Coventry and McNamee
[2016] FCCA 495
•9 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COVENTRY & MCNAMEE | [2016] FCCA 495 |
| Catchwords: FAMILY LAW – Property – s.79A(1)(d) – application dismissed. |
| Legislation: Family Law Act 1975 (Cth)(as amended) s.79A(1)(d) |
| Simpson & Hamlin (1984) FLC 91-576 Gavin & Garden [2011] FamCA 190 Sandrk & Sandrk (1991) FLC 92-260 Christian & Donald [2008] FamCAFC 44 Youseff & Youseff [1995] FamCA 102 Rule & Rule [2015] FCCA 3191 Lindon & Commonwealth of Australia (No.2)[1996] HCA 14 Gitane & Velacruz [2007] FamCA 183 |
| Applicant: | MR COVENTRY |
| Respondent: | MS MCNAMEE |
| File Number: | ADC 987 of 2009 |
| Judgment of: | Judge Mead |
| Hearing date: | 21 October 2014 |
| Date of Last Submission: | 21 October 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 9 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fryer |
| Solicitors for the Applicant: | Adelaide Lawyers |
| Counsel for the Respondent: | Ms Horvat |
| Solicitors for the Respondent: | Moloney and Partners |
ORDERS
That the application filed herein by the husband on 25 April 2014 be summarily dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Coventry & McNamee is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 987 of 2009
| MR COVENTRY |
Applicant
And
| MS MCNAMEE |
Respondent
REASONS FOR JUDGMENT
Introduction
On 17 March 2009 the applicant Mr Coventry filed an application for settlement of property. The respondent Ms McNamee filed a response to that application on 30 April 2009.
The parties were unable to resolve the matter and it came on for trial on 18 September 2009. Reasons for judgment were delivered on 23 December 2009 but in circumstances where a superannuation split was proposed in the reasons and procedural fairness had not been effected the final order was not made until 24 February 2010.
Under the terms of the order the husband was to transfer to the wife his interest in the former matrimonial home at Property C on or before 7 April 2011. There was also a superannuation split (in favour of the wife in the sum of $157,000) with respect to the husband’s (employer omitted) superannuation and benefits scheme.
On the same day the order was made, namely 24 February 2010, the court ordered that the question of the wife’s costs be adjourned to 12 March 2010 at 10:30am for argument and that the substantive order involving the transfer of the husband’s interest in the former matrimonial home to the wife and the split of the husband’s superannuation entitlements be stayed up to and inclusive of 12 March 2010, pending the filing by the applicant husband of a Notice of Appeal.
On 12 March 2010 an order was made by consent providing for the husband to pay to the wife’s solicitors, Moloney and Partners, the sum of $7,000 by way of payment towards the wife’s costs of the proceedings with the payment to be made on or before 9 April 2010. The stay order in relation to the substantive order for settlement of property was extended by consent to 12 April 2010.
The judgment with respect to property settlement proceedings provided for the equity in the parties former matrimonial home to be divided as to 70% thereof to the wife and 30% thereof to the husband with a superannuation splitting order in favour of the wife equal to 40% of the value of the husband’s superannuation entitlements as at 30 May 2009.
Taking into account the findings of the court with respect to the value of the respective assets, to effect the outcome determined by the court the wife would have been accountable to the husband in the sum of $75,600. The wife argued that any indebtedness that she had to the husband with respect to his interest in the former matrimonial home should be offset against her interest in his superannuation benefits and that she should have a splitting order in her favour in the sum of $157,000. This approach the court found to be appropriate. Those matters were referred to in paragraphs 119 to 127 of the reasons for judgment.
The parties had married on (omitted) 1995 and separated on 8 July 2001 being a total cohabitation period of some seven and a half years. At the time of delivery of judgment in December of 2009 their three children, W, Y and Z, were aged 14, 12 ½ and 10 ½.
The parties had separated on 8 July 2001 and at the time of trial had been separated for over eight years. It was common ground that during the period of cohabitation the wife was the primary care provider for the children.[1]
[1] Paragraph 41 reasons for judgment Coventry & McNamee [2009] FMCAfam 1379
At the time the parties separated their three children were aged nearly 6 years, 4 ½ years and 2 years. In paragraphs 55, 56 and 57 of the reasons for judgment the court referred to the care provided by each of the parties to the children post-separation. It was common ground that the children were mainly in the care of the wife from July 2001 until sometime in 2003, when the husband referred to having the children in his care for 11% of the time and then from 2004 for about 15% of the time. This evidence was confirmed by the wife in her trial affidavit.
On 24 March 2010 the husband filed a Notice of Appeal with respect to that part of the property settlement order relating to the superannuation split in favour of the wife. The appeal was heard by Justice Strickland on 20 September 2010 and dismissed on 9 June 2011.
In paragraphs 7 to 16 of the husband’s trial affidavit filed in respect of the property settlement proceedings he set out his evidence in relation to his care of and involvement with the children post-separation. In particular, in paragraph 16, he deposed to his recent attempts to negotiate an increase in his level of care for the children through a family relationships centre as being about him wanting to provide a greater parenting contribution outside of alternate weekend contact, and wanting to be more than a weekend parent.
On 13 April 2010, just less than four months after the handing down of the reasons for judgment on 23 December 2009, some seven weeks after the making of the property settlement order and three weeks after the filing of the Notice of Appeal against that order, the husband instituted proceedings with respect to parenting issues.
In that application he sought orders that the children live with the mother and spend time with him during school term time from after school Thursday to the commencement of school the following Tuesday in each alternate week, being five nights out of every fourteen nights. He further sought that the children spend time with him for one week during the short school holidays in each year and for two weeks during the Christmas school holidays as well as spending time with him on special occasions.
