Daniel & Natalie

[2007] FamCA 284

FAMILY COURT OF AUSTRALIA

DANIEL & NATALIE [2007] FamCA 284

FAMILY LAW - CHILDREN – with whom the children live – live with/live with regime but issue as to school weeks when sharing at that time is not geographically reasonable – views of children –

FAMILY LAW - PROPERTY – proof of non-superannuation property and significant pre-cohabitation and post separation contribution

APPLICANT: DANIEL

RESPONDENT: NATALIE

FILE NUMBER: SYF 266 of 2005

DATE DELIVERED: 6 March 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 5 & 6 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR HARPER

SOLICITOR FOR THE APPLICANT: KELLS THE LAWYERS

COUNSEL FOR THE RESPONDENT: MR MADDOX

SOLICITOR FOR THE RESPONDENT: DIGNAN & HANRAHAN

Orders

PARENTING ORDERS

1. THAT all parenting orders made prior to these orders with regard to the subject children be discharged.

2. THAT BY CONSENT the parties have equal shared parental responsibility for the children the elder son born in December 1991, a daughter born in December 1994 and the younger son born in August 1997 (“the children”).

3. THAT the children live with the wife as follows:-

   3.1Each alternate weekend during school term from 5.00pm on Friday to 5.00pm on Sunday or 5.00pm Monday if that Monday is a Public Holiday or a student free day.

   3.2The first half of all school holidays in odd-numbered years and the second half of all school holidays in even-numbered years.  In the event the children are living with the wife on Christmas Day notwithstanding this order, the children shall live with the husband from 5.00pm on 23 December until 6.00pm on 24 December in that year.  If the children are living with the husband on Christmas Day then notwithstanding this order, the children shall live with the wife from 5.00pm on 23 December until 6.00pm on 24 December in that year.

   3.3That in the event Mother’s Day falls on a weekend when the children are not otherwise living with the Wife, then the children are to live with the Wife on the Mother’s Day weekend at the same times as set out at Order 3.1 herein, and such time with the Wife is suspended on the following weekend.

   3.4That in the event Father’s Day falls on a weekend when the children are to live with the Wife, then the children’s time with the Wife is suspended on the Father’s Day weekend and instead they shall live with the Wife on the following weekend at the same times as set out at Order 3.1 herein.

   3.5Reasonable telephone communication as agreed.

   3.6Other communication and times as agreed between the parties.

4. THAT the children shall otherwise live with the husband.

5. THAT the parent with whom the children are commencing to live (or some other responsible person nominated by that parent) shall be responsible for arranging for the collection of the children at the start of that time.

6. THAT the parties maintain a communication book setting out issues with regard to the children and that the communication book be handed over at each changeover and that the parties set out in that communication book any issues regarding the children’s health and/or behaviour.

7. THAT both parties shall keep the other advised, in a timely fashion, of any medical or other issue pertaining to the children including details of any medical, dental, psychological or psychiatric treatment undertaken by the children.

8. THAT the wife and husband shall ensure all school records shall note both parents as persons with whom the school authorities may liaise from time to time regarding the children.

9. THAT in the case of any medical emergency both parties shall immediately contact the other regarding the children’s medical circumstances.

10. THAT neither party shall denigrate nor permit any other person to denigrate the other party, the other party’s partner, sibling or parent nor the circumstances of the children or of the other party in the presence or hearing of the children.

11. THAT both parties shall attend and complete a parenting after separation course (such as that conducted by Relationships Australia) within six months from the date of these orders.

12. THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

    PROPERTY ORDERS

13. THAT this Order is made by way of alteration of property interests pursuant to Section 79.

    13.1That within twenty eight (28) days of the date of these Orders the husband pay the wife the sum of $1,010.00 and at the same time the wife do all acts and things and sign all documents as may be necessary to transfer to the Husband all her right title and interest to the Toyota Camry motor vehicle, registration number ….

    13.2That the Husband indemnify the Wife in relation to the Teachers Credit Union car loan.

    13.3That Order 13.4 has effect from the operative time.

