Bonhomme & Bonhomme
[2024] FedCFamC1F 854
•12 December 2024
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
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 properly, only as to some of those orders.
Mr Bonhomme (“the father”), opposes the application and asks only for an order that the Application for Review be dismissed with costs.
The substantive issues between the parties involved both parenting and property matters.
Relevantly, the orders of Senior Judicial Registrar Turner of 24 October 2024 note a consent order, until further order, that the parties’ children namely X born 2019 (aged five years) and Y born 2021 (aged 3 years) live with the mother.
Firstly, the mother’s Application for Review seeks to impugn orders which provide for the children’s time with the father. Order 4 of Senior Judicial Registrar Turner’s order provides as follows:
4. The children spend time with their father as follows:
(a) Commencing 29 October 2024:
(i) Week 1:
1.Tuesday from the conclusion of day-care (or 3.00pm) to 5.00pm
2.Saturday, from 9.00am to 5.00pm;
(ii) Week 2:
1.Tuesday from the conclusion of day-care (or 3.00pm) to the commencement of day-car (sic) (or 9.00am) on Wednesday
(b) During the summer school holidays commencing 20 December 2024:
(i) Week 1:
1. Friday from 12.00pm to Sunday at 5.00pm
2. Tuesday from 9.00am to 5.00pm
(ii) Week 2
1. Tuesday from 9.00am, to Wednesday at 5.00pm
(c)From the commencement of school Term 1, 2025 (when [X] starts school):
(i) Week 1 (commencing 31 January 2025):
1.After school Friday (or 3.00pm) to 5.00pm on Sunday
(ii) Week 2:
1.Tuesday from the conclusion of day-care (or 3.00pm) to 5.00pm;
2.After school Thursday (or 3.00pm) to the commencement of school (or 9.00am) on Friday
(d)At such other times may be agreed between the parties in writing.
THE MOTHER’S POSITION
The mother does not seek to impugn order 4.(a).
In respect of 4.(b) the mother proposes an order as follows:
1. The children shall spend time with the father as follows:
a) During the 2024-2025 summer holidays:
i)Commencing 20 December 2024, each alternative weekend, from noon on Friday until 5.00pm on Saturday; and
ii)Commencing 28 December 2024, each alternative weekend, from 9:30am on Saturday until noon on Sunday,
iii)The mother may, on 14 days’ written notice to the father, elect to suspend the children’s weekend time with him pursuant to order 1(a)(i) or (ii)…
In place of order 4.(c)(i) the mother advances a substitute order:
2.From the commencement of school Term 1, 2025 (when [X] starts school), the children will spend time with the father in a two weekly cycle as follows:
(a) Week 1 (commencing 7 February 2025)
(i) After school Friday (or 3:00pm) to 5:00pm on Sunday.
Secondly, the mother challenges order 5 of Senior Judicial Registrar Turner’s orders which currently provide:
5.Where changeovers do not occur at school, changeovers shall occur at [Suburb B] Station or as otherwise agreed between the parties in writing.
The mother proposes that changeovers, other than at school and except as otherwise agreed, shall occur at C Service Station.
Thirdly, the mother challenges Senior Judicial Registrar Turner’s order 6 which provides as follows:
6.Both the mother and the father do all acts and things and sign all documents necessary to:
(a)Ensure the enrolment and attendance of [X] in [D School] to commence Kindergarten in 2025;
(b)Continue [Y’s] enrolment at [E Early Learning Centre] from Monday to Thursday in 2025;
The mother proposes that in the interim she have sole parental responsibility for making long-term decisions in respect of the children’s education and their attendance and involvement in extracurricular activities. In the discharge of that power the mother asks for orders as follows:
a)The children shall complete the 2024 school year at [E Early Learning Centre] with attendance to occur on Tuesdays, Wednesdays and Thursdays.
b)If the mother elects to enrolled the children at [F School], she will meet 100% of the tuition and associated costs of the children’s attendance at [F School].
c)She shall not arrange for the children to attend extracurricular activities at times when they are scheduled to spend time with the father, except with his prior written consent.
Finally, at order 10 of the orders of 24 October 2024 Senior Judicial Registrar Turner ordered under the heading “Interim Property Distribution”:
10.Within fourteen (14) days of the date of these orders, the father pay or cause to be paid $100,000 to the mother as partial property settlement.
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; and
3.2.1.2 ….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.
