Delmos & Cordell
[2023] FedCFamC2F 1227
•21 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Delmos & Cordell [2023] FedCFamC2F 1227
File number: MLC 5022 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 21 September 2023 Catchwords: FAMILY LAW – final parenting orders – where parties live substantial distance from one another – where one party is not the biological parent of one child – where the biological father of one child did not fully participate in hearing – where parental responsibility in dispute between the mother and one father – where residency in dispute – final property orders – how funds held in a trust account should be distributed – extent of third step of preferred approach section 90SF adjustment on non-superannuation assets in dispute –10% adjustment providing 20% disparity made – dollar amount of adjustment and percentage and dollar disparity created by adjustment considered. Legislation: Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Evidence Act 1995 (Cth) s 140
Family Law Act1975 (Cth) ss 4AB, 60CA, 60CC, 60CF, 60CG, 61DA, 65DAA, 65DAC, 75, 79, 90SB, 90SF, 90SM, 90SL, 90SS, 90XA
Cases cited: Adamson & Adamson (2014) FLC 93-622
Bokin & Wild (2022) FLC 94-122; [2022] FedCFamC1A 209
Carlson and Ors & Bowden [2008] FamCA 1064
Clauson & Clauson (1995) FLC 92-595
Fox v Percy (2003) 214 CLR 118
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143
Hobson v Hobson (2020) 61 Fam LR 557; [2020] FamCAFC 251
In the marriage of Robb, G and Robb, DJ (1994) 18 FamLR 489; (1995) FLC 92-555
Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932
Lovine & Connor and Anor (2012) FLC 93-515, [2012] FamCAFC 168
Phipson & Phipson [2009] FamCAFC 28
Rosati v Rosati (1998) FLC 92-804
Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518
Varnham & Moses (2021) FLC 94-007
Wallis & Manning (2017) FLC 93-759
Wayne & Wayne [2010] FamCAFC 33
Division: Division 2 Family Law Number of paragraphs: 180 Date of hearing: 11, 12 and 13 May 2022 Date of last submissions: 16 May 2023 Place: Melbourne Counsel for the Applicant: Mr C. Howe Solicitor for the Applicant: Tonkin Legal Group Counsel for the First Respondent: Mr R. Burns Solicitor for the First Respondent: Swifty Legal The Second Respondent: Litigant in person
MLC 5022 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DELMOS
Applicant
AND: MS CORDELL
First Respondent
MR HICKS
Second Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
21 SEPTEMBER 2023
THE COURT ORDERS THAT:
PARENTING
Parental Responsibility
1.MS CORDELL (“the Mother”) and MR CORDELL (“the Father”) have equal shared parental responsibility for X, born in 2013, and Y, born in 2017 (“the children”).
Living and Contact Arrangements
2.The children shall live with the Mother, Ms Cordell.
3.The children shall spend time with the Father, Mr Delmos, as follows:
(a)from noon on the first Sunday after the end of each school term until noon on the Thursday prior to the start of the next school term in 2021; and
(b)from 11am on the day after the end of school term each year until 11am on 4 January each year and from noon on 9 January each year until noon January each year; and
(c)In the event the Father is able to attend at or near Town H, South Australia, then provided he has given the Mother no less than 14 days notice, then from after school on Friday until before school on Monday or Tuesday if the Monday is a non-school day; and
(d)such other times as may be agreed by text message or email between the parties.
4.When the children are in the care of the Mother, the children communicate with the Father by electronic means between 6.30 pm and 7.00 pm (local time where they happen to be) each Wednesday, or as otherwise agreed by text message or email and when the children are in the care of the Father, the children communicate with the Mother by electronic means between 6.30 pm and 7.00 pm (local time where they happen to be) each Wednesday, or as otherwise agreed by text message or email.
5.For the purpose of changeover the Father is to collect the children from the Mother at Town H at the commencement of his time with the children and the Mother is to collect the children from the Father in Suburb B at the conclusion of his time with the children.