In his affidavit in support of that application he deposed to the parties agreeing on parenting issues between the date of separation on 8 July 2001 and April 2004, by which time he said the children were spending time with him on alternate weekends from after school Friday until 5:00pm Sunday and on other nights by agreement for evening meals or extra-curricular activities. He deposed to the parties being able to agree additional time for the children to spend with him during school holidays.
In paragraph 13 of the affidavit filed 13 April 2010 he deposed to his belief that his children wanted to spend some extra days with him during school term time as well as during school holidays. He deposed to the mother refusing to attend at mediation with respect to parenting issues or contemplate any change in the alternate weekend arrangements.
He deposed to living in a home at Property M on which he had a secure lease and in which there were four bedrooms with each child having their own room. He deposed to the property being comfortably furnished and offering appropriate accommodation for the children.
In the mother’s response filed 17 June 2010 she proposed that the children spend time with their father from after school Friday until the commencement of school Monday in each alternate week, for one week during each term school holiday period and on Father’s Day. She also sought orders restraining the father from taking the children out of the Commonwealth of Australia without her prior written consent and orders with respect to the advice she wanted from the husband if he proposed taking the children out of the Commonwealth of Australia.
In paragraphs 11 through to 16 the wife set out her evidence as to the time the children had spent with the father between 2004 and 2009. She set out the significant times that the husband was unable to spend time with the children due to being interstate or overseas with his employment.
In paragraph 17 of the same affidavit she conceded that the children had in the main spent time with their father on alternate weekends from after school Friday to 5:00pm Sunday since late 2004 and that he had also provided some assistance with (hobby omitted) on Wednesday nights.
In paragraph 18 she deposed to the father rarely spending more than two weeks holiday with the children in any year due to his work commitments. She conceded in paragraph 21 of her affidavit that the children’s views should have some weight taking into account their ages, but said she was concerned about the amount of time the husband sought to spend with the children in circumstances where she thought it would be disruptive to them, particularly Z, who had significant behavioural problems.
On 21 June 2010 being the first return date of the father’s application, final orders were made by consent providing for the parents to have equal shared parental responsibility for W, Y and Z, for the children to live with the mother and spend time with their father for one week during all of the term school holidays and for two weeks during the Christmas school holidays each year.
A further order that day provided for the mother to do all such things and sign all such documents as may be necessary to ensure the issue of each of the children’s passports. The matter was adjourned to 10 August 2010 with the parties and the children to attend for a child dispute conference on 29 June 2010.
A child dispute conference took place on 29 June 2010, with all three children being clear in their wish to spend more time with their father. W and Z seemed to think five consecutive nights each fortnight would be a good idea, with Y having a slight preference for four nights but being happy to go along with his siblings and the proposed five consecutive nights.
The memorandum following the conference confirmed that the parties were prepared to support the children’s wishes and were going to implement arrangements for the children to spend time with their father in alternate weeks from Thursday to the following Tuesday.
On 10 August 2010 final orders were made providing for the children to live with the mother and spend time with the father during term time from after school Thursday until the commencement of school the following Tuesday and then for school holidays in terms of the previous order. The order in relation to the mother signing the passport documentation was continued and the matter was finalised.
The court noted on that day that given the ages of the children the parties were in agreement that if the children expressed a wish to reduce or increase time with their father in the future or revert to the previous alternate weekend arrangements both parties would support the children in that regard and there would not be a need for further court proceedings.
On 29 June 2011, some three weeks after Justice Strickland dismissed the husbands appeal with respect to the property settlement orders, the father filed a further application with respect to parenting matters. That application, which was returnable on 15 August 2011 sought that the order of 10 August 2010 be discharged and that the children live with each party on a week about basis.
The father deposed to all of the children, but in particular Z, spontaneously discussing the prospect of living with each parent on a week about basis several months after the making of the order of 10 August 2010. He deposed to the children at that time spending five nights per fortnight with him and to Z having had quite significant behavioural issues resulting in him being excluded from school at about the time of the making of the August 2010 orders. He deposed to Z’s behaviour having improved and to he and the mother being able to discuss Z’s behavioural issues.
He deposed to the mother declining to respond to a further invitation to attend at mediation. At paragraph 16 of his affidavit filed 29 June 2011 he deposed to writing to the mother on 21 March 2011 suggesting a change of the residence arrangements to a week about situation and advising that he would not object to paying half of the mother’s out of pocket expenses for the children, being half of the school fees, uniform fees, (hobby omitted) fees and medical and dental expenses. He said he did not want the mother to feel that he was seeking a shared care arrangement for financial gain.
The application was served on the mother in 9 July 2011. The first return date of the application was 15 August 2011. The mother did not appear at the hearing on 15 August 2011 and nor was she represented. In those circumstances the court made orders on an undefended basis discharging all previous orders with respect to parenting issues and providing as follows:
2.That the parties have equal shared parental responsibility for their children X born (omitted) 1995, Y born (omitted) 1997 and Z born (omitted) 1999.
3.That the children live with each of the mother and father:-
a.On an alternating week basis, as follows:-
i.With the father, until the conclusion of school on Friday 19 August 2011;
ii.With the mother, from the conclusion of school Friday 19 August 2011 until the conclusion of school on Friday 26 August 2011, and during the same period each alternate week thereafter;
iii.With the father, from the conclusion of school Friday 26 August 2011 until the conclusion of school on Friday 2 September 2011, and during the same period each alternate week thereafter;
iv.In the event handover falls in a non-school day, it shall take place at 3:00pm on the Friday.
b.At time to be agreed between them in special occasions, including but not limited to Father’s Day (for the father), Mother’s Day (for the mother), birthdays, Christmas and Easter.
4.That the father’s Application filed 29 June 2011 be otherwise dismissed.
