Bonhomme & Bonhomme

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bonhomme & Bonhomme [2024] FedCFamC1F 854

File number: SYC 6833 of 2023
Judgment of: MCGUIRE J
Date of judgment: 12 December 2024
Catchwords: FAMILY LAW – REVIEW - Where Mother’s Application for Review seeks to impugn a Senior Judicial Registrar’s orders which provide for the children’s time with the father and that she have sole parental responsibility for long-term decisions in respect of the children’s education and their attendance and involvement in extracurricular activities – Where the mother seeks the Court’s imprimatur as to interim relocation – Where considerations of family violence are prominent - Where the mother seeks to impugn a payment of $100,000 to her by way of a partial property settlement and seeks a payment of $600,000 in substitution – Ordered Application for Review dismissed
Legislation:

Family Law Act 1975 (Cth) ss 60CC, 61B, 61C, 61CA, 61D, 61DAA and 61DAB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rule 14.07
Cases cited:

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Harris & Harris (1993) FLC 92-378; [1993] FamCA 49

Morgan & Miles (2007) FLC 93-342; [2007] FamCA 1230

Paskandy & Paskandy (1999) FLC 92-878; [1999] FamCA 1889

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166

Division: Division 1 First Instance
Number of paragraphs: 144
Date of hearing: 26 November 2024
Place: Melbourne: delivered Hobart
Counsel for the Applicant: Ms Lawson
Solicitor for the Applicant: Reid Family Lawyers
Counsel for the Respondent: Mr Williams KC
Solicitor for the Respondent: Dorter Family Lawyers and Mediators

ORDERS

SYC 6833 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS BONHOMME

Applicant
AND:

MR BONHOMME

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

12 DECEMBER 2024

THE COURT ORDERS THAT:

1.The Application for Review filed by the mother, Ms Bonhomme, on 28 October 2024 be dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 of Bonhomme & Bonhomme has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

McGUIRE J:

APPLICATIONS

  1. This is an application by Ms Bonhomme (“the mother”) for a Review of the orders of Senior Judicial Registrar Turner made 24 October 2024 or, more…

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Details
Case
[2024] FedCFamC1F 854
Decision Date

CaseChat Overview and Summary

Ms Bonhomme applied for a review of the orders made by a Senior Judicial Registrar, which outlined the children's visitation schedule with their father, Mr Bonhomme, and stipulated that Ms Bonhomme would hold sole parental responsibility for making long-term decisions about the children's education and their participation in extracurricular activities. Ms Bonhomme sought the court's approval for the interim relocation of the children to City H, with considerations of family violence playing a significant role in her application. Additionally, she contested a payment of $100,000 to her as part of a partial property settlement, requesting instead a payment of $600,000. The legal issues before the court included whether the Senior Judicial Registrar's orders were appropriate regarding the children's time with their father and parental responsibility for long-term decisions, and whether the mother's application for interim relocation should be approved. Furthermore, the court had to determine the appropriateness of the property settlement amount.

The court examined the mother's allegations of family violence, considering their cumulative impact on her as the alleged victim. However, the court emphasized that while family violence allegations must be weighed in the context of the children's best interests, they are not the sole determinant. The court found that the mother's application for review was not well-founded. It dismissed her application for review, finding that the Senior Judicial Registrar's orders were appropriate and that the mother's allegations, while serious, did not warrant a change in the existing arrangements. The court also upheld the $100,000 property settlement payment as fair and reasonable.

The court's decision was based on a comprehensive review of the evidence and the paramount consideration of the children's best interests. The court found that the existing orders provided a stable and suitable environment for the children, taking into account the mother's allegations of family violence and the need for consistency in the children's lives. The court concluded that the mother's application for interim relocation was not supported by the evidence and that the existing property settlement arrangement was fair. Consequently, the court dismissed the mother's application for review and upheld the Senior Judicial Registrar's orders.

Orders

Orders of the court

SYC 6833 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BONHOMME

Applicant

AND:

MR BONHOMME

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

12 DECEMBER 2024

THE COURT ORDERS THAT:

