Bardot and Thiessen
[2010] FMCAfam 180
•26 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARDOT & THIESSEN | [2010] FMCAfam 180 |
| FAMILY LAW – Child aged 4 years and 2 months – father lives in Victorian Alps – mother lives in Geelong area – parties agree about most matters regarding future parenting of the child – issue in dispute concerns whether child should spend time with father in between holiday visits – family report prepared – whether issue can be decided “on the papers” – less adversarial processes – meaningful relationship – best interests – de facto property proceedings – transfer of proceedings – whether mother’s application properly instituted in South Australia – participating jurisdiction. |
| Family Law Act 1975, ss.11E, 60B; 60CA; 60CC; 61DA; 65DAA; 79(4); 90SK; 90SM; 90RA; 117 |
| Silas & Barry [2009] FMCAfam 448 Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR BARDOT |
| Respondent: | MS THIESSEN |
| File Number: | ADC 2596 of 2009 |
| Judgment of: | Brown FM |
| Hearing date: | 10 February 2010 |
| Date of Last Submission: | 10 February 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 26 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Fuda Duncliffe |
| Solicitors for the Applicant: | Wendy Botting |
| Counsel for the Respondent: | Mr Boehm |
| Solicitors for the Respondent: | Just & Moore Whyte |
ORDERS
The parties have equal shared parental responsibility for the child of the relationship [X] born [in] 2005 (hereinafter referred to as the child).
The child live with her mother.
The father spend time with the child as follows:
(a)Between 3:00pm on 26 March 2010 and 3:00pm on 5 April 2010;
(b)For the first half of each short Victorian school holiday period commencing at 3:00pm on the last Friday of school and concluding at 3:00pm on the Monday of the second week of each such school holiday period;
(c)In the event Easter does not fall within a school holiday period the father spend time with the child in alternate Easter periods from 3:00pm on Good Friday until 3:00pm on Easter Sunday commencing in 2012.
(d)For half of each end of year Victorian school holiday period so that the father spends the first half of each such holiday in 2010 with the child and each even year thereafter and the mother spends the first half of each such holiday in 2011 and each odd year thereafter with the child provided that the father’s time with the child pursuant to this provision shall commence at 3:00pm Friday and conclude at 3:00pm Monday of such periods or such other time as the parties agree from time to time.
(e)From 3:00pm Friday until 3:00pm Monday on the middle weekend of each Victorian school term;
(f)At any other times and on any other conditions as may be agreed between the parties from time to time.
The father have telephone communication with [X] on each Wednesday and Sunday at 5:30pm with the father to telephone the mother’s home.
The parties exchange the child at the beginning and end of each period referred to in order (3) hereof above at the [M] Police Station or such other location as may be agreed between them from time to time.
The father provide the mother with a money order to reimburse her with the necessary toll charges incurred by her to give effect to these orders seven (7) days prior to each period of time the father spends with the child pursuant to these orders with the money order to be deposited in a bank account to be nominated to the father by the mother.
The application and response herein, including the mother’s application for de-facto property orders, be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Bardot & Thiessen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2596 of 2009
| MR BARDOT |
Applicant
And
| MS THIESSEN |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Mr Bardot “the father” and Ms Thiessen “the mother”. They are the parents of [X] born [in] 2005.
[X] lives with her mother in [C], near Geelong in Victoria. The father, until recently, lived near [B] in South Australia. Now he lives on a farm near [O], in the Victorian Alps.
The parties have never been married. They met in [D] in 2003. At the time, the mother lived in the Geelong area and the father lived in [B].
They were involved in a serious relationship between late 2004 and mid-2008. During their relationship, they lived in [B], in a property owned by the father’s parents at Property B, [B].
It is Ms Thiessen’s case that, when she moved to [B], she sold her home in Geelong recouping around $77,000.00. Of this sum, she says around $45,000.00 was utilised to renovate and improve the Property B property.
After the parties separated, the mother and [X] moved back to Geelong. These proceedings are concerned with how [X] may spend time with her father, given the logistical difficulties which arise because the parties’ respective households are separated by several hundred kilometres.
In addition, further issues arise about the validity of an application, which the mother has commenced, in which she seeks a settlement of de-facto relationship property issues between the parties and, if those proceedings are properly commenced, what is the appropriate venue for the hearing of her application.
