Davidson and Davidson
[2011] FamCAFC 57
•22 March 2011
FAMILY COURT OF AUSTRALIA
| DAVIDSON & DAVIDSON | [2011] FamCAFC 57 |
| FAMILY LAW - APPEAL – Appeal from interim parenting and property settlement orders – turns on its own facts |
| Family Law Act 1975 (Cth) |
| Harris and Harris (1993) FLC 92-378 Strahan & Strahan (2009) 241 FLR 1; (2009) 42 Fam LR 203 |
| APPELLANT: | Mr Davidson |
| RESPONDENT: | Ms Davidson |
| FILE NUMBER: | PTW | 2619 | of | 2010 |
| APPEAL NUMBER: | WA | 16L | of | 2010 |
| DATE DELIVERED: | 22 March 2011 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 17 December 2010 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 28 July 2010 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Farmer |
| SOLICITOR FOR THE APPELLANT: | Kim Wilson & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Hedges |
| SOLICITOR FOR THE RESPONDENT: | Friedman Lurie Singh & D’Angelo |
Orders
The application for leave to appeal be dismissed.
The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal and the application for leave to appeal as agreed and in default of agreement as assessed.
The execution of Order 3 be stayed pending the finalisation of the property settlement proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Davidson & Davidson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 16L of 2010
File Number: PTW 2619 of 2010
| Mr Davidson |
Appellant
And
| Ms Davidson |
Respondent
REASONS FOR JUDGMENT
The father has appealed parenting orders made by Acting Magistrate Kaeser on 28 July 2010. He also seeks leave to appeal an interim property settlement order made by his Honour on the same day.
Background
The following background is drawn from findings made by the Acting Magistrate and from uncontroversial material in the affidavit evidence.
The mother and father commenced cohabitation in October 1996, were married in June 2006 and separated in September 2009.
There are three children of the marriage, born in July 2002, February 2004 and February 2006.
The father is employed by BHP. The family home in H was purchased with a reduced rate mortgage provided by BHP.
Some time after the separation, the mother and father commenced sharing the care of the children on a week-about basis. The children remained in the home, while the parents took turns moving in and out of the house.
On 1 February 2010 the mother obtained a Violence Restraining Order (“VRO”), preventing the father from coming to the home. The father immediately breached the order and was charged. Notwithstanding the VRO, it seems the arrangement concerning the care of the children continued.
In late April 2010, the father’s roster changed to a 4 day on/4 day off arrangement, with him working 12 hour shifts. The father’s solicitors advised the mother’s solicitors that he was no longer able to care for the children on the week-about basis and proposed a change to a 4 day-about arrangement.
On 14 May 2010, the mother commenced proceedings for property settlement and parenting orders. She wanted the children to live with her and she also wanted exclusive occupation of the home, both on an interim and final basis. In her application for final orders she also sought an order that the father transfer his interest in the home to her.
On 25 May 2010, an order was made, pending the next hearing, for the children to live with the mother in the home, save from 30 May 2010 until 2 June 2010, during which time the children were to live in the home with the father.
On 27 May 2010, the father’s solicitors advised that the father’s roster had again been changed, and that he would now be working from Monday to Friday, commencing at 6.30 am and concluding at 3.00 pm.
On 8 June 2010, the father filed his response. By way of interim orders he proposed the resumption of the week-about arrangement for the children, with the parents continuing to move in and out of the home. In the alternative, he sought exclusive occupation. By way of final orders, he proposed that the week-about arrangement continue, but with him living in the home, which he wanted transferred into his name.
In his affidavit, sworn on 8 June 2010, the father informed the Court that the home in which he boarded when he was not living in the matrimonial home was unsuitable for the children. He said he believed he would not be able to obtain rental accommodation suitable for the children “in the short term”. He also said he had been informed by his supervisor that his roster could not be changed any further in order to accommodate his care of the children. The father proposed that “friends” would assist him getting the children to school each day and that he would collect them from day-care after he finished work at 3.00 pm (rather than them staying at day-care to be collected by the mother, who was starting work at 8.30 am and finishing at 4.30 pm).