On 6 June 2024 orders were made for the appointment of Dr N as single expert. An order was made inter alia to ensure that the children remain enrolled at their current school being E Early Learning Centre.
In June 2024 the father completed a 12 week Men’s Behaviour Change Course.
On 25 June 2024 the mother advised that she no longer adhered to a previous agreement between the parties for X to attend D School in 2025 and for the children to attend M School from year 3 onwards.
The evidence suggests that at least from August 2024 the mother and children were spending six nights per week with Mr G at his residence at City H.
The parties attended for interviews with Dr N on 5 August 2024 and his report was released on 22 August 2024.
On 1 September 2024, with the mother’s consent, the children spent unsupervised time with the father at the former matrimonial home albeit with the paternal grandfather in attendance.
On 6 September 2024 the parties attended mediation resulting in the children spending unsupervised time with their father each alternate Friday and each alternate Saturday with changeovers to occur at Suburb B Train Station. This arrangement continued until the orders of Senior Judicial Registrar Turner of 24 October 2024.
THE RELEVANT LAW
Rule 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides as to Procedure for Review:
(1)A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.
(2) The court may receive as evidence:
(a)any affidavit or exhibit tendered in the first hearing; or
(b)with the leave of the court, any further affidavit or exhibit; or
(c)the transcript (if any) of the first hearing; or
(d)if a transcript is not available-an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
…
This is an interim hearing in respect of parenting issues. I am, therefore, to have the best interests of the children as my paramount consideration pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”).
In determining the best interests of X and Y I am to reference the proposals of each of the parties together with the probative evidence given and adduced to the considerations set out at s 60CC(2) and (2A) of the Act against the background of the object of the legislation at s 60B.
Section 60CC provides that the Court determines the children’s best interest by:
…
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
An issue alive for the Court’s considerations is whether the mother should be granted sole parental responsibility for the important decision-making concerning the children’s education.
Section 61B of the Act and gives a definition of “parenting responsibility” as:
… in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Relevantly, s 61C provides:
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or remarrying.
(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Section 61CA references consultation between parents on major long-term issues as follows:
If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged:
(a)to consult each other about major long‑term issues in relation to the child; and
(b)in doing so, to have regard to the best interests of the child as the paramount consideration.
Section 61D provides for parenting orders and parental responsibility thus:
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a)expressly provided for in the order; or
(b)necessary to give effect to the order.
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long‑term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision‑making in relation to all or specified major long‑term issues.
Section 61DAA references the effect of a parenting order providing for joint decision-making about long-term issues as follows:
(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.
It is trite to observe that the nature of an interim hearing such as this is that the Court does not have the considerable advantages of a final trial where the evidence of the parties, their witnesses, and experts will be tested by cross-examination and where the legal representatives have had the opportunity for a full and forensic preparation of their cases. An interim hearing, therefore, proceeds on the basis of submissions referencing the untested affidavit material and similarly any untested expert opinion. It necessarily follows that Courts at this stage are generally unable to make findings of disputed fact and credit with a consequence, therefore, of reliance upon the agreed or uncontroversial facts to assist in the determination.
Nevertheless, and despite the limitations of this truncated process, the Court remains mandated to conduct a hearing on the course of statutory considerations set out in the Act and noted in the well-known decision of the Full Court in Goode & Goode[1] where their Honours say at [68]:
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
[1] (2006) FLC 93-286; [2006] FamCA 1346.
However, and despite the practical observations of the Court in Goode & Goode, that statement should not be understood, even at the interim stage, as the Court being relieved of its obligation of considering all the evidence and/or being relieved of its decision-making obligations. In Eaby & Speelman[2] a later Full Court commented:
[2] (2015) FLC 93-654; [2015] FamCAFC 104.
…It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained in Marvel v Marvel, at [122] and [123], as follows:
[122] In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Where counsel for the mother was, during her submissions, reluctant to concede that her client’s case, in its practical effect, was an application for interim relocation, and accepting that the Act itself is silent as to the notion of relocation, but where the practical effect of the orders sought by the mother would, in my view, amount to an interim relocation of X and Y from their home and school in the Suburb B area in Sydney to near City H which I am told is a distance of more than 100 km and where the mother herself emphasises the difficulties and vagaries of the logistics of travel.
