediate following weekend.
7.17) From 2018, that the child spends Easter in from 5:00 pm Good Friday to 5:00pm Easter Monday each odd year with the mother and in each even year with the father. If the child is due to be in the care of the father on the odd Easter then the time between the child and the father shall be suspended and not take place on that weekend, but shall instead take place on the immediate following weekend. If the child is due to be in the care of the mother on the even Easter then the time on the weekend closest to Easter when the child is due to be in the father’s care is suspended and time shall take place on the Easter weekend instead. If the mother is permitted to relocate all Easter changeovers are to occur on the (omitted).
8) That the father’s time with the child be suspended by the mother on not more than 2 occasions per annum of which after 1 February 2018 only one occasion shall be time during school holidays on the mother giving the father at least 21 days’ notice by e-mail. If the father’s time during school holidays is suspended under this order the father shall have make up time as agreed and failing agreement on the first weekend of the immediately following school holiday.
9) That the father shall not suspend time with the child on more than 2 occasions per annum of which after 1 February 2018 only one occasion shall be time during school holidays on the father giving the mother at least 21 days’ notice by e-mail. If the father’s time during school holidays is suspended by the father shall have make up as agreed and failing agreement on the first weekend of the immediately following school holiday.
10) That the father be at liberty to communicate by electronic means and telephone when the child is in the care of the mother as agreed between the parties, but failing agreement as follows each Monday, Wednesday and Friday, Christmas Day and at any time initiated by the child.
11) That the mother be at liberty to communicate by electronic means and telephone when the child is in the care of the father as agreed between the parties, but failing agreement as follows:
11.1) During school holidays each Monday, Wednesday, Friday and at any time initiated by the child.
11.2) On weekends each Saturday, Christmas Day and at any time initiated by the child.
12) That if the child is due to be in the care of the father on Mother’s Day then the time between the child and the father shall not take place on that weekend, but shall instead take place on the immediate following weekend.
13) That if the child is not due to be in the care of the father on Father’s Day then the time on the weekend closest to Father’s Day when the child is due to be in the father’s care is suspended and time shall take place on the Father’s Day weekend instead.
14) That on the child’s birthday, if the child is not due to be in the care of the father, the child shall spend time from 1.00pm until 4.00pm with the father, for which purpose the father shall undertake any necessary travel, but if that time cannot take place then the father shall communicate with the child by telephone or electronic means. If the child is due to be with the father then the child shall spend time from 1.00pm to 4.00pm with the mother, for which purpose the mother shall undertake any necessary travel, but if that time cannot take place then the mother shall communicate with the child by telephone or electronic means.
15) That on the father’s birthday if the child is not due to be in the care of the father, then the time on the weekend closest to the father’s birthday when the child is due to be in the father’s care is suspended and time shall take place on the father’s birthday weekend instead, for which purpose the father shall undertake any necessary travel.
16) For the purpose of Order 15 the fathers birthday weekend shall be deemed to be the either the weekend of the father’s birthday if it falls on a weekend, or the weekend prior to or after the father’s birthday if the father’s birthday fall on a weekday. That the father shall confirm with the mother by e-mail sent not less than 21 days prior to the father’s birthday if he wishes for it to be the weekend prior or after.
17) If the father’s birthday does not occur on a weekend then the father shall communicate with the child by telephone or electronic means on the relevant birthday.
18) That on the mother’s birthday if the child is not due to be in the care of the mother, then the time between the child and the father shall not take place on that weekend, but shall instead take place on the immediate following weekend.
19) That if the father is unable to spend time with the child when scheduled to do so, the father shall advise the mother by e-mail or text message sent not less than 14 days prior to the scheduled time, that the father will not be available to spend the time.
20) That neither party say derogatory things about the other party or the other party’s family to or in the hearing of the child or allow any other person to do so.
21) That both parties keep the other informed immediately of any medical appointments or like appointments for the child.