    13.4That in accordance with Paragraph 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the husband from his interest in F Super, the wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $28,221.91 and there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

    13.5That having been accorded procedural fairness in relation to the making of this Order, this Order binds the Trustee of F Super.

    13.6The operative time for this Order is 4 business days after the date of service of this Order upon the Trustee.

    13.7That other than as otherwise set out in these Orders, the Husband and Wife are entitled to have the sole right title and interest as against each other in:

    13.7.1Any chattels goods furnishings and other property which are, at the date hereof, in their possession respectively.

    13.7.2Any moneys, shares, debentures and superannuation entitlements which stand in their sole name respectively at the date hereof.

    13.7.3Any and all amounts outstanding or accruing under any debts which stand in their sole name respectively at the date hereof.

14. THAT in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

15. THAT this matter be removed from the list of cases requiring determination.

16. THAT a copy of the reasons for these orders be ordered and placed on the Court file.

17. THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

    IT IS CERTIFIED

18. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

    NOTATION

A.THAT if Easter is not part of the school holidays it is expected that the parties arrange for the children to spend one half of the time with one parent and one half with the other.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYG 266  of 2005

DANIEL

Applicant

And

NATALIE

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between the husband and wife which relate to two substantive matters under the Family Law Act. The first and the primary issue between the parties relates to parenting of their children, the elder son, aged 16, the daughter, aged 12, and the younger son, aged 9.

2. The second issue relates to the property of the parties.  It was understandable that the parties were unable to resolve their properties up until this time as much of that determination depended upon the determination of the parenting issues. Accordingly, I deal with parenting first.

3. The ambit of the dispute between the parties with regard to parenting narrowed during the course of the trial over yesterday and today. It was agreed at the commencement of the trial that this was a matter where there ought to be an order for equal shared parental responsibility within the meaning of s61D(a) of the Family Law Act 1975 (“the Act”), and I will accordingly be making a consent order in that way.

4. It was also agreed during the course of the trial that orders ought to be made on a live‑with/live with basis rather than on a live‑with/spend‑time basis.  In the context of that issue, it was agreed between the parties that the children should spend half of the school holidays with one parent, the other half with the other, and each alternate weekend with one parent, and the other weekend with the other.  There will also be some orders in relation to special days such as Father's Day, Mother's Day, et cetera.

5. The nub of the issue to be determined was whether the children live with their father during the school term weeks or whether they live with their mother during such weeks.

6. In terms of the background of these parties, the husband is aged 38, the wife is aged 33.  They parties married in May 1991.  The elder son was born soon after the parties were married.  The daughter was born in 1994 and the younger son was born in 1997.  The parties separated in March 2005.  There is an issue as to the day in March 2005, but that day makes no real difference in determining the issue.

7. Since that time the children have lived most of the time with the father and, at least in the last 12 months have spent significant time with the mother in terms of alternate weekends and half school holidays.

8. The husband formed a new relationship in late 2005 and commenced living with his present wife R in about June 2006.  They married in December 2006.  R has a daughter, M, who is presently aged 5.  The husband and R now reside in the I area in a home that was purchased in December 2006 by R.

9. There is an issue of violence that was raised by the wife before separation.  She makes claims in that regard, all of which are denied by the husband.  There seems to be no value in terms of this Court deciding positively or negatively whether such violence occurred or did not occur and as there is no issue of continuing violence and much of the parenting has been agreed as joint , accordingly, I will be making no findings in that regard.

10. The husband relied upon his affidavit sworn 22 February 2006 and his statement of financial circumstances sworn 23 February 2006.  He also relied upon evidence of R (his present wife) Ms C, sworn 26 February 2006, Mr R, sworn 22 February 2006, Ms J, sworn 22 February 2006 and Ms H, sworn 22 February 2006.

11. The husband gave updating evidence that he is now a principal in a small school at M and earns about $90,000 per annum, which equates to a gross income of about $1730 per week.  He has a credit account with the Teachers Credit Union, which fluctuates, depending on the sequence of his fortnightly pay.

