Borah & Manderville (No 3)

Case [2020] FCCA 3248

FEDERAL CIRCUIT COURT OF AUSTRALIA

Borah & Manderville (No 3) [2020] FCCA 3248

File number(s): BRC 1678 of 2015
Judgment of: JUDGE CASSIDY
Date of judgment: 1 December 2020
Catchwords:

FAMILY LAW – Parenting - where the parents have no capacity to co parent – where the mother lacks the ability to regulate her emotions during conflict – where the mother has been the primary carer for the children since separation – where the eldest child has now self-placed with the father

FAMILY LAW – Property – where parties kept their financial affairs mostly separate during the relationship – where only significant assets comprise of and after acquired real property and a pension fund in the United Kingdom – where no adjustment just and equitable
Legislation: Family Law Act 1975 (Cth), ss 60CC, 68B, 90SM.
Cases cited:

Bitloft & Bitloft (1995) 19 Fam LR 82

Manderville & Borah [2019] FCCA 2752

Stanford v Stanford (2012) 247 CLR 108
Number of paragraphs: 181
Date of last submission/s: 22 October 2020
Date of hearing: 19-20 August 2020
Place: Brisbane
Counsel for the Applicant: Mr Drysdale
Solicitor for the Applicant: Hopgood Ganim Lawyers
Counsel for the Respondent: Self Represented

ORDERS

BRC 1678 of 2015
BETWEEN:

MR BORAH

Applicant
AND:

MS MANDERVILLE

Respondent

ORDER MADE BY:

CASSIDY

DATE OF ORDER:

1 DECEMBER 2020

THE COURT ORDERS ON A FINAL BASIS:

CHILDREN
Parental Responsibility

1.That the father have sole parental responsibility for the children X born in 2008 (‘X’) and Y born in 2012 (‘Y’ or collectively with X ‘the children’) provided that the father:

(a)Give the mother 28 days’ notice of any decision to be made in respect of the children; and

(b)Consider any views expressed by the mother in his decision making. 

Living Arrangements

2.That the children live with the father and spend time with the mother during the school term at all times as may be agreed in writing between the parties and, failing agreement, on each alternate weekend from after school on Friday (or 3:00pm if it is a non-school day) to before school on Monday (or 9:00am if it is a non-school day).

3.That time during the school term will resume after school holidays as though it was not interrupted.

4.That during the school holiday periods, the children spend time with the parents at all times as agreed between the parties in writing and failing agreement, the children spend the first half of the school holidays with the mother and the second half of the school holidays with the father, and for this purpose:

(a)School holiday periods are calculated as commencing from the day after the last day of the term at the school attended by the child, and concluding on the day before the next school term commences.

(b)The number of nights in each school holiday period is to be used to calculate one half of the school holiday period.

(c)The times that the changeovers are to occur during the school holiday periods are as follows:

(i)In a school…

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Borah & Manderville (No 3) [2020] FCCA 3248
Case
[2020] FCCA 3248
Decision Date

CaseChat Overview and Summary

In *Borah & Manderville (No 3)*, the Family Court of Australia considered parenting and property matters between Mr Borah (the applicant father) and Ms Manderville (the respondent mother). The dispute primarily concerned the living arrangements and parental responsibility for the parties' two children, X (born 2008) and Y (born 2012), and the division of property. The mother sought a payment of $100,000 from the father and for each party to retain their own property, while the father submitted that no property adjustment was required due to the absence of joint assets and the nature of individually held assets.

The court was required to determine the best interests of the children, specifically whether a shared care arrangement was appropriate given the parents' history of conflict and poor communication. Additionally, the court had to consider the mother's application for property settlement and spousal maintenance, and the father's application for an injunction restraining the mother from attending certain locations. The court also had to decide on arrangements for holidays, international travel, and the holding of the children's passports.

Judge Cassidy found that a shared care arrangement was not in the children's best interests due to the parents' ongoing conflict, hostile relationship, poor communication, and mutual low opinion of each other's parenting capacity. The court noted the benefit of a meaningful relationship with both parents but gave greater weight to the need to protect the children from harm. The court concluded that the father's proposal, which involved the children living with him and spending time with the mother, was in the children's best interests, citing the benefit of the siblings remaining together, reduced exposure to the mother's emotional dysregulation, and a single decision-maker for health and education. The court also granted an injunction restraining the mother from entering the children's residence and certain school premises without prior written consent, deeming it necessary for the children's welfare given past incidents.

