Barnham & Timbrell
[2021] FedCFamC1F 36
•14 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barnham & Timbrell [2021] FedCFamC1F 36
File number(s): MLC 14446 of 2019 Judgment of: MACMILLAN J Date of judgment: 14 September 2021 Catchwords: FAMILY LAW – CHILDREN – where the mother seeks sole parental responsibility – where the mother makes allegations of abuse and family violence – where the father denies the allegations – where the presumption of equal shared parental responsibility applies – where the mother wishes to move with the children to Suburb B – where the mother proposes that the children live with her and spend time with the father each alternate weekend – where the father proposes that the children continue at their current schools – where the father proposes that subject to the mother living within 30 minutes drive of the children’s school the current week about regime be maintained or if the mother moves to Suburb B the children live with him and spend time with the mother each alternate weekend – where orders made for equal shared parental responsibility – where orders made that the children live not more than 30 minutes drive from their current schools – where mother given the opportunity to continue the current regime or in the alternative the children live with the father
FAMILY LAW – PROPERTY – where the mother seeks leave to file an application for property settlement and spousal maintenance out of time – where the parties have been separated for seven years – where there are three children of the relationship – where the father and mother had minimal property at the time of separation or as at the date of the hearing – where the father has had a substantial income but is now unemployed – where the mother is in full time employment – where the mother and the children will not suffer hardship if leave is not granted– where leave to file application out of time is not granted
Legislation: Family Law Act 1975 (Cth) ss 44, 60B, 60CA, 60CC, 90SM
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Althaus v Althaus (1982) FLC 91-233
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Donnell & Dovey (2010) FLC 93-428
Edmunds & Edmunds (2018) FLC 93-847
Emerald v Emerald [2018] FamCAFC 217
Frost & Nicholson (1981) FLC 91-051
Gadzen v Simkin [2018] FamCAFC 218
Hall v Hall (1979) FLC 90-679
Mulvany & Lane (2009) FLC 93-404
Sharp v Sharp (2011) 50 Fam LR 567
Whitford and Whitford (1979) FLC 90-612
Division: Division 1 First Instance Number of paragraphs: 78 Date of hearing: 10-11 May 2021 Place: Melbourne Solicitor for the Applicant: In Person Counsel for the Respondent: Mr Puckey QC Solicitor for the Respondent: Lander & Rogers ORDERS
MLC 14446 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BARNHAM
Applicant
AND: MR TIMBRELL
Respondent
ORDER MADE BY:
MACMILLAN J
DATE OF ORDER:
14 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Father and Mother have equal shared parental responsibility for the children of the relationship, X born … 2009, Y born … 2011 and Z born … 2011 (“the children”).
3.The children spend time with the Mother during school terms as follows:
(a)In the event that the Mother's residence is within a 30 minute drive of the children’s school(s) in alternate weeks with changeover to take place at 3.30 pm each Monday in accordance with paragraph 15 of the orders herein or as may be otherwise agreed in writing;
(b)In the event that the Mother's residence is not within a 30 minute drive of the children’s school(s) from the conclusion of school Friday (or 3.30 pm if not a school day) until 5.00 pm Sunday, or as may be otherwise agreed in writing.
4.The children live with the Father at all other times during school term.
5.The children spend the first half of the school term holidays commencing at the conclusion of school until 3.30 pm on the day that is the midpoint of the said school term holidays with the Mother.
6.During the long summer school holiday period, the children live with each of the Father and the Mother for half of such time, as follows:
(a)with the Mother:
(i)for the first half of the 2021/2022 holiday period and each alternate year thereafter from the conclusion of school until 3.30 pm on the day that is the midpoint of the said holiday period and thereafter the children live with the father until the conclusion of the school holidays; and
(ii)for the second half of the 2022/2023 holiday period and each alternate year thereafter concluding at 5.00 pm on the last Friday of the said holiday period.
(b)with the Father:
(i)for the second half of the 2021/2022 holiday period and each alternate year thereafter from 3.30 pm on the day that is the midpoint of the said holiday period until the conclusion of the school holidays; and
(ii)for the first half of the 2022/2023 holiday period and each alternate year thereafter from the conclusion of school until 3.30 pm on the day that is the midpoint of the said holiday period.
7.For Christmas, in the event that both parties will be in Melbourne (and not overseas pursuant to paragraph 21 of the orders herein), the children spend time with each of the Father and Mother as follows:
(a)With the Mother from 1.00 pm on Christmas Day until 1.00 pm Boxing Day if it is an even numbered year; and
(b)With the Father from 1.00 pm on Christmas Day until 1.00 pm Boxing Day if it is an odd numbered year; and
(c)Otherwise, in accordance with paragraph 6 of the orders herein.
8.For Easter, if not during school term holidays, the children spend time with each of the Father and the Mother as follows:
(a)With the Mother:
(i)from 12 noon on Good Friday until 12 noon on Easter Sunday in 2022 and each alternate year thereafter; and
(ii)from 12 noon on Easter Sunday until 5.00 pm Easter Monday in 2023 and each alternate year thereafter; and
(b)With the Father:
(i)from 12 noon on Easter Sunday until 5.00 pm Easter Monday in 2022 and each alternate year thereafter; and
(ii)from 12 noon on Good Friday until 12 noon on Easter Sunday in 2023 and each alternate year thereafter;
9.In the event that the children would not normally be in the Father's care for the Father's birthday, they are to be returned to his care from 3.30 pm on his birthday until 9.00 am the following day.
10.In the event that the children would not normally be in the Mother's care for the Mother's birthday, they are to be returned to her care from 3.30 pm on her birthday until 9.00 am the following day.
11.For the children's birthdays:
(a)in the event that the children would normally be in the Mother's care, they are to be returned to the Father's care from 3.30 pm until 6.00 pm if the birthday falls on a school day or from 12.00 noon until 5.00 pm if the birthday falls on a non-school day; and
(b)in the event that the children would normally be in the Father's care, they are to be returned to the Mother's care from 3.30 pm until 6.00 pm if the birthday falls on a school day or from 12.00 noon until 5.00 pm if the birthday falls on a non-school day.
12.For Mother's Day, in the event that the children are not already in the Mother's care, they are to be returned to her care by 5.00 pm on the day before Mother's Day until 5.00 pm Sunday, or as may be otherwise agreed in writing.
13.For Father's Day, in the event that the children are not already in the Father's care, they are to be returned to his care by 5.00 pm on the day before Father's Day until the commencement of school or 9.00 am the following day.