12. There was, during the hearing, an issue in relation to where the children ought to be delivered to or collected from, although, at the end of the day, there appeared to be agreement that such changeover should be at the homes of the respective parties.  I do not intend to make an order with regard to collection or delivery.  I note that in terms of these reasons, and I note that the parent with whom the child is about to live would normally be the one who would collect the child on each occasion.

13. The husband said that the elder son now attends F High School.  He is an average student.  He is weak in maths, but the effect of this evidence was that he is a nice and compliant young person.  He played rugby union last year, but he wants to pay rugby league this year as he has been invited to join a local team.

14. There was an issue about some alleged statements made by the elder son in regard to self‑harm, which I will deal with later in these reasons.

15. The daughter is in year 7 at F High School, this is her first year at that school.  The husband described her as an average student.  He said she was nervous about going to school, but he talked her through that, and all seems well.  She is a member of the Girl Guides, which she attends on Wednesdays for 2 hours.

16. The younger son is in year 4.  He attends the same school of which his father is the teaching principal.  The father’s evidence is that the younger son is popular at school and socialises well.  He plays football on Saturdays and practice during the week.

17. The father says that the children interact well together.  Occasionally there are some issues, but they are generally okay.  He says that they interact well with M, but they sometimes get worked up when they are going to see the wife.  He says the elder son gets anxious about changeover, but he is much more settled this year than last year.

18. R gave evidence in accordance with her affidavit and provided updated material in respect of her marriage to the husband and her interaction with the children.  She is also a teacher, and her income pays for the mortgage on her home whilst the income of the husband pays for the day‑to‑day living expenses.  Whilst this is a little outside the area of the discussing regarding the children, it is notable in relation to the home that was purchased in December 2006 for $530,000 (approximately) with a mortgage in excess of $400,000 and the net proceeds of the purchase price being provided out of a settlement of a property issues between R and her former husband.

19. The house in which the husband lives with R is a five bedroom home ‑ that is a bedroom for each of the children and one for the adults.  As a witness, R gave balanced evidence, and she was impressive in terms of the nature of the evidence that she gave, I accept her evidence.

20. The wife relied upon her affidavit filed in these proceedings together with an affidavit of Ms M and an affidavit of Ms Y.  During the course of her evidence the wife confirmed that she was looking for arrangements as I have indicated above in respect of school holidays and weekends.  She lives in a three‑bedroom home.  She says that her two sons share one room, but they have done so for some time and it is not a problem with them.  She gave evidence that they were often violent and aggressive with each other, and on one occasion, the younger son tried to strangle her.

21. If they came to live with they are, they would transfer to either E High School or C School.  She would drive them to and from school.  She says the younger son has friends next door and he plays computer games.  There was some evidence about the children’s friends and acquaintances at P, I give little weight to this because it would seem to me that if the children were going to visit friends and family in P they are unlikely to do so during the week.  They are more likely to do so during the weekend and they spend one weekend with one family and one with the other, so it has no significant impact.

22. The wife gave evidence that the elder son has said he wants to live with her, she says that he will not tell this to his father.  Her evidence is that the daughter says the same, and the younger son says he wants to go to the local school.  She gave evidence in relation to the suicidal expressions of the elder son where he has said, "I hope we have a car crash and I die and none of you die".  The wife said she spoke to him and it appears that she later spoke to her solicitors who sent a letter to the husband's solicitors who contracted the husband who in turn spoke with the wife about the issue.

23. The wife is presently not in permanent employment, although her evidence is that she will be looking for employment later in the year, whether the children are living with her or not.

24. In relation to both parenting and property matters, credit will be of some significance.  There are issues of fact between the parties where they come from diametrically opposite views.  As I indicated to the parties at the start, part of my role is to assess which evidence I prefer and which I do not prefer.  Both parties come from a position where they are interested in the result that they hope to achieve.

25. I was not impressed with the evidence of the wife.  I found at time her answers were glib and that at times she prevaricated.  So I generally, if there is a conflict in evidence I prefer the evidence of the husband to that of the wife.