Health
6.The Mother and the Father shall:
(a)provide each other with and keep each other advised of the names and addresses of the children’s treating doctors;
(b)inform each other in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist (“specialist medical consultant”) in relation to the children; and
(c)ensure that the other parent is provided with a copy of any report by any such specialist medical consultant in relation to the children, within fourteen (14) days of receipt of the report.
7.Both the Father and Mother shall be entitled to:
(a)attend any appointments with any treating doctor or specialist medical consultant relating to the children; and
(b)discuss the children’s condition with such treating doctor or specialist medical consultant, however such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.
8.The Mother shall ensure that the Father is notified as soon as practicable if the children:
(a)Are admitted to hospital;
(b)Are involved in a medical emergency; or
(c)will be required to take medication when they spend time with the Father, in which case the Mother shall advise the Father of the details of the medication required to be taken and shall provide the Father with sufficient medication to cover the first seventy two (72) hours that the child is to spend with the father.
9.The Father shall ensure that the Mother is notified as soon as practicable if the children:
(a)are admitted to hospital;
(b)are involved in a medical emergency; or
(c)will be required to take medication when she returns to the Mother’s care, in which case the Father shall advise the Mother of the details of the medication required to be taken and shall provide the Mother with sufficient medication to cover the first seventy two (72) hours following the children’s return to the Mother’s care.
Education
10.The Mother and the Father do all acts and things necessary to authorise any school which the children attend, subject to any lawful direction of the school, to provide from time to time both the Mother and the Father with copies of all reports, circulars, notices and documents in relation to the children, including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the Mother and/or the Father in relation to the children.
11.The Mother and the Father do all acts and things necessary to authorise both the Mother and the Father to be permitted, subject to any lawful direction of the school, to attend:
(a)any school event relating to the children to which parents are ordinarily invited; and
(b)any of the children’s extracurricular activities which parents are ordinarily permitted to attend.
Contact Details
12.The Mother and the Father notify each other of any change to their telephone contact numbers and email address, such notification to be made in writing and within three (3) days of any change.
13.The Mother and the Father notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
Non-Denigration
14.Each party be refrained from making critical or derogatory remarks in relation to the other party in the presence or the hearing of the children, and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
PROPERTY
Sale Proceeds of Suburb B Property
15.Within 7 days of these orders, the parties shall authorise the Father’s former solicitors, Tonkin Legal Group, to pay the remaining proceeds of sale of the parties former home, sum of $195,669 plus interest if any, being the whole of the amount held in trust for the benefit of the parties, as follows:
(a)$25,345 to the Father, Mr Delmos, plus 40% of the additional interest if any earned on the sum of $195,669 and the Father indemnify the Mother in regard to the C Company loan and CBA personal loan; and
(b)The balance to the Mother’s solicitors, Swiftly Legal; and
(c)In regard to any interest earned on the proceeds of sale each party be responsible for the income tax, if any, to be assessed on such interest as he or she is entitled to pursuant to these orders.
Transfer of Motor Vehicle
16.The Father, in his capacity as director of D Company, cause the motor vehicle registration for the Motor Vehicle 1 to be transferred into the Mother at her expense, if not already done.
Superannuation
17.That pursuant to section 90XT(4) of the Family Law Act 1975 (Cth) (“the Act”) as amended, the Court allocates a base amount of TWENTY THOUSAND NINE HUNDRED AND TWENTY DOLLARS ($20,884.50) to the Mother, Ms Cordell, out of interest of the Father, Mr Delmos, in the Super Fund 1 (“the Fund”).
18.Pursuant to section 90XT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the superannuation interest of the Father:
(a)the Mother is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (the Regulations) using the base amount of $20,884.50 dollars; and
(b)there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the Order.
19.Paragraphs 18 and 19 of these Orders have effect from the operative time, which is four business days after the date a certified copy of the sealed Order is served on the Trustee of the Fund.
20.Payments from the Father’s superannuation interest made after the Trustee of the Fund has rolled over or transferred the transferrable benefits to a fund of the Mother's choosing are not splittable payments.
21.Within 14 days of the Order being made the Mother shall:
(a)serve a certified copy of the sealed Order upon the Trustee of the Fund;
(b)give notice in writing to the Trustee of the Fund pursuant to Regulation 72 of the Regulations.