14.When the children are in their care, each of the Father and the Mother is to facilitate the other parent's communication with the children by telephone between 5.00 pm and 5.30 pm each Wednesday and Sunday as well as to initiate such communication with the children and the other parent at all further and other reasonable times that the children, or any of them, shall request.
15.Changeovers take place at the children's school(s) however when it is not a school day, changeovers take place at the Location C (in Suburb D) or such other alternative location as may be agreed upon by the parties from time to time in writing.
16.The Father and the Mother be and are hereby restrained from entering the home of the other without prior consent in writing to do so.
17.Neither the Father nor the Mother is to leave the children (or any of them) unsupervised for a period of not more than three (3) hours.
18.In the event of an emergency requiring either the Father or the Mother to leave the children, or any of them, unsupervised for more than three (3) hours duration, the parent in whose care the children would normally be is to offer the other parent the first right of refusal to care for the children, or any of them, during such period.
19.Within seven (7) days of a request by either party to the other, the Father and the Mother shall do all such acts and things and sign all such documents as may be necessary or required to renew or obtain British, New Zealand and/or Australian passports for the children or any of them, including signing and returning to the other parent all passport application documents and consent forms and any other associated documents that may be required AND in the event that the Mother fails or refuses to comply with this paragraph then the Father be allowed by this Order to apply pursuant to section 11 of the Australian Passports Act 2005 (Cth) to permit the renewal and/or issue of an Australian passport for the children without requiring the consent of the Mother with the Court hereby being satisfied that such order is in the children's best interests.
20.The Father shall retain possession of the children's passports and release said passports to the Mother for the purpose of overseas travel pursuant to paragraph 21 of the orders herein, with the Mother to return the passports to the Father via the children at the end of any overseas trip.
21.Both the Father and the Mother be at liberty to travel interstate and/or internationally with the children during times that the children are in their care pursuant to these Orders provided that:
(a)The travelling parent notify the other 30 days prior to any proposed international travel and provide the other parent with an itinerary, e-tickets (return) and details of the children's accommodation and contact numbers for the duration of the travel; and
(b)The travelling parent notify the other at least 48 hours prior to any proposed interstate travel and provide the other parent with an itinerary, e-tickets (if applicable) and details of the children's accommodation and contact numbers for the duration of the travel;
(c)Such travel is to occur within periods the children are scheduled by these orders to be in the travelling parent's care, save for the Christmas time provided in paragraph 7(a) of the orders herein which is suspended to allow the Father to travel to the United Kingdom if he so wishes and in paragraph 7(b) of the orders herein which is suspended to allow the Mother to travel to New Zealand if she so wishes.
22.In the event that the children or any of them suffer any medical emergency or require emergency medical treatment, the parent with whom the child/children is/are with at the time notify the other parent as soon as practicable of the said medical emergency or treatment and within not more than 12 hours including contact details of the medical practitioner(s) upon whom the child/children attended and details of any diagnosis or treatment plan including any medication prescribed.
23.The Father and the Mother be and are hereby restrained from:
(a)Denigrating the other party, members of the other party's family or the other party's partner to or in the presence or hearing of the children or permitting the children to remain in the presence or hearing of any other person so doing; and
(b)Discussing these proceedings to or in the presence or hearing of the children or permitting the children to remain in the presence or hearing of any other person so doing; and
(c)Physically chastising the children or any of them or allowing any other person to do so.
24.The Father and the Mother do all such acts and things as may be necessary to keep the other fully informed at all times, and in at least forty-eight (48) hours, of any changes to:
(a)The address at which the children are living with them;
(b)Their residential and postal address; and
(c)Their mobile telephone number(s) and email address.
25.The parents ensure insofar as in reasonably practicable that the children attend their usual extracurricular activities during the period in which they are in their respective care.
26.The Father and the Mother forthwith each participate in and complete a post-separation parenting program for the purposes of enhancing their understanding of the benefit to the children in maintaining an ongoing relationship with the mother and the father following separation.
27.As soon as is reasonably practicable, the Father and the Mother both attend upon the children's treating general practitioner(s) and/or Paediatrician(s) for further assessment and referral (if necessary) to assist with respect to the children's challenging behaviours given their diagnosis of having Attention-Deficit/Hyperactivity Disorder and possibility of being on the Autism Spectrum.
28.The Mother’s Application for leave to be granted to file out of time for property and/or spousal maintenance orders pursuant s 44(6) of the Family Law Act 1975 (Cth) is hereby dismissed.
29.All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.
30.All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barnham & Timbrell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MACMILLAN J
When the mother commenced proceedings in the Federal Circuit Court of Australia on 18 December 2019 and until she filed her Outline of Case shortly before the commencement of the final hearing she had been seeking orders permitting her to relocate to New Zealand with the children. And, although the mother sought leave out of time to apply for both property settlement and spousal maintenance, the key issue the Court was required to determine was whether the children should move to Suburb B and live with the mother or whether they should remain living in Suburb D and live primarily with the father.
BACKGROUND
The mother was born in New Zealand and is 43. The father was born in the United Kingdom and is 47. The parties met in London in 2000 and moved to Australia in 2006. The parties were in a de facto relationship for approximately fourteen years before separating in March 2014.
There are three children of the relationship all of whom were born in Melbourne, X born in 2009 and is 12, and twins Z and Y both in 2011 and are 9 (“the children”).
The eldest child X has been diagnosed as having Attention-Deficit/Hyperactivity Disorder (“ADHD”). Y has also undergone an ADHD assessment and although at the time of the final hearing the parties were awaiting the formal diagnosis they both accepted that it is likely that Y will be diagnosed with ADHD. The children are otherwise in good health.
Until April 2021 the father was employed in a high level management role with a large resources company. At the time of the final hearing he was still unemployed. Approximately two to three months before the final hearing the mother commenced full time employment.
The father has re-partnered and lives with his new partner. His partner’s children spend each alternate week with them. At the time of the hearing the mother did not have a partner.
Following separation and until March 2018 the father and mother were able to agree upon arrangements for the children’s care without the need for parenting orders or there being any proceedings. During this period the children lived primarily with the mother and spent time, including overnight time with the father. This continued until 17 April 2018 when the father received an email from the mother advising him that she had decided “to move to New Zealand” with the children and that although he was due to pick them up from school on 18 April 2018 that she and the children had already left Australia. Thereafter the father invoked his rights of custody pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and on 23 July 2018, orders were made by the Family Court of New Zealand for the return of the children to Australia. The father travelled to New Zealand to collect the children on 29 July 2018 and they were in his care following their return to Australia. The mother remained in New Zealand until mid-December 2018. The parties participated in a mediation following the mother’s return to Australia agreeing upon a gradual increase of the children’s time with the mother intended to lead ultimately to a week about arrangement by mid-March 2019. The father deposes that the children continued to live with him almost exclusively until late February 2019 but that by April 2019 were spending week and week about with each of them. The week and week about arrangement is ongoing.
