BLASS & BLASS - [2018] FCCA 2474

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLASS & BLASS

[2018] FCCA 2474

Catchwords:
FAMILY LAW – PARENTING – Dispute about time the children aged 8 & 5 should spend with the husband – where the husband was violent to the children’s older half-siblings during the relationship – where the wife nevertheless agreed to an order for equal shared parental responsibility and proposed that the children spend regular unsupervised time with the husband – where the wife proposed that the time be quite restricted and include only one overnight each alternate week and very limited time during school holidays – whether the children would be at unacceptable risk of harm in the husband’s care and if not whether there are any other reasons which justify limiting the children’s time with the husband – orders made as proposed by the Independent Children’s Lawyer which provide for more time than the wife proposed but less than the husband proposed.

PROPERTY – Small pool with large superannuation component – order for the wife to be given first option to retain the home provided that she makes a payment to the husband – superannuation splitting order made.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA, 75, 79

Family Law (Superannuation) Regulations 2001

Cases cited:

Clauson & Clauson (1995) FLC 92-595

Cuneo & Cuneo (2006) FamCA 158
G & G (1984) FLC 91-582

Kennon & Kennon (1997) FLC 92-757

Mazorski & Albright (2007) 37 FamLR 518

MRR v GR (2010) HCA 4

Norbis & Norbis (1986) 161 CLR 513
Robb & Robb [1995] FLC 92-555

Applicant:

MR BLASS

Respondent:

MS BLASS

File Number:

NCC 2831 of 2015

Judgment of:

Judge Terry

Hearing dates:

20 & 21 June 2017, 8 September 2017

and 20 December 2017

Date of Last Submission:

20 December 2017

Delivered at:

Newcastle

Delivered on:

12 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr Bithrey

Solicitors for the Applicant:

Everingham Solomons Solicitors

Counsel for the Respondent:

Mr Kelly

Solicitors for the Respondent:

Michel & White Lawyers

Counsel for the Independent Children's Lawyer:

Mr Bateman

Solicitors for the Independent Children's Lawyer:

Emalene Gemmell Solicitor

ORDERS

PARENTING

The parents shall have equal shared parental responsibility for [X] born 2010 (“[X]”) and [Y] born 2013 (“[Y]”) (“the children”).
The children shall live with the wife.
The children shall spend time with the husband as follows:
(a)Commencing on 19 October 2018 and from the first school term in 2019 commencing on the second Friday of each school term, each alternate weekend from 3.30pm or the conclusion of school on Friday until 5.00pm on Sunday.
(b)On the Father’s Day weekend each year and if Father’s Day falls on a weekend when the children would otherwise be with the wife the children shall spend the Father’s Day weekend with the husband and the following weekend with the wife noting for the avoidance of doubt that this will result in the children spending two consecutive weekends with the husband.
(c)For three separate periods of four nights in the 2018 Christmas…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BLASS & BLASS

Details

AGLC: BLASS & BLASS [2018] FCCA 2474
Case: [2018] FCCA 2474
Decision Date: 12 October 2018

CaseChat Overview and Summary

In the matter of BLASS & BLASS, Judge Terry of the Federal Circuit Court of Australia considered disputes concerning both parenting arrangements for the parties' two young children and the division of their property. The parenting dispute centred on the amount of time the children, aged eight and five, should spend with the husband, particularly in light of the husband's past violent behaviour towards the children's older half-siblings. The property dispute involved a small pool of assets with a significant superannuation component.

The court was required to determine whether the children would be at an unacceptable risk of harm in the husband's care, and if not, whether there were other reasons justifying a limitation on their time with him. This involved balancing the children's benefit from a meaningful relationship with both parents against the need to protect them from harm. In relation to property, the court needed to make orders for the division of the matrimonial home and the parties' superannuation interests.

His Honour found that while the husband had engaged in significant verbal abuse and physical violence towards the older children and had subjected the wife to verbal abuse, there was no evidence that the subject children would be at risk of abuse, neglect, or family violence in either parent's care at the present time. The court noted that the wife's continued breastfeeding of the younger child beyond typical weaning ages suggested a reluctance to support the husband's relationship with the children, but acknowledged the complexity arising from the husband's past conduct. Ultimately, the court made parenting orders that provided for equal shared parental responsibility, with the children living with the wife and spending regular, albeit restricted, unsupervised time with the husband, reflecting a balance between the children's relationship with their father and their protection. Property orders were made, giving the wife the first option to retain the home upon payment to the husband, and a superannuation splitting order was implemented.

Orders

Orders of the court

PARENTING

The parents shall have equal shared parental responsibility for [X] born 2010 (“[X]”) and [Y] born 2013 (“[Y]”) (“the children”).

The children shall live with the wife.