In her affidavit, sworn 12 July 2010, the mother informed the Court she had arranged to change her hours so that she would be at work from 8.30 am to 2.00 pm, Monday to Friday. This would allow her not only to take the children to school, but also to collect them in the afternoon (save for the youngest child who would continue to attend day-care).
On 11 June 2010, following a Case Assessment Conference, a further interim order was made that the children spend time with the father each weekend from Friday to Sunday, as well as half of the July 2010 school holidays. The proceedings were then adjourned to 19 July 2010 for further interim argument.
On 25 June 2010, the mother withdrew her application for a VRO, and the father entered into an undertaking by which, amongst many other things, he agreed not to enter the premises where the mother lives.
After hearing further argument on 19 July 2010, the Acting Magistrate reserved his decision, which was handed down on 28 July 2010.
The Acting Magistrate decided the children should live with the mother and spend time with the father. The father would have the children every Tuesday and Wednesday from 3.30 pm until 6.00 pm, and each alternate Saturday and Sunday from 9.00 am to 6.00 pm. The orders went on to provide that if the father obtained “appropriate accommodation”, his time each alternate weekend would commence at 3.30 pm on Friday and conclude at 6.00 pm on Sunday.
The orders required the father to transfer his interest in the former matrimonial home to the mother within 60 days. The orders also provided that the mother was to have exclusive occupation of the home.
Liberty was given to each party to relist the proceedings. The liberty was expressed to be:
… in relation to the issue of whether any accommodation obtained by the [father] is appropriate; as to the ongoing payment of the mortgage over the home, following the interim transfer to the [mother]; and in relation to any difficulties that arise in relation to the transfer.
Although the orders made by the Acting Magistrate were originally extracted as if they were final, this was an error. They were subsequently corrected to show that they were made “until further order of the Court”.
The father applied for a stay of the orders after his appeal was filed on 3 September 2010, but the stay was refused.
Grounds of Appeal
Although the preamble to the Grounds of Appeal suggests that it was only the order for transfer of the property that was sought to be impugned, consideration of the grounds shows that all of the orders were challenged.
Ground 1 – understanding of the father’s proposals
This ground asserted that his Honour erred in finding that “Both parties want to live in the home to the exclusion of the other [and they] both accept that the current arrangements cannot continue”. The terms of the ground drew attention to the father’s response to the mother’s application, in which he sought the continuation of the week-about arrangement in the family home (and only in the alternative that he have the exclusive occupation of that property).
Although the father was originally proposing a continuation of the week-about arrangement in the family home, his position had changed prior to the hearing before the Magistrate on 19 July 2010. As was pointed out by counsel for the mother, the father said in his affidavit, filed 15 July 2010, “I seek exclusive occupation of the home with the children to spend alternate weeks with me in the home and the intervening weeks with [the mother] at her residence with [de facto partner]”. Counsel for the mother also drew attention to other aspects of the evidence and the submissions made to the Acting Magistrate which showed that by the time the matter came on for hearing, the father’s case was that he should be permitted to live in the matrimonial home to the exclusion of the mother.
There is accordingly no substance in Ground 1.
Ground 2 – consideration of the practicalities of the order for transfer
By this ground is was asserted his Honour:
Erred in fact by not considering the position of the parties’ bank and the mother’s financial capacity in determining whether it was practicable to transfer the home to the mother and consider the interrelationship between the debts.
In support of this ground, counsel for the father drew attention to the fact that there were many liabilities secured against the title to the matrimonial home. It was submitted there were a number of logistical difficulties that would stand in the way of the transfer, and that it was “not a simple matter of transferring [the home] to the wife on an interim basis”. It was also submitted that the bank had not been afforded procedural fairness, and that his Honour had failed to consider how the orders might affect the bank’s interests.