HISTORY OF PROCEEDINGS
In her Application for Final Orders filed on 18 December 2019 the mother sought sole parental responsibility, that the children live with her in New Zealand and that the father pay her $100,000 by way of litigation funding. She also sought leave to file an application for a property settlement out of time. The mother filed a Notice of Risk of Abuse and sought orders for the preparation of a section 67Z Report by the Department of Health and Human Services (“the Department”), that the father be assessed by a psychologist and that he undergo drug and alcohol screening. On 23 January 2020 the father filed a Response to the mother’s application seeking that the mother’s application be dismissed and that the parties continue to have equal shared parental responsibility for the children.
The matter was transferred to the Family Court of Australia (“Family Court”) on 4 February 2020 and on 19 May 2020 Senior Registrar Field made orders that the mother’s application for leave to file an application for a property settlement and spousal maintenance out of time pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”) be adjourned for hearing by a Judge.
At 2.25 pm on 20 July 2020 the father received a text message from the mother advising as follows: “Mr Timbrell, the boys are staying in my care. I advise you to get your lawyer to contact my lawyer – please do not contact me directly. Ms Barnham”. The children were due to be returned to the father’s care at 3.30 pm that day. On 22 July 2020 the father filed an Application in a Case seeking the return of the children to his care. The matter was listed for hearing on 4 August 2020. The mother filed answering material on the morning of the hearing asserting that there had been physical abuse, family violence and that the father had drug and alcohol abuse issues. Notwithstanding the allegations made by the mother McEvoy J made orders that the children be returned to the father’s care by 3.30 pm that day and that they live with him until Monday 10 August 2020 before resuming the week about arrangement with changeover to take place at the children’s school or Suburb F Police Station if not a school day. The mother was also ordered to pay the father’s costs on a party-party basis fixed in the amount of $4,979.
The matter was listed for further mention before McEvoy J at 4.00 pm the same day after the mother’s solicitor advised the father’s solicitor that despite his Honour’s orders the mother would not be returning the children to the father’s care. At that hearing the father sought a recovery order pursuant to s 67Q of the Act and McEvoy J subsequently ordered that the children be returned to the father’s care by 6.30 pm that evening and made a recovery order which he directed lie in the Registry until 10.00 am the following day giving the mother the opportunity to voluntarily return the children. The children were returned to the father’s care shortly before 10.00 am the following day.
On 18 December 2020, the mother filed a further Amended Application for Final Orders seeking in addition to her original application orders pertaining to passports (including both New Zealand and British Passports for the children) and outlined the property orders that she sought as follows:
(1)The father pay $7,500 per month in spousal support until 2025;
(2)A superannuation split of 75/25;
(3)The father retain the Motor Vehicle 1;
(4)The father pay $15,000 to cover the cost of her motor vehicle; and
(5)The father pay $15,000 in relocation costs.
The mother also sought interim orders that the children live with her until the father completed six months of hair follicle drug testing, undertake a PPP Parenting Program, complete a Men’s Behavioural Change Course, attend appointments with and follow the treatment recommendations of his psychologist. In addition that the children be assessed by a psychologist, that the children be independently represented and that the father spend supervised time with the children at a family contact service as agreed with the mother. Although the mother’s application for leave to file her application for property settlement and spousal maintenance out of time was listed for hearing before a Judicial Registrar, the matter could not proceed as the Judicial Registrar had previously acted for one of the parties. As the matter had by this time been allocated to my docket this application was consolidated with the other applications awaiting a final hearing.
DOCUMENTS RELIED UPON
The mother relied on the following documents in support of her case:
(1)Amended Initiating Application filed 18 December 2020;
(2)Affidavit of Ms Barnham filed 30 March 2021;
(3)Response Affidavit filed 22 February 2021;
(4)Notice of Risk filed 12 February 2021;
(5)Financial Statement of Ms Barnham filed 3 May 2021;
(6)Affidavit of Ms G filed 30 March 2021;
(7)Affidavit of Ms J filed 30 March 2021; and
(8)Affidavit of Ms H filed 30 March 2021.
The mother also sought leave to rely on her Affidavits filed 12 October 2020 and 23 March 2021. This was not opposed.
The father relied on the following documents in support of his case:
(1)Amended Response to Initiating Application filed 12 October 2020;
(2)Affidavit of Mr Timbrell filed 29 January 2021;
(3)Financial Statement of Mr Timbrell filed 29 January 2021; and
The parties both relied upon the s 67Z reports from the Department dated 13 January 2020 and 16 March 2021 and the Family Report of Mr K (“Mr K”) dated 28 April 2021.
Both the father and mother were cross examined. The mother’s other witnesses were not required for cross-examination and neither party required Mr K for cross-examination.
The problem with the wife’s case was not so much that she deliberately tried to mislead the Court but that her evidence was based upon her version of the history of the relationship and relevant events in circumstances where the other evidence did not support that version. The mother had great difficulty acknowledging the obvious contradictions in her evidence and her case and generally avoided answering questions and tended to disregard evidence which did not support her case. One example was the way in which the mother avoided the evidence of what the children had told Mr K about where they wanted to live and in particular whether they were fearful of the father. The father on the other hand was a good witness and made appropriate concessions when matters were put to him by the mother in cross examination. In all of the circumstances if there is a dispute between the evidence of the father and the mother, absent of other evidence which supports the mother’s evidence, I prefer the father’s evidence.
PARENTING PROCEEDINGS
Legal Principles
The mother’s proposal now being a move to Suburb B this is strictly speaking not a relocation case. In any event relocation cases are not a specific category of cases and as in all parenting cases the paramount consideration is the best interests of the child or children the subject of the proceedings (s 60CA of the Act).
The objects of this part of the Act and the principles underlying those objects found in ss 60B(1) and (2) of the Act being to ensure that the best interests of the child or children the subject of the proceedings are met by:
(a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The Court in determining what orders will be in a child’s best interests must consider the matters in ss 60CC(2) and (3) of the Act. Pursuant to s 60CC(2A) of the Act when considering the matters in s 60CC(2), the Court must place greater weight on the need to protect a child from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence (s 60CC(2A)).