22) That both parties advise the other of any serious illness or injury suffered by the child, as soon as practicable, including the name and contact details of any treating medical or like practitioner and provide authority for the other parent to communicate with the child’s medical practitioner including providing information as to diagnosis and treatment.
23) That this order is authority to any medical practitioner, dentist or therapist who provides treatment or diagnosis to the child to provide any and all information requested to by either parent.
24) That the mother hold the child’s passport and birth certificate.
25) That the parties do all things necessary to ensure the child’s passport remains valid and share the cost equally.
26) In default of either parent doing all things and signing all documents necessary to give effect to this order, a Registrar of the Federal Circuit Court of Australia may be permitted to execute all such documents in the name of the refusing parent and do all such things and acts necessary to enable a passport to issue for the child.
27) That the mother shall be entitled to travel with the child outside of the Commonwealth of Australia in accordance with section 65Y(2)(b) of the Family Law Act 1975 if the mother provides the father with the itinerary at least 21 days before the proposed travel.
28) That each party shall be at liberty to contact any school at which the child attends to obtain information about his academic progress and activities including school reports, school photos and each parent is at liberty to attend any school function or activity at which parents are normally invited to attend.
The Wife’s Orders sought in relation to property were as follows:
1) That the sale proceeds of the property at Property A in the Australian Capital Territory be divided as follows:
a) That the wife receive an amount equal to the sum by which the sale price exceeds the amount of $770,00.00; and
b) That the balance of the net sale proceeds be divided as to 70% to the wife and 30% to the husband.
2) That the husband forthwith pay to the wife the greater of the sum of $24,036 or the combined balances of (omitted) Bank accounts with BSB (omitted) account number (omitted) and account number (omitted).
3) That the parties forthwith do all things necessary to close all bank accounts in their joint names and to pay the proceeds of those accounts as to 70% to the wife and 30% to the husband, but if any account is overdrawn as against the wife the husband be declared liable for the amount overdrawn.
4) That as from the date of this order the husband forego any interest in or claim to any motor vehicle, household or other chattels, furniture, furnishings, utensils and appliances in the possession of the wife and any monies deposited in savings banks or other financial institutions by or on behalf of the wife other than property hereinbefore referred to.
5) That as from the date of this order the wife forego any interest in or claim to any motor vehicle, household or other chattels, furniture, furnishings, utensils and appliances in the possession of the husband and any monies deposited in savings banks or other financial institutions by or on behalf of the husband other than property hereinbefore referred to.
6) In accordance with section 90MT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Alton from his interest in (omitted) Super, Ms Janos is entitled to be paid by the Trustee of (omitted) Super the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $103,863 and there is a corresponding reduction in the entitlement Mr Alton would have had but for these Orders.
7) The operation time for Order 6 is four business days after the service of final sealed orders on the Trustee of (omitted) Super.
8) That subject to the preceding order, as of the date of this order each party be declared the sole owner of any entitlements to superannuation each may have, entitlements to payments for recreation leave, long service leave and any pension associated with superannuation and each will relinquish any claim to the entitlements of the other.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer (“the ICL”) filed his Final Minute of Order Sought on 5th May 2017; his Orders sought were as follows:
1. That all previous parenting orders be discharged.
2. That the mother and the father have equal shared parental responsibility of X born (omitted) 2012.
3. That the child live with the mother.
4. That the mother be and is hereby restrained from relocating the residence of the child outside of the ACT/(omitted) area prior to 1 January 2018.
5. That the mother is permitted to relocate the residence of the child from Canberra to (omitted) on or after 1 January 2018.
6. That the child spend time with the father as agreed, but failing agreement as follows:-
A. Until 31 December 2016
(a) Alternate weekends from 4pm Friday until 5pm Saturday;
(b) Each Wednesday from 1.45pm until 5pm;
(c) From 4pm Christmas Eve 2016 until 10am Boxing Day;
(d) From 1.45pm until 5pm on the child’s birthday.