On 25 April 2014, some two years and eight months after the making of the parenting order providing for the children to live with each of their parents from Friday to Friday on a week about basis, the husband filed an application seeking to set aside paragraph 1.1 of the order of 24 February 2010, which provided for the transfer of the husband’s interest to the wife in the property at Property C. He sought that the order be set aside pursuant to the provisions of section 79A(1)(d) of the Family Law Act (1975) as amended. He sought a further order that in substitution for that order the “wife transfer to the husband 30% of the current equity held by the wife in the said property.”
He sought a further order that within six weeks of the making of the substitute order that he proposed, if the wife had failed to secure the funds necessary to pay to him an amount equal to 30% of the net equity of the property, the property should be listed for sale with the net proceeds of sale to be divided between the parties as to 70% to the wife and 30% to the husband.
It is this application that is the subject of these reasons.
The husband deposed to circumstances having arisen since the making of the order for property settlement “which are of an exceptional nature relating to the care, welfare and development of all three children of the marriage, but in particular with respect to the youngest child of the marriage, Z born (omitted) 1999.”[2]
[2] Paragraph 1 of the husbands affidavit filed 25 April 2014
The husband deposed in that affidavit in paragraph 7 to informal parenting agreements with the wife from July 2001 until he filed an application for orders on 13 April 2010 following her failure to respond to requests from the family relationships centre to participate in mediation concerning parenting arrangements.
He deposed to the orders made by consent on 10 August 2010 and to requesting the wife again to attend mediation in March 2011 to discuss his proposal for the children to live with each party for equal time. He then deposed to the further parenting orders made for equal shared parenting time in the absence of a response from the wife on 15 August 2011.
In his affidavit of 25 April 2014 he deposed to W deciding to live with him on a full-time basis on 9 December 2011. He deposed to the mother acknowledging that W was no longer living with her on 18 January 2012. He deposed to the mother deciding that the child Z should live with him on a full-time basis as of 29 April 2012, to him being unsure at the time whether that was on a permanent basis or not but to thereafter providing full-time care for Z. He further deposed to Y, who until 7 January 2014 had continued to live with each parent on a week about basis, then coming into his full-time care. He said he was posted to Canberra on 13 January 2014 but that both W and Y chose to remain in Adelaide to complete their studies. He deposed to Z moving to Canberra with him in January 2014.
In paragraphs 13 to 18 under the heading “exceptional circumstances” the husband deposed to Z being very difficult to manage with severe behavioural problems leading to absences and suspensions from school, to Z absconding from his home in the middle of the night, smoking marijuana and drinking alcohol, being missing for several days at a time and having numerous involvements with police. He deposed in paragraph 15 to the significant disruption to his work caused by the need to attend to Z’s behavioural challenges. He deposed to the mother only spending quality time with Z on a few occasions between May 2012 and January 2014.
He deposed to advising the mother on 22 August 2013 that he had been posted to Canberra with effect in January 2014, and that he had initiated mediation with the family relationships centre to discuss living arrangements for W and Z, neither of whom wanted to proceed on posting with him. He deposed to the mother not responding to the request for mediation and to advising him via email on 19 November 2013 that she had told him on 7 July 2013 that Z would not be returning to live with her. He said he then began making plans for Z to move with him to Canberra.
He said W decided for herself that she didn’t want to return to her mother’s house in January 2014 but wanting to finish her high school studies in Adelaide. He said his expectations were that Y would return to the mother’s care full-time but that Y decided not to do so from January 2014. He said he then had to find somewhere for both W and Y to live.
In paragraphs 19 to 22 under the heading “hardship” the husband deposed to the considerable financial constraint placed on him because of his requirement to support W and Y completing their secondary education in Adelaide and supporting Z in a separate household in Canberra. He said he had little choice but to buy a property for W and Y to live in because of “a less than likely possibility” of finding a rental property for two teenagers.
He said this happened at a time when he was least prepared to purchase a property, that he did not have sufficient funds and was required to borrow $25,000 from his parents to make up the difference between what he was able to fund himself and the cost of the property. He said he also took two additional loans from the (employer omitted) to cover the costs of establishing his household in Canberra and to cover his rental bond.
He deposed to currently making mortgage repayments on the Property M property, rent payments in Canberra and paying all of the household expenses at both households, including all food and bills. He deposed to the regular trips back to Adelaide to attend to matters at the Property M house also incurring costs. He deposed to his expenditure for basic necessities exceeding his income by about $50 a week and to his current liabilities exceeding the value of his property. He said that his financial situation was deteriorating and could only be relieved in the short term by delaying repayments to his parents.
He said that (employer omitted) allowances to members with dependants who proceed on postings without their dependants did not extend for single members who proceeded on posting leaving dependent children behind. He further deposed to the mother not only no longer providing care for any of the children but to being unable to secure child support payments from her proportional to her likely income and to having only received $35.11 in 2014. He deposed to his concern that the income on which the mother’s child support assessment was calculated was only provisional because she had not completed tax returns.
In paragraphs 23 to 31 under the heading “reasons for this application” he said that if the order he proposed was made it would provide him with sufficient funds to relieve debt and ease his financial burden.
He deposed to the mother having the care of the children about 85% of the time and receiving 100% of the equity of the former matrimonial home at the time the orders for property settlement were made on 24 February 2010. He said that at the date of the swearing of his affidavit the children were in his care 100% of the time but that he had received no equity to assist with the circumstances in which he now found himself.
In paragraph 25 he said “I do not consider the 30% of equity which was “quarantined” to my inaccessible superannuation fund to be useful in providing for the children’s needs now.” He deposed to significant changes to the children’s care arrangements occurring when the order for the children to live with each of their parents on an equal time basis was made some 18 months after the final order for property settlement.
He further deposed to the circumstances where W came into his full-time care occurring less than two years after the property settlement orders were made, which change in care arrangements was both unexpected and made solely at the request of W. He deposed to not contributing to W’s decision to move permanently out of her mother’s home.