In Donnell & Dovey (2010) FLC 93-428 at [103], the Full Court of the Family Court of Australia (“Full Court”) described the s 60CC considerations as:
“…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another”.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ observed as follows:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Original emphasis)
The facts of each case are different and in these circumstances as referred to by the Full Court, some of these s 60CC considerations will be of more relevance than others having regard to the particular circumstances of the case.
The Court must apply the presumption in favour of equal shared parental responsibility unless it is satisfied there are reasonable grounds to believe that a parent has abused the child the subject of the proceedings or another child of that parent’s household at the time or engaged in family violence. That presumption can be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the parents to share parental responsibility. If the presumption does apply or the Court is otherwise satisfied that it is in the child’s best interests and makes an order for equal shared parental responsibility, then it must consider whether it is in the child’s best interests and reasonably practical to spend equal time with each parent or, if not equal time, whether it is in the child’s best interests and reasonably practical for the child to spend substantial time with each parent.
Abuse and Family Violence
In her Affidavit filed 30 March 2021 the mother deposed to a history of family violence perpetrated by the father. She described being subjected to physical abuse early in their relationship and gave an example of an incident in London when she said the father pinned her against a wall and punched a hole in the wall above her head. Her explanation for having unilaterally relocated to New Zealand with the children was that she “fled with the three children….to escape family violence which included financial abuse which was being inflicted upon myself and the children by the respondent”. The mother further deposed that “throughout the relationship I was always belittled and suffered from emotional abuse by the respondent”. The mother also deposed generally to a history of the father having physically abused the children and his aggressive behaviour in their presence which in her view was the cause of the children’s aggressive behaviour and what she described as them self-harming.
Although the mother did provide some examples of the alleged abuse of the children and the father’s aggressive behaviour, the father denies all of the mother’s allegations and it is his case that the mother did not make any allegations of family violence or abuse of the children until she was required to file an affidavit in the Hague Convention proceedings and notwithstanding her email to the father that the reason for her relocation was the “lack of support emotionally and financially”. Although the father conceded that he and the mother did argue and that the children may have been exposed to those arguments, he otherwise disputes the allegations of family violence and abuse. The father also disputes, and I accept his evidence, that the two examples of the children self-harming referred to by the mother were in fact accidents not self-harm.
The mother having filed a Notice of Risk of Abuse, the Department prepared a s 67Z report. In that report, dated 13 January 2020, the Department described two notifications made in 2019 relating to concerns for the children’s safety in the father’s care, the children being exposed to a long family law battle and the father smacking X and placing his hands around his throat, both of which were closed at the Intake and Assessment phase. The Department in that report said as follows:
Other concerns have related to Mr. Timbrell hurting the children however when Victoria Police conducted a welfare check and spoke with the children they did not raise any concerns residing with their father. Also, concerns that Mr. Timbrell hit X with a remote control. Victoria Police, Sexual Offences Child Investigation Team (SOCIT) attended X’s school. An interview occurred and the children made no disclosures of any physical discipline by their father.
Under the Summary of Current Protective Concerns and Outcome the Department reported as follows:
On 9 January 2020 the Department of Health and Human Services received a report in relation to X aged 10 and 8 year old twins Y and Z. The concerns were in relation to the safety and wellbeing of the children in the care of their father Mr. Timbrell. It has been reported that Mr. Timbrell has hit the children with objects, spat in their faces and has held one of them by the throat. There are concerns that the children are regularly beaten, berated and psychologically abused by Mr. Timbrell. The mother Ms. Barnham is also said to be a victim of family violence perpetrated by Mr. Timbrell, and also that Mr. Timbrell may suffer from mental health.
The report outlines concerns that are consistent with Child Protection history. Regarding the concerns relating to Mr. Timbrell hitting the children with objects and grabbing one by the throat, along with family violence between the parents, this has previously been reported to and assessed by Child Protection.
There is no new information that would indicate that the children are at increased risk of harm.
The matter remained at the Child Protection Intake and Assessment phase and closed on the 13 January 2020.
On 12 February 2021 the mother filed a further Notice of Child Abuse Family Violence or Risk and the Department prepared a further s 67Z report. This report dated 16 March 2021 is also in evidence before me. In that report the history was summarised as follows:
Five reports between February 2019 and February 2021 have closed that [sic] the Intake phase. Reported concerns have related to allegations of family violence by Mr. Timbrell against Ms. Barnham, Mr. Timbrell hitting X with a television remote, hit the other children with objects, spat in their faces and held one of them by the throat, Mr. Timbrell’s mental health issues, Mr. Timbrell not provided adequate supervision of the children, and there being a custody dispute between Mr. Timbrell and Ms. Barnham with the children residing primarily with Mr. Timbrell. SOCIT interviewed the children in response to allegations of physical and emotional abuse by their father and no disclosures were made.
And under the heading Summary of Current Protective Concerns and Outcome the report said as follows:
Concerns have been raised alleging drug use by Mr. Timbrell and him threatening Ms. Barnham on the phone.
The reported information is largely historical and does not indicate that the children are at significant risk in Mr. Timbrell’s care. Previous concerns have related to Mr. Timbrell’s care of the children however nil concern have been raised by the children’s schools regarding their health, presentation, emotional wellbeing and development. Mr. Timbrell has not been the subject of a reported incident of family violence since September 2019, the nature of which related to the parents standing too close in proximity at child hand over resulting in a reported breach of Intervention Order. It appears that there is ongoing disagreement between Mr. Timbrell and Ms. Barnham about in which parent’s primary care they should reside. The children are of an age where they can contribute to this process and disclose any worries or concerns that they may have in Mr. Timbrell or Ms Barnham’s care. There is not a role for Child Protection.
Although X, when interviewed by SOCIT, did not report any concerns about being in the father’s care, when interviewed by Mr K he said that in the past the father had thrown a remote at his head. However he also said that his mother had behaved in a similar way. And although he described his father as having pinned him against a wall some two years earlier, he also said that his father’s behaviour had changed a lot and that all physical chastisement had ceased. Mr K reported X as having also said that “he experiences anger that he screams, shouts, swears, punches and approximately a year ago even tried to hit his father.”
Mr K reported that Y told him that he had been told by the mother that he was to “talk about what happens” and the he had been told to tell Mr K that “his father can become frightening, but he was uncertain what actually occurs.” He also said that the father “used to hurt us but not anymore”. He also described X as having hit and pushed both his parents. When Z was asked by Mr K about the issue of discipline he said that if he was to misbehave the father might tell him off and that in the past he would shout. He also said that there was nothing he “disliked” about either parent and he did not see either the father or the mother as being stricter.