B. From 1 January 2017 to 30 June 2017
(a) Alternate weekends from 4pm Friday until 5pm Sunday;
(b) Each Wednesday from the conclusion of day-care or 3pm until the commencement of day-care or 9am Thursday.
C. From 1 July 2017 to 31 December 2017
(a) Alternate weekends from 4pm Friday to 9am Monday;
(b) Each Wednesday from the conclusion of day-care or 3pm to the commencement of day-care or 9am Thursday;
(c) For four hours on the child’s birthday as agreed or, failing agreement, from 1pm to 5pm;
(d) From 10am Boxing Day to 4pm 28 December 2017.
D. From 1 January 2018
(a) During the 2017/18 Christmas School Holiday periods for two periods of four nights as agreed and failing agreement from:
(i) 10am 6 January 2018 to 2pm 10 January 2018 and
(ii) 10am 20 January 2018 to 2pm 24 January 2018;
(b) During school terms on the third, sixth and ninth weekend of each NSW school term with changeovers alternating between Canberra and the (omitted);
(c) For half of each term school holiday period as agreed and failing agreement for the first half in odd numbered years and the second half in even numbered years with changeovers at the commencement of the child’s time with the father to be on the (omitted) and at the conclusion of time to be in Canberra;
(d) For the Christmas/summer school holidays, as agreed, and failing agreement:
(i) In 2018/19 on a week about basis;
(ii) In 2019/20 and each alternate year thereafter for weeks one, two and five of the school holiday period;
(iii) In 2020/21 and each alternate year thereafter for weeks three, four and six of the school holiday period.
SPECIAL DAYS
7. That notwithstanding anything else contained in these orders that the child shall spend:
(a) From 4pm Christmas Eve to 10am Boxing Day with the father in 2016 and each alternate year thereafter;
(b) From 10am Boxing Day to 4pm on 28 December with the mother in 2016 and each alternate year thereafter;
(c) From 4pm Christmas Eve to 10am Boxing Day with the mother in 2017 and each alternate year thereafter;
(d) From 10am Boxing Day to 4pm 28 December with the father in 2017 and each alternate year thereafter;
(e) The weekend upon which Mother’s Day falls with the mother, and if such weekend the child is due to be in the care of the father then the child spend the immediately following weekend with the father;
(f) The weekend upon with Father’s Day falls with the father, and such weekend shall be in addition to the time provided in Order 6D(b);
(g) on the child’s birthday, with the parent who is not then caring for the child, from after school to 6pm if falling on a school day and from 1pm to 6pm if falling on a non-school day.
COMMUNICATION
8. That the father be at liberty to communicate by electronic means and telephone each Monday, Wednesday and Friday and at any reasonable time initiated by the child.
CHANGEOVER
9. That changeovers not occurring at day-care or school shall, where occurring in Canberra, take place at (omitted) and, where occurring on the (omitted), shall take place at the (omitted) Children's Contact Service.
ADDITIONAL ORDERS
10. That if the father is unable to spend time with the child when scheduled pursuant to these orders, the father shall advised the mother by e-mail or txt message not less than 7 days prior to the schedule time.
11. That neither party shall say derogatory things about the other party or the other party’s family to or in the hearing of the child or allow any other person to do so.
12. That both parties shall keep the other informed of any medical appointments or similar for the child within 48 hours of becoming aware of same.
13. That both parties advise the other of any serious illness or injury suffered by the child, as soon as practicable, including the name and contact details of any treating medical or practitioner and provide authority for the other parent to communicate with the child’s medical practitioner including providing information, diagnoses and treatment.