The submissions made on behalf of the father concerning the position of the bank are misconceived. The order for transfer did not affect the bank’s position. Both parties remain liable under the existing securities. In the event there were logistical difficulties (with the bank or otherwise), these could be dealt with by the parties exercising the liberty to apply given to them.
The complaint about failure to consider the mother’s financial capacity is also misconceived. It appears to proceed on an unjustified assumption that the transfer of the property would involve the mother taking on full responsibility for the mortgage. His Honour did not so order and his “liberty to apply” order envisaged applications concerning apportionment of responsibility for the mortgage payments.
The complaint made in oral submissions about the costs of the transfer of the property to the father (and the potential costs of the transfer back after the conclusion of the proceedings) was not a matter raised by the ground of appeal itself. In any event, there was no order requiring the father to meet the costs of the transfer. His only obligation, in my view, would be to execute such documents as the mother might reasonably seek that he sign in order to give effect to the order.
There is accordingly no merit in this complaint.
Ground 3 – acceptance of untested evidence
Ground 3 asserted that his Honour “erred in law when he accepted the mother’s untested evidence she does not live with her current de-facto partner at his property”.
Although the mother had given evidence at the VRO hearing on 25 June 2010 that she was then living in the home of the person referred to by the father as her “de-facto partner”, the father himself had said in paragraph 23 of his affidavit, sworn on 15 July 2010, that the mother had returned to live in the former matrimonial home after that hearing. This assertion corroborated the mother’s statement in her affidavit, sworn 12 July 2010, that she was again residing in the matrimonial home. His Honour was therefore entitled to proceed on the basis this was common ground, and there is accordingly no substance in this complaint.
Ground 4 – potential for the father to receive assistance from employer
By this ground it is asserted his Honour “Erred in fact when he determined at paragraph 35 that the father would have further potential to obtain assistance from his employees [sic, semble employer]”.
There was evidence to justify his Honour in finding there was potential for the father to obtain assistance from his employer. Apart from anything else, there was the statement made by the father in his affidavit, sworn 15 July 2010, that if the home was transferred to the mother, his only option would be to rent, in which case, he said, “my rental will be subsidised in accordance with the Rental Accommodation Policy of [BHP]”.
This was no doubt the evidence that led his Honour to say what he did in paragraph 35, as well as what he said in paragraph 42, namely, “There is in my view at least the possibility of BHP providing the Father with rental assistance if he were ordered to transfer the home to the Mother”.
There is no substance in this complaint.
Ground 5 – determining the balance of convenience
This complaint was directed at the order allowing the mother to have exclusive occupation of the home. It asserted that his Honour “Erred in fact and law at paragraph 44 by determining the balance of convenience favoured the mother”.
In support of this ground, it was submitted that his Honour erred because he did not “particularly take into account” that the mother had accommodation available to her with her “de-facto partner”.
His Honour did have regard to the possibility that the mother might live with the person the father described as her “de-facto partner”. This is apparent from paragraph 32 of his reasons, where his Honour said that if the mother was required to leave the former matrimonial home, “she would suffer hardship by being left with little options to house herself and the children other than to be forced into a de facto relationship when she is not ready”.
His Honour added that he had “concerns about the impact on the children of living in such an arrangement”. He also recognised, in paragraphs 37 and 38, that if the father was given exclusive occupation, the mother would be “left with virtually no option other than to rely on the generosity of her boyfriend to allow her to move in and for the children to stay there whenever ordered to be with the Mother overnight”.
The Acting Magistrate went on, in paragraphs 40 to 42, to consider the accommodation options available to the father. Having considered these, along with the matters he had earlier discussed at paragraphs 19 to 36, his Honour determined the balance of convenience favoured the mother. This was a discretionary judgment and nothing advanced on behalf of the father persuades me that his discretion miscarried. On the contrary, the Acting Magistrate gave clear and cogent reasons for making the order he did.