26. Evidence was given by a family consultant.  Her report was dated 13 January 2006 and sadly, it was over a year old at the time of hearing of these proceedings.  No application was made to have that report updated before the hearing, although I understand this matter was before the Court on at least two occasions in the last three months.  I endeavoured to arrange for the report to be updated during the trial, but without success.

27. In terms of the principles to apply and objects under the Family Law Act, s.60B provides that the objects of the act relating to children to ensure that the best interests of the children are met by:

    a)ensuring the children have the benefit of both of their parents having a meaningful involvement in there lives to the maximum extent consistent with the best interests of the child; 

    b)protecting children from physical, psychological harm, from being subjected to or abused, being exposed to abuse, neglect or family violence;

    c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    d)ensure their parents fulfil there duties and meet their responsibilities concerning the care, welfare and development of their children.

    The relevant legal principles pursuant to the Family Law Act

    1. In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The Act was the subject of amendment in 2006 with the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”) on 10 May 2006. Parts of the amendments commenced on 1 July 2006.

    2. The objects of those provisions of the Act relating to children are to ensure that the best interests of the children are met by[1]; 

    [1] s 60B(1) Family Law Act 1975 (Cth).

    (a)   ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)   ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    3.    The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[2]:

    [2] s 60B(2) Family Law Act 1975 (Cth).

    (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d) parents should agree about the future parenting of their children; and

    (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

    4.    Each of the parents of a child has complete but several parental responsibility for such child[3]. This is subject to any court orders and must be subject to any presumption arising out of the operation of s 61DA of the Act. This section is part of the amendment and became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[4] for the child. The section provides as follows:

    [3] s 61C Family Law Act 1975 (Cth).

    [4] Parental responsibility is defined by s 61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”

    Section 60DA     Presumption of equal shared parental responsibility when making parenting orders

    (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

    Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

    (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

    (a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

    (b) family violence.

    (3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

    (4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

    5. A court must make a positive order or declaration for equal shared parental responsibility under s 61DA of the Act. If the presumption is in the best interests of the child and reasonably practicable[5], then an order must be made in accordance with the section. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s61DA(2) or, if the parenting order is an interim matter, because it would not be appropriate in the particular circumstances of that case under s 61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted in accordance with s 61DA(4) of the Act.

    [5] s 65DAA(1) Family Law Act 1975 (Cth).

    6. The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. That section provides as follows:

    Section 65DAC Effect of parenting order that provides for shared parental responsibility

    (1) This section applies if, under a parenting order:

    (a) 2 or more persons are to share parental responsibility for a child; and

    (b) the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.

    (2) The order is taken to require the decision to be made jointly by those persons.

    Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

    (3) The order is taken to require each of those persons:

    (a) to consult the other person in relation to the decision to be made about that issue; and

    (b  to make a genuine effort to come to a joint decision about that issue.

    (4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly

    7. Sections 61DA and 65DAC create a two or three step process for courts making parenting orders.

    8. The first step is to determine whether the presumption applies. The section requires a court to apply the presumption set out in s 61DA(1) unless sub-section (2) is applicable. Sub-section 61DA(2) provides that if there are “reasonable grounds to believe” that a parent or person who lives with a parent has engaged in abuse or family violence then the presumption does not apply. If an issue is raised under this sub-section it must be the first determination. In these circumstances, the standard of evidence is the objective test that there are “reasonable grounds to believe” that a parent of a child, or a person who lives with a parent, has engaged in abuse or family violence. This is not an onerous evidentiary hurdle. Abuse is defined narrowly and family violence is defined broadly[6]. The court must regard the presumption as applying unless there is evidence which causes s 61DA(2) issues to arise.

    [6] Both “abuse” and “family violence” are defined in s 4 Family Law Act 1975 (Cth).

    9.    If the presumption applies, the second step is to consider whether the presumption is rebutted. A court must apply the presumption, unless it is either an application for an interim order and the court considers that it is not appropriate in the circumstances[7], or unless the presumption is rebutted by evidence that it would not be in the best interests of a child for it to apply[8]. For a rebuttal argument, the best interests of the child need to be considered and, as such, regard must be had to the matters set out in s 60CC of the Act.