Oral evidence of the Father
There is no dispute that both parties originally sought an Order for equal shared parental responsibility. Late in the trial however the Mother changed her Orders Sought whereby she would have the Court give her sole parental responsibility in relation to major long-term issues for the child concerning religion, education and health. In the light of all the evidence set out below, the Mother’s Orders in this regard would very likely be detrimental to the child’s relationship with the Father. Also for the reasons set out below, there will be an Order for equal shared parental responsibility, notwithstanding the not always occasional “hiccups”.[5] Hopefully once the dust and emotional mayhem of the litigation settles, more co-operative parenting will reign.
[5] Unfortunately, the transcript for the first tranche of hearing time, 18th – 20th July 2016, was not provided with consecutive page numbering. Accordingly, at the beginning of the evidence of each witness, the date or dates will be provided, and thereafter transcript references will simply be “T” followed by the page number. Here, in relation to the mutual Order sought regarding equal shared parental responsibility, apart from the respective Minutes of Orders Sought, see the Father’s evidence at T 19 (18th July 2016).
Mr Alton said that there are periods of agreement and periods of disagreement with Ms Janos in relation to parenting. He does not think this will change. The parties have engaged in counselling and mediation, to no obvious avail. He also confirmed that the child loves both parents.[6]
[6] T 20
The Father confirmed that he seeks 5 nights per fortnight within the next 6 months, in a graduated form. This is greater than that recommended by the Family Report writer, who proposed 3 nights over 18 months. As at the time when the Father first gave evidence in the trial, X was to start pre-school next year [2017] and Year 1 in 2018.[7]
[7] T 22
At the time of the Father’s oral evidence in July 2016, he did not have an alternative course if the Court permitted the Mother to relocate to (omitted).[8]
[8] T 22-23
The Father was asked to assume that the Court allowed the Mother to relocate – what does he say would be in X’s best interests to spend time with him? He did set out a general proposal if X was in (omitted) – his proposal now is different, increasing period and overall time. He said that his view had changed now that so much time had passed since the litigation commenced. He believes that X could/would cope with an increase in the time spent with his Father. Changeovers would be at the residence of each parent, with one parent to travel once a fortnight with X.[9]
[9] T 26
Weekend time would realistically be the only “real time” the Father would be able to have with X if the Mother relocated.[10] Both parties have proposed a timeframe to reduce X’s travel. The difference or question relates to whether the proposed travel would be too much for X to do every month?[11]
[10] T 28
[11] T 29-30. Among other matters, see s.60CC(3)(d) and (e) Family Law Act 1975 (“the Act”).
Currently, the Father has no regular arrangement for Skype. He said that he considered that Skype would be better when X is older.[12]
[12] T 31-32
If the Mother relocates to (omitted), the Father said that he does not want to leave Canberra due to the ongoing support of his family and friends. He acknowledged that the Mother’s family is in (omitted). She grew up there. However, the Father said that he was not aware of any of the Mother’s friends now being in (omitted).[13]
[13] T 32
The Father gave some historical information regarding the parties’ involvement in a local Church, particularly attempts by various Pastors to assist the parties in resolving their differences. On the Mother’s account, she was requested not to attend the Church, the (omitted) where the Father’s father is one of six Pastors. Apparently the Mother received a letter from the church asking her not to attend after the parties separated.[14] I need not elaborate on these matters because they do not, in my view, assist the Court in determining Orders that are in X’s best interests.
[14] T 33-34
The parties met in Sydney; the Mother moved to Canberra to be with Mr Alton. Fairly, the Father confirmed that the Mother had always wanted to move back to the (omitted).[15]
[15] T 35
From time to time, there has been discussion about reconciliation between the parties, such as in January 2014.[16] However, the Father said that he did not think this was ever really going to happen.
[16] T 35
The Father said that in 2013, when he moved in Sydney, the Mother unilaterally relocated to (omitted). It was contended by the Mother that there was an agreement between the parties that she could move back into the former marital residence, but (she said) he reneged on this agreement, which led to her moving in with a friend. The Father said that letters were sent between solicitors around this time and the Mother’s unilateral relocation. He said that he moved to Sydney (also for employment purposes) after the Mother relocated to facilitate contact for the interim until she returned to Canberra.[17] Again, I need not detail the Father’s evidence regarding his short-term employment in Sydney.