Background
The parties are not well resourced financially. Ms Thiessen is engaged in home duties and is a part-time business student. The father is [employed in the agricultural industry]. It is a seven hour drive between [O] and [C].
The mother lives with [X] and her older daughter [Y], from an earlier relationship. [Y] is aged eleven. The father has recently married. His wife has two children from her previous marriage. They are another [Z], aged twelve and [H] aged nine.
Following their separation in 2008, the parties did not have an easy relationship with one another. This situation did not make it easy for Mr Bardot to maintain a relationship with [X]. The difficulty being compounded by the distance between [B] and Geelong and [X]’s tender years.
Against this background, some orders were made by the Magistrates’ Court at Geelong, on 17 December 2008. These orders provided for [X] to live with her mother and for the parties to have what is described as “joint responsibility for [her] long term care, welfare and development.”
More importantly, in the context of these current proceedings, the orders provided for [X] to spend around a fortnight with her father in the Christmas period of 2008/2009 and at other times as agreed between the parties.
Mr Bardot spent a further long weekend, with [X], in mid-February of 2009. However, the parties were not able to agree on other times for the father to spend time with [X], after February.
The father commenced this current round of proceedings on 2 July 2009 in the Federal Magistrates Court at Adelaide. At the time, he was living in [B] and instructed a solicitor in Millicent. In these circumstances, the Adelaide registry was the one most convenient for him, although his solicitor has attended court mentions by telephone.
In his application, the father sought orders enabling him to spend time with [X] for periods during each school holiday and approximately once per month during the school term. He proposed that [X] be exchanged between the parties at [S].
The mother responded to this application on 7 August 2009. She confirmed Mr Bardot’s evidence that he had been involved in [X]’s day to day care in the period between her birth and the parties’ separation. In these circumstances, she was not opposed to the father spending regular periods of time with [X], subject to the logistical issues arising from the location of the parties’ respective homes.
In her affidavit, Ms Thiessen deposed as follows:
“Given the financial difficulties and costs of travel, I propose that the contact periods occur regularly once per month with the parties meeting at [S] or other convenient place if agreed. This would mean until [X] commences school, changeover time would be 6:00pm Friday Victorian standard time. On Sunday afternoon or Monday afternoon if Monday was a Public Holiday, the same process could occur with me collecting [X] at 3:00pm Victorian standard time and returning her to Geelong.
In relation to holiday periods, I agree that there could be a shared arrangement for the holiday periods of at least one half of the Victorian school holiday periods or a couple of extra days as well, if it suited the parties. I would wish that Mr Bardot would be in substantial attendance at all times because he is spending time with [X] and he should make an effort to be there rather than continue work and leave [X] with the paternal grandparents or with his new partner, Ms J.
That at Christmas time I say that [X] should have shared time in alternative years. I refer to the orders sought in my response.”
The parties’ competing applications were made returnable on 11 August 2009. The most significant issue between them was the extent of the monthly periods of time which Mr Bardot should spend with [X]. The father’s preference was for the period to be five days per month. Whilst the mother’s preference was for a shorter period of time.
Mr Bardot’s position was predicated on the basis that, as [X] was not yet attending school, it was both preferable and possible for her to spend an extended period of time with him, at least until she started primary school.
On the other hand, although she acknowledged the importance of [X]’s paternal relationship, Ms Thiessen was concerned about [X] being away from her for a lengthy period of time. She was also concerned about the cost implications of her having to travel from Geelong to [S], particularly if Mr Bardot was unreliable, so far as the payment of child support was concerned.
This was the background to the interim orders, which I made on 11 August 2009 as follows:
“1. The parties have equal shared parental responsibility for the child of the relationship [X] born [in] 2005.
2. The child [X] live with the mother.
3. The father spend time with the child as follows:
a) From 6pm on 25 September 2009 until 6:00pm on 4 October 2009;
b) From 6pm on 31 December 2009 until 6:00pm on 21 January 2010;
c) One weekend each month from 6:00pm Friday until 6:00pm Monday commencing on 28 August 2009 and the last weekend commencing Fridays in October and November 2009.
4. The father communicate with the child at all reasonable times as the parties agree and failing agreement at 6:00pm each Tuesday and Saturday with the father to instigate the call to the mother’s home and the mother is to ensure the child is available to take the call.
5. All handovers to be at the BP service station in [S], Victoria with the mother to deliver the child’s asthma medication to the father at the beginning of each period and the father to return the asthma medication to the mother at the conclusion of each period.”