    [7] s 61DA(3) Family Law Act 1975 (Cth).

    [8] s 61DA(4) Family Law Act 1975 (Cth).

    10. A third step would arise if there is a determination that the presumption does not apply under s 61DA(2). Parliament has made it clear that courts exercising jurisdiction under Part VII of the Act should consider equal shared parental responsibility. Accordingly, the question of parental responsibility must first be settled before determining the living arrangements or the time a child spends with parents. Further, the drafting of the sub-section is such that “the presumption does not apply” almost on suspicion of abuse or family violence. If this is the case, then a court making a parenting order should still consider whether there ought to be an order for equal shared parental responsibility, in order to give effect to legislative intention.

    11.    As outlined above, the question of allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[9]. Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, a court must, in determining whether it should make orders or in determining what orders should be made, regard the best interests of the child as the paramount consideration. Section 60CA the Act provides:-

    [9] s 64B(2) Family Law Act 1975 (Cth) sets out the meaning of a parenting order and related terms.

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

    12.    The amendments go on to provide in s 60CB that the best interests of the child is the paramount consideration.

    13. How the court determines what is in the best interests of a child is set out under s 60CC of the Act.

    14. Prior to the 2006 amendments to the Act, the best interests of the child were determined under s 68F(2). From 1 July 2006, those interests are now determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.

    15. How does a court deal with this new “two tier list of factors” set out under s60CC in determining the best interest of a child?

    16.    It is clear that the changes are substantial and will impact on decision making when parenting orders are made by courts from 1 July 2006, whether those orders are final or interim.

    17.    The approach to be adopted by a court is structured.  

    18. The first step is to determine parental responsibility, as set out above in these reasons. This may require a determination as to abuse or family violence under s 61DA(2) and/or having regard to the primary and additional considerations under ss 60CC(2) and (3). Such determination would be different to a determination of unacceptable risk of abuse.

    19. The next step is to determine the time the child lives and/or spends time with each parent, sibling/s and other persons. This should involve consideration of communication between the child and her/his parents and other important people in the child’s life, including siblings and grandparents. This must be done having regard to all of the relevant primary and additional considerations set out in s 60CC. Part of that process must be to consider equal time or substantial and significant time as required by s 65DA. In circumstances where s 65DA does not apply specifically, by virtue of the section in a general sense, there should be such consideration if there are factual circumstances that would invite orders for equal or substantial time.

    20. To give effect to s 60CC(2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.

    21. Finally, the Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.

    22. In this case the primary considerations set out in s 60CC(2) of the Act go to the core of this decision, although they must be taken into account with the other considerations under s 60CC(3). The meaning of the primary considerations were considered by Bennett J in a recent unreported decision[10] where her Honour said;

    [10] G and C  [2006] FamCA 994.

The primary considerations

65 The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC(2) of the Act described as follows:-

(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.

66 This is a case where both of the primary considerations are relevant.

The benefit of a meaningful relationship – as a primary consideration.

67 The correct interpretation of s.60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account. 

68     The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists. 

69     While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can.  Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[11].

70     The arguments supporting the first possible interpretation include:

(a)      Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;

[11] pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth).

          (b)      The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;

71     The arguments supporting the second possible interpretation include;

(a)      Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;

(b)     The primary considerations are described in the explanatory memorandum (paragraph 4)as follows:-

“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”

The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
(c)     The whole of s.60CC calls for an evaluation of various factors by the court.
(d)     Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear.  I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
(e)  The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child.  The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object.  It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object. 

71     My preference is to adopt the second possible interpretation and I do so.  It is a prospective enquiry.  I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to [B] into the future. 

23.       I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any “benefit to the child” in having or continuing a relationship and whether such relationship is or will be “meaningful”[12].  Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.

Whilst this is a somewhat “circular” approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the Court make such a determination.

[12] Ibid paragraph 68.