He said the change in Z’s living arrangements to full-time care occurred two years and two months after the order for settlement of property, with the mother making that decision. He said he did not choose to be posted to Canberra in 2014 and that Z didn’t want to move with him but because the mother was not prepared to provide a home for Z, he had no choice but to take Z with him.
He deposed to the requirement to establish a second household in Adelaide for W and Y being because they wanted to finish their secondary schooling in Adelaide and did not want to live with their mother.
In paragraph 31 he deposed to his financial hardship, arising from supporting the children both in Adelaide and in Canberra without financial support from the mother arose from circumstances that he did not expect nor contribute to.
On 12 June 2014, in her response, the wife sought on a final basis that the husband’s application be dismissed. In her amended response filed on 23 June 2014 she sought on an interim basis that the application be summarily dismissed.
In her affidavit filed 12 June 2014 she deposed to the husband’s application being filed on 25 April 2014, to the return date being 16 June 2014 and to only being served with the application on 1 June 2014.
It was the mother’s evidence that the circumstances that had arisen since the making of the property settlement order were not of an exceptional nature such as to warrant an application as filed by the husband and further, even if the circumstances were exceptional, there was no hardship suffered by the father. She deposed to being opposed to the orders sought by the husband.
She deposed to the orders of 24 February 2010 not being served upon the husband’s superannuation fund to effect the split until 23 November 2011 and to the transfer of the husband’s interest in the former matrimonial home to her not occurring until 23 December 2011 in circumstances where the husband had appealed the original order. She deposed to borrowing funds at the time of settlement to re-finance the (omitted) bank mortgage over the property, to purchase a vehicle and to pay her legal fees.
The wife deposed in her affidavit in paragraphs 9 to 25 under the heading “events since original orders were made” to the husband first requesting to spend more time with the children at the time of his application for settlement of property, and then filing an application for parenting orders after judgment was delivered. She deposed to her belief that the husband’s motive was to reduce his child support liability in circumstances where the parties had significantly disparate incomes.
The mother deposed to her consent to a variation of the children’s living arrangements with each parent as ordered herein 10 August 2010 after hearing the wishes of the children expressed to the family consultant.
She deposed to the children being happy to live with their father on an equal time basis with her and her determining that she would not expend further funds in contesting the father’s second application for a variation of the children’s parenting arrangements, which led to the undefended orders being made for week about care on 15 August 2011.
The wife admitted that on 9 December 2011 W decided to live with the father on a full-time basis in circumstances where she deposed to Z causing significant stress in the household and to W studying maths at school for which she required the father’s help. The wife deposed to respecting W’s right to choose where she wanted to live as she was then aged 16 and also to continuing to have a strong relationship with W since she went to live with the husband.
She admitted that on 29 April 2012 she requested that Z go and live with his father on a full-time basis. She said that followed upon Z’s behaviour becoming unmanageable for the reasons referred to in the husband’s affidavit, to which I have already referred, and to physically assaulting her upon his return to her home the previous weekend when he had been missing all weekend.
She deposed to telling Z to leave and to live with his father. She was hopeful that the father would be better able to manage Z. She said that for at least 12 months after that decision Z refused to speak with her and that he was very angry with her because of her rejection of him. She said although she wanted to try and rebuild the relationship with Z she was not prepared to tolerate his physical and verbal abuse.
She said Y moving out of home on 7 January 2014 was a complete surprise to her and not at all expected. She deposed to the husband having been living in rental accommodation at (omitted) since March 2004, which was (employer omitted) subsidised housing. The mother deposed to Y telling her on or about 4 January 2014 that he was moving out. When she asked where he was moving to he told her, as deposed to in paragraph 23 of her affidavit filed 12 June 2014, “dad has bought W and I a house and I’m moving in there.” It was the mother’s evidence that Y was attracted to the idea of living without parental supervision.
Under the heading “exceptional circumstances” in paragraphs 26 to 36 the wife admitted sending the husband a text message on 29 April 2012 and deposed to being aware of all of the problems that Z was creating at school and to further being involved in all of the parental meetings including at (omitted) and (omitted) School that she was made aware of. She further admitted to receiving advice by email from the husband about his posting to Canberra and his request for mediation. She deposed to ignoring this as she considered his request to be harassment. She deposed to suffering from depression with a major breakdown in January 2013 and to being sexually assaulted in August 2013.
She deposed to the husband asking Z to come to live with her and to her assumption that Y would remain in her full-time care when the husband moved to Canberra. She said there were no other discussions about the issue. She deposed to not having discussed with W what would happen when the husband moved to Canberra, but to W being aware that she was always welcome to move back to her home.
She disputed the husband’s evidence that he had no other option other than to purchase a home for the children. The wife deposed to both W and Y being welcome to live with her upon the husband’s posting to Canberra but to the husband’s decision to purchase a property and offer W and Y the opportunity to live there being attractive to both children. She deposed to the husband having the option to rent a property in his name for the children.
Under the heading “hardship” in paragraphs 36 to 49 the wife disputed the husband being under financial strain and expressed the view in the alternative that if he was experiencing such strain it was of his own making. She deposed to the husband’s disclosed income of $144,000 per year and to having an estimated income herself of $37,000 per year.
She deposed to W completing year 12 in 2013 but wanting to take two subjects in 2014 to improve her TER mark. She deposed to W having minimal contact hours in 2014 and to working at (employer omitted) on a part-time basis. She deposed to Y commencing work in the Christmas holidays in 2013 at (employer omitted) and to her understanding that he continued to work there on weekends and sometimes on Thursday nights and during school holidays in 2014.
The wife admitted that she had not lodged a taxation return for the years ending 30 June 2011 to 30 June 2014. She deposed to starting work as a (occupation omitted) on a part-time basis in June 2011 and to earning $35,000 to $40,000 per year from June 2011. She deposed to advising Centrelink on a regular basis of income earned by her. She acknowledged in paragraph 49 that she had a child support debt which she understood would be deducted from her wages.