Although the mother submitted in her final address that she did not want to put the children through anymore family violence or expose them to further conflict, having considered all the evidence, I am not satisfied that this is an issue in this case with respect to either the mother or the children. The mother also told Mr K and acknowledged during cross examination that she had relocated to New Zealand primarily because of financial concerns after the father reduced the child support he had been paying not because of family violence. And, although the mother referred repeatedly in her evidence to the ongoing conflict and being on edge when she leaves the house, because in the past the father has had his friends record her activities, she did not adduce any evidence in relation to these assertions.
The mother, albeit somewhat reluctantly, did concede in cross-examination that some of the children’s behavioural issues might be associated with the disruption caused by her unilateral decision to relocate with them to New Zealand however, irrespective of that concession, it remained her case that their behaviour was learned behaviour based upon their experience of the father’s behaviour. In particular the mother described, both during her interview with Mr K and in cross-examination, having difficulty with the children’s behaviour following their return from the father’s care. However, as Mr K pointed out, both the father and mother describe the children’s behaviour when in their respective care in similar terms which suggests that there are other possible causes for their behavioural issues including X and Y’s likely diagnosis of ADHD and the father and mother’s different parenting styles.
In all of the circumstances I am satisfied that the children are not at risk of any physical harm or abuse in the father’s care. Although I am also satisfied that the mother would not physically harm the children I do have concerns about her parenting capacity, in particular her ability to provide for and prioritise the children’s emotional and psychological needs.
The Parties’ Proposals
Although as previously referred to this is strictly speaking not a relocation case, the fact that both parties agreed that the children’s commute to and from school should not be more than a 30 minute drive each way had significant impact on their proposals and ultimately the Court’s determination. The mother proposed that she and the children move to Suburb B, and on that basis that the children attend school in Suburb B, the consequence of that move being that the children would spend alternate weekends with the father rather than the current week about regime. The mother proposed that the children spend time with the father from 6.00 pm Friday until 6.00 pm Sunday each alternate weekend and have dinner with him on a weeknight each alternate week. The mother also sought orders that the children spend alternate Easter Holidays with each parent, half of the other school term holidays, that the Christmas holidays be shared on a three year rotation (one year in Australia, one year in the United Kingdom with the father and one year in New Zealand with the mother) and on special occasions such as Mother’s and Father’s Day and birthdays. She also proposed the usual orders with respect to the provision of school information and the parties attending school and/or extra-curricular activities.
The mother also sought a raft of ancillary parenting orders including, inter alia, an injunction requiring that:
(1)All communication between the parties be in writing; and
(2)The parties be restrained from:
(a)being within 5 meters of each other;
(b)entering each other’s properties;
(c)denigrating one another or one another’s family members to or in the presence of the children;
(d)exposing the children to alcohol abuse or drugs, or exposing the children to other adults in their house who are excessive drinking or drug taking;
(e)filming or recording each other during any occasion;
(f)providing alcohol to the children until they are 18 years of age;
(g)removing the children’s phones from them;
(h)interfering in the children’s phone call with the other parent;
(i)exposing the children to sexual behaviour or having people in their house who will expose the children to sexual behaviour or exposing the children to inappropriate content from their own devices, such as pornography;
(j)communicating significant decisions through the children and/or discussing conflict relating to the children with or in the presence of the children;
(k)leaving the children at home unattended for a period longer than 30 minutes; and
(l)physically disciplining the children.
The father’s preferred position was that the mother should obtain alternative accommodation within 30 minutes drive of Suburb D and the children’s current schools allowing X to commence his secondary education at L School and the other children to continue at their current school. And on that basis continue to spend week about with each parent. However in circumstances where the mother’s case was that she intended to move to Suburb B with or without the children it was his proposal that the children live primarily with him and spend alternate weekends with the mother. Although he proposed that on that basis the children should spend from after school on Friday until the commencement of school on the Monday, the mother’s proposal was that she would return the children to the father’s care at 6.00 pm on Sunday evening. The father also proposed that the children spend the first half of the school term holidays with the mother and the second half with him, that they spend half the long summer holiday period with the father and the mother on an alternating basis with the mother to have the first half in 2021/2022. He also proposed that the children spend from 1.00 pm on Christmas Day until 1.00 pm on Boxing Day with the mother in even numbered years and the father in odd numbered years such time to be suspended to allow the father to travel to the United Kingdom and the mother to travel to New Zealand during their first half of the long summer holiday period. The father also sought orders for Father’s Day and Mother’s Day and special occasions.
Both the father and the mother agreed, although they proposed different times, that each parent facilitate the other parent communicating with the children for half an hour on two occasions during the week the children are with the other parent, currently Wednesday and Sunday, as well as at other reasonable times at the children’s request.
The father similarly sought various ancillary orders which although somewhat differently worded were not unlike some of the orders sought by the mother including that neither parent leave the children unsupervised for more than three hours, that in the event of an emergency requiring either parent to leave the children for more than three hours that the other parent is afforded the first right of refusal to care for the children and that each parent participate in and complete a post-separation program.
The father further proposed that he and the mother continue to have equal shared parental responsibility for the children. The mother’s proposal was that if the children lived with her she should have sole parental responsibility or that if they lived with the father that she and the father should have equal shared parental responsibility.
Not surprisingly given the history of this matter the father also sought orders with respect to the children’s passports and that in the event that either party wished to travel overseas with the children the travelling parent provide notice to the other parent 30 days prior to the proposed international travel together with a detailed itinerary to include details of accommodation and proof of a return ticket and at least 48 hours prior to any proposed interstate travel. Further, that any proposed travel occur within the periods the children are scheduled to be with the travelling parent save for Christmas time. The mother did not oppose the father holding the children’s passports.
Children’s Wishes
I accept, as reported by Mr K, that the children’s wishes were inconsistent, X indicating that he wanted to spend more time with the mother and would like to move to New Zealand, Y that he would prefer a two week about arrangement and was undecided about moving to New Zealand and Z wanting to continue the status quo. I also accept as observed by Mr K that given the children’s ages and their particular needs they are unlikely to have understood the effect a move to New Zealand would have had upon their relationship with the father. In circumstances where the mother only referred in very general terms to the possibility of moving to the outer suburbs of Melbourne it is also reasonable to infer in these circumstances that when the children met with Mr K they did not know about the mother’s proposal to move to Suburb B or even if they were aware of it in general terms did not have a clear understanding of the detail of what she was proposing. There is nothing in Mr K’s report to suggest he discussed the mother’s proposal to move to an outer suburb with the children. Even if the children did know then or now know about the proposed move to Suburb B I am satisfied that they would not really understand the ramifications of such a move or how that might impact upon their time with the father or their lives generally. On this basis although I have had regard for their wishes I also do not consider that I should afford their wishes significant weight.