22.That there be liberty to apply in relation to the implementation of paragraphs 5-9 of these Orders by the parties or the Trustee of the Fund.
Omnibus
23.Unless otherwise specified in these Orders:
(a)Each of the Mother and the Father be solely entitled to the exclusion of the other to all property (including choses-in-action and superannuation) in the possession of such party as at this date;
(b)Monies standing to the credit of the Mother and the Father in any bank account are to become the property of the owner of the bank account;
(c)Each of the Mother and the Father be solely liable for, and indemnify the other against, any liability in their respective sole names or encumbering any item of property to which that party is entitled either pursuant to these Orders or otherwise; and
(d)Any joint tenancy of the Mother and the Father in any real or personal property be otherwise expressly severed.
AND THE COURT NOTES THAT:
A.Pursuant to section 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.Pursuant to section 81 of the Family Law Act 1975 (Cth), these Orders shall as far as practicable finally determine the financial relationship between the Mother and the Father, including as to property and / or maintenance, and avoid any further such proceedings between them, and these Orders may be relied upon as a bar to any such further proceedings, save for potential enforcement proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
The Applicant, Mr Delmos (‘the Father’) and the First Respondent, Ms Cordell (‘the Mother’) ask the Court to determine parenting and property issues. Mr Hicks (‘the Second Respondent’), is alleged to be the biological father of one of the two children the subject of these proceedings and a respondent to the applications of the Mother and the Father. The Second Respondent is the father of the elder child for the purposes of the Child Support Acts[1] but he questions whether or not he is the Father and had intended to ascertain whether or not he was by DNA tests. The DNA tests were not undertaken.
[1] The Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth).
I look at the competing parenting proposals through the provisions Part VII of the Family Law Act1975 (Cth) (‘the Act’) and the property alteration proposals in accordance with Part VIII of the Act. The parenting dispute is with whom, and where, the children should live. Once that question is decided there is no real dispute as to their spend time arrangements. The property division dispute is the division of the proceeds of sale from the former matrimonial home. The total property pool is about $460,000.
BACKGROUND
The Father and the Mother commenced a relationship in or around 2006 and began cohabiting around that time in the Mother’s home in Town E, South Australia. In 2010 the Father and the Mother separated. In or around 2012 the Mother and the Second Respondent began a short relationship, during which time the Mother became pregnant with X, born in 2013, now aged 10 years. The Mother and the Second Respondent separated before X’s birth and the Mother resumed a relationship with the Father shortly after X’s birth. That relationship continued until April 2021. The Father and the Mother have one child, Y, born in 2017, aged 6 years.
X is not aware that the Second Respondent is his father, and believes that the Father is his father. No party to the proceedings has informed him otherwise. X has not spent time with the Second Respondent since he was around two years old.
At the time of the final hearing the Father was aged 48 years old and the Second Respondent was aged 41 years old. The Father lives in Suburb B, Victoria, and is self-employed, and the Mother now resides in or around Town G, South Australia (about 50 kms from Town H) and works as part time as a domestic worker but is dependent on child support and Centrelink benefits. The Father and the Mother live at least a 5 hour drive from one another. The Second Respondent’s lives in South Australia.
After living in various locations between South Australia, Queensland and Victoria, the Father and the Mother settled in Suburb B, Victoria, in 2016 where they purchased the former matrimonial home (‘the FMH’).
The parties never married. The relationship broke down in April 2021 immediately following, or soon after, the Mother’s departure to Town H in South Australia with the children, either for a holiday or with the intention of not returning. It is common ground that the Mother’s parents live in Town H. The Father initiated proceedings shortly thereafter.
THE PROCEEDINGS
On 6 May 2021 the Father filed an Initiating Application in this Court seeking, among other parenting orders, the children be returned to Suburb B, Victoria. The Mother filed a response on 21 May 2021 seeking, among other orders, to remain living in Town H, South Australia, with the children and for the children to spend time with the Father by agreement and during school holiday periods.