There is accordingly no substance in this complaint.
Ground 6 – viability of orders other than transfer of the home
By this ground it was asserted his Honour had “Erred in fact and law at paragraph 50 when he determined the only viable solution is to transfer the family home to the Mother on an interim basis”.
It was submitted by counsel for the father that other options available to the Acting Magistrate were to:
(a)have the situation remain as is until Final Hearing;
(b)allow the husband to have exclusive occupation of the home until a determination could be made;
(c)allow the mother to have exclusive occupation without the transfer of the property on an interim basis.
The submissions made on behalf of the father fail to recognise that his Honour’s finding in paragraph 50 was not directed to the arrangements concerning the children, nor was it directed to the question of exclusive occupation. This paragraph was contained in that part of his Honour’s discussion concerning whether it was appropriate for there to be an order for interim property settlement, he having already decided, for other reasons, that it should be the mother who would have exclusive occupation of the home.
It also needs to be appreciated that the order his Honour made transferring the property to the mother on an interim basis was designed to advance the father’s position rather than to damage it. The basis upon which his Honour made the order was to provide greater opportunity for the father to seek subsidised accommodation from his employer, and thereby provide him with the opportunity to spend overnight time with the children. By this means both parties would then have suitable accommodation for the children.
The mother’s position was that she didn’t care whether the home was left in joint names or transferred into her own name on an interim basis. She put forward the proposal in order to assist the father (and, of course, thereby to advance her own prospects of obtaining exclusive occupation of the home).
This ground therefore lacks merit.
Ground 7 – reduction in father’s time with the children
By this ground it was asserted his Honour:
Erred in law by providing no explanation as to why the father’s over night time with the children has been reduced. There is no indication as to why he considers it to be in the children’s best interests for the father to have less time with the children than has been the case since the parties’ separation.
In support of this ground, counsel for the father drew attention to the fact that the father had been having the children each alternate week until the commencement of proceedings, when his time was reduced to four nights a fortnight, and was then further reduced by the orders under appeal to daytime contact only, unless he obtained suitable accommodation, in which case his time would increase to two nights a fortnight (as well as two afternoons each week).
There is no substance in this complaint. The findings made by the Acting Magistrate indicate that he took into account at least the following matters in arriving at his decision:
· the father’s working hours (which meant he would rely upon friends to get the children out of bed and off to school every school day they were with him);
· the mother had been the primary caregiver of the children;
· the children were likely to have a greater attachment to the mother;
· separation from the mother would be of greater significance to the children than separation from the father;
· the potential difficulty for the children in adjusting to living in another property.
These reasons were sufficient to justify the making of the orders, which it should be understood would be reviewed at trial.
Ground 8 – making orders beyond those sought by the parties
By this ground it is asserted his Honour:
Erred in law by going beyond what he was asked to do in making an order for interim property settlement when the Form 2 Application before him was only for exclusive occupation of the family home.
It was submitted there was no application before the Court for the transfer of the home to the mother on an interim basis. It was further submitted that the father had no notice of the application and hence he had been denied procedural fairness.
It is the case that neither party had formally sought an order for the home to be transferred to the mother on an interim basis. However, at the Case Assessment Conference hearing on 11 June 2010, counsel for the mother said:
Can I just say that our position will be that the husband’s employer has indicated that if he comes off the title they will give him the subsidised housing. Our position is we would agree to an interim partial property settlement that achieved that on the basis that the question of who is to retain the home is live for the final hearing so that there would be no prejudice to him by doing that. It would solve the problem. That’s a open offer that I make today. To the extent it needs to be confirmed, it will be.
After that hearing, the father filed a further affidavit, sworn 14 July 2010, in which he addressed the question of what would occur in the event the house was sold or transferred to the name of the mother. It was suggested by counsel for the father that this part of the father’s affidavit was addressed only to the position of what would occur in the event the house was transferred to the mother at the final hearing. I cannot accept that submission, since the affidavit was filed for use in the interim proceedings, and in the knowledge of what had been said by counsel for the mother at the Case Assessment Conference.