On the property division, the court ordered that each party retain their own property and financial resources, finding that no adjustment was just and equitable given the parties had kept their financial affairs separate during the relationship and the significant assets comprised of after-acquired real property and a UK pension fund. The mother's applications for spousal maintenance and child support were dismissed. The court also made detailed orders regarding the children's living arrangements, time with each parent, special occasions, changeovers, schooling, international and interstate travel, communication protocols, medical issues, and dispute resolution. The court also ordered that the children's names be removed from the Family Law Watchlist and made specific provisions for the holding and use of their passports.

Orders

Orders of the court

BRC 1678 of 2015

BETWEEN:

MR BORAH

Applicant

AND:

MS MANDERVILLE

Respondent

ORDER MADE BY:

CASSIDY

DATE OF ORDER:

1 DECEMBER 2020

THE COURT ORDERS ON A FINAL BASIS:

CHILDREN

Parental Responsibility

1. That the father have sole parental responsibility for the children X born in 2008 (‘X’) and Y born in 2012 (‘Y’ or collectively with X ‘the children’) provided that the father:

(a) Give the mother 28 days’ notice of any decision to be made in respect of the children; and

(b) Consider any views expressed by the mother in his decision making.

Living Arrangements

2. That the children live with the father and spend time with the mother during the school term at all times as may be agreed in writing between the parties and, failing agreement, on each alternate weekend from after school on Friday (or 3:00pm if it is a non-school day) to before school on Monday (or 9:00am if it is a non-school day).

3. That time during the school term will resume after school holidays as though it was not interrupted.

4. That during the school holiday periods, the children spend time with the parents at all times as agreed between the parties in writing and failing agreement, the children spend the first half of the school holidays with the mother and the second half of the school holidays with the father, and for this purpose:

(a) School holiday periods are calculated as commencing from the day after the last day of the term at the school attended by the child, and concluding on the day before the next school term commences.

(b) The number of nights in each school holiday period is to be used to calculate one half of the school holiday period.

(c) The times that the changeovers are to occur during the school holiday periods are as follows:

(i) In a school holiday period where there is an even number of nights - at 4:00pm on the middle day of the school holiday period; and

(ii) In a school holiday period where there is an uneven number of nights - at 8:00am on the last day of the first half of the school holiday period.

5. That, in the event that either parent is unable to care for the children personally, that parent will give the other parent the first option to care for the children.

Special Occasions

6. That on special occasions, the children spend time with the parties at all times as agreed between the parties in writing and, failing agreement, as follows:

(a) In respect of Christmas, with the father from 4pm on Christmas Day until 4pm on the day after Boxing Day in even years.

(b) In respect of Mother’s Day, if the children are not spending time with the mother, then with the mother from 9am to 5pm.

(c) In respect of Father’s Day, if the children are not spending time with the father, then with the father from 9am to 5pm.

(d) In respect of the mother’s birthday, if the children are not spending time with the mother:

(i) if it is a school day, from after school to 6pm; and

(ii) if it is a non-school day, from 9am to 5pm.

(e) In respect of the father’s birthday, if the children are not spending time with the father:

(i) if it is a school day, from after school to 6pm;

(ii) if it is a non-school day, from 9am to 5pm.

(f) In respect of each child’s birthday, with the parent with whom the children are not spending time as follows:

(i) if it is a school day, from after school to 6pm

(ii) if it is a non-school day, from 2pm to 6pm.

7. For clarity, the special occasion arrangements set out in paragraph six (6) prevail over the ordinary living arrangements set out in paragraphs two (2) to five (5).

Changeovers

8. That, unless otherwise agreed between the parties in writing, changeovers occur in the following locations and manner:

(a) Where possible, changeover occur at the children’s school or any sporting venue for any activity in which the children are enrolled; and

(b) In the event that changeover occurs on a non-school day, then the changeover will be conducted outside B Contact Centre, located at C Street, Town D in the State of Queensland.

9. That neither parent will attempt to engage in conversation with the other parent at changeover.

School and Extra-Curricular Activities

10. That the children attend:

(a) E School for primary school; and

(b) upon reaching secondary school, F School.

11. That each parent use their best endeavours to ensure that each child attends the school in which they are enrolled on school days, subject only to illness of the child, family funeral or the like.

12. That each parent ensure the children attend all extra-curricular and social activities as agreed in writing between the parties during the children’s time with that parent.

13. That each parent be at liberty to attend parent-teacher interviews and all other activities which a parent would ordinarily attend at school.