1. The effect of the Court making an order under s.61D(a) is that the Court must consider either equal time or significant and substantial time that the children spend with each parent. Unfortunately, in this case, geography prevents this being a viable option for the children. I discussed this with counsel during the course of the hearing. This is not a matter where the children can spend significant time with one parent or the other during the school week because if they are left to reside with their father they will continue to attend school in the Illawarra area. If they live with their mother, they will be attending school in the Campbelltown area. Both counsel for the parties conceded that that was not an option to me in terms of these proceedings. Therefore, deciding where the children spend during the course of the school week, I am to take into account the matters set out under s60CC of the Act to determine which of those arrangements is in the best interests of the children.

2. The primary consideration is, the benefit of the child or child having a meaningful relationship with both of the child's parents.  In this case, there is no doubt that all the children have a meaningful relationship with both parents.  Secondly, is the need to protect the children from psychological or physical harm or being subjected or exposed to abuse, neglect or family violence.  The nature of these parties issues are such that that consideration does not play a factor in these proceedings.

3. What is clear is that there remains significant conflict between the parents.  That conflict has not been resolved, and that impacts on both of their ability to parent these children.  It was sad as I watched them in the witness box, both of them, was to see the way they reacted to each other in clear circumstances where the children love both and want a relationship with both of them.  In fact, I asked them questions about how they could overcome that conflict and, sadly, I did not get satisfactory answers.

4. In terms of the considerations under s.60CC(3)(a), which are the views expressed by the child, I have the evidence of the husband, the evidence of the wife and I have the evidence of the family consultant. The family consultant in her report at para.41 observes:

   The children appear to have a strong affinity with their father and seem aligned with him.  Each child appears to view [the husband] as a stable base, and they seem settled residing with him.  The children have each expressed a wish to the counsellor that they remain living their father and exercise contact with their mother.

5. She goes on to say at para.42:

   Based on the interviews and observations, there is no evidence that the children have been pressured to express this wish, although it is clear that the children have been exposed to adult issues, and it seems that each parent has spoken with the children about the other.

6. As I have said, I do not have an up‑to‑date report, but I have some further information from the family reporter.  She said, when cross‑examined, and I quote:

   [The elder son] said dad said it would be okay if we said we wanted to live with mum, or words to that effect.

7. It is clear that at that meeting with the family consultant over 12 months ago the elder son at least was of the view that he had a choice and that is contrary to the implication that he was expressing a view simply to satisfy his father.  On balance, I am satisfied that the views expressed by the children in the report and as confirmed by the husband remain the views at the present time. As a consequence, I am not satisfied the children expressed views other than there own views to the family consultant.

8. In terms of the relationship of the children with each of their parents, the family consultant observes at para.33 that:

   [The elder son] presented as an articulate and thoughtful teenager.  He expressed that he has a close relationship with his father and often speaks with [his father] about any concerns.  He reported that his father was primarily responsible for the caring task when his parents lived together.  [The elder son] reported that he has a volatile relationship with his mother, whom he says allows himself and his siblings freedom but little responsibility.  He states he would prefer to remain residing with his father as he feels secure and settled there.

9. A number of matters have occurred since that time.  The first is the concert at the end of last year when the elder son felt strong enough not to go with his mother. There was a debate between them and the elder son did not go with his mother.  The evidence of the family consultant was where she discussed the conflict between the children as reflecting the freedoms in the mother's home as distinct from a more structured environment in the father's home.

10. In the family report, the reporter observed of the daughter at para.34 that:

    She presented as a serious and reserved child.  She also spoke of some distance in her relationship with her mother since the separation and conveyed a sense of sadness and loss.  [The daughter] at times appeared overwhelmed discussing the family situation and speaking of things that she had been told by her mother and expressing frustration at her mother's comments that she and her brother had been brainwashed by her father.  She described a settled life with her father, describing her father as a big softy and spoke of a good relationship with her father's partner and her child.

11. The younger son was described by the rest of the family as the baby of the group who was unaware of much of the family situation.  In interview, the family consultant observed that he presented as an uncertain, quiet child.  In projective tasks he identified himself as sad.  The family consultant observed the children with their father and noted that they:

    … played together in a joint activity discussing and taking turns.  The group interacted comfortably together with each member seeking individual time with their father and moving easily within the group.