The matter first came before the Court on 24 May 2021. At that time orders were made, by consent until further order, but in circumstances where a contested hearing was not available, for the children to live with the Mother and for the children to spend the following three weekends of consecutive overnight time with the Father. Two of the weekend time periods were to occur in South Australia and one in Victoria. A further order was made for the filed documents to be served on the Second Respondent, who was then not yet a party to the proceedings. No specific orders were made as to the location in which the children live. It is also to be noted that at that time travel restrictions between Victoria and South Australia were in place as a result of the COVID-19 pandemic.
The matter returned to court on 15 June 2021. Further orders were made by consent for the children to spend two non-consecutive weekends with the Father and for the Second Respondent to be joined to the proceedings. A paternity test was ordered but was not undertaken by the Second Respondent.
The matter returned again on 9 July 2021. At that time, orders were made by the Court for the children to live with the Father and spend two consecutive overnights with the Mother, again in circumstances where an interim hearing was not available. The matter was otherwise adjourned for Interim Defended Hearing on 9 August 2021.
On 14 July 2021 the Father filed an Amended Initiating Application seeking to join property matters to the proceedings. On 9 August 2021 orders were made by this court for the children to live with the Father for the majority of the school holiday period and with the Mother at all other times, as well as provisions for electronic communication between the children and the Father each Wednesday. The Mother continued to reside in Town H, South Australia, with her parents. Property directions were made, including for the sale of the FMH with the balance of the sale proceeds to be held in the Father’s solicitors’ trust account. Further orders were made for a Family Report and for the parties to attend a Conciliation Conference. The matter was set down for Final Hearing to commence 11 May 2022 with an estimated hearing time of three days.
On 2 September 2021 a section 67Z Response was released to the parties from the Department for Child Protection, South Australia. The Department for Child Protection indicated an intention not to intervene or investigate further. On 7 September 2021 the parties attended a Conciliation Conference with a Deputy Registrar of this court in Melbourne, but the matter did not resolve. On 25 March 2022 a Family Report was released to the parties.
The FMH was sold and the remaining sale proceeds, totalling $196,000, are currently held in the Father’s solicitors’ trust account.
Neither the Father nor the Mother allege that the August orders have not been complied with, save for one school holiday period where Victoria was experiencing COVID-19 lockdowns and the Father was unable to spend time with the children.
It was common ground that unless one parent moves to live near the other the orders of 9 August 2021 provided the maximum time that was practical for the children to spend with the non-resident parent. Those spent time arrangements were:
1.The children [Y], born [in] 2017, and [X], born [in] 2013 (‘the children’) live with the applicant as follows:
(a)from noon on the first Sunday after the end of each school term until noon on the Thursday prior to the start of the next school term in 2021; and
(b)from 11am on 12 December 2021 until 11am on 4 January 2022 and from noon on 9 January 2022 until noon 24 January 2022; and
(c)from noon on Sunday 16 April 2022 to Thursday 28 April 2022; and
(d)such other times as may be agreed in writing between the parties.
2.The children live with the first respondent at all other times.
3.The children communicate with the applicant/first respondent by electronic means between 6.30 pm and 7.00 pm local time where they happen to be located) each Wednesday.
4.For the purpose of changeover the applicant is to collect the children from the Mother at [Town H] at the commencement of his time with the children and the first respondent is to collect the children from the applicant in [Suburb B] at the conclusion of his time with the children.
FINAL HEARING
The Final Hearing commenced via Microsoft Teams on 11 May 2022. However, due to another matter also listed that day proceeding, I was not able to hear it in any real way of substance on the first day. The matter proceeded with openings on 12 May 2022 and concluded on 13 May 2022. The whole of the hearing was heard electronically. The Father and the Mother were legally represented by solicitor and counsel. On the third (last) day of the final hearing the Second Respondent joined the hearing electronically as a litigant in person, notwithstanding he had not filed any evidence for the Final Hearing.
The delivery of this judgment is well outside the three-month guideline for delivery of judgments of this Court. I apologise to the parties and their lawyers for the delay. In writing these reasons I have re-read the affidavits of evidence in chief and the exhibits, and I have read the transcript of the proceedings. Assisted by that reading, I have a clear recollection of the witnesses and their demeanour when giving oral evidence, the evidence, the issues and the rhythm of the trial.