International Travel

14. That, pursuant to section 65Y of the Family Law Act 1975 (Cth), each parent be at liberty to travel overseas with the children at all times as agreed between the parties in writing and, failing agreement, provided as follows:

(a) That the travel occurs during such periods as the children are in that parent’s care, except where the travel relates to a family emergency, such as a significant health event of a close family member, in which case the parent may travel for any period of no more than two weeks and must provide the information and documents referred to in subparagraphs (b) and (c) as soon as practicable;

(b) Subject to subparagraph (a), that the travelling parent provides at least 28 days written notice to the other parent of the intention to travel overseas with the children, including:

(i) the approximate departure and return dates;

(ii) the name of the persons who will be accompanying the children;

(iii) the country or countries the children will be travelling to.

(c) Subject to subparagraph (a), that, at least 14 days prior to the departure date, the travelling parent provides to the other parent:

(i) a copy of the children’s itinerary which must include return airfare ticketing;

(ii) the dates on which the children will arrive and depart each country;

(iii) a telephone number and address at which the children can be contacted in each country.

(d) That the children will only travel to countries which have acceded to the Hague Convention on the Civil Aspects of International Child Abduction and are a convention country for the purposes of regulation 10 of the Family Law (Child Abduction Convention) Regulations 1986 at the time of the children’s travel.

(e) That the children will only travel providing their travel is consistent with any recommendations or travel advisory warnings that may issue by the Department of Foreign Affairs and Trade such that the children will not travel if any of the following warnings are in place at the time of the children’s travel:

(i) Level 3: Reconsider your need to travel; or

(ii) Level 4: Do not travel.

15. That the Australian Federal Police remove the names of the following children from the Family Law Watchlist:

(a) X, born in 2008; and

(b) Y, born in 2012.

16. That, in respect of the children’s passports:

(a) The children’s passports are to be held by the father.

(b) The non-travelling parent is to provide the travelling parent the child’s passport in their possession for the purposes of the child’s travel not less than two days prior to the children’s departure.

(c) The travelling parent will return the passport which is to remain in the non-travelling parent’s possession as set out above at the conclusion of the children’s travel.

17. That the parties do all acts and take all steps necessary to ensure the children’s passports remain valid with an expiry date no less than 6 months validity at all times with any renewal costs to be shared equally between the parties.

18. That neither parent will alter the children’s country of residency from the Commonwealth of Australia without the prior written consent of the other parent.

Interstate Travel

19. That each parent will provide the other parent with at least two weeks’ notice of any interstate travel with the children.

Communication

20. That communication between the parties in respect of the children occur in writing, except in the case of emergencies, where communication shall occur by text message.

21. That the parent who does not have the children in their care communicate with the children by telephone, FaceTime or Skype at all reasonable times as agreed in writing between the parties and, failing agreement, between 5pm and 7pm each Monday and Thursday, and, for this purpose, the other parent will:

(a) give the children privacy during their calls;

(b) not listen to the children’s calls; and

(c) not speak on the phone during the calls.

22. That each parent facilitate any reasonable request of a child to contact the other parent, and facilitate the return contact of any reasonable attempts of the other parent to contact the children while in that parent’s care.

23. That if either parent changes their contact numbers, home address or email address, they are to notify the other parent within 48 hours of such change.

24. That these Orders serve as any necessary authority to the children’s treating doctors, schools, extra- curricular activities and the like to the effect that either parent be able to communicate with same and be advised of the children’s treatment and/or progress and obtain reports, newsletters, school photographs and the like at that parent’s cost.

25. That neither parent shall denigrate the other parent or the other parent’s family or friends to the children or within the children’s presence or hearing, or to any childcare or school provider for the children, and that the parties will ensure that no other person denigrates the other parent or the other parent’s family or friends to the children or within the children’s presence or hearing, or to any childcare or school provider for the children.

26. That neither parent will discuss adult issues with the children or use the children as a conduit to pass information to the other parent.

Medical Issues

27. That in the event that a child is injured or otherwise requires medical or hospital treatment, the parent then caring for the child will immediately inform the other parent by text message.

28. In the event of the father’s hospitalisation while the children are in the father’s care, the father will cause the mother to be informed as soon as practicable.

29. That the parties will ensure that both parties are nominated as an emergency contact for the children where those details must be provided.

30. That, in the event that the children require non-emergency medical care, the parties will ensure that the children attend on their regular general practitioner where practicable and comply with all recommendations given by a health provider.

Other Issues

31. That each party is to be predominantly responsible for the children while the children are in the parent’s care.

32. That neither parent will allow any other person to discipline the children, except for education providers, child care providers and extra-curricular providers as required.