The children shall spend time with the husband as follows:

(a) Commencing on 19 October 2018 and from the first school term in 2019 commencing on the second Friday of each school term, each alternate weekend from 3.30pm or the conclusion of school on Friday until 5.00pm on Sunday.

(b) On the Father’s Day weekend each year and if Father’s Day falls on a weekend when the children would otherwise be with the wife the children shall spend the Father’s Day weekend with the husband and the following weekend with the wife noting for the avoidance of doubt that this will result in the children spending two consecutive weekends with the husband.

(c) For three separate periods of four nights in the 2018 Christmas school holidays as agreed between the parties and failing agreement:

(i) From 10.00am on 21 December 2018 until 2.00pm on 25 December 2018.

(ii) From 10.00am on 3 January 2019 until 10.00am on 7 January 2019; and

(iii) From 10.00am on 17 January 2019 until 10.00am on 21 January 2019.

(d) For a period of 5 nights in the 2019 Term 1 school holiday period from 9.00am on 20 April 2019 until 9.00am on 25 April 2019.

(e) Thereafter in the Term 1, 2 and 3 school holidays each year:

(i) In even numbered years from 9.00am on the first Saturday of the holidays to 9.00am on the second Saturday; and

(ii) In odd numbered years from 9.00am on the second Saturday until 9.00am on the following Saturday.

(f) Commencing in the 2019 Christmas school holiday period and each year thereafter from 9.00am on Saturday until 9.00am on the following Saturday commencing on the 2nd and 4th Saturday of the holiday period.

(g) At such additional or alternate times as the parties may agree in writing.

Time pursuant to orders 3(c) and 3(d) shall only take place if the husband confirms to the wife in writing not less than seven days before the periods are due to commence that he has taken leave from his employment for the period the children are to spend with him.

Notwithstanding any other order the children shall spend the Mother’s Day weekend with the wife each year and if Mother’s Day falls on a weekend when the children would otherwise be with the husband the children shall spend the Mother’s Day weekend with the wife and the following weekend with the husband noting for the avoidance of doubt that this will result in the children spending two consecutive weekends with the wife.

Notwithstanding any other order the children shall spend time with each of the parents during the Christmas period as follows:

(a) In even numbered years:

(i) With the husband from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and

(ii) With the wife from 2.00pm on Christmas Day until 2.00pm on Boxing Day.

(b) In odd numbered years:

(i) With the wife from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and

(ii) With the husband from 2.00pm on Christmas Day until 2.00pm on Boxing Day.

These orders shall be sufficient authority for each parent to obtain (at their own expense) from the following all information relevant to the children’s care, welfare, development and medical treatment:

(a) The Principal of any school, pre-school or day care facility attended by the children or either of them class photographs and certificates, copies of correspondence, newsletters and school reports.

(b) Any treating health professional, copies of all reports, prescriptions, correspondence and referrals.

Each party is restrained from speaking badly of the other party in the presence or hearing of the children or either of them or from allowing the children or either of them to be in the presence or hearing of any third party who is speaking badly about either parent.

Communication Book

Unless the parties otherwise agree in writing, the husband and the wife must communicate with each other in relation to issues involving either of the children by a communication book, which each party will sign at changeover, with the parent who is delivering the children or either of them to the other parent to deliver the communication book at the same time to the other parent.

10.

Each of the parties are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent (or any member of the other parent’s household) in the communication book.

Dispute Resolution

11.

If the parties seek to discuss issues in relation to which they have equal shared parental responsibility, then unless the parties otherwise agree in writing, the parties shall both attend mediation at an approved Family Dispute Resolution provider listed on the Attorney-General’s Family Pathways website, with the cost of any such mediation to be paid equally by the husband and the wife.

12.

The wife and the husband must each:

(a) Keep the other advised, at all times, of his/her current residential address and contact telephone or landline and mobile number;

(b) Advise the other in writing of any change of address or contact telephone number(s) within seven (7) days of any such change;

(d) Authorise any medical practitioner upon whom the children or either of them may attend from time to time to communicate with the husband in relation to either child’s medical condition and/or requirements; and

(e) Ensure that, except for the purposes of [Y] obtaining urgent medical or dental treatment, or pursuant to the direction of the school, [Y] attends the pre-school on no less than three (3) school days.

PROPERTY

13.

Within 60 days of the date of these orders the wife shall:

(a) Do all acts and things required to discharge the mortgage registered in favour of Ms L over Property A being the whole of the land in Folio Identifier (omitted) (“the property”).

(b) Pay the husband the sum of $30,020.00.

14.

The wife shall thereafter indemnify the husband and keep him indemnified from liability for the mortgage and for all rates taxes and outgoings owing in respect of the property.

15.

If the wife fails to comply with order (13) the husband shall have the option of retaining the property provided that within a further 60 days he:

(a) Refinances into his sole name the mortgage secured over the property in favour of Ms L.