Although it was conceded by counsel for the mother that he should have formally amended the interim application to seek the transfer of the property to the mother, it was clear that the father was on notice concerning the position he adopted on this issue. His Honour did, in fact, do what he was asked to do by counsel for the mother. In doing so, he believed, with justification, that he was providing an advantage to the father.
Although it was not raised by the ground of appeal as drafted, counsel for the father submitted that his Honour had not taken into account “the authorities in terms of a partial property settlement”. The submission, as it was developed, assumed that the law in relation to interim property settlements was as stated in Harris and Harris (1993) FLC 92-378. The submission overlooked the more recent decision of the Full Court in Strahan & Strahan (2009) 241 FLR 1; (2009) 42 Fam LR 203, to which the Acting Magistrate had referred in detail in his reasons, and which he correctly applied.
There is accordingly no merit in this complaint.
Ground 9 – not applying the presumption of equal shared parental responsibility
By this Ground it was asserted his Honour:
Miscarried his discretion by finding at paragraph 87 the presumption of shared parental responsibility does not apply after one isolated incident of family violence, when he had, at paragraph 63 found the children did not require to be protected from physical or psychological harm.
The complaint misapprehends the relationship between s 61DA(2), which deals with the circumstances in which the presumption in favour of equal shared parental responsibility does not apply, and s 60CC(2)(b), which deals with the need to protect children from exposure to family violence. The first of these provisions deals with the past – has there been family violence? The second looks to the future – does the child need to be protected from exposure to family violence? It is entirely logical, and hence permissible, for the Court to determine that there has been family violence in the past, while at the same time finding the children will not be exposed to family violence in the future.
His Honour was hearing an application for parenting orders, hence the presumption of equal shared parental responsibility had to be applied, unless one of the exclusionary matters referred to in s 61DA(2) was found to have been established – or unless, by application of s 61DA(3), the Court determined that it would not be appropriate for the presumption to be applied at the interim stage of the proceedings.
It is, of course, one of the many oddities of the legislation that the presumption in favour of equal shared parental responsibility has to be applied even in a case such as the present where neither party had sought an interim order for any form of parental responsibility. Even if I was persuaded that his Honour erred in finding the presumption did not apply (and I am not so persuaded), I would not be prepared to find that he erred in failing to make an order that nobody had sought. Although his Honour would have been obliged to presume that an order for equal shared parental responsibility was in the children’s best interests, he would also have been entitled to presume that in this particular case the parents were content to retain the full decision making authority they both have pursuant to s 61C, just like all other parents who have not had parental responsibility orders made in family law proceedings.
It is true that if the Acting Magistrate had ordered equal shared parental responsibility, he would then have had a statutory obligation to consider making an order for equal time or substantial and significant time. However, this would have not advanced the father’s case. His Honour did, in fact, consider an order for equal time, because that is what the father was seeking; however, he decided such an order was not in the children’s best interests, and instead made orders that he considered were in their best interests.
There is therefore no substance in this ground.
Outcome and costs
There being no merit in any of the complaints made by the father, the appeal will be dismissed, and the application for leave to appeal will be refused.
I took costs submissions at the conclusion of the hearing. Counsel for the mother advised that an order for costs would be sought against the father in the event the appeal was dismissed. Counsel for the father opposed the making of an order for costs on the basis that the father was entitled to prosecute his appeal. It was further submitted that the father’s financial circumstances should be taken into account, in particular the fact that he will now be obliged to find accommodation in Port Hedland, where rents are very expensive.
Given the appeal was totally unsuccessful, it is proper that the father pay the mother’s costs. I will, however, stay execution of the costs order until the finalisation of the property settlement proceedings, at which time the father will have sufficient funds available to meet the order.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Justice Thackray.
Associate:
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