12. At para.37 the family consultant observed:

    In observations with their mother, the children dispersed around the room and engaged in individual tasks.  When the mother attempted to call the children's attention and draw them into activities, the children at times appeared frustrated and quiet whilst the mother made an effort to be animated and enthusiastic.

13. The children, as I have said earlier, have a good relationship with both parents, but it seems to me that their closer relationship at this time is with that of the husband.  They now have a relationship with R and her five year old daughter.  The wife gives evidence that this is not a good relationship between M and the children and that they complain about her.  In terms of that evidence, I prefer that of the husband and R to that of the wife.

14. In terms of the willingness and ability of each of the child's parents to facilitate and encourage a close continuing relationship between the children and the other parent, both parents at some level should hang their heads in shame.  Their marriage has been over for some time.  The conflict that these children have to live with is not a conflict of their making, it is a conflict of their parents making.  Each at different levels expresses their frustration and anger with the other and each involve the children in that process.

15. The family reporter observes that they have been exposed to adult issues, and I have reservations about each of them being willing or able to facilitate the relationship between the children and their other parent.  In saying that, however, I note that the children have spent time with their mother since separation.  They have spent half school holidays and alternate weekends, and it seems to me that that is more likely to continue in the current situation than any change.

16. In terms of sub‑para.(d), the likely effect of any changes in the children's circumstances, these children have changed schools on a number of occasions.  They have had somewhat of an unsettled time before their parents' relationship broke up and subsequent to that with the various moves they have needed to undertake.  They are now at school and settled in schools.  The evidence is that they are starting to develop peer groups.  There is a risk that if they are required to move again, there would be another change of school, and if they are then made to move, as is possible from the C to the P area, there may yet be another change.  In any event, they are settled in their schools at the present time and are developing friendships.  There is no practical difficulty or expense in the children spending time or living with each of the parents. Whilst the distance makes it impossible or difficult for time during the school week, it is not so far away as to prevent a continuing relationship between the children and their parents.

17. In terms of the capacity of each of the children's parents, I note that both regard the other as safe enough to look after the children during school holidays and each alternate weekend.  They are both able to provide for the needs of the children, including their emotional and intellectual needs, but in different ways.

18. As to the attitude of the parties to the children and responsibilities of parenthood demonstrated by each of the parents, I reiterate the material I have set out above.

19. In terms of family violence, I refer to what I have said earlier.

20. Finally, in terms of what would be preferable to avoid further proceedings, I suspect that both parties, having gone through this process over a two‑year period, would not be in a hurry to rush back to this Court for any particular reasons at all if they can avoid it.  I note the age of the children and, as Mr Maddox said, the elder son is at an age where, if not now, in the fairly near future, he can make up his own mind where he wants to live and how he wants to live.

21. I have considered all of these matters, particularly in terms of the parties taking an opportunity to participate in parenting of the children since separation.  The circumstances of the husband have changed in the last 12 months, but they have changed to provide security and some permanence.  The husband gave evidence that he will remain in the I area, and that is probably reflective in his marriage to his present wife and the purchase of their home.

22. The question of the expressions of self‑harm by the elder son caused me some concern during the course of this trial.  Each parent did what I suspect they thought was the right thing.  The wife is clearly concerned as to how this problem is being dealt with.  The husband spoke to his son and satisfied himself that these thoughts were not of the significance that his former wife regarded the matter.  In some ways, it is a positive and negative for both of them.  I wonder how much the conflict between them has impacted on the way they have dealt with this issue.  It may well be worthwhile for both parties to spend some time talking to each other and perhaps talking in a broader sense and see what, if any, further help the elder son should be given in respect of this matter.  It is perhaps an opportunity for the parties to work together on at least one issue with respect of the elder son.  The question of youth suicide is always vexed, and taking things that ought not to be taken too seriously is of damage to a child and taking things not seriously enough when it ought to be taken seriously is equally difficult.  But, at the end of the day, that is the concern of the parents, and I do not think this Court can say much more except to express some concern and ask the parent to focus on that concern.