Matter recalled for Mention & further evidence
On 21 March 2023 my chambers were contacted by the solicitor for the Father who alleged the Mother may have moved with the children from Town H to Town G, also in South Australia, approximately a further 30-minute drive away from Suburb B. During the hearing the Mother had said that, when she had sufficient funds to do so, she intended to move herself and the children to Town G, to a property her parents owned and that the Father was familiar with, with the children remaining in the same school and continuing to travel there by school bus.
I relisted the matter on 16 May 2023 to hear from the parties about this. The Mother gave oral evidence and was cross-examined in relation to her move to Town G, South Australia, and it was clear that she had in fact moved, and that she had not informed the Father of the move.
Documents relied upon
The Father relied upon the following documents:
·Financial Statement filed 27 April 2022;
·Amended Initiating Application filed 27 April 2022;
·Trial Affidavit of the Father filed 27 April 2022;
·Outline of Case filed 6 May 2022; and
·Affidavit filed 15 May 2023.
The Mother relied upon the following documents:
·Affidavit of the Mother filed 30 March 2022;
·Financial Statement filed 30 March 2022;
·Affidavit of the Maternal Grandfather filed 30 March 2022;
·Affidavit of the Maternal Grandmother filed 30 March 2022; and
·Outline of Case contained in a court book.
The Second Respondent filed one affidavit during the proceedings on 7 July 2021, at the interim stage, with the assistance of a lawyer. He became a litigant in person on 27 January 2022.
Exhibits tendered
Exhibits tendered during the Final Hearing are as follows:
·F1: Agreed asset pool, save for disputed payments of the Mother, exhibited 11 May 2022;
·C1: Email to Second Respondent of 10 May 2022 at 4.53pm and email from 26 April 2022 at 3.48pm about appearance on 12 May 2022, exhibited 12 May 2022;
·C2: Maps of Town H, South Australia, exhibited 12 May 2022;
·F2: “Fast Food” bank records, exhibited 12 May 2022;
·F3: Final Property Orders sought by Father, exhibited 13 May 2022;
·F4: Final Parenting Orders sought by Father, exhibited 13 May 2022;
·M1: Information on J School, exhibited 13 May 2022;
·M2: Superannuation Regulation 72 Notice, exhibited 13 May 2022;
·M3: the Mother’s Amended Superannuation splitting orders;
·M4: Regulation 72 notice;
·M5: Procedural fairness documents;
·F5: Letter from Father’s solicitor dated 21 March 202,3 exhibited 21 March 2023.
Witnesses
The Father, the Mother, Maternal Grandfather, Maternal Grandmother and Ms K, the family report writer, were cross-examined. I found the Father to be a forthright and mostly reliable witness. The Mother was also a mostly reliable witness. Some aspects of the Mother’s and the Father’s evidence about past events was influenced by the emotional rawness of the relatively recent separation and his and her perception of how reporting of past events may influence the outcome of the court case. The Maternal Grandfather and Grandmother were reliable witnesses.
The Family Report Writer, Ms K, was a patient, helpful, knowledgeable, careful and considered expert witness.
Agreement about responsibility for decisions about long term issues
The Father and the Mother agree that orders should be made for them to have equal shared parental responsibility for both children.
The Father’s parenting case
The Father’s case was that:
·He was an active parent to the children during the relationship outside of work hours;
·The Mother’s unilateral move 6 hours away from the FMH demonstrated her little regard for the Father’s relationship with the children;
·That Town H was, “a one horse town (a) backwater in which the children won’t thrive as they would if living back in near to [Suburb B]”;
·The education facilities for the children nearby to Town H (the local regional school) were deficient and that the children would be more likely to attend university if they lived with the Father; and
·That the children should live with him at Suburb B, with the current spend time arrangements reversed, but that if the Mother relocated back to Suburb B the children should live in an equal shared care arrangement as recommended by the family report.