Put simply, it is uncontentious that the parties had previously agreed for the children to attend school in 2025 in the Suburb B area. The mother now seeks an order for sole parental responsibility/decision-making in being able to enrol the children in school and the like near City H. Her own, now admitted, personal relocation to City H causes her to seek orders for time for the children with the father limited in both duration and geographically. The time sought by the father with the children, both in the interim and in final orders, is more frequent and of longer duration based on an assumption of geographical proximity of the parties. These are, in my view, the fundamental factors for consideration in a relocation of children. It follows, therefore, that I consider the mother’s application to be in effect one for interim relocation of the children. It is proper, therefore, to include in these Reasons some principles considered by these Courts in matters which involve relocation of children.
It is trite to observe that parenting cases involving an anticipated relocation of children are amongst the more difficult and complex matters coming before these Courts. In the main parenting matters often involve proposals with only relatively discrete degrees of ambit whereas the issue of the relocation of children will almost inevitably leave one or other of the parents aggrieved by the result. If the relocation is permitted then the remaining parent will understandably suffer a sense of loss accompanied by the practical difficulties in maintaining relationships with their children. The nature of those relationships will be changed in frequency and/or regularity and many of the parent/child mutual enjoyments will be lost as will spontaneity in those relationships. Conversely, however, should a primary carer of children not be permitted to relocate then that parent’s “right” of freedom of movement will be thwarted and they will similarly be left aggrieved where they will be obliged to live in a place contrary to their preference. That parent’s own personal relationship ambitions may be consequently tested or even lost. They may be deprived of the actual and emotional support from family, friends and partners. Expectations and ambitions will be left unfulfilled. Inevitably, any ongoing cooperative and communicative relationship between the parents themselves will be tested and problematic and hence a factor impacting on the children’s best interests.
Noting again that the interim application by the mother now before this Court does not specifically seek an order permitting the children to “relocate” but rather asks for an order permitting the mother to have sole parental responsibility and hence permit her to enrol the children at her choice of school near City H, it is important to emphasise that there can be no dissection in the judicial consideration into discrete issues of, firstly, with which parent the children shall live and, secondly, an issue as to whether the “relocation” should be permitted.[3]
[3] Paskandy & Paskandy (1999) FLC 92-878; [1999] FamCA 1889.
Despite the silence in the Act as to the notion of “relocation” and its consideration only in the holistic determination of children’s best interests, jurisprudence has developed a set of “principles” to assist trial judges in dealing with parenting matters involving the potential relocation of children. “Those principles” remain valid, in my view, despite recent significant amendments to Part VII of the Act and particularly as to the s 60CC mandatory considerations. They can be summarised as follows:
(a)relocation matters continue to be determined in accordance with the broader provisions of Part VII of the Act;
(b)the children’s best interests remain the paramount but not the sole consideration;
(c)a relocation proposal is to be evaluated within the context of the necessary findings in relation to the children’s best interests (s 60CC factors);
(d)the Court must consider the parties’ proposals, including the advantages and disadvantages of the proposed relocation and the Court may be required to formulate proposals itself in the best interests of the children;
(e)neither party bears an onus to establish that a relocation or continuation of an existing regime will best promote the interests of the children;
(f)an applicant for relocation need not show “compelling reasons” in support of the proposed relocation but must produce probative evidence which permits a court, on balance, to find that a parenting order involving a relocation will be in the children’s best interests; and
(g)the children’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement but that such a “right” must ultimately defer to the best interests of the children.
Matters involving an interim relocation of children, as I find this to be, bring their own complexities. In Morgan & Miles[4] Boland J sitting as a single judge on appeal relevantly stated:
…make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. …
[4] (2007) FLC 93-342; [2007] FamCA 1230.
The practical implications of an order allowing an interim relocation of children are obvious. Firstly, a status quo is created by reason of the children being settled in schools away from the location of one parent together with them establishing relationships, extracurricular activities and extracurricular commitments prior to the full forensic preparation and testing in the trial process. The remaining parent may feel disadvantaged accordingly. Further, and after the full forensic trial process, there is a likelihood that the children’s stability would be further disturbed by orders returning them to their original location.
DECISION-MAKING/PARENTAL RESPONSIBILITY
Recent amendments to the Family Law Act provide different terminology and add detail but where, in my view, historical authorities remain relevant in assisting any determination on this issue.
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.
At [9] the mother says that father said (on a date not stated) “You’ll never be as wealthy as me. If you leave me, you’ll be back in [Suburb O] and condemning the children to a life of mediocrity”. The mother says that this is an example of coercive/controlling family violence.