As can be seen, the orders provided for Mr Bardot to spend extended periods of time with [X] in the end of third term holiday and over the Christmas school holiday period. These orders were in line with the positions as advocated by each of the parties.
At that time, it seemed to me that the parties had much common ground between them, particularly the need for [X] to maintain and extend her relationship with her father. In these circumstances, I was hopeful that the parties might be able to agree between themselves as to long term arrangements for [X]’s care.
I was also conscious of the potentially significant costs of these proceedings and was desirous of all being done to avoid the parties having to embark on protracted and expensive legal proceedings.
With this in mind, I ordered that a family report be prepared by a family consultant attached to the Melbourne Registry. I was hopeful that some input from a suitably qualified expert would assist the parties in reaching agreement in respect to [X]’s parenting.
Clearly, such an outcome would have been in keeping with one of the principles, which define the objects and purposes of Part VII of the Family Law Act, which deals with arrangements for children. The salient principle is as follows:
“Parents should agree about the future parenting of their children.” [Family Law Act section 60B(2)(d)]
One other important aspect of the mother’s response should be pointed out. She sought the transfer of the proceedings from the Adelaide Registry of the court to its Melbourne Registry. It being her position that it would be onerous for her to travel to Adelaide for any final hearing, which subsequently became necessary.
The father opposed such a transfer. It being his position that the proceedings should remain in Adelaide, where he had commenced them, which was a location convenient to him and his solicitor.
Ultimately, I decided that it was premature to determine the venue for any future final hearing, given that it seemed likely that the parties would be able to resolve the various issues between them. In these circumstances, I adjourned the further hearing of the matter until 7 December 2009.
The family report, ordered by me, was prepared by Ms Jay Manya, a psychologist, on 2 December 2009. To their mutual credit, both
Mr Bardot and Ms Thiessen travelled from their respective homes to take part in the report writing process. Both of them were observed interacting with [X].
Ms Manya reported as follows in respect of her observation of [X]:
“[X] seemed much attached to her mother. She also seemed to enjoy a positive relationship with her father. She stated that she had 3 sisters, one at her mother’s home and two at the home of her father. Her relationship with her stepmother seemed familiar. However[X] seemed primarily connected with her father during the time spent with him, felt that she did not see him often enough and expressed a wish to continue to spend time with her father on a regular basis.”[1]
[1] See family report at paragraph 18
I had not been advised, prior to 7 December 2009, of Mr Bardot’s intention to move from [B] to [O]. This eventuality came to my attention only as a result of Ms Manya’s report. One other significant matter had arisen between 11 August and 7 December 2009. It was that Ms Thiessen had amended her response and now sought to include orders in respect of the settlement of de-facto property issues between the parties.
In this regard, the mother sought a payment of $70,000.00 from the father in exchange for the relinquishment by her of any potential interest, which she may have in the Property B property. Ms Thiessen filed her amended response on 6 October 2009.
In the “evaluation and recommendations” section of her report,
Ms Manya wrote as follows:“[X] is 4 years old. She has lived in her mother’s primary care since birth and continues to live with her in Geelong. She is well settled in her mother’s care and in her older sister’s company. Her father until recently lived in [B]-SA. [X] spent time with her father once a month from Friday evening to Monday evening with changeovers taking place at [S]. The parents inform that such visits were progressing reasonably well.
At present the mother travels from Geelong to [S] (215 k) for changeover which is considered as half way distance between Geelong and [B]. Mr Bardot therefore believes that it is fair that given his change of residence in the other direction, in the future the mother travels to Trafalgar for changeovers (227 k) as it is the same distance but in a different direction. The mother argues that in that case she would have to go through Melbourne city which takes her longer time in the car, therefore some consideration should be given to reduce her travel time. The parents need to come to an agreement on this issue.
The mother is of the view that once a month travel between the two homes in inclement weather is too onerous for [X] irrespective of the fact which parents travels more for the changeovers. She suggests that the father could spend most of the school holiday time with the child if he is willing to forgo monthly visits. The father argues that he wishes to keep the frequency of his visits and there may also be a practical problem about him taking time off work during all of the holiday periods as he only has 4 to 5 weeks of holidays per year.