The Father sought that he have the option, once he knew the outcome of the parenting orders, to have an automatic or self-executing order that provided for equal time with the children, if and when he moved to the area where the Mother now lives.
The Father says, and I accept, it is not feasible for him to move to South Australia because of his business, which he says needs to continue to support himself and the children. He gave evidence that if he were to live close to the children at Town H (or the nearby Town G), he would have to return to the transport industry, which would make spending substantial time with the children difficult.
At final hearing the Father sought for the children to live on a week-about basis with the parties in the area of Suburb B, Victoria, with provisions for half school holidays and special occasions. He seeks that the children return to School at Suburb B, where they previously attended. He proposes that he and the Mother consult a child psychologist as to the appropriate time and manner of discussing the paternity of X.
The Mother’s case
The Mother seeks that the children live with her in South Australia and spend the larger part of all the school holidays with the Father in Suburb B, near Melbourne. She seeks that the inevitable long-distance travel be shared.
The Mother further claims that the Father has had little involvement in the upbringing of the children, did not regularly eat dinner with the family, and typically watched television from the conclusion of his workday until bedtime. She alleged that during the relationship, the Father did not spend more than two hours with Y independently. She further alleged that following separation, when the children spend time with the Father, they are typically watching television or YouTube and the Father models poor eating habits. Despite such concerns, she says the children have a “warm and loving” relationship with the Father which, she says, she continues to foster.
The Mother seeks that she and the children be able to remain living in or near the area of Town H and Town G, South Australia, and spend time with the Father as per the current arrangements, which are most school holidays in Victoria and long weekends in Town H, South Australia. She seeks that the children remain at J School (the regional school), noting its smaller class sizes and ability for the children to remain there until the conclusion of year 12 studies.
At the time of hearing she and the children lived with her parents at Town H. The Mother had lived her childhood in the same home and had fond memories of her childhood there. She describes a typical day for the children living a “farm life” and notes that the children are well settled and thriving at school.
The Mother sought to impress on me the emotional difficulty she would face in returning to live in the Suburb B area in Victoria. The Mother claims that there is no family support in Victoria for her and the children. She says the only family of the Father’s is his father (the paternal grandfather) who, she says, the Father does not have a close relationship with. Despite this, she says that should orders provide for the children to return to the Suburb B area, she would follow and live with them there.
Both parties focussed on what had happened at three events at or soon after separation. Those events were:
·whether or not the Father sought to prevent the Mother leaving with the children for a holiday at her parent’s place in South Australia (‘the door blocking/car incident’);
·who said what at a barbecue when the Father had the children (‘the BBQ incident’); and
·who said what and what happened on the first occasion the Father visited the children at the Mother’s parent’s home at Town H (‘the first visit incident’).
The Mother’s case is that the Father perpetrated family violence towards her during the relationship by denigration and controlling behaviour. That included requiring the children and the Mother to be home when he returned home from work, not allowing the Mother to have a mobile phone that was in her own name, and not letting her open a bank account in her own name. The Mother alleged that the Father has a medical condition, and he had threatened to kill her if she disclosed information to anybody. The Mother alleges that at separation, which I infer was not obvious to either party at that specific time, the Father stood in the doorway and refused to let her leave to take the children on a holiday to her parents’ residence. The Mother also alleged that the Father has made inappropriate comments in the presence of the children, including about the parental dispute. The Father denies that any family violence occurred, save for “normal disagreements” which, he says, escalated to yelling and shouting on rare occasions.
The law requires me to consider each party’s application for orders about the children’s living arrangements. While the effect of the competing applications will be a determination of whether or not the children’s residence is to be a return to the Suburb B area, the essential inquiry is about the competing applications of each of the Father and the Mother determined by application of the provisions of Part VII of the Act.
Second Respondent’s case
The Second Respondent only joined the Final Hearing on the third day. He had filed an affidavit back in July 2021 in interim proceedings but had not filed a response as to final orders and had not complied with trial directions. On the first day of the hearing my Associates attempted to contact him. He had been sent the same electronic hearing link as the other parties. I proceeded on the basis that the Court and the other parties had done everything they reasonably could to give him the opportunity to participate if he wished.