At [11] the mother says that the father made threats to kill himself on being told by the mother that she wanted a separation. She cites this as an example of coercive/controlling family violence.
The mother alleges the father to have followed her, checked her phone, and checked her car odometer (stalking).
At paragraphs [19] and [20] the mother says that at Christmas 2023 she requested a change of interim orders. The father did not agree. She says that this is an example of the father’s “hostility and attempt to control me… since separation”.
At [22] the mother deposes that on 26 December 2023 father sent “aggressive and derogatory” texts being: “Can you do something to look after the health of my daughters while they are in that insect infested abode”. She says that this is an example of coercive and controlling violence.
The mother complains that the father informed a child’s school teacher that the mother had “had an affair” in discussions about the children’s parenting arrangements. The mother says that this is emotional or controlling violence.
There are numerous other examples in the mother’s affidavit of particulars that she says are the father’s propensity for emotional/coercive and controlling violence.
The mother claims corroboration and support in her argument from a Ms P. She is a psychologist and has provided therapy to the mother. Ms P took her history only from the mother. She describes her report as “preliminary”. She is not an independent court expert. There is no indication of her challenging the mother’s version of history. As such, and without the testing by cross-examination, I can place little or no weight on Ms P’s report as corroboration of the mother’s complaints save and except that they are consistent with the assertions made in her affidavit but subject to argument as being self-serving.
The mother says that post separation the father made a notification to Child Protection Services and New South Wales Police asserting that Y had disclosed that she had been touched in the groin and bottom by the mother’s partner, Mr G. Y is three years old. The matter was investigated and unsubstantiated. The father says that he was not further interviewed in the investigation. The mother raises this is another example of coercive/controlling behaviour by the father.
The mother’s counsel refers the Court to the Bench Book provided by AIJA dated July 2024 titled “National Domestic and Family Violence Bench Book” with reference to “coercive control”. I am considerably assisted, as I assume are my colleagues, by the research grounding in this literature.
Finally, the mother does glean some corroboration of her allegations of coercive/controlling/emotional violence from admissions and acknowledgement made by the father himself to Dr N, the Court Expert, and the parties’ marriage counsellor, Ms Q.
THE FATHER’S CASE
As mentioned above, the father makes some admissions to the numerous allegations of the mother. He denies a majority of her allegations.
The father says that he was the victim of the mother’s physical violence on three occasions from which she was charged with one count and pleaded guilty. He is the recipient of an ADVO made against the mother following the same incident. The tenor of the father’s case, however, is that the mother’s violence was situational in the context of the difficult physical and emotional separation of the parties. He does not argue that either he or the children are at risk of the mother’s physical or other propensity for violence as evidenced by the first order he seeks in the form of a shared care arrangement.
The father says that he has addressed the mother’s concerns and allegations by his acknowledgements and due to him, without court compulsion, attending a men’s behaviour group where he says that he has gained insight and understanding of the cycle of conflict.
The father says that he maintains concerns from Y’s statements to him which he interpreted as inappropriate touching of his daughter by Mr G. He says that these matters have not yet been fully forensically tested. He denies, therefore, that his notification to the Child Protection Authorities and the Police is a form of emotional and coercive family violence.
The father says that it was the mother who initiated separation and that the physical separation of the parties did not occur until some months after the mother revealed to him her relationship with Mr G.
The father says that the mother has been less than candid in her now known relocation of the children to live with Mr G at City H.
The father says that the parties had previously agreed for the children to attend school near the former matrimonial home at Suburb B in Sydney. He says that the enrolments had been done.
The father says that the mother has now unilaterally relocated the children to City H and further unilaterally made enrolments of the children at schools in that area.
The father says that the mother’s unilateral decisions and relocation of the children have negatively impacted his relationships with his daughters through a decrease in frequency of time spent and a consequent impact on the nature and quality of those relationships together with imposing logistical and onerous travel obligations on the children.
Counsel for the father further submits that the mother has generally been less than forthcoming to the father and to the Court in her affidavit material where for instance she is silent as to the location and terms of her employment, but where she seeks orders consistent with an implication that she works now in the City H area whereas she was previously employed in Greater Sydney.
The father says further that the mother’s transparent intention to thwart his relationship with his daughters is evidenced by the children having called Mr G “daddy” in the presence of Dr N.