23. This is an extempore judgment and, as such, it does not touch on all of the evidence, although I have taken it all into account. I have considered all of the factors under s.60CC(2) and (3) and, in doing so, I determine that it is appropriate for the children continue to live during the school week with their father. I will be making orders accordingly. I will be making orders for a communication book, and I will be making orders restraining the parties from discussing or belittling, abusing or demeaning each other in the presence of the children, and I will be making orders requiring them to keep the other informed as to the circumstances of the children.

24. I do not intend to make an order for specific telephone times with children this age.  I will be making a general order that the children are able to communicate with their parents and vice versa on regular occasions.

25. I now turn to the question of property. My task in that regard was set out again or reiterated in the recent Full Court decision of Hickey. My task is to firstly determine the pool of assets, secondly, consider the contributions, thirdly, consider the other factors under s.79 and, finally, consider what is just and equitable in all the circumstances between the parties.

26. There is a very small pool of assets, but they have some issues in relation to them.  It is conceded that the Camry has a value of $6000, with a loan against it of some $4662, which leaves a net equity of $1338.  Also to be added back is the sum of $682, being the savings at the time of separation, making a total asset pool excluding superannuation of $2020.

27. There is also the question of the moneys paid by the husband in legal costs, which is some $34,900, of which $18,000 was borrowed from his credit union and some $6000 remains outstanding.

28. In NHC & RCH the Full Court said that normally costs expended in that way ought to be added back.  The Full Court discussed this issue in an unreported decision of M & M which was delivered on 13 December 1990 where the parties had been married for 15 years and no children.  After separation the wife inherited a one‑third interest in a property at A, a Sydney suburb, which interest had a value of about $60,000.  The remaining two‑thirds interest in the property was inherited by two aunts of the wife.  The trial judge did not include the wife's interest in the A property on a basis that it was acquired after separation without contribution by either party.  The Full Court in their extempore reasons found no error of discretion by the trial judge in that approach.

29. It seems to me I could adopt a similar approach in relation to the legal costs in this matter.  There is no doubt the legal costs have been paid.  They were paid by way of loans taken out by the husband and, in part, repaid subsequent to separation and appear to be wholly funded out of his income since separation or other funds.  It certainly was not money or assets which were owned by the parties at the time of separation.  Accordingly, whilst I note its existence, I do not intend to include an add back of costs in the pool of assets for those reasons.

30. The superannuation is an accumulation fund which has a present value of some $70,000.  The husband had superannuation at the commencement of the relationship which I presume rolled into this fund, as there is no other evidence of it being in any other fund.  This fund has increased by somewhere between $10,000 and $16,000 since the date of separation as a consequence of payments out of the husband's income and has overall increased about $25,000 since separation.  That is the pool of assets with which I am obliged to deal.

1. I find the contributions at the commencement of the relationship were as set out by the husband.  During the course of the marriage, both parties made contributions as set out in their affidavits.  There is no issue that the husband's financial contributions were greater than that of the wife.  There is an issue as to the quantity and quality of the wife's contributions during the course of the marriage.  It seems to me that during the course of the marriage, the contributions ought to be treated, if one takes a holistic approach, on an equal footing.

2. Subsequent to separation, of course, there is the contributions to the superannuation fund, as I have referred to earlier.  Since separation, the husband has, of course, maintained the children except to the extent of child support of some $15 per fortnight paid by the wife.

3. On a contribution basis, it seems to me it ought to be adjusted on the basis of 65 per cent by the husband and 35 per cent by the wife.

4. In terms of the other factors under s.79 of the Family Law Act, the husband has a significantly greater earning capacity than that of the wife. He earns some $90,000 a year. The wife has not been in paid employment for quite some time. She expresses some desire to find work later on this year, whether the children are with her or not, and I accept her evidence in that regard. It seems to me there ought to be an adjustment back in her favour for 5 per cent in terms of the other factors. In determining what is just and equitable, I find that a division of 60 per cent to the husband and 40 per cent to the wife in relation to the superannuation and equal in terms of the $2,020.00 pool of non superannuation property.

   IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Daniel & Natalie.

I certify that the preceding 61 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate: 

Date:  6 March 2007