[17] T 38
The Father confirmed that he has re-partnered, with Ms S.[18] They met whilst he was staying in Sydney in (omitted) 2013. That relationship started in early 2014.[19]
[18] T 41
[19] T 42
He confirmed that at the time of the commencement of his new relationship he went on a holiday to (country omitted); he advised the Mother of the holiday but not that he was travelling with a new partner.[20] This information was passed on to the Mother later.[21]
[20] T 42
[21] T 43
Mr Alton confirmed that he advised the Mother that X met his new partner during a trip to the snow.[22] His partner later moved away for work to the (country omitted) in (omitted) 2014; they remained/remain in a relationship.
[22] T 43
The Father said that he told Ms C that his partner had moved away in interviews in January 2015.[23] The Mother contended that Mr Alton had told her that the new relationship had ended. The Father said that he understood that the Mother had re-partnered around this time also.[24]
[23] T 45
[24] T 45
To jump ahead somewhat, the Family Consultant, Ms C, said that neither party had re-partnered in the Report.[25] In her updated Report interviews, apparently Ms C had asked about reconciliation and the chances of this. He said there were none.[26]
[25] T 45
[26] T 46
In (omitted) 2015, the Father went to the (country omitted) to see Ms S. He did not tell Mother. For my part, this sort of “cloak and dagger” series of discussions about who had or who had not re-partnered did not really help me very much at all. Other adults in the life of a child are important, but the machinations about relationships are not, of themselves, of assistance. And whether someone was being “secretive” about a relationship was not, of itself and without more regarding its direct relevance to parenting Orders, of much assistance. It may have been slightly relevant to issues going to communication between the parties, of course, but the amount of time spent on it at the trial was rather disproportionate in all the circumstances.
Also going to issues of communication and related matters were a series of questions regarding the Mother being able to take X on a holiday overseas. But of course, lawyers had to be involved in this too. The issue ultimately came down to (a) the Father giving his consent verbally to the Mother but (b) this not being considered sufficient, therefore (c) a letter confirming the Father’s consent, which alas, (d) was considered to be received too late for the Mother and X to go on this overseas holiday. It is otiose to go into more detail regarding this misadventure.
There was considerable discussion about the need/utility of using the contact centre, (omitted), as a changeover facility. The need for such a course was, in my view, not demonstrated, given (among other things) that the Father’s evidence was that changeover often happens, at the Mother’s instigation, at a shopping centre. I accept the Father’s evidence here, as I do basically throughout.[27] Again I stress that these are very capable parents who, from time to time, do not see eye to eye. This is hardly a novel situation. Respectfully, the Mother needs to “loosen up” and step back from controlling X’s life, and also to stop punishing and or attempting to manipulate the Father.
[27] T 61
Although the Mother, as set out in numerous e-mails that are before the Court, from time to time challenges the Father’s capacity to care for X, I have no doubt that both parents are very able and capable of providing for any and all of X’s needs, as and when they arise. He will benefit so much from having his parents involved in his life to the maximum degree possible. The only question is to what extent the Mother will allow X to have the maximum time and opportunity with his Father. The levels of trust between the parties definitely need some attention.