Under the heading “reasons for application” in paragraphs 50 and following she deposed to W being an adult. W attained the age of 18 years on (omitted) 2013. She concluded high school in 2013, although she elected to undertake further studies to improve her TER results in 2014, albeit on a limited basis. The wife deposed to being happy for W to come back and live with her in circumstances where if the husband was unable to afford the property he had purchased, he could sell that property.
The wife deposed to Y being half way through year 12 and to being a good student. The wife deposed to Z’s living arrangements arising from his failure to accept her discipline and to her feeling unsafe with him living in her home. She said she would have liked Z to continue living with her if his behaviour had been different.
In paragraph 64 she deposed to the husband not being required to purchase a home. She said both Y and W could have returned to live with her or “other less onerous financial arrangements could have been made…” She said that the hardship alleged by the husband is of his own choosing and that he would obtain long-term benefit for himself as a result of purchasing the Property M property. She deposed to not being in a position to meet the repayments on her mortgage if it was to be extended for the amount sought by the husband and sought that the husband’s application be dismissed.
As well as their affidavits both parties filed financial statements and the husband’s solicitor Mr Fryer filed an affidavit on 14 October 2014 annexing child support assessments, transactions statements, statement of outstanding child support, school suspension report of Z, documentation relating to Z’s appearance in the Children’s Court in the ACT, good behaviour order relating to Z and a court alcohol and drug assessment report of Z of September 2014.
The Law
The husband’s case was based on section 79A of the Family Law Act 1975 (as amended) and in particular section 79A(1)(d) which together provide as follows:
“Section 79A(1) where, on application by person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
1. …
2. …
3. …
4. In the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibilities for the child (as defined in sub-section (1AA), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
5. …
The court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.”
The husband did not seek that the entirety of the order for settlement of property made on 24 February 2010 be set aside but rather, that part of the order that transferred to the wife all of the husband’s estate and equity in the property at Property C. The wife sought that his application be summarily dismissed.
The Federal Circuit Court has the power to summarily dismiss proceedings. Section 17A of the Federal Circuit Court of Australia Act 1999 (as amended) provides as follows:
1. The Federal Circuit of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
a)The first party is prosecuting the proceeding or that part of the proceeding; and
b)The court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
2. The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of the proceeding if:
a)The first party is defending the proceeding or that part of the proceeding; and
b)The court is satisfied that the other party has not reasonable prospect of successfully prosecuting that proceeding or that part of the proceeding.
3. For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
a)Hopeless; or
b)Bound to fail; for it to have no reasonable prospect of success.
4. This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
Rule 13.1 of the Federal Circuit Court Rules 2001 (as amended) is in the following terms
“The court may order that a proceeding be stayed, or dismissed generally, or in relation to any claim for relief in the proceeding, if the court is satisfied that:
a)The party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
b)The proceeding or claim for relief is frivolous or vexatious; or
c)The proceeding or claim for relief is an abuse of the process of the court NOTE: for additional powers of the court in relation to family law proceedings that are frivolous or vexatious, see sections 102QB and 118 of the Family Law Act.”
For the husband to succeed in his application he must satisfy the court that since the order for settlement of property was made by the court on 24 February 2010, in the circumstances that have arisen, being circumstances of an exceptional nature relating to the care, welfare and development of one of the parties children or of the husband himself he will suffer hardship if the court does not set aside that part of the order to which the husband refers in his application and make another order in substitution for that order.
In Simpson & Hamlin (1984) FLC91-576 the Full Court held that the moving of children to live with the other parent after the making of final orders for settlement of property did not of itself constitute “exceptional circumstances.” Their Honours findings in that case were referred to in paragraphs 27 to 29 inclusive of the judgment of Mushin J sitting as the Full Court in Gavin & Garden [2011] FamCA 190. His Honour said in that case:
“27. In Simpson and Hamlin (1984) FLC ¶91-576, a Full Court of this Court determined an appeal against orders which set aside consent orders for alteration of property interests under paragraph (d) in circumstances in which the husband, who had the sole care of the children, advised the wife that he could not care for them nine days after the making of the orders. The Court noted the trial judge's finding (at p 79,656) –
… that the delivery of the children to the wife by the husband so soon after the consent order had been made, amounted to “circumstances of an exceptional nature” affecting the welfare of the children in which the wife, who had their custody, would suffer hardship if the consent order was not set aside.
28. Their Honours held (at p 79,657):
So far as the first point is concerned, his Honour quite rightly, in our view, concluded that:
The occurrence of a change in the responsibility for the daily care and control of children of a marriage, after the making of a property order under sec. 79 of the Family Law Act could not be held of itself to be an unusual circumstance. The ordinary vicissitudes of life coupled with the difficulties that parties to a marriage often experience in the task of restructuring their lives following the dissolution of their marriage and the division of their assets, and their obligations to the support of each other and the support, care and control of their children, frequently creates situations in which it is desirable having regard to the children's welfare that such a change occurs.”
The question therefore was whether the change which occurred in this case was such as to “take it out of and beyond the ordinary circumstances in which such change might be reasonably expected to occur”. He saw that feature in the present case in “the fact that the change occurred unexpectedly and so quickly after the making of the property order”.
29. Shortly following the passage quoted in the previous paragraph, the Full Court held (p 79,658):
What amounts to “exceptional circumstances” is very much a question of fact and degree. With findings on such matters an appellate tribunal is reluctant to interfere. Whilst we might have had some hesitation ourselves as to whether or not in the light of the history of these parties and their admitted future intention, the change of custodial arrangements was so exceptional as to take it out of the normal vicissitudes of life, it was in our view a finding which his Honour was entitled to make on the evidence and which we cannot disturb.”