1. The Application for Review filed by the mother, Ms Bonhomme, on 28 October 2024 be dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The mother seeks an order that the father pay to her a sum of $600,000 by way of partial property settlement.BACKGROUND The father is 45 years of age. The mother is 35 years. The parties commenced cohabitation in 2012. They married in 2016. There are two children of the relationship namely: X (aged five years) and Y (aged three years). The father continues to live in the former matrimonial home at Suburb B. He described himself as “retired” but appears to gain a consistent income from a successful gambling syndicate. The mother is now in a relationship with Mr G. She now admits to living with Mr G in City H. The mother admits having been in a relationship with Mr G prior to the parties’ separation. The mother informed the father of her relationship with Mr G in about July 2023 although the parties continued to reside in the same residence. The parties formally separated on 13 September 2023 when the mother left the Suburb B property with the children. Upon separation the mother took accommodation with her grandmother and/or a friend in Suburb J. In late 2023, during an argument, the mother assaulted the father by slapping him to the face. She was charged. She pleaded guilty and was sentenced to a Conditional Release Order without proceeding to conviction. An Apprehended Domestic Violence Order (“ADVO”) was made on a final basis for a period of 18 months with the father as the protected person. The mother’s affidavit affirmed 8 October 2024 suggests that the mother and the children have spent increasing periods of time staying or living at Mr G’s home at Suburb K but with the suggestion at [49], as of the date of affirming her affidavit, that she was not then living with Mr G on a full-time basis. Mr G has two children aged eight and 13 years. The children spend time with Mr G on a week about but flexible basis. The mother deposes to being employed as a “Project Manager”. Her affidavit discloses no further detail as to her employment save and except at [89] that she works “full-time” with an annual salary of $192,375 gross. Interim parenting consent orders were made on 5 October for supervised time and later on 24 November 2023 providing for the children to spend unsupervised and overnight time with the father as follows:3.2.1. In week one: 3.2.1.1. On Tuesdays and Thursdays …from 2pm to 6pm; and3.2.1.2 ….on Saturday from 10am to 5pm Sunday; 3.2.2. In week two:3.2.2.1. On Tuesday from 2pm until before daycare/school on Wednesday;3.2.2.2. On Thursday from 2pm to 6pm. In early 2024 the father says that Y made a statement consistent with the child being touched inappropriately by Mr G. The father made a notification to New South Wales Police and DCJ. The allegations were unsubstantiated by the Department. The following month, the mother made a complaint to New South Wales Police in respect of the father’s historical conduct. No charges were issued against the father. No ADVO was placed against the father. On 23 April 2024 the mother filed a Further Amended Initiating Application. On 7 May 2024 the children’s time with their father was changed to being professionally supervised by L Contact Service. The children spent supervised time with the father each alternate Friday from 1.00pm to 4.00pm and each alternative Saturday from 9:30am to 12:30pm.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Act in its current incarnation provides at s 61DAA and s 61DAB as follows:61DAA Effect of parenting order that provides for joint decision‑making about major long‑term issues(1)If a parenting order provides for joint decision‑making by persons in relation to all or specified major long‑term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:(a)to consult each other person in relation to each such decision; and(b)to make a genuine effort to come to a joint decision.(2)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.61DAB No need to consult on issues that are not major long‑term issues(1)If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:(a)has parental responsibility for the child; or(b)shares parental responsibility for the child with another person;about decisions that are made in relation to the child during that time on issues that are not major long‑term issues.(2)Subsection (1) applies subject to any provision to the contrary made by a parenting order. The mother seeks an order for sole parental responsibility for the children. The father broadly seeks an order for joint parental decision-making responsibility. The parties have had an historical conflictual relationship and there have been mutual allegations of family violence. THE MOTHER’S CASE Where recent amendments to Part VII of the Act at s 60CC highlight matters of family violence and the safety of children, in the consideration of the children’s best interest, the mother here grounds her argument for the orders she seeks predominantly, if not the entirely, on allegations of family violence where she says she has been the victim of the father’s violence with emphasis on what she says have been coercive/controlling/emotional instances of violence. The mother relies on her affidavit affirmed 8 October 2024 such relied upon in the hearing before Senior Judicial Registrar Turner. The Affidavit at [6] summarises her allegations thus: During our relationship, [the father] subjected me to emotional abuse and coercive control. He frequently called me “dumb”, “stupid”, “a bogan” and a “stupid fucking bitch”; as well as “slut”, “whore”, “adulterer” and “immoral”, including when the children were present. Further, the mother says that the father on occasion “mocked” her when she fell (the mother has a diagnosis of a medical condition) by saying the words “ow, my neck”. The mother says that this is an example of emotional abuse. The mother says that the father’s work commitments took priority over her own. She says that this is an example of emotional or coercive control. The mother says that the father’s “would not permit” her to attend an awards night or “reluctantly agreed” to her attending an interstate Christmas party. She cites these as examples of coercive and controlling family violence.

Ratio Decidendi

Legal Principle Established

The author notes at [96] and [97] the agreements reached by the parents as to the children’s schooling. CONSIDERATION-PARENTING The mother’s case here is, in my view, irresistibly a quest to have this Court give its imprimatur to her unilateral relocation of the children from Sydney to the City H area of New South Wales. Despite the equivocacy of the mother’s evidence and her disclosure to the father, it is now apparent that she has relocated with the children. Where the mother’s application seeks an order only in terms of she being granted sole responsibility to enrol the children in schools near City H, any suggestion by her counsel that this matter is not, in all practical terms about unilateral relocation is, in my view, disingenuous. I maintain this view despite the father’s concession earlier in these proceedings to an interim live-with order in favour of the mother. I am comfortably satisfied that this concession was made in a climate of the mother not being completely forthcoming as to her intentions to relocate and further where the father had some comfort by reason of the recent agreement between the parents that the children would be enrolled at schools proximate to the former matrimonial home in Sydney. The mother’s case is grounded almost in its entirety on the allegations of coercive/controlling/emotional family violence perpetrated by the father against her. Significantly, she does not deny the father’s allegations that she perpetrated physical violence on him on three occasions evidenced by her plea of guilty to one allegation and accompanied by an ADVO protecting the father. Her counsel attempted some justification for the mother’s violence by reason of the father’s provocation. I accept generally the submission of counsel for the mother that it would be remiss of this Court to take and consider each of the mother’s allegations singularly and where at least some might seem relatively innocuous. By reason of the nature of coercive and controlling family violence it is proper to consider the mother’s allegations and assertions in their cumulative form and, in particular, as to the impact on the mother being the alleged victim. Nevertheless, in my view, the Court would also fall into error if it was to consider the allegations of the mother, or even findings, of coercive and controlling family violence (or any type of family violence) as determinative of the ultimate consideration being the children’s best interests. Family violence allegations, as with all evidence, must be given weight in respect of contextualising the circumstances of the children’s best interests. In any evidentiary context it is the findings of fact to the requisite standard of on the balance of probabilities that allow the Court to attribute weight to each factual finding and then turn to consider the context and the impact on the children’s interests which remains the paramount, but not sole, consideration. Lest it be misunderstood, any and all findings of fact of family violence are abhorrent. Experience suggests that family violence is a scourge of our community. Family violence is a dominant issue in the majority of cases, both parenting and financial, now coming before these Courts. Judges are certainly alert to the impact of family violence on parent-victims and on their children.