33. That the parties be restrained from physically disciplining the children, and neither parent will allow any other person to use physical discipline on the children.

34. That neither parent will publish information or comment about the other parent to the other parent’s family or on social media, websites, WordPress blogs or the like, and each parent will use their best endeavours to ensure no other person does so.

35. Pursuant to s68B of the Family Law Act 1975 (Cth) an injunction issue restraining the mother from entering the premises where the father resides from time to time including, G School, Town D in the State of Queensland, without prior written consent obtained through the husband’s solicitors.

Dispute Resolution

36. That if there is a dispute about the children or about the interpretation, implementation or enforcement of these Orders, then the parties shall submit to the following dispute resolution process:

(a) The parent with the complaint (complainant) will provide written details of the nature and extent of their complaint to the other parent (recipient) with a proposal for resolution of the complaint;

(b) The recipient will provide a written response to the complaint within 14 days of receipt of the complaint with which the recipient disagrees, and if there is a disagreement, a counterproposal for a resolution of the complaint;

(c) The complainant within 14 days of the receipt of the recipient’s response will provide written confirmation of whether the complainant considers that there is still a dispute;

(d) If there is still a dispute after sub-paragraph (c), the complainant will contact a Family Relationship Centre or Family Dispute Resolution Centre and the parties will participate in mediation about the dispute with the costs to be shared equally.

PROPERTY

37. That by way of property settlement, each party retain as their absolute property all right, title and interest to and in the property and financial resources in their power, possession or control as at the date of this order.

38. That the de facto husband be responsible for and meet payment when due of his credit card debts and any other liability in his name and indemnify and keep indemnified the de facto wife from all liability howsoever arising in relation to the same.

39. That the de facto wife be responsible for and meet payment when due of her credit card debts and any other liability in her name not otherwise dealt with in this Order and indemnify and keep indemnified the de facto husband from all liability howsoever arising in relation to the same.

40. That:

(a) Each party hereby forgoes any claim that they have to any superannuation benefit belonging to or earned by the other;

(b) All insurance policies become the sole property of the beneficiary named thereunder; and

(c) Each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Oder.