DR N
Dr N has provided two reports, the latest and most comprehensive being that of 22 August 2024. He reports at [116] and [117] thus:
[116]When [the father] was invited into the room, [X’s] face immediately lit up. She went to her father. [Y] continued to cling to her mother for 60 seconds before moving towards her father with the mother’s encouragement. [Y] shared two sultanas with the father. An easy handover was then negotiated after [the mother] stated that she was going for a coffee nearby.
[117]The children readily engaged in an excited, happy manner with their father. They started laughing as soon as their mother left the room. [The father] was interactive, engaged and highly attuned in his interactions with the children over the next two hours. …
Similarly the children displayed affection, attachment and dependency with their mother.
At [185] Dr N reports thus:
At the conclusion of the family assessment, the children refused to separate from their father. It was understood that the children loved both their parents. The children agreed that they wanted to have sleepovers with their father. [X] said to him “I love you”, before separating at the conclusion of the family assessment.
Significantly at [215] in respect of the mother, Dr N reports and opines:
She presented as very happy and optimistic about her future with [Mr G] and their blended family. She omitted key pieces of information when assessed. This was considered to be goal-directed in her behaviour rather than evidence of psychopathology. There was no evidence of cognitive impairment, PTSD or Mood Disorder. She asserted that her primary motivation had always been the children’s needs. Nonetheless, she had prematurely introduced [Mr G] to the children, had ill-advisedly taken him to a handover at the father’s home early in their relationship, had established a new blended family and restricted the children’s contact with their father. Despite idealising her new family’s dynamics, I was informed that [X’s] meltdowns had warranted Time Out strategies. She did not consider her role in the children’s emotional dysregulation.
At [230] Dr N states:
…The mother understated the problems of maintaining the father’s significant role in the children’s lives in the context of her relocation.
More generally as to the children’s best interests, at [234] Dr N concludes:
The children would benefit from the maintenance of significant and substantive contact with both parents in the context of primary residence with the mother. Her relocation to the [City H] area however limited the viability of such an arrangement. The mistrust between the parents has resulted in restrictions to the father’s contact with the children. In the report writer’s view this was not in their best interests. Despite the intervention to date, the father continued to be reactive to the children’s communication regarding their experience in the mother’s home. He continued (sic) mistrust the involvement of the mother’s partner. This would obstruct the capacity of the parties to develop respectful coparenting strategies.
At [236] Dr N says:
It will remain important for the children to maintain regular contact with their father. This assessment did not identify an indication of the maintenance of professional supervision. At this stage of their development the maintenance of regular visits, at least twice weekly for several hours, will remain important. Pick up from school on Friday afternoons, returning to school on Monday mornings, on alternate weekends with half the school holiday holidays once the children are enrolled in school. There will need to be a gradual transition to the establishment of such arrangements. Twice-weekly videoconferencing with the children will assist in maintaining the relationship between with their father between visits. That said, the maintenance of contact should be contingent upon the establishment of respectful communication and cessation of notifications to DCJ and Police.
MR G
Mr G provided an affidavit sworn 8 October 2024. His untested material deposes to a committed and supportive relationship with the mother and children.
Dr N had the advantage of meeting Mr G. At [239] he says:
He ([Mr G]) was seen to be the dominant partner in relationship with the children’s mother. Both he and the mother spoke in an idealised manner regarding their relationship, family dynamics and future. They both provide an enthusiastic account of their plans together. The report writer identified that, like the mother, [Mr G] had repeatedly glossed over his own developmental issues. He minimised the impact of his parents’ …
The mother also relies on a Child Impact Report and addendum from Ms R. The material in those reports is essentially canvassed above.
The Report is dated 5 May 2024 after interviews with the parents and children in March 2024. Factual backgrounds were given consistent with the parent’s affidavits including the mother’s allegations of coercive/controlling/emotional family violence. The father reports the physical assaults.
The observations of the children with each parent mirror those of Dr N.
At [87] and [88] the author insightfully notes the situational behaviour of the parents and generally during a relationship breakdown/separation.
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.
Nevertheless, the context and nature of the litigation with reference to the children’s ultimate best interest remains the dominant consideration for this Court.
In this matter I can make a number of findings of fact on the balance of probabilities including:
(i)the father by his own acknowledgment admits some of the mother’s allegations of coercive/controlling/emotional family violence;
(ii)the mother, by reason of her plea of guilty, admits perpetrating physical violence on the father; and
(iii)the father has voluntarily entered into a course of men’s behaviour change where it is generally understood that acknowledgement by a perpetrator is the starting point of rehabilitation.