(b) Pays the wife the sum of $94,011.00.

16.

Contemporaneously with the husband complying with Order (15) the wife shall sign all documents and do all acts and things required to transfer to the husband the whole of her right title and interest in the property.

17.

If the husband fails to comply with Order (15) or gives the wife notice in writing prior to the expiration of the 60 days referred to in Order (15) that he does not wish to retain the property the parties shall forthwith do all acts and things and sign all documents required to sell the property and for that purpose:

(a) the property shall be listed for sale with a real estate agent agreed between the parties;

(b) in the event that the parties cannot agree on the nomination of such agent they shall jointly approach the President of the Real Estate Institute of New South Wales and accept his or her nomination of a real estate agent to sell the property;

(c) in the event the parties are unable to agree on a listing price, the time of listing, the method of sale and conditions of such sale in respect of the property they shall accept the recommendations of the real estate agent appointed pursuant to these orders for the sale of the property in respect of each such matter; and

(d) these orders are authorisation for the real estate agent to provide the respondent with all information he may request about the sale from time to time.

18.

Upon completion of the sale the proceeds of sale shall be applied as follows:

(a) in payment of the costs and expenses of sale including agent's commission and conveyancing costs;

(b) in payment of adjustments, if any;

(d) the balance as to 40% less $22,392.60 to the husband and 60% plus $22,392.60 to the wife.

19.

The wife shall have the sole right to occupy the property pending its transfer or sale provided that she pays the rates and outgoings as they fall due and makes the mortgage payments.

20.

If the wife has failed to make any of the mortgage payments since the proceedings concluded in September 2017 the amount owing as a result of that default shall be deducted from the amount the husband is required to pay the wife pursuant to Order (15) or the amount the wife is entitled to receive pursuant to Order (18).

21.

Orders (22) to (25) of these orders are binding on the Trustee of Superannuation A.

22.

The base amount allocated to MS BLASS (“the wife”) out of the interest of MR BLASS (“the husband”) in Superannuation A is $67,093.80.

23.

Pursuant to s.90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment within the meaning of s.90ME of the Act becomes payable in respect of the interest of the husband in Superannuation A the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount referred to in Order (22) above and that there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.

24.

Order (23) has effect from the operative time.

25.

The operative time for the purposes of Order (23) of these orders is four (4) business days after the date of service of these Orders upon the Trustee of Superannuation A.

26.

Subject to the above orders each party is otherwise declared the owner of all property and superannuation in their possession or under their control.

27.

Pursuant to s.106A of the Family Law Act 1975 in the event that either party fails, neglects or refuses to execute any deed, instrument or document to give validity and effect to these orders a Registrar of the Federal Circuit Court at Newcastle is appointed to execute any such deed, instrument or document in the name of the party who defaults and to do all things necessary to give validity to the operation of the deed, instrument or document.