The writer is of the view that travelling for some 7-8 hours twice during each month can be exhausting for [X]. The writer recommends that [X] travels to her father’s home once in 6 weeks and for half of the school holidays. During each school holiday period there is an option that she could spend 2 extra days at her father’s home to make up for the lost time with her father.”
The father seeks that the child spends time from Friday evening to Monday evening in his care during [X]’s each visit. [X] would miss her kinder and school on the Monday in that case. The writer is of the view that [X] would not be disadvantaged academically at least during her kinder, prep and first grade if she missed school on the Monday once every 6 weeks. The extended time will allow [X] to rest well and also enjoy quality time with her father. Both parents also seemed to agree on this issue.[2]
[2] See family report at paragraphs 19,21, 22, 23 & 24
Notwithstanding the apparent goodwill between the parties and the input from Ms Manya, no final resolution of the children’s aspect of the matter could be reached on 7 December 2009. I suspect that the parties may have been distracted by the potential implications of the mother’s application for de-facto property orders.
In these circumstances, I referred the parties to a child dispute resolution conference pursuant to section 11F of the Family Law Act.
I remained sanguine regarding the prospects of the parties being able to reach a resolution with one another, particularly if they had the assistance of an independent intermediary, under whose auspices they could discuss the implications of Ms Manya’s recommendations.
Pursuant to section 11E of the Act, the court has a discretion to seek the advice of a family consultant in respect of any proceedings, which come before it. For that reason, what is said at such conferences is not subject to privilege or otherwise confidential. Rather, the consultant concerned can report back to the court as to what occurred in the conference, particularly whether any areas of agreement have been reached or how otherwise the matter should be dealt with by the court.
The family consultant concerned in this matter was Ms Pam Hemphill. She interviewed both parties by telephone on 29 January 2010. Notwithstanding it was a telephone conference, the parties were able to interact with one another during the course of the meeting.
Ms Hemphill reported that both parents communicated reasonably well with one another and focussed on [X]’s needs. In the light of
Ms Manya’s report, Ms Hemphill reported that the parties had reached agreement in the following areas:
·[X] be exchanged between the parties at the [M] Police Station;
·Handovers take place on Fridays at 3:00pm and Mondays at 3:00pm;
·Mr Bardot spend time with [X] for half of each school holiday period, including the end of year school holiday period, with the father to have [X] at Christmas time in 2010;
·The father spend time with [X] from 26 March to 5 April 2010 (the period of Easter) but otherwise Easter arrangements alternate between the parents.
·The father forward a money order to the mother prior to each period of time he spent with [X] to cover the costs of road tolls incurred by her.
·The father ring [X] on Wednesday and Sunday at 5:30pm;
·The parties have equal shared parental responsibility for [X].
Ms Hemphill noted the parties remained in disagreement about the desirability of [X] spending time with her father between school holiday periods. It was the mother’s position that the current arrangements for monthly visits were unsettling [X]. On the other hand, the father thought the monthly visits were working well and he did not wish them to change.
This remains a vexed issue between the parties. Regrettably the parties are unable to reach some agreement about this issue. From Mr Bardot’s point of view, a school term is a long time for him to go without having face to face contact with [X], particularly as at four years of age, she does not have a well developed appreciation of time.
As such, she may not understand why she is unable to see her father more frequently and the relationship between the two will not grow as quickly as it might otherwise do. It is also his case that [X] wants to spend more rather than less time with him.
From Ms Thiessen’s point of view, as [X] grows older, monthly contact visits will become more and more problematic, particularly as [X] starts kindy and primary school. As previously indicated, she finds the visits disruptive to [X]’s routine.
Under the heading “future directions” Ms Hemphill wrote as follows:
“Given that [X] is attending Kinder to prepare her for school and school terms, that her actual time with her father is good but that the mother reports that she is struggling to resettle into the structure on her return, the court may wish to consider that the father spends time with [X] from Friday at 3:00pm to Monday at 3:00pm on the weekend at mid term which would mean in practice every 5 weeks given that the Victorian school terms are 10 week terms. The father also would spend time with [X] half the school holidays.”
Mr Bardot has not formally responded to Ms Thiessen’s application for the court to make orders in respect of the settlement of de-facto property issues between the parties. On 7 December 2009, it was common ground between the parties that the South Australian legislature had not passed legislation referring the State’s powers, in respect of de-facto property proceedings, to the Commonwealth. As such, I was of the view that I had no power to deal with the issue.