In Gavin & Garden (supra) final orders were made by consent on 5 May 2004 in regards to settlement of property and children’s issues. The parties had two children who, at the time the order was made, were aged approximately 11 years and 8 years respectively. The orders provided for the children to live primarily with the wife and spend time with husband for five nights per fortnight.
Seven months after the final orders were made the children left their mother’s home and went to live with their father. On 4 February 2005 interim parenting orders were made providing for the children to live with the father, for the older child to spend time with the mother for four nights each alternate week and for the younger child to spend time with the mother for six nights each alternate week.
On 22 August 2005, following a trial, orders were made providing for both children to live primarily with the father and to spend time with the mother for four days per fortnight.
On 28 June 2007 there were further parenting orders providing for both children to continue living with the father and for the younger child only to spend time with the mother each alternate weekend.
On 10 May 2006 the husband filed an application to set aside or vary the consent orders relating to property settlement. On 18 October 2007 the husband succeeded in obtaining such an order. The matter was then set for hearing with respect to the question of settlement of property.
On 18 September 2009 property settlement orders were made in the absence of the wife, in respect of which the wife appealed. On 2 July 2010 the wife succeeded on appeal with respect to both the order setting aside the consent order and the fresh order for settlement of property. Such an outcome resulted in the original consent order dated 5 May 2004 for settlement of property being reinstated. The matter was remitted for rehearing before Mushin J, who was then required to determine the husband’s application to set aside the original consent order.
His Honour found, at paragraph 48 of his judgment: “That the husband has not established an exceptional circumstance in accordance with the meaning of that term in the legislation.”
In the case of Sandrk & Sandrk (1991) FLC 92-260, His Honour Justice Gee determined that the circumstances of that case constituted “exceptional circumstances.” In that case, at the time of the making of the order for settlement of property, the children were living with the mother and spending no time with their father. The evidence did not suggest that there would be any change in the circumstances but within about a month after the order was made the children began seeing their father and within three or four months had moved to live with their father and spent no time with their mother.
His Honour found that the events in that case were exceptional in that neither party had contemplated such a change of circumstance nor did it appear that either party had consciously created the situation.
The facts in this case are not significantly in dispute. The order for settlement of property made on 24 February 2010 was not a consent order but followed upon a judgment of the court in respect of which reasons were delivered on 23 December 2009. The order was not able to be made until 24 February 2010 because of the requirement of affording procedural fairness to the husband’s superannuation trustees.
At the time the order was made in respect of which the husband appealed the children were aged 14 ½, 13 and 10 ¾. It was common ground that at the time the children were living primarily in the care of the wife and spending approximately 15% of their time with the husband. The parties had been separated for approximately eight years at the time of trial in September 2009.
It was common ground at that time that Z was exhibiting significant behavioural problems as described by the wife in paragraphs 101 and 102 of her trial affidavit filed 27 August 2009 and paragraphs 110 to 113 of that same affidavit.
In the husbands trial affidavit filed 4 September 2009 he disputed being aware of the more recent psychological report for Z which he saw when he read the wife’s trial affidavit but he said he hadn’t been attending any of the meetings at school regarding Z’s behaviour because he hadn’t been aware of any of them. He did however acknowledge that he did have a copy of Z’s psychological assessment from August of 2003 arising from behaviours exhibited by Z at kindergarten and he confirmed that he had attended at parent teacher interviews as publicised on the school website.
The husband referred in paragraph 16 to his wish to make a greater parenting contribution outside of alternate weekend time and wanting to encourage all of the children to strive to achieve their best. He said that that was his motivation and underpinned his recent attempts, at that time, to negotiate increasing his level of care for the children. In the eight years post separation prior to the husband filing his application for settlement of property, which did not include any application with respect to parenting orders, he had not sought any formal orders with respect to the children’s parenting arrangements.
At trial he did not seek parenting orders. The court found in an assessment of the parties post separation contributions that there should be an adjustment in favour of the wife on account what I described as “the over whelming responsibility for the care of the parties children since separation in 2001” (paragraph 57). The evidence at trial therefore amounted to an expression on the part of the husband to either negotiate or to seek orders in respect to an increase in the time the children spent with him but that was not pursued by him at that time.
It is not in dispute that some four months after the delivery of judgment and slightly less than two months after the making of the final order for settlement of property, the husband filed an application for parenting orders seeking an increase in the children’s time with him.
In the husband’s affidavit in support of that application he said, in paragraph 14, that the wife had refused to attend mediation about that issue when approached the relationships centre at (omitted) in June of 2009.
This preceded the trial with respect to property settlement issues by some three months but the husband did not take any steps to seek to amend his application to include parenting issues.
There is no doubt that at the time the order for settlement of property was made the husband was contemplating a change to the parenting arrangements for the children and the wife was aware of the husband’s wish for the children to spend more time with him.
The husband’s application for parenting orders was made returnable for 21 June 2010. The husband’s application effectively sought a doubling of the amount of time the children spent with him each fortnight. The wife’s response proposed an increase of one night. The parties and the children attended on a family consultant on 29 June 2010. Arising from those discussions final parenting orders were made by consent providing for the children to spend time with their father for five nights in each alternate week, which was in accordance with his application. It was clearly the position of both parties, as evidenced by the advice to the court from the family consultant, that they were listening to and taking into account the views of the children.
At the time of the filing of the husband’s application in April of 2010 his appeal against the order for settlement of property was pending. The appeal was heard on 20 September 2010, being approximately six weeks after the parenting orders were made. On 9 June 2011 the appeal was dismissed. Three weeks later the husband filed a further application for parenting orders. In that application he sought that the children live with each party on a week about basis.
He deposed to the basis of his application being spontaneously expressed wishes on the part of each of the children to live with their parents on a week on week off basis, in circumstances where he said he understood each of the children to think that would be “a fair arrangement.” The mother did not file any responding documents, nor did she attend at the first return date of 15 August 2011 and on that day orders were made in terms of the husband’s application. Accordingly, as from that time, the children commenced living with their parents on a week about basis.