The Wife alleged that he ignored the request from her to undertake a DNA test for the paternity of X. He told me that he had not found time due to work and child commitments to prepare his case or obtain a DNA test, but he wanted the opportunity to undertake such test. He is not certain that X is his child.
He says, and I accept, that in the event that X is his biological child, confirmed by DNA testing, that he intended to contact the Father and the Mother directly with respect to taking “baby steps” to introduce himself and his child from a subsequent relationship, aged seven, to X.
He told me, and I accept, that he has no objection to the Father being involved in X’s life and having parental authority for him.
The other parties and the Court prepared for the final hearing and underwent the first two days of hearing not expecting him to participate, and he had not filed evidence. For those reasons, the assertions in his affidavit filed in interim proceedings are not in evidence (and have not been tested in the ordinary way), and so his circumspection about whether or not he is X’s father does not inform the parenting orders decisions I must make. I also cannot regard his affidavit, filed for the interim proceedings, as being in evidence. It was not pressed to be in evidence when the final hearing started or at any point in the final hearing and the other parties had conducted their cases on the basis that there was no evidence from the second respondent.
Hence in the final hearing there was no agitated controversy as to X’s parentage. It was common ground that the Father was not the biological father of X. The Mother and the Father both proceeded on the basis that the Second Respondent was X’s father.
Separation
The Father gave evidence that from October 2020 until separation there was limited communication between the Father and the Mother.
In April 2021 the Mother packed the children up to travel for a holiday to see her parents in South Australia. The Mother’s evidence is that the Father stood in the doorway to prevent her from leaving, and threatened to report the car (registered to his business) as stolen. The Father denies both allegations. After the Mother left, she says she observed the Father following her and attended the Suburb B Police Station for assistance. With support from the police, the Mother applied for an intervention order against the Father, with that application subsequently being withdrawn in late 2021. The Father denies following the Mother, and gave evidence that he left the property to buy cigarettes about 10 minutes after the Mother left with the children, and he observed the car the Mother was driving parked at the police station.
The Mother’s case is that she did not make the decision to not return to Victoria until she arrived in South Australia and discussed her options with her parents. She sent a text to a friend in April 2021 that she would be staying in South Australia. The Father, having been under the impression that they were just going for a holiday, heard through a friend that the children would not be returning. Shortly after her departure, the Mother suggested that the Father collect the children to take them to Suburb B, but upon the Father’s arrival she no longer agreed to him taking the children. It is unnecessary that I determine the exact point the Mother decided she would not return.
Paternity of X
As mentioned earlier in these reasons, it is alleged by the Mother that the Second Respondent is the biological father of X. On 15 June 2021 orders were made providing for the Mother and the Second Respondent to participate in DNA testing with X to determine paternity. The Second Respondent, in Court on the third day of the final hearing, indicated that there were issues with completing the DNA test, including the test being sent to the wrong address twice and upon completing the test being unable to send it to the Mother as he did not have her address.
By her Outline of Case the Mother submitted that the Second Respondent “is [X’s] father by virtue of s 69Q of the FLA” but did not otherwise press for a declaration or order about X’s parentage. With respect to determining paternity of a child, the relevant sections of the Act are as follows:
69Q Presumption of paternity arising from cohabitation
If:
(a) a child is born to a woman; and
(b)at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the woman cohabited with a man to whom she was not married;
the child is presumed to be a child of the man.
69R Presumption of parentage arising from registration of birth
If a person's name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.
I do not have evidence of cohabitation (as opposed to a relationship) as prescribed in section 69Q. I do not have evidence of X’s birth certificate as prescribed in section 69Q.
Neither of the parties who were engaged in the final hearing, the Mother or the Father, pressed for a finding as to X’s parentage. It is not in dispute between them.