Accordingly, I made no specific order in respect of this aspect of the case on 7 December 2009. The matter was adjourned until 5 February 2010. On this latter occasion, Ms Thiessen has renewed her application to have all proceedings transferred to the Melbourne Registry of the court.
It is her case that it is more expedient for the court in Melbourne to deal with all aspects of the case, including de-facto property, because the State of Victoria is where both parties now live. In addition, the court appointed expert, Ms Manya is also based in Melbourne.
Mr Bardot is opposed to the transfer of the proceedings, particularly the aspect of the case dealing with de-facto property issues. Essentially, it is his case that Ms Thiessen’s application in this respect was improperly instituted in the first place and, as such, there is nothing for the court to transfer.
The controversy raises issues to do with The Commonwealth Powers (De-facto Relationships) Act 2004 (Victoria); The Commonwealth Powers (De-facto Relationships) Act 2009 (South Australia); and the Family Law Amendment (De-facto Financial Matters and Other Measures) Act 2008 (Commonwealth).
So far as the matter pertains to [X], the case raises the following issues:
·At this stage, what are the appropriate arrangements for [X] to spend time with her father between school holidays;
·Is this an issue which can be finally determined at this stage or must the matter proceed to a contested hearing;
·If there is to be a final hearing, what is the appropriate venue for it.
The legal principles to be applied
The principles to be applied to applications to transfer proceedings to another venue are set out in Rule 8.01 of the Federal Magistrates Court Rules. In considering a change of venue application, the court must have regard to:
a)The convenience of the parties;
b)The limiting of expense and the cost of the proceedings;
c)Whether the matter has been listed for final hearing; and
d)Any other relevant matter.
The service of [X]’s best interests is the most important consideration in this case [Family Law Act section 60CA]. The same principles both at the interim and the final stage.
The provisions, in the Family Law Act1975, relating to children, rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm, as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in a child’s best interests by section 60CC(2).
The aims and principles of the part of the Family Law Act [section 60B], which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm, from being subjected to abuse, neglect or family violence.
When deciding what parenting orders to make, it is the best interests of any child concerned which is the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in section 60CC.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
The primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
The parties agree that they should have equal shared parental responsibility for [X]. This presumption deals with the allocation of parental responsibility, not the strict allocation of time which a child spends with each of his or her parents [section 61DA].
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
In this case, given the distance between the parties’ respective homes, it is not reasonably practical for [X] to be parented in an equal time arrangement or a substantial and significant time arrangement.
The Family Law Act was significantly amended by the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006. Through this amendment, the legislature has made significant directions as to how courts, such as this one, are to conduct “child-related proceedings”. These provisions are contained in division 12A of Part VII of the Act. These provisions apply at both the interim and final stage.
Pursuant to section 69ZN the court is required to give effect to a number of principles, whilst exercising jurisdiction in proceedings concerning children. These principles are as follows:
a)the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of proceedings.
b)the court is to actively direct, control and manage the conduct of proceedings.
c)proceedings are to be conducted in a manner which will safeguard the child and parties concerned from family violence, abuse and neglect.
d)proceedings are to be conducted in a way the will promote cooperative and child-focused parenting.
e)proceedings are to be conducted without undue delay, formality and legalism.
Pursuant to section 69ZQ, the court is provided with a number of duties in order to enable it to give effect to these principles. It may:
a)decide which issues require full hearing and which may be dismissed summarily;
b)decide the order in which issues are determined or what steps should be taken to determine issues;
c)in deciding whether or not a particular step is taken, consider the cost implications of such a step;
d)use appropriate technology;
e)use family dispute resolution or family counselling where appropriate;
f)deal with as many aspects of the case as possible on a single occasion and if appropriate without the physical attendance of the parties.
As a corollary to these duties, the court is provided with a number of powers pursuant to the provisions of section 69ZR. At any time in child related proceedings, it may:
a)make a finding of fact;
b)determine a matter arising out of proceedings;
c)make an order in relation to an issue arising out of proceedings.
These various principles and duties have been collectively described as being procedures designed to make proceedings in regards to children “less adversarial”.
In enunciating these various principles, the legislature recognised that unduly protracted litigation, regarding any child, is usually not helpful to the child, who is the subject of such litigation and certainly does not encourage those who are involved in his care to have a cooperative or collaborative approach towards his parenting.