On 9 December 2011 W, who was by then 16 years old decided to live with the husband full-time. The wife did not dispute W deciding to live with the husband on a full-time basis. The husband simply deposed in paragraph 9 of his affidavit filed 25 April 2014 that:
“On 9 December 2011, the eldest child of the marriage, X born (omitted) 1995 decided herself to reside with me on a full-time basis. On 18 January 2012, Ms McNamee acknowledged in writing that W was no longer living with her. I have provided full-time care for W ever since.”
The wife said in paragraph 15 of her affidavit filed 12 June 2014 that W did go to live with the husband on a full-time basis on 9 December 2011 in circumstances where Z’s behaviour was causing difficulties in the household and where she required help from her father for her maths studies. The father had referred to that issue himself in paragraph 19 of his affidavit filed 13 April 2010 in support of his initial application for parenting orders.
On 29 April 2012, some four and a half months later, the wife determined that she was no longer capable of providing full-time care for Z. In paragraphs 13 to 15 of the husband’s affidavit filed 25 April 2014 he deposed to the significant behavioural problems demonstrated by Z. Those issues were referred to by the wife in paragraphs 17 to 20 inclusive of her affidavit filed 12 June 2014. I have already referred to the parties’ knowledge of Z’s behavioural difficulties at least since 2003, although in paragraphs 14 of his affidavit with respect to the property settlement trial filed 4 September 2009 the husband disputed the level to which he had been involved in dealing with those behavioural issues over the years.
Z was nearly 13 years old when he went to live with the father on a full-time basis. By that time he had been living with each of his parents on a week about basis for about eight months. The husband became aware that he would be transferred to Canberra in or about August of 2013. By that time both W and Z were living with the husband on a full-time basis with Z spending little if any time with the mother. Y was still living with each of his parents on a week about basis until 7 January 2014. On or about 3rd January 2014 Y advised his mother that he was going to move out of her home and into a house that the husband had bought for he and W.
Neither party suggests that the issue of Y living with the husband full-time was addressed with the other of them or with Y until, according to the mother, Y told her he was doing so on 3 January 2014 and, according to the father, Y deciding to do so on 7 January 2014.
It was common ground that the wife had declined to participate in mediation with the husband in relation to arrangements with regards to his transfer to Canberra and that such notice of the proposed mediation was received by her in the latter part of August 2013. The wife said in paragraph 24 of her affidavit filed 12 June 2014 that it was her belief the reason Y decided to leave her home was because of the prospect of living with his sister without parental supervision in a house provided by the husband.
It was common ground that neither W nor Y wanted to go to Canberra with their father. The father said in paragraph 18 of his affidavit filed 25 April 2014 that his expectation until 7 January 2014 was that Y would return to the mother’s full-time care. He said in circumstances where W decided that she did not want to return to her mother’s house from January 2014 but wanted to complete her year 12 studies in Adelaide that he had no choice but to find somewhere else for her to go. Those matters are set out in paragraph 18 of the husband’s affidavit filed 25 April 2014. He did not offer any evidence as to why W did not want to return to the mother’s home, such that he had no alternative but to find somewhere else for W to live. There is no evidence from either party as to a dysfunctional relationship between W and the mother.
By the time the husband moved to Canberra to live, in January of 2014, W had completed her year 12 schooling, had turned 18 years of age and had elected to try and improve her year 12 results by doing two subjects in 2014. She was working part-time at (employer omitted).
The husband’s evidence as contained in paragraph 19 of his affidavit filed 25 April 2014 was that in late 2013 “with a less than likely possibility of finding a land lord willing to rent a house to two teenagers in Adelaide, I had little choice but to buy a property for W and Y to live in at a time when I was least prepared to do so.” On the husband’s own evidence, Y did not decide to live with him on a full-time basis until 7 January 2014. His evidence was, as contained in paragraph 18 of his affidavit, that he had no choice but to find somewhere for W to live but had an expectation that Y would return to the mother’s full-time care in circumstances where he didn’t wish to move to Canberra with his father.
The husband gave no evidence as to the date upon which he signed a contract to purchase the property at Property M in which W and Y went to live, or the date upon which the purchase settled.
On the husband’s own evidence his decision to buy the Property M property predated his knowledge of Y deciding to want to live away from the mother’s home. It is of course the costs associated with the purchase of the Property M property, the payment of household expenses for both the Property M property and his rented property in Canberra and the cost of supporting Z that form the basis of the husband’s argument that the circumstances that have occurred since the making of the order are exceptional circumstances that have caused hardship.
I am not satisfied that the husband has on his own evidence at its highest made out a case that the change in circumstances with respect to the living arrangements of the parties three children post the making of the order for settlement of property is one of “exceptional circumstances.” As the Full Court said in paragraph 40 of its judgment in the matter of Christian & Donald [2008] FamCAFC 44 in discussing the decision of the Full Court in Simpson & Hamlin (supra):
“…the judgment reiterated that the legislature has placed a relatively high onus on an applicant who seeks relief pursuant to section 79A(1)(d). The plain words of the subsection indicate that it was not intended to cover, per se, a situation where children leave a parent who has received the benefit of an adjustment pursuant to section 75(2) on account of their future care. The successful applicant must establish “exceptional circumstances” relating to the care, welfare and development of a child of the marriage.”
When X went to live with the husband full-time in December of 2011 she had, as a result of applications filed by the husband and not ultimately contested by the wife, been spending increased time with her father from August 2010 (five nights per fortnight) and from August 2011 (equal time) such that the move to living with him on a full-time basis was not a dramatic change in circumstances. Neither party disputed the fact that W chose to live with the father on a full-time basis, the move was not opposed by either of the parties and it was common ground that at the very least the husband was better placed to be better able to assist W with her maths studies.