However even if I am satisfied that the children’s wishes should not carry much weight, what they told Mr K about the father and mother, their relationships with them and the current arrangements for their care is helpful. Mr K said in relation to X as follows:
73. …Overall, he saw that such a parenting arrangement was positive, but acknowledged it became annoying at times when he may forget whose house he is to go to after school.
74. X was asked to identify positive qualities regarding the status quo, and said that he enjoyed sending time with both parents and that he finds the status quo easier as his parents are now divorced. The negative issues with respect of the status quo are that there are differences at each household such as the toys and different belongings. Overall, he rated the status quo as a 7½/10 to indicate the extent to which he enjoyed such. …
…
78. Whilst reflecting upon his relationship with both parents, X identified positive qualities or things he liked stating that his mother is nice, calm, she allows him to do more than his father, such as allowing him to go places. However, when asked whether there was anything he disliked or sought to be different regarding his mother, X said he would like his mother to be happier. As to his father, he identified positive qualities stating that his father has changed a little, he allows him to have greater access to things and he signed him up to play football. As to what he wished to be different, X said he would like his father to change more because he still becomes angry and his shouting can be excessive, but X acknowledged sometimes he can understand his father’s reasoning for becoming angry.
In relation to Y Mr K said in his report as follows:
Whilst reflecting upon his relationship with both parents somewhat further, Y identified positive qualities regarding his mother stating that she enjoys spending time with the children and takes them places where they can ride their bicycles. He said there was nothing he disliked or wished to be different regarding his mother. When the same question was posed regarding his father, he said that he enjoyed his father playing board games with the children and nothing else. However, when asked whether he wished there was anything different, Y said he would like his father to listen to him better.
Finally in relation to Z Mr K said as follows:
91. Z also saw [sic] that he lives with both parents in a week-about arrangement and overall, saw that he, “feels it’s pretty fair”. He identified positive qualities stating that there are differences within each parent’s respective households and most importantly, there was nothing negative or that he disliked regarding the status quo.
…
95. Whilst reflecting on his relationship with both parents, Z identified positive qualities or things he liked about his mother, stating that she is nice and fair. As to his father, Z saw that sometimes he is carefree and allows the children to do a lot and he too is nice. Most importantly, Z advised there was nothing he disliked or wished to be different regarding either parent.
Mr K observed the children with both the father and the mother and described that interaction as follows:
The observations of the interactions between Mr. Timbrell and all three children appeared positive and no issues of concern were noted. Such observations were suggestive of the notion that a close, warm and loving relationship exists between the children and their father.
Having observed the children with the mother he said as follows:
The observations of the interactions between Ms. Barnham and all three children also appeared positive and no issues of concern were noted. Such observations were equally suggestive of the notion that a close, warm and loving relationship exists between the children and their mother.
Despite the history of this matter and the ongoing issues it was Mr K’s opinion that both the father and the mother “have much to offer their three children, and the children would fare best where there is opportunity for them to maintain regular time, a relationship and the involvement of both their mother and father, and this opportunity affords itself within the parameters of the status quo.”
Mr K’s views are consistent with the fact that, notwithstanding the mother’s preferred position is that the children should spend less time with the father, both the father and mother’s proposals support an ongoing relationship with them both. In all of the circumstances I am satisfied that the children have a meaningful relationship with both parents and that they now benefit and will continue to benefit from that relationship.
The Mother’s Case that she be Permitted to Move With the Children to Suburb B
In my view the way in which the mother put her case was full of contradictions. Mr K described the mother’s case that she be permitted to relocate to the New Zealand with the children as resting on two pillars. The first pillar being her struggle to establish secure accommodation for herself and the children and the second pillar being her concerns about the children’s unruly and aggressive behaviour which she attributes to the father’s behaviour. Although as submitted by the father, and conceded by the mother in cross-examination, the mother’s unilateral relocation to New Zealand was motivated by the father’s decision to reduce the child support he had been paying, the mother’s evidence in support of her move to Suburb B now suggests that there may have been other reasons motivating her unilateral relocation to New Zealand and similarly the move she now proposes to Suburb B. Further to that, her evidence and the way in which she puts her case leaves me with significant concerns not only in relation to her capacity and commitment to facilitating the children’s relationship with the father but also her insight or lack thereof as to the emotional and psychological needs of the children, her capacity to provide for those needs and her parenting capacity generally.
Counsel for the father submitted that this had always been a case about money rather than problems with the father’s care of the children, the current regime or the schools the children attend. Although there may be some force in that submission in my view the contradictions in the mother’s case suggest more complicated, albeit contradictory, motives. The mother’s case that she intends to move to Suburb B with or without the children highlights those contradictions in circumstances where she also says that she does not want to “put the children through more family violence”. And yet, it is the mother’s case that if the children are not permitted to move to Suburb B with her they will be spending even more time with the father. The way in which the mother put her case also ignored the evidence with respect to the children’s views about their relationship with each parent, the current regime, their schooling and the likely impact of the proposed move to Suburb B on their relationship with the father, their schooling and their general welfare. As submitted by the father there is no evidence of the children’s views of a move to Suburb B.
In my view the mother’s proposal to move to Suburb B was not well thought out and lacked substance. Although it was clear from the mother’s evidence that she had long standing and close friends in the Suburb D area, she had only one friend in Suburb B, someone she said she had met a matter of months prior to the hearing. The mother’s evidence with respect to the choice of schools and how the children would be cared for on those days when she could not work from home was also very unsatisfactory and suggested that the decision to move to Suburb B was a relatively recent decision and that she was not particularly familiar with the area. This is consistent with the fact that although the mother discussed the possibility of moving to an outer suburb with Mr K during her appointment with him on 29 March 2021, a little over a month before the final hearing, there is nothing in his report to suggest that they discussed the possibility of moving to Suburb B.
I am also satisfied that the mother had not given much consideration to the practicalities of the children’s care in circumstances where her employment is at least partially city based and that on those days that she is not working from home she would be away from approximately 7.00 am to 7.00 pm, and where there are limited options for before and after school care, particularly for X. This was also in circumstances where she had been critical of the father’s reliance on au pairs to assist him with the children’s care when he was at work and her evidence that the children do not like being in after school care. Although the mother somewhat reluctantly conceded that the children have experienced a lot of upheaval and disruption following her unilateral relocation to New Zealand, she seemed unable to acknowledge that her proposed move to Suburb B could also be disruptive for them. To the contrary she was dismissive of and minimised the possible impact of the move and the change of schools upon them. With respect to the impact of spending less time with the father it was her case that they would have a better relationship with him because he would cope better without the “day to day juggle of raising kids”.