Spousal Maintenance

41. That the de facto wife’s application for spousal maintenance be dismissed.

Child Support

42. That the de facto wife’s application in relation to child support be dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The mother seeks that the father pay her $100,000 and otherwise each party be declared to be the owner and entitled to all property in the name or possession of that party. In the mother’s submissions she filed on 22 October 2020 she seeks: “My instructions for the purpose of these submissions are that Ms Manderville seeks the order as set out in her affidavit, namely, “I am seeking orders that the Applicant pay to me a sum of money that properly reflects the contributions I made during the relationship”.”BACKGROUND The father is 62 years old, he was born in 1958. The mother is 42 years old, she was born in 1977. In 1988 a property at M Street, City N, UK (‘the UK Property’) was purchased in the names of the father, the father’s mother and the father’s father. Up until around 2003 the father worked in businesses owned by his father. These shops were sold in around 2003. At around the same time the Borah Children’s Trust was established by the father’s father and stepmother. The father receives 50% of the income of the trust subject to the overriding powers of the trustees. The parties met in 2006, and commenced a de facto relationship in around mid 2007. They commenced living in the UK Property. In 2008 the father executed a declaration of trust confirming that his share of the UK Property is and always has been held on trust for his father (the stepmother was now deceased). In mid 2008 the mother relocated back to Australia. X was born in 2008. In around 2009 the father transfers his interest in the UK Property to his father. There was no consideration provided to the father for the transfer. In 2012 Y was born. The final separation was in April 2014. The father commenced proceedings in relation to parenting matters on 25 February 2015. On 27 May 2015 the parents entered into consent orders which provided in part:(1)That the children live with the mother;(2)That the children spend time with the father: (a)For four weeks commencing 1 June 2015 on Monday, Wednesday and Friday from 3:00pm to 5:00pm; (b)For two Saturdays from 10:00am to 6:00pm and thereafter from 10:00am Saturday to 10:00am Sunday; and(c)That changeovers were to occur at either school or at the maternal grandmother’s residence with the mother not being present for the changeover. By May 2016 after an order on 26 May 2016 the father’s time with the children was each alternate weekend. In July 2016 the father had to undergo heart surgery. In March 2017 consent orders were made on a final basis in respect of the parenting matter. The parties agreed to an order for equal shared parental responsibility, the children live with the mother and spend time with the father alternate weekends and half of all school holidays with the father. In December 2018 X ran away from the mother to the father and refused to return to the mother. The mother sought a recovery order on 24 December 2018. The father filed an Amended Initiating Application reintroducing the parenting matters.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I consider that there is not one single indicator in this case that shared care would be in Y’s best interest:·The parents communication with each other is very poor;·These parents are in constant conflict and have been since 2015;·The relationship between the parties is hostile; and ·These parents have a very poor opinion of the other parents’ capacity. Conclusion I consider the father’s proposal is in the best interests of the children for the following reasons:(1)The siblings will be together;(2)The children will be less exposed to the mother’s emotional dysregulation that could ultimately cause them to suffer the same problems resulting in emotional harm; (3)X will not be exposed to the risk of physical abuse to the same extent she would be if she lived with the mother; (4)The parents relationship is such that it would not be possible to place the child Y into a shared care arrangement;(5)The children will have one decision maker in relation to health and education issues. These are both areas where there have been significant conflict in the past; and(6)The child Y will return to mainstream schooling. I consider that is in his best interests. The Injunction The Family Law Act 1975 (Cth) provides: “(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:…(c) an injunction restraining a person from entering or remaining in:(i) a place of residence, employment or education of the child;…(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.” Given the events described in paragraphs [35]-[38] where the police were called when the mother attended the father’s home I consider it is appropriate for the welfare of these children to restrain the mother from entering or remaining in the place of residence of the children without the written consent attained through the father’s solicitor. The Recovery Order I do not consider it is appropriate to issue a recovery order on the papers to lie in the registry. I will not make that order sought by the father. The mother or father would need to file an Application in a Case if a recovery order is necessary in the future. Holidays and Overseas Travel The father seeks orders for holidays and overseas travel. I intend to make these orders. The mother made submissions opposing these orders. I consider it is appropriate to remove the airport watch and allow overseas travel for both parents. PROPERTYIntroduction The father’s case is set out in paragraph 137 of his submissions:“137. The parties here have ended their de facto relationship. However the Father submits that in circumstances where there are no joint assets or joint property requiring separation and division, and having regard to the nature of the assets held by the parties and their contributions to those assets, and the period since separation, to do justice and equity between the parties does not require orders altering the parties’ interests in property.”

Ratio Decidendi

Legal Principle Established

In determining what is in children’s best interests I must consider the matters set out in s.60CC(2), the “primary considerations”, and s.60CC(3), the “additional considerations”.Primary Considerations Turning firstly to the application of the primary considerations set out under ss.60CC(2) and (2A):“(2) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).” The parents are both seeking orders that would have the children spending time with the other parent. There is no doubt there is a benefit to these children having a meaningful relationship with both parents. The mother submits the father has not demonstrated a commitment to spending time with the children in the past. This is not the case now. The mother sent Ms S a bundle of emails which are marked exhibit seven in these proceedings that set out an example of the father’s failure to spend time with the children: “What is happening with you? Are you seeing X or not? Had too much to drink am hung over (sic) > wot u want to do (sic)Seriously??? That’s your excuseI’ll let X know. She has only been waiting since 1am last night!!!!!!” However I accept both the mother and the father are now committed to a relationship with the children. The mother submits there is a need to protect X from a risk of abuse in the father’s care. The mother’s statement to the police on 8 May 2018 alleges the father was coaching X to make up lies about the other. The mother submits:“84. A further example of Mr Borah’s influence on X is to be found in Ms Manderville’s statement to the Police on 8 May 2018 as recorded on pages 341 to 344 of her Tender Bundle. In that statement, Ms Manderville deposes to X being disgruntled at being told to go to bed. X telephoned her Father. Ms Manderville says she heard via speakerphone, Mr Borah say to X, “we have to play smart, X, you know I can’t come to Mummy’s house as Mummy will call the police”. He further tried to elicit statements from her by asking, “What’s the matter? What’s mummy done? Has Mummy hurt you? Stuff like that”85. In that statement, she says that sometime later (paragraph 11) “X came into my room about 2 minutes later crying saying that Daddy is out the front”. X some minutes later X ran outside and Ms Manderville said, “Mr Borah was standing next to his car which was parked in front of the house”. She said that Mr Borah “was saying it’s ok X, you don’t have to live with that psycho anymore”. He then called the police. X ran up the street. Ms Manderville followed her. While she was away, Mr Borah then collected Y.” This is one of a number of events where the children have become involved in adult conflict.