The Father’s reasonably candid assessment of the Mother’s parenting capacities was that she loves X unequivocally (as does he), and that the parties each have their own, slightly different approach to parenting.[28] He also observed that as soon as the Family Consultant recommended overnight time for X with his Father, all sorts of issues suddenly emerged by the Mother against the Father; again in common parlance, the goalposts kept shifting as to when the Father’s overnight time with X would commence – initially when he turned 2 years, then at 3 years. It was suggested to him that the recommendations of Dr S (a sleep physician) were behind the Mother’s actions and concerns.[29] From the Father’s perspective, much of these changes were the Mother engaging in “game playing.”[30]
[28] T 77
[29] T 79
[30] T 79
Another example he gave was that he drove up to (omitted) to spend time with X but was prevented from doing so because, in the Mother’s opinion, he arrived too late for this to occur.[31]
[31] T 81
The Father said that there was another travel issue with the Mother in January 2016 when she wanted to take X to the (country omitted), and the Father also said that he wanted to take X to (omitted), as well as to visit Ms S.[32] There developed an issue in relation to “make-up” time, which led to consent for the trip being delayed. And for reasons unknown to the Father, X’s trip to the (country omitted) with his Mother did not proceed. [33]
[32] All references to the transcript hereafter will be for the date, 19th July 2016.
[33] T 15
The Father confirmed that the Mother applied for an Apprehended Domestic Violence Order against him. The parties spent, he said, two days in the Magistrates Court in May 2016. The Father was found to be in breach of an ADVO and placed on good behaviour bond.[34] He said all he did was drive past the child’s day-care facility.
[34] T 18
He said that the Mother worked in the same building as he did at one earlier point in time which led her to giving up work. She claimed that she did so because she was fearful of him stalking her while at work in the same building. He said that the relationship between the parents could be characterised as “waxing and waning”. [35] It was a discreet but, in my view, perfectly apt description of it.
[35] T 18
The Father denied that he monitored the Mother and exhibited controlling behaviour, including financial control.[36] This was so in circumstances where cameras were installed outside the former marital residence; the Mother said these were to monitor “their safety”, whereas the Father said, among other things, it was to monitor the dog.[37]
[36] T 18
[37] T 19-20
There was some discussion with the Father about his actions to remove both Grandmothers from being authorised to pick up X from day-care. This was when he was overseas and he had “authorised” his Mother to pick up the child from day-care but he had not advised Ms Janos of this.[38] In his view, as the child’s Father, he was within his “rights” to act this way.[39] I suggest, not for the first time, that both parents need to tone down their pre-emptive actions and feelings of high dudgeon.
[38] T 22
[39] T 23
The Father confirmed that there was a disagreement with the day-care centre about “pick-up” time. The difference was quite small, about 45 minutes. But it became something of an issue; in the Father’s view, he had a poor relationship with the day-care centre. [40] It seemed to me that, on his account, that centre had become rather more aligned with the Mother.
[40] T 25
It was inapt, in my view, for the Wife to submit that the Court should have no regard to the interim property distributions earlier made. Rather, the Wife said that the Court should effectively deal with the final distribution on the basis of a complete pool without those earlier distributions. Among other things, respectfully, such a course has more than an air of unreality, not to mention the possibility of a misleading picture of what is to be distributed and what the Court should do to ensure that the final Orders are “just and equitable.”
Summarily, I note the following as being the Court’s findings in relation to property Orders:
(a)The initial [financial] contributions at the commencement of the relationship significantly favour the Husband;
(b)Non-financial contributions during the relationship were plainly greater financially in the Husband’s favour, but in terms of non-financial contributions, particularly after the birth of the child, they favour the Wife;
(c)Post-separation, the Husband paid the mortgage on the Property A property, and he also continued to pay the utilities even though the Wife lived there;
(d)Some earlier renovations (between 2011 and 2013) were paid for by the Husband, in the sum of approximately $170,000. There was no consideration by the Wife in her submissions of these earlier renovations. The Wife undertook renovations, post separation (without the Husband’s approval), the figures for which were set out in the course of her evidence (approximately in the order of $40,000 or thereabouts) but they were not in the order of those earlier paid for by the Husband. The Wife thereby claimed that the significant final sale price of the house arose primarily if not essentially or solely out of her labours. However, the Husband’s evidence was not challenged about the not insignificant increase in property values in Canberra at the time of the sale of the property, which must also be taken into account;
(e)In general terms, the Husband’s post-separation contributions are, in my view, greater, but the Wife’s post-separation contributions are greater as a parent;
(f)In relation to future needs, I have already noted that the Husband earns a large income and resides in a two-income dwelling with his partner; the Wife does not have either of those capacities and she remains the child’s primary carer. The Mother’s circumstances in being a single parent and being currently without income (accepting her evidence of her “marketability” and her new business, which will hopefully flourish), weigh significantly in her favour.