Litigation regarding the parenting of children is liable to be expensive, in both financial and emotional terms and, at its end, the parties to it are likely to remain in a close familial relationship, unlike the parties to other litigation, such as an action about a contract or a tort.
In the former case the parties must patch up their relationship, if they can, at the end of the proceedings and attempt to parent their children in a constructive manner. In the latter case, the parties may choose never to see one another again and so the quality of any future relationship between them is of no moment.
The principles outlined in Division 12A recognise that it is in the best interests of children that those involved in their care avoid, as far as possible, the deleterious consequences of litigation, which is rarely a constructive process, as it is often focussed on finding fault and emphasising the failings of the other party concerned and so does little to foster constructive parent relationships.
The principles seem to have the following objects: courts are directed to discourage unnecessary litigation; closely manage that litigation which cannot be avoided; focus the minds of the parties concerned on the potential harm, which may be occasioned to children by such litigation through the perpetuation of parental conflict; and consider the fiscal implications, both private and public, in the conduct of such litigation.
This list is not intended to be an exhaustive one. At the same time, the court is cautioned against overlooking the need to conduct proceedings in a way which will maximise the protection of children from harm to them arising from neglect, abuse and family violence.
The principles seem to be directed to allow the court to fetter, to some degree, the freedom provided by a classic adversarial system which enable parties being able to investigate every issue which may possibly be of some interest to them, particularly if this untrammelled freedom has implications for the best interests of any child concerned.
The rationale being that proceeding relating to children, pertaining as they do to the interests of a person or persons who are not strictly a party to them – the child or children concerned – have something of the nature of an inquiry about them and as such are not entirely adversarial.
The de-facto property aspects of the case
The purpose of both The Commonwealth Powers (De-facto Relationships) Act 2004 (Victoria) and The Commonwealth Powers (De-facto Relationships) Act 2009 (South Australia) was for the States of Victoria and South Australia to refer their authority to make laws relating to the breakdown of de-facto relationships to the Commonwealth of Australia pursuant to the provisions of section 51(xxxvii) of the Constitution of the Commonwealth. The section reads as follows:
“The Parliament shall have power to make laws for the peace, order, and good Government of the Commonwealth, with respect to:
…
(xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law.”
The Victorian legislation was assented to on 23 November 2004 and came into operation on 9 October 2008. The South Australian legislation was assented to on 10 December 2009 and has been gazetted to commence on 1 July 2010.
Accordingly, when Ms Thiessen commenced her application for a settlement of de-facto property, on 6 October 2009, the applicable legislation referring the relevant power to the Commonwealth, by each of the States of Victoria and South Australia, had not commenced. As at the date of these reasons for judgment, the South Australian legislation has not as yet come into operation.
The Commonwealth legislation necessary to receive a referral of powers relating to de-facto relationship property issues was assented to on 21 November 2008. As I understand matters, it has since come into operation.
In the context of this case the relevant Commonwealth legislation is contained in the new part VIII(AB) of the Family Law Act, which is entitled Financial Matters Relating to De-Facto Relationships.
Because the power of the Commonwealth to legislate in respect of de-facto property matters relies on the referral to it of powers from each State and Territory of Australia, the applicable legislation creates a concept known as “participating jurisdictions” [Family Law Act section 90RA].
A participating jurisdiction is each State or Territory, the Parliament of which has referred to the Commonwealth Parliament financial matters relating to the parties to a de-facto relationship pursuant to section 51(xxxvii) of The Constitution. This concept, in turn creates the requirement for a geographical nexus between an application for de-facto property orders, pursuant to the Commonwealth legislation, and the parties concerned.
Sub-division C of Part VIII(AB) of the Act provides the machinery mechanisms in respect of the actual alteration of the property interests of partners in a de-facto relationship. The provisions of section 90SM(4) are analogous to the provisions of section 79(4) contained in Part VIII of the Act, which is the legislation currently applicable to the division of property in a matrimonial situation.
Although the machinery provisions and the applicable considerations for the division of matrimonial property and de-facto property are the same (or largely the same), the source of the Commonwealth’s power to pass legislation in respect of the two categories of relationship is different.
I have already outlined the Commonwealth’s source of power in respect of de-facto property matters – it depends upon a specific referral of power from the States. Its power to legislate in respect of matrimonial property stems from a specific power in The Constitution [The Constitution section 51(xxi), which endows the Commonwealth with authority to make laws in respect of marriage.