Although it was put to the mother that even if accommodation in Suburb D is too expensive there are other suburbs in which she could live which would allow the children to spend week about with each parent and continue at their present schools, she was not prepared to consider any other option. The mother’s refusal to consider these options in my view demonstrated not only the contradictions in her case but a lack of insight into the particular needs of the children. One possible explanation being that the mother believed that the Court would not make orders which would result in the children living primarily with the father and by saying she would move to Suburb B with or without the children that the Court would have no option other than to adopt her proposal.
Although referring primarily to the mother’s proposal to move to New Zealand, Mr K also referred to her proposal that in the alternative she and the children to move to an outer suburb. In particular Mr K said as follows:
120. [It] is this Family Consultant’s assessment, it would not be in the children’s best interest to relocate with their mother internationally to New Zealand. The status quo, which is well-established, provides ample opportunity for the children to have the regular involvement of their mother and father in their young lives…. Presently, the children spend an entire week with each parent, where individually they attend to all the children’s education, social needs, behaviour and day-to-day care.
…
122. It is understood the children have continued attending the same primary school for the duration of their early education, and one of the reasons Mr. Timbrell opposed any move historically, was that he saw there was little reason to do so, and that such would unnecessarily disrupt/change the children’s stable education. A further issue of some concern, is that Ms. Barnham contends that if her application to relocate internationally is not accepted by the court, that she would need to move to the outskirts of Melbourne, implying that the children would need to change schools and there would be dramatic change in their lives anyway, in some way seeming to ‘force the courts [sic] hand’ regarding the future parenting arrangements. In this Family Consultant’s opinion, even if there is found to be a legitimate case that Ms Barnham is unable to readily afford her current rental accommodation in the long-term, perhaps moving up to half an hour’s drive at maximum from the children’s school, could provide some stability and assurance they could remain attended [sic] the same school. Whilst her position may be understood, from a child focused perspective, attempting to maintain stability for the children would be assessed as being in their best interests, particularly when considering the children’s additional and special needs.
Having heard the evidence of both the father and the mother, I accept Mr K’s opinion that the father appeared “somewhat better positioned to promote, facilitate and support the children’s relationship with their mother, when compared to Ms Barnham in this regard.” The mother’s proposal is difficult to understand and whilst I have no doubt that she loves the children the obvious explanation for her pursuing the case she has is that she is focused on her own needs rather than the needs of the children. I am satisfied that the father does have a good understanding of the children’s needs and will promote their relationship with the mother whatever decision she makes. So much so that he has left open the possibility of the mother changing her mind and finding accommodation within a 30 minute drive of the children’s schools so that the children can continue to spend a week about with each parent. Mr K referred to the challenge for the father and mother “to put their differences aside and genuinely elevate the best interests of the children, rather than perpetuating ongoing conflict”. I am satisfied that the father has demonstrated that he is child focused and able to prioritise the children best interests whereas the mother still faces that challenge.
In all the circumstances I propose to make the orders the father seeks including an order for equal shared parental responsibility. I have already found that I am not satisfied on the balance of probabilities that there are grounds to believe that the father has abused the children or engaged in family violence and I accept as submitted by counsel for the father that there is no evidence to support the mother’s assertions as to the ongoing conflict. In these circumstances I must apply the presumption that it is in the children’s best interests for the father and mother to have equal shared parental responsibility. The mother’s attitude to the father does give rise to questions about the ability of the parties to communicate for the purposes of exercising parental responsibility, however, I accept that although the party’s communication may not have always been optimal one way or another they have mostly been able to make the necessary decisions with respect to the children’s welfare.
In circumstances where I propose making an order for equal shared parental responsibility I must also consider whether it is the children’s best interests for them to spend equal time with both the father and the mother and if not equal time, substantial time with each parent. The difficulty in this case is that although I am satisfied that it would be in the children’s best interests to spend equal time with the father and the mother, as they do currently, the mother is opposed to the Court making orders in those terms and seeks much less time, and even if the children are living with the father, less than he is proposing. Although I am hopeful that the mother will, for the sake of the children’s welfare, reconsider and take the opportunity to continue the current regime as the father proposes both her attitude in relation to the father and her lack of insight into the needs of the children leaves me with little confidence that she will do so. There is also little utility in the circumstances in the Court making orders that the mother deliver the children to school on Monday morning although in my view that would be preferable. I am satisfied that the father will promote the children’s relationship with the mother and it is always possible for the father and mother to alter the arrangements by agreement.
As previously referred to, the parties sought many of the same orders albeit they were worded somewhat differently. In my view the evidence does not support many of the orders sought by the mother, such as the orders with respect to the children having access to social media, exposing the children to sexual behaviour in their respective households and not leaving the children at home for more than 30 minutes. Although there was reference to the father having left the children at home unattended, the mother’s proposal raised the possibility of the children being left unattended. In circumstances where it is the mother’s case that if the children are not permitted to move to Suburb B they will live primarily I am satisfied that he should be able to make decisions with respect to their welfare when they are in his care. It is also the case that many of the orders proposed by the mother will be of less relevance as the children mature. In these circumstances I propose to adopt the minute of orders proposed by the father.
PROPERTY PROCEEDINGS
Legal Principles
Section 44(5) of the Act provides as follows:
Institution of proceedings
…
(5) Subject to subsection (6), a party to a de facto relationship may apply for:
(a) an order under section … 90SM…
…
only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period).
(6) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a) hardship would be caused to the party … if leave were not granted…
(b) in the case of an application for an order for the maintenance of the party--the party's circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
(As per original)
The approach the Court applies in dealing with applications of this kind is well settled. [see: Whitford and Whitford (1979) FLC 90-612 (“Whitford”); Hall v Hall (1979) FLC 90-679; Althaus v Althaus (1982) FLC 91-233; Sharp v Sharp (2011) 50 Fam LR 567 (“Sharp”); Gazden v Simkin [2018] FamCAFC 218 (“Gadzen”); Emerald v Emerald [2018] FamCAFC 217 (“Emerald”); and Edmunds & Edmunds (2018) FLC 93-847 (“Edmunds”)].