Background

Background to the litigation

I must consider the children’s maturity, sex and background but there is nothing under this heading which has not already been discussed during the course of the judgment. I must consider any family violence involving the children or a member of the children’s family. The wife complained that during the relationship there was:Continuous physical violence, bullying, swearing and threatening behaviour by the husband toward the wife, the subject children and the subject children’s two older sisters…[3][3] Paragraph 41 of the wife’s written submissions. This is a very broad statement and there was no evidence of any physical violence being directed at the wife. Her evidence was that the husband subjected her to vile verbal abuse and threats and intimidation, that he was verbally abusive and physically violent to [D] and [C] and that [X] and [Y] were exposed to this violence. The wife also alleged that the husband isolated her from family and friends but this allegation did not rise above bare assertion and I cannot find that this occurred. [D] and [C] gave evidence that the husband tried to stop the wife going places with them but this is related to his abuse of [D] and [C]. The wife gave detailed evidence about the husband calling her names such as “fucking sponge”, telling her she was fucked in the head and saying things such as “this is my lawn and I make the rules here and I am God” and “it is no wonder your ex-partner punched you in the head.” [D] alleged that the husband called her abusive names such as “a cunt of a thing”, “fucking idiot” and “a fucking bitch”. She said that he would frequently yell including yelling in her face, that he squeezed her wrist so hard on one occasion that it cause her to drop her phone and have a sore wrist for four weeks afterward and held a knife up to her and said “if you touch my soup I’ll cut your fucking fingers off”. [D] said the husband tipped her out of a camping chair while the parties were camping at Location A and then shoved her, hit her, kicked her, pushed her into a ladder and shoved her to the ground. She said that the husband shoved her into a dining chair causing her to tip over, twisted her arm behind her back, shoved her onto the cement causing a graze, shoved her into the kitchen bench and grabbed her neck causing bruising and would frequently say “this is my fucking house and I’m the boss and I make the rules. I’m God here.” [C] gave evidence that the husband was prone to yelling and making threats and that although his physical abuse was mainly directed at [D] it was also occasionally directed at her. She alleged that on a number of occasions he pulled her arm, kicked her and hit her on the side of the face. In February 2014 the husband kicked [C] in the backside and the wife called the police. The wife said that she called the police primarily to deter the husband from behaving in that way again. [C] did not allege that there was any other occasions when the husband physically abused her but she did allege the husband frequently called her names such as “fucking dickhead” and called her and [D] “selfish fucking bitches” and that he would try to stop the wife going places with [C] and [D] and threaten to disable the car to stop her doing so.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the children, communicate with the children or make decisions about the children. This was not an issue in this case. I must consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child. The wife financially supports the children on a day to day basis. The husband pays assessed child support at a very reasonable rate. There was no suggestion that his application or the wife’s opposition to the orders he sought were based on child support considerations. I must consider the likely effect of any change in the children’s circumstances including the likely effect on the children of any separation from either of their parents or any other child or other person (including any grandparent or other relative of the children), with whom he or she has been living. The husband proposed a more extensive change in the amount of time the children spent with him overnight than the wife proposed but given that [X] is 8 and [Y] 5 and that they were both observed at the family report interviews to relate well to him, it is difficult to see why they would not cope with the amount of time the husband proposed. The family report writer, who took quite a cautious approach to the matter conceded that [X], who was 7 at the time of trial, should be able to cope with spending three nights with the husband on alternate weekends and gave as a reason for not recommending more time not [X]’s coping capacity but the desirability of the time for one child not getting too much out of sync for the time with the other. An immediate increase in time as proposed by the Independent Children’s Lawyer will because of the delay in the delivery of this decision be quite a jump for [Y] who pursuant to the interim orders made on 12 August 2016 is spending no overnight time with the father although she is spending a full day on Saturday and on Sunday each four weeks and shorter time on the other alternate weekend in each four weeks. It will also be a jump for [X] from one night to two. However given that the children are now 8 and 5, have a good relationship with the father and will be company for each other it is difficult to see why they would not cope with spending that amount of time with the husband. Ms A recommended in her report that [Y] spend two nights per fortnight with her father once she turned 5. An increase in the time as proposed by the husband would be an even bigger leap from the time occurring pursuant to the 2016 orders. The children might well cope with it given their ages but if the three nights are introduced there is much to be said for it to occur after the children have become used to spending two nights per fortnight with the father. The wife said that [Y] and [X] both needed more time to adjust to spending more extensive time with the husband. She alleged that [X] was either anxious about spending time with the husband as a result of having observed family violence.

Ratio Decidendi

Legal Principle Established

I then have to return to the primary considerations which are the benefit to the children of having a meaningful relationship with each of their parents and the need to protect the children from physical and psychological harm from being exposed to or subjected to abuse neglect or family violence. S.60CC (2A) provides that the court must in applying these considerations give greater weight to the latter. A meaningful relationship has been defined as one which is significant, valuable and important to the child.[4][4] Mazorski & Albright (2007) 37 FamLR 518 The wife proposed that the children spend limited time with the husband but if those orders were made the husband could still have a relationship with the children which was important, significant and valuable to them. It has been stressed in the decided cases that the concept of a meaningful relationship is a qualitative one and not a quantitative one, and in theory he could increase the quality of his relationship with the children by attending school events or extra-curricular activities as well as having them in his care at defined times. The children’s relationship with the husband would be different if he spent quite limited time with them one on one but it could still be meaningful. The family report writer was of the opinion that the wife wanted to keep the parenting role to herself and expressed concern that the wife wished to keep the children dependent on her. She felt that there was a flavour in this case of the wife not unreservedly supporting the children having a relationship with the husband. At the time of trial she was still breastfeeding [Y] who was four years of age and when the proceedings commenced she was still breastfeeding [X] who had turned 7. Prior to the proceedings ending the wife had weaned [X] and she did not ultimately argue at trial that [Y]’s time with the husband should be limited because she was being breastfed but this was her evidence early in the proceedings. I share the view of the Independent Children’s Lawyer that the wife continuing to breastfeed [X] and [Y] long after the time when she weaned her older children suggests that she has been wanting to create some roadblocks to the husband spending time with the children. I am also not convinced that the wife fully supports the children having a relationship with the husband and she does enjoy her parenting role. However the situation is complex because the husband’s treatment of her and of [D] and [C] must make it difficult for the wife to wholeheartedly embrace him as an equal but different parent and the problem in this case as I see it is not one of how to deal with a gatekeeping mother but how to make appropriate orders given my findings about the husband’s violence. There is no evidence that at the present time the children would be at risk of abuse, neglect or family violence in the care of either of their parents. There is a risk that the husband might not handle any oppositional behaviour by the children as teenagers well but it is not a risk which needs to be protected against or indeed would be protected against by restricting his time with them at present.