The evidence generally satisfies me that the violence alleged against the other by each of the mother and the father was most prominently situational and circumstantial upon their separation.
The parties have now been separated in excess of 12 months.
There is no allegation by the father against the mother of continuing family violence. There are no recent allegations against the father save and except the father’s notification to the Child Protection Authorities and the Police in respect of Mr G. Where the father maintains his concerns, I cannot find that this is a particular of family violence of malicious or false allegations as alleged by the mother.
The parties have now separated and, on my findings, the volatility of their separation occurring in continued proximity has now been removed.
Dr N gives an untested opinion but where I can place some weight on that opinion given his status as independent court expert and his prima facie expertise. At [188] Dr N says:
In my view, both children and the adults responsible for the care were not identified to be at risk of exposure to family violence, abuse, neglect or other harm should there be a reinstatement of regular, unsupervised, overnight contact.
Generally, therefore, I find that both parties have perpetrated family violence against the other but, on the evidence, untested as it is, I am unable to make findings in respect of all of the mother’s allegations against the denials of the father. Further, I am comfortably persuaded that the allegations of family violence have not continued and where the parties have now separated both emotionally and geographically. As such, I find on the balance of probabilities that the instances of family violence alleged by each against the other were situational and circumstantial.
GENERAL FINDINGS
I am satisfied that the mother has acted unilaterally to remove the children from Greater Sydney to near City H. I am satisfied that she has done so for reasons of pursuing her own relationship with Mr G.
I am satisfied that the parents had, shortly prior to their separation, reached agreement that the children would be enrolled in and attend school in Sydney.
I am satisfied that the mother’s unilateral relocation of the children has disturbed and impacted on their relationship with their father. I note that the children are just five and three years of age. It is generally accepted that children of such young age benefit from a high frequency of relationship with their parents so as to establish proper attachments. In doing so, the mother has added the burden of logistics and travel for the children and the parents.
At just five and three years of age it is unlikely that the children would be able to rationalise their own best interests. Significantly, however, Dr N comments at [208] thus:
The mother was observed to have overtly influenced the children in their views regarding the family. Thus, they were encouraged to refer to [Mr G’s] daughters as their sisters and [Y] had started to refer to him as “daddy”. There was no indication that she (the mother) had acted to support the children’s relationship with their father.
I am satisfied generally that the children have attached and loving relationships with both of their parents. I am not satisfied on the evidence that the mother has the insight to prioritise the children’s needs and, in particular, their need for a relationship with their father over her own self-interest. That is, whilst the mother may exercise her right of freedom of movement, she does not do so, in my view, with a prioritising of her children’s best interests.
I harbour concerns that should the Court give its imprimatur to the mother’s unilateral relocation and decision-making in respect of these children then the children’s stability and routine might be further disturbed after a full and forensic final trial in this matter.
I remain concerned as to the mother’s historical equivocacy of her now known residence for herself and the children with Mr G near City H. Similarly, I maintain concerns as to parts of the mother’s affidavit and, in particular, her failure to disclose in that comprehensive document the nature, terms and location of her employment or, indeed, any changes in that employment from when she was resident in Greater Sydney.
The mother is in full-time work. She discloses a gross income of $192,375 per annum. She was able to accommodate herself and the children in Greater Sydney following separation from the father. She was offered $100,000 by the father to assist in re-accommodating herself and the children. She is the owner of an investment property. She now has the benefit of the $100,000 paid by the father pursuant to Senior Judicial Registrar Turner’s orders.
Where the mother has unilaterally relocated the children, I cannot find the justification argued by her counsel. Her allegations of coercive/controlling family violence remain to be tested in their fullest.
I am of the view that the children’s best interests are not served by the mother relocating the children to City H and enrolling them at school and acting contrary to the agreement reached with the father by enrolling them at schools proximate to her now known residence with Mr G.
Consequently, I see no reason why the orders of Senior Judicial Registrar Turner should be disturbed. The mother’s Application for Review in this respect will be dismissed.
PROPERTY
The mother seeks an interim or partial property settlement order that the father pay to her $600,000. She has retreated from her previous application seeking $2,500,000.
The Court irresistibly has the power to make an interim order from s 79 in s 80(1) of the Act.