Accordingly, matrimonial property matters brought pursuant to Part VIII of the Act do not have any specific geographical requirements, within the Commonwealth of Australia itself, whereas applications made pursuant to Part VIII(AB) do. This is clear from the provisions of section 90SK.
Pursuant to this section, the court may only make an order altering the property interests of former de-facto partners [section 90SM] if it is satisfied as to the following criteria:
·Both parties to the relationship were ordinarily resident in a participating jurisdiction, when the application for such an order was made;
·Or, both parties were ordinary resident, during at least a third of their de-facto relationship, in a participating jurisdiction;
·Or the applicant for an order under section 90SM made substantial parenting, home making or direct or indirect financial contributions in one or more participating jurisdictions, at the time of the application;
·Or, the parties to the de-facto relationship in question were ordinarily resident in a participating jurisdiction, when the relationship between them broke down.
Ms Thiessen brought her application, in the Adelaide registry of the court, on 6 October 2009. At that time, South Australia was not a participating jurisdiction. Accordingly, the court, in South Australia, had no jurisdiction to entertain Ms Thiessen’s application for de-facto property settlement, when she made her application, which was the operative time to determine this jurisdictional issue.
Victoria, subsequent to Ms Thiessen’s application, has become a participating jurisdiction. However, in my view, this occurrence has no jurisdictional implications for Ms Thiessen’s application. The provisions of section 90SK are clear that the jurisdictional qualifications must be satisfied at the time of the making of an application.
For these reasons, I have come to the conclusion that there is no validly commenced or substantive application on foot in respect to the issue of the division of the parties’ de-facto property interests and therefore there are no proceedings, in this regard, which are amenable to transfer to the court in Victoria.
The children’s aspect of the case
The parties agree that they should have equal shared parental responsibility for [X]. Accordingly, each acknowledges that the other should be involved in the exercise of parental responsibility for her.
In addition, to their credit, the parties have been able to agree that [X] should spend half of each school holiday period in her father’s care. Accordingly, it is implicit that Mr Bardot wishes to pursue and maintain his relationship with [X] and Ms Thiessen recognises the importance of this relationship, so far as [X] is concerned.
Given the logistical constraints apparent in this case, it is not possible for Mr Bardot to spend extended periods of time with [X] in between holiday visits. However, for obvious and understandable reasons, he wishes to maintain his relationship with [X] in between these periods. This is where the current area of dispute between the parties arises.
Thankfully, this is not a case involving allegations of child neglect and abuse or issues to do with family violence. [X] is a much loved child, who has been appropriately parented by her parents. Accordingly, in my view, this is a case where the court needs to provide more emphasis on issues related to the likely benefits [X] will derive from having a meaningful relationship with both her parents, in the difficult circumstances which prevail in this case.
The rationale of the amended provisions of Part VII of the Family Law Act is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care [see Goode & Goode (2006) FLC 93-286 at 80,901].
In Silas & Barry[3], Altobelli FM referred to some of the current social science and psychological perspectives on this issue. He quoted Smyth as follows:
“A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parents wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[3] See Silas & Barry [2009] FMCAfam 448
Necessarily because Ms Thiessen and [X] live in [C] and Mr Bardot lives in [O], it is prohibitively difficult for the father and [X] to interact in the greater range of context, which Smythe envisages as being optimal for a child of separated parents. As a consequence, to a very large extent, Mr Bardot must inevitably be cast in the role of a “holiday dad”.
However, in my view, the distance between [C] and [O] is not so great that the court should not consider some form of interaction between [X] and her father in between school holiday visits. [X] is not yet five years of age. As a consequence, her relationship with her father is not fully formed. As such, it is likely to be vulnerable to the vicissitudes of time and distance.
[X] does not have a fully developed sense of time. As such, it is probable that her memories of her father will fade between holiday visits with him. As a consequence, [X] is likely to be deprived of the potential to have the most meaningful level of relationship with her father, if the relationship is not reinforced and supported in other ways.
In my view, these factors militate in favour of the father being able to spend some mid-term time with [X], notwithstanding the practical issues which arise. In any event, given [X]’s tender years, I am not persuaded that the benefits of [X] being able to spend time with her father are outweighed by the fact that she may miss some kindergarten or school or her schedule will be somewhat disrupted.