The discretion to commence proceedings out of time is described by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551, is referred to by the Full Court in Emerald as follows:
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods…..The enactment of time limitations has been driven by the general perception that “[w]here there is a delay the whole quality of justice deteriorates.”
In determining if a party is prejudiced by leave being granted to commence proceedings out of time, the Court must ask whether that party “had no reason to expect” or was led to believe that no action would be brought (Emerald at [49]; Frost & Nicholson (1981) FLC 91-051). The Court must also give due consideration and weight to the intent of the legislation in that they must consider the length of the delay, the reasons for that delay, the hardship to the applicant and the strength of the applicant’s case.
The Court must first establish “hardship within the meaning of section…for the discretion to grant leave to arise” (Gazden at [30]). Hardship is described by the Full Court in Whitford (at 78,144) as:
…the hardship which would be caused to the applicant or a child of the marriage if leave were not granted. The loss of the right to institute proceedings is not the hardship, to which the subsection refers. It is with the consequences of the loss of that right, with which the subsection is concerned. The requirement, that the Court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the Court that the applicant would probably succeed, if the substantive application were heard on the merits. If there is no real probability of success, then the Court cannot be satisfied that hardship would be caused if leave were not granted. Further, the matter with which the Court is concerned is not whether the applicant or a child is suffering hardship, but the question is whether the applicant or a child would suffer hardship if leave were not granted. If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant or a child would suffer hardship if leave were not granted.
As per Evatt CJ in Althaus, this does not “require a detailed hearing on the merits to determine whether applicant’s claim will succeed” rather it is a question of whether there is “a reasonable claim to be heard.” There must be a prima facie claim that has reasonable prospects of success such that if hardship is established by the Court, granting leave out of time that hardship would be alleviated (Edmunds at [47]; Sharp at [18]).
In determining whether there is a real prospect of success the Court must consider whether at a glance it would be just and equitable to make a property settlement order following the breakdown of the de facto relationship.
It was accepted by the Full Court in Emerald (at [77-78]) that the test for granting leave out of time for spousal maintenance proceedings, as per the legislation, is different to that of property settlement proceedings out of time but that the Court does not need to “split off the maintenance part of the…application”.
The Parties Proposals
The mother seeks leave to file an application out of time for property settlement and spousal maintenance. Subject to leave being granted as set out in her Amended Initiating Application filed 18 December 2020 the mother sought orders for a 50/50 superannuation split of the father’s superannuation entitlements in both the United Kingdom and Australia, that the father pay her $2,000 per month in spousal maintenance until the children reach 18 years old, that he pay her a lump sum of $15,000 to cover the cost of her motor vehicle and $15,000 to cover her relocation costs, that the father keep the family car and that he remove her from the Timbrell Family Trust. In her Case Outline dated 4 May 2021 she sought orders that the father pay her a financial settlement made up of $141,645 of superannuation, $15,000 to cover her car and $16,344.50 for legal fees. The father opposes the mother’s application for leave to file an application for property settlement and/or spousal maintenance out of time.
The Mother’s Case
The main focus of the hearing was the parenting dispute and the mother adduced very limited evidence in support of her application for leave. Doing the best I can on the evidence before me and allowing for the fact that the mother was not legally represented, her case appears to be based primarily on her assertion that the father continues to have an exorbitant lifestyle and her evidence during cross-examination and her submissions in relation to her much more limited and difficult financial circumstances.
It was the mother’s case, in relation to why she had not filed an application for property settlement or spousal maintenance within the prescribed time that financial issues were always on the agenda. The mother relied upon two emails which she said demonstrated that this was the case which she put to the father in cross-examination. Although the father acknowledged that they had reached an agreement in relation to the parenting arrangements it was his evidence that he could not recall either negotiating or reaching an agreement with the mother other than in relation to periodic support for the mother whilst she was not working.
Although the emails support the mother’s assertion that the parties were discussing a possible financial settlement there is also reference in the email sent by the father to the mother on 12 September 2017 for the need to engage lawyers and have orders made. Whatever the outcome of their negotiations no orders were made. This is notwithstanding that there were proceedings after the mother relocated to New Zealand with the children and although the mother was not legally represented at the hearing before me she was legally represented at other times during those proceedings. I am not satisfied that the father and mother had reached agreement, even an informal agreement, in relation to a property settlement nor that any discussions they had would explain why the mother could not have and did not file an application for property settlement. Notwithstanding that both parties had legal representation and although they had not agreed upon any financial settlement the mother did not file an application seeking leave to apply for property settlement until December 2019. Nor does it explain, given the mother’s evidence that she relocated to New Zealand for financial reasons after the father reduced the financial support he was providing, why she did not at that time seek leave to apply for spousal maintenance out of time.
With respect to the proposed property proceedings it is also the father’s case, which is not disputed by the mother, and confirmed by the emails relied upon by the mother, that they had little or no property when they separated. Although it is common ground that at the time of separation the father had superannuation entitlements it is his evidence that he has continued to contribute to superannuation since separation, according to his evidence approximately $249,000 of the current balance being accrued post separation. In these circumstances it would not surprisingly be his case that if leave were to be granted these are contributions which he has made to the exclusion of the mother and for which he should be given credit. It is also common ground that the mother retained savings of $20,000 and their Motor Vehicle 1. Although the mother is largely silent as to her reasons for not filing an application for property settlement within the prescribed time it is reasonable to infer that it may have been because they owned very little property. And although it may be that the father was until recently in a better financial position the test is not simply a comparison of the parties’ respective financial positions.
In terms of what if any hardship the mother or the children would suffer if she were not granted leave I note that any superannuation split would unlikely be readily accessible to her and there appears to be no other property in relation to which the Court might make property orders. Finally in my view, as submitted by the father, he is entitled after some seven years to assume that he can make financial decisions without facing the prospect of litigation including making contributions to superannuation.
Pursuant to the orders I propose to make the children will likely be living primarily with the father. On that basis it would be difficult to see how the mother could successfully mount a case for spousal maintenance based upon her having responsibility for the care of the children of the relationship. Even if the mother does decide to continue the children’s current shared care regime as submitted by counsel for the father she is now in full time employment and I am satisfied based upon her evidence is unlikely to be able to demonstrate the requisite need for spousal maintenance. Even if the mother could establish that she has a need for spousal maintenance the father being unemployed arguably would not have the capacity to pay spousal maintenance.
In all of the circumstances I am not satisfied that the mother should have leave to file an application for either property settlement or maintenance out of time and propose to dismiss her application.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Macmillan. Associate:
Dated: 14 September 2021
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