In addition, by at least the time of the wife filing her affidavit for the property settlement trial in August of 2009, the husband was aware of the significant behavioural difficulties being exhibited by Z which the wife said created difficulties for W in the household.
By the time the wife determined that Z would have to live with the husband on a full-time basis in April of 2012 he was nearly 13 years old, the extent of his behavioural difficulties had been apparent to the husband for at least two and half to three years and Z was already living with him a week about basis arising from his parenting order applications.
Y’s decision to move out of the mother’s home in January of 2014 did not equate of course to a choice to live with the husband because by that time the parties and the children were aware that the husband was moving to Canberra. Y had already indicated he was not prepared to move to Canberra with his father. On the husband’s own case Y’s decision was made after the husband had purchased a house in Property M. Y told his mother, who was clearly surprised by his decision, that he intended on living in that house with his sister.
I am satisfied that in all of the circumstances of the husband’s case the changes in the children’s parenting arrangements, commenced by way of the husband’s applications for parenting orders shortly after the delivery of judgment with respect to property settlement issues, were in no way exceptional but could properly be described as:
“the ordinary vicissitudes of life coupled with the difficulties that parties to a marriage often experience in the task of restricting their lives following the dissolution of their marriage and the division of their assets, and their obligations to the support of each other and the support, care and control of their children, (which) frequently creates situations in which it is desirable having regard to the children’s welfare that such change occurs.”[3]
[3] Simpson & Hamlin (1984) FLC 91-576 (at p 79,657)
I am satisfied that these words accurately describe the situation that arose with respect to the children W and Z. It is unclear why Y decided to leave the mother’s household and there was no evidence adduced by the father as to any basis for Y making such a decision. Y knew however at the time of making that decision that there was a home available for him to live in without full-time parental supervision.
In Youseff & Youseff (1995) Fam CA 102 the Full Court said, when referring to the support of the Full Court of the approach taken by the primary Judge in Simpson & Hamlin:
“We do not think the Full Court intended to limit the test of exceptional circumstances to circumstances which cannot be reasonably expected to arise. This was made clear when the court said: “what amounts to exceptional circumstances is very much a question of fact and degree.” With respect, we agree. The court should not limit itself to matters relevant only to expectations. It should consider all relevant facts and matters when deciding whether there have been circumstances of an exceptional nature.”
There is no evidence that would suggest that any of the changes that occurred in the living arrangements of W, Y and Z could be described as “exceptional”. There is no explanation at all proffered for Y’s decision to move out his mother’s household, or to support any assertion on the part of the husband that he had no option but to provide accommodation and living costs for Y.
It is a grave matter to dismiss a matter summarily. In Rule & Rule [2015] FCCA 3191 Judge Harland discussed in paragraphs 12 to 14 inclusive significant authorities with respect to the issue of summary dismissal. Her Honour said:
“12. There are several authorities which have addressed the matters the Court must consider when determining whether or not to summarily dismiss a matter. Kirby J’s comments at paragraph 14 of Lindon v the Commonwealth of Australia (No.2) [1996] HCA 14 are often quoted. In that paragraph he said:
“The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
3.An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4.Summary relief of the kind provided for by O 26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26 r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon’s statement of claim; and
6.The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit”.
13. In the Family Court decision of Gitane & Velacruz [2007] FamCA 183 Kay J summarised the position well at paragraph 25 where he said:
“I paraphrase the salient points as follows:
(1) that relief for summary dismissal is rarely and sparingly provided;
(2) that it is only available if it is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action or that it is a frivolous or vexatious one;
(3) that it is not enough to attain summary dismissal to show that it is a weak case;
(4) that there is a defect in the pleading and it appears that the party still has a reasonable cause of action, the Court will allow the party to reframe its pleading; and
(5) that one only summarily dismisses if it is clear that the case is doomed to fail”.14. It is clear from s.17A and from the authorities that the bar for being able to successfully have an application summarily dismissed is a high one. It is appropriate that it be so because it is depriving a litigant of an opportunity to pursue his or her claim.”
I find that the evidence relied on by the husband in support of his application to set aside part of the order for settlement of property made herein on 24 February 2010 falls significantly short of that required to satisfy the court that the changes in the children’s living arrangements have been “circumstances of an exceptional nature” as required by the legislation.
There is no doubt the children’s living arrangements changed significantly over the months and years following upon the making of the order for settlement of property such that within four years all of the children were the financial responsibility of the husband in circumstances where he earns a significantly greater income than the wife and where her child support liability was modest and in arrears. The changes in the children’s living circumstances came about as a result of applications made by the husband and the children’s changing needs.
The Oxford English Dictionary defines the word exceptional as “unusual” or “not typical”. The Merriam Webster Dictionary defines the word exceptional as “not usual”, “unusual” or “uncommon.” I am not satisfied that any of the circumstances described by the husband in relation to the children’s parenting arrangements could be described as exceptional. In those circumstances I do not intend to turn my mind to the issue of whether or not hardship was caused.
I am satisfied that, using the words of Justice Kay in Gitane & Velacruz (supra): “It is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action.”
This is a matter where the parties engaged in litigation in 2009 with respect to financial matters, in 2010 and 2011 in relation to parenting issues and in 2014 again with respect to property issues. In addition the husband appealed the original order for settlement of property and further was ordered to pay $7,000 towards the wife’s costs of that application.
I have found that the husband has not made out a case for “exceptional circumstances” at the highest point of the evidence on which he relies. The power to order summary dismissal of a matter is a discretionary power. I find that it is in the interests of both parties to:
“dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.”[4]
[4] IIKerby J Lindon v Commonwealth (2)[1996] HCA 14
For these reasons I make the following order.
I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of Judge Mead
Date: 9 March 2016
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