I am satisfied that [X] has a significant relationship with each of her parents. Ms Thiessen has been her primary carer but in the past
Mr Bardot has also provided for her care [section 60CC(3)(b)]. This was the view of Ms Manya, which neither party seeks to contradict.
It also seems to be the case that [X], although still of tender years, has a preference to spend more rather than less time with her father. This speaks of her significant relationship with her father and indeed the two other children who live in his household [s.60CC(3)(a)].
For reasons already provided, I do not think it would be a great change for [X] to accommodate, if she has a long weekend with her father at the mid-way point of each Victorian school term. As indicated, I have come to the view that such an arrangement will benefit [X] in the sense that it is likely to enhance the level of [X]’s relationship with her father [section 60CC(3)(d)].
Meaning is added to parental relationships by ensuring that children spend as much time as is practicable with their parents. I am satisfied that if [X] has an opportunity to interact with her father outside of strict school holiday periods this will add to the texture of their emotional relationship. I am also concerned that ten or eleven weeks is too long for a child of [X]’s age to go without seeing her father, given that he does not live an unsurmountable distance from her.
Clearly, it is inconvenient and onerous for the parties and [X] to have to travel between [C] and [O]. The father is prepared to make a modest contribution to the mother’s costs in this regard. However, once again, I believe that the likely benefits to [X] outweigh the practical and logistical difficulties arising [section 60CC(3)(e)].
The person who is likely to find the travel the most difficult is [X] herself. Small children often find long car trips boring. However, in this day and age, there are many diversions available to children to make such trips more palatable.
In any event, I must not lose sight of the fact that [X] is used to regularly travelling between [B] and [C] to see her father. In addition, the orders I propose represent a lessening rather than an increase in the amount of travel for her.
For those reasons, I propose to adopt Ms Hemphill’s tentative proposal for “future directions” at this stage. This outcome is also in line with Ms Manya’s recommendations. The aim being satisfied by this approach being that [X] will have some “quality time” with her father in between the longer school holiday visits.
Having determined this issue in the context of a shortened hearing, which necessarily has not allowed any oral evidence or cross-examination of the parties concerned, the question arises as to whether it is appropriate that this order be made on a final basis. If this occurs the proceedings between the parties will be concluded at this stage.
I appreciate that the issue is one of some moment to the parties concerned, particularly Ms Thiessen. However, I am concerned that the prospect of litigation between the parties becoming more protracted will not assist them to have a better parenting relationship with one another.
In my view, this is an issue which can be dealt with “on the papers” on a final basis, particularly as there has been a family report prepared, which has dealt with the issue. I am not sure what useful evidence will be added by a more extensive trial process.
I accept both parties have a valid reason for adopting the position which each has done in the case. However, regardless of that, the most important issue will remain how [X] may have the most meaningful level of relationship with her father, given the parties’ respective places of residence. I do not think this issue will necessarily become more focussed, or even nuanced, if the parties and Ms Manya are cross-examined.
As such, in an attempt to make the proceedings as child focussed as possible, I think more will be achieved by concluding the proceedings at this stage rather than permitted a further and expensive hearing to occur in respect of an issue which his not likely to be central to [X]’s essential welfare.
In particular, I am not persuaded that to allow the matter to proceed to final hearing will necessarily produce evidence which will cause the court to reappraise the issue at that stage. On the other hand, I believe that it is likely to be better for [X] if the proceedings can be concluded sooner rather than later.
Conclusions
For these reasons, I have come to the conclusion that the de-facto property aspects of the mother’s application must be dismissed, as they were not validly commenced, as South Australia was not a participating jurisdiction, when the mother commenced this aspect of her proceedings. It matters not that Victoria has subsequently become one.
In addition, I will make the orders upon which the parties have agreed in respect of the major issues to do with [X]’s care. These orders envisage that the parties will have equal shared parental responsibility for [X]; she should live with her mother; and spend time with her father for one half of each school holiday period.
For the reasons provided above, I believe that it is likely to be beneficial to [X] if she is able to interact with her father between these periods of holiday contact. Given her age, this is likely to enhance her relationship with her father and make her paternal relationship more meaningful, an outcome which is in keeping with the intent of Part VII of the Family Law Act.
Given the significance of this issue, which has been examined by a court appointed expert, I do not believe that it is warranted that the issue be examined further at a final hearing.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 26 February 2010
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