Ultimately, the Court is required to make Orders that are, in all the circumstances, just and equitable. It does this, it is commonly said, by standing back, so to speak, to view the positions of the parties and the ultimate justice and equity of the Orders as determined by the Court. In my view, although quite a number of “findings” in relation to contributions clearly favour the Husband, having due regard to each party’s respective financial position, immediately and into the future, which includes for the Husband his very superior income and being in a two-income household, some relevant account in the Wife’s favour should be made, including with her remaining the primary carer for the child. Accordingly, there should be a superannuation splitting Order in the Wife’s favour of $130,000. And in relation to the remaining funds held in trust, they should be divided 52% in her favour and 48% to the Husband. Such Orders are, in my view, just and equitable in all of the circumstances of this matter.
Conclusion
At least since the time of Plato (427 BC) and Aristotle (384 BC), through the time of the Judeo-Christian prophets such as Hosea and Micah (6,8), scholars and others like Augustine (4th century), Justinian (6th century), Aquinas (13th century) and others (noting the strong ecclesial traditions that have informed much of the relationship of the parties, and the involvement of a number of Pastors, unsuccessfully, in earlier attempts at mediation), Christian and non-Christian, have understood and consistently taught that the art of caring and nurturing, especially by parents, require the acquisition and liberal application of the virtues of justice and sacrifice, accepting the fragility and delicacy of life along the way.[282] Why so? Precisely because these virtues pre-eminently require the focus to be on seeking and wanting what is “good” for “the other” (as opposed to a significant focus on oneself), which is achieved by living and therefore acting according to the basal precepts of justice. In the case of parents and children, of course, parents typically seek to provide and to care for their children; they seek what is best for them, even to the point of sacrifice.
[282] Among a plenitude of references, Martha Nussbaum provides a very helpful and detailed overview of such things in her classic study The fragility of goodness: Luck and ethics in Greek tragedy and philosophy (New York: Cambridge University Press, 1986 [reprint 1995]).
Sometimes, such as in the present matter, the proper and clear focus of life, including parenting, gets distorted through the impact of the vicissitudes of life, including hurt and grief (and perhaps also anger). Such things were patently on display throughout this long and often tortuous litigation. “Sacrifice” and justice towards X, as well as to the other parent, seemed regularly to get lost amidst the din of the battle. The contest to thwart and at times, to best, the other parent, often took the primary focus of one or other parent, especially the Mother. As already stated many times in these reasons, so often, she seemed to act out of grief, hurt, and or anger towards the Father.
Even the High Court has recognised the importance of “sacrifice” as being central to the art of parenting. For example, in U v U, the joint judgment of Gummow and Callinan JJ said, at [92] (emphasis added):
The emphasis given to the desirability of a stress-free environment in Payne is not, with respect, misplaced. However, it is still one only of a multiplicity of considerations to be weighed in parenting cases. The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
As the High Court said in 2002, thus so here in 2017. Accepting that “sacrifice” and “justice” (this virtue is traditionally defined as “rendering to the other what is their due” – Aristotle, Nicomachean Ethics Bk V) almost invariably take a life-time to learn and to put into regular practice, respectfully both parents here – in varying ways and in different degrees - have yet to learn some of the very basics about these rudimentary but fundamentally essential virtues. The parenting Orders the Court now makes are not only in the child’s best interests but are, hopefully, of assistance to X’s parents. They are certainly intended to be so.
I certify that the preceding three hundred and sixteen (317) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 21 December 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Standing
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Statutory Construction
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