The exercise is a discretionary one in the Court where the fundamental consideration is the interests of justice.
The party seeking a partial property settlement carries an onus to satisfy the Court on the balance of probabilities that the discretion should be exercised in his or her favour.
Whilst orders for partial or interim property settlement are frequent, the policy of the Court appears to be towards one final hearing with the finality granted then by s 81 rather than a piecemeal dealing with the property pool.[5] Where the Full Court in Harris & Harris (at 79,929-79,930) stated:
[5] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166; Harris & Harris (1993) FLC 92-378; [1993] FamCA 49.
We do not doubt that the Court has power in a proper case in s. 79 proceedings to make what may be conveniently described as an interim order, that is an order dealing with some of the property of the parties prior to the final hearing. We do not consider that it is necessary to draw a distinction in terminology between an “interim” order and a “partial” order.
But in the exercise of that power the following matters need to be considered: —
(1)The exercise of the power should be confined to cases where the circumstances presented at that time are compelling. As a generality, the interests of the parties and the Court are better served by there being one final hearing of s. 79 proceedings. However, circumstances may arise before there can be a final hearing which dictate that some part of the property of the parties should be the subject of orders. A common example is where both parties agree to the disposal of some assets pending the trial. However, we do not consider that it is confined to cases where the parties consent. Urgent situations may arise where it is necessary to exercise this power if injustice is to be avoided. Examples include cases where it is necessary to do so to avoid an asset being eroded or lost in the intervening period, and cases (beyond the maintenance power) where an order in favour of one party is necessary to preserve or obtain a home for or is otherwise necessary for the welfare of the children.
…
(2)It is an exercise of the s. 79 power. Consequently it must be performed within those parameters. Since it is not the final hearing the Judge is unlikely to have the final findings, but the exercise must fall within that general framework and the material available at that time.
(3)Of necessity it is likely to be a somewhat imprecise exercise. Consequently, it must be exercised conservatively and the Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing, or that the order which is contemplated is capable of being reversed or adjusted if it is subsequently considered necessary to do so. …
In the circumstances of the mother’s application here, I do not proceed on the basis that she needs to present “compelling” evidence. She does, however, retain the onus to persuade me to exercise my discretion.
The mother’s affidavit is scarce on detail in support of the application. She says that she works full-time. She says that she has an income of $192,375. The mother lives in a domestic relationship with Mr G. No further financial aspects of that the relationship are disclosed.
Importantly, the mother says that she has obtained litigation funding with $233,000 advanced to date. She estimates that her fees up to and including a final hearing could be another $200,000. There is no further detail given as to the mother’s accrued or potential legal costs. She says, however, that she would also “like to invest any partial property settlement which I receive in real estate, for the girls”.
From the submissions of her counsel, I understand that the mother estimates the property pool as high as $11,335,000. It follows, she says that the father’s Response proposes that she receives 25 per cent of the net property pool. Consequently, this is, put simply, an “ambit” argument being, the mother says, that the payment of $600,000 sits easily within the ambit of what she will receive even on the father’s own application.
The father puts a different perspective on the property pool. He gives a value of $8,706,141. He says that he will argue at the trial that this includes an advancement to him from his parents of $7,500,000 such to be characterised at the trial but prima facie significantly reducing the property pool. He argues further that the mother’s estimate of the value of the property pool includes arguable issues such as “add-backs”.
Put simply, the father says that he wishes to retain the former matrimonial home at final settlement. The home is by far the most valuable asset in the property pool. Again, put simply, he says that even an order for $600,000 payable to the mother would necessitate the sale of the home. This sale would not be “reversible” in the sense understood by the Full Court in Harris & Harris (supra). It would involve the costs and the vagaries of the market as to the sale of the valuable asset.
The father says that he has paid the mother $100,000. She also has the benefit of equity of some $436,000 in her investment property.
Given the remaining dispute between the parties, the dearth of evidence proffered by the mother, the mother’s own financial circumstance, and taking the father’s argument at its highest, I am not persuaded to exercise my discretion over and above the $100,000 already ordered by Senior Judicial Registrar Turner and paid by the father. Consequently, the mothers’ Application for Interim Property Settlement of $600,000 (a further $500,000) is dismissed.
CONCLUSION
Consequently, the only order I make on the Review, and consistent with the father’s position, is that the mother’s Application for Review filed 28 October 2024 be dismissed.
I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 12 December 2024
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