X believes that the Father is his father. The Father described to Ms K (the Family Report writer) that his relationship with X “is not impacted by their lack of biological connection and he feels the same level of love and connection to him as he does to [Y]”. Ms K raised a concern in the Family Report about X being unaware that the Father is not his father:
86.… [X] is a bright, inquisitive and sensitive child. As he gets older and enters his adolescent years, he is likely to start questioning his parents about his identity. [X] is likely to feel betrayed by his parents if he learns this information in his teenage years, or by working out the inconsistencies, and this is likely to impact his relationship with his parents and possibly even with [Y]. While [the Father] and [X] have a strong father son relationship, this is likely to be compromised if he and [the Mother] are unable to be transparent with [X] about his paternity. Given [X]’s age and recent experience of his parent’s separation, [the Mother] and [the Father] are likely to require a collaborative approach, and professional support when they decide to raise this with him.
I note here that X has the hyphenated surname of the Mother and the Second Respondent and not the Father. Y has the hyphenated surname of the Mother and the Father.
In the circumstances, including the ordered and not completed DNA test and the fact of no controversy between the parties properly engaged at final hearing, it is not appropriate to determine at this point the potential dispute between the Second Respondent and the Mother as to X’s parentage.
APPLICABLE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. Findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Credit of the parties
In Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’), at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders who were coming around the bend. The issue was upon which side of the road the collision occurred. The High Court had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the Kombi Van’s wrong side of the road. The High Court found the first instance decision was wrong because of the position of the braking skid marks of the Kombi Van that were in evidence. The skid marks of the Kombi Van incontrovertibly demonstrated that the Kombi Van had been on its correct side of the road at the point of collision.
When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
[Citations omitted]
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties.
I am also guided by the observations of the Full Court in Adamson & Adamson (2014) FLC 93-622:
[89]In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
[165]As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
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[169]Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
[90]We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
PARENTING
In deciding what particular parenting orders to make I regard the best interests of children as the paramount consideration as commanded by section 60CC of the Act. I must consider the matters described in the Act as primary considerations and additional considerations. I apply and take into account the whole of Part VII of the Act. I apply section 4AB (definition of family violence), sections 60CA, 60CC, 60CF, 60CG, 61DA, 65DAA and 65DAC and those sections are as follows:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
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60CAChild's best interests paramount consideration in making a parenting order
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.
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60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
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60CF Informing court of relevant family violence orders
(1)If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.
(2)If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order.
(3)Failure to inform the court of the family violence order does not affect the validity of any order made by the court.
60CG Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
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61DAPresumption 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.
(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.
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65DAACourt to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Consent orders
(6) If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7)To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
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65DACEffect 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.
(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.
The parenting issues in dispute
The substantial issues in dispute that the parties assert will inform the orders as to which parent the children should live with are:
·Whether the Mother understands the importance of, and will support, a relationship between the children and the Father;
·Whether the education available to the children in Suburb B is essential for the children and superior to that available in Town H; and
·Whether the Father’s day-to-day care of the children, including feeding them “fast food”, is inferior to the Mother’s care.
Family Report
The parties were provided with a court-funded Family Report prepared by Ms K, released to the parties on 25 March 2022. The Father, the Mother and the children were interviewed. The Second Respondent did not make himself available for interview. At that time the children and the Mother had been living in Town H, South Australia for almost 12 months.
The Father described concerns with the communication between the Father and the Mother, which were acknowledged by the Mother. The Mother detailed allegations of family violence perpetrated by both the Father (namely verbal abuse, manipulative and controlling behaviours), and the Second Respondent (namely physical violence). She described the children as well settled into farm life and sought that she and the children remain living in that area. She described concerns with respect to the Father’s “lack of supervision and vigilance with the children when they are in his care.”
In particular I refer to and recite the following paragraphs of the Family Report:
82.Since the separation, both parents have demonstrated behaviours that have prioritised their own needs, rather than a child focused approach. Following the separation, [the Mother] made the decision to relocate with the children to South Australia, where she identified as being her home, in order to be closer to her family, support network and community. While she has a genuine belief that the children would have a better life in South Australia, she struggled to identify how the relocation may have impacted the children, and also minimised the emotional affect it initially had on them. [The Mother] displayed minimal insight about the difficulties the children experienced being removed from their life in [Suburb B], without any preparation, where they were no longer able to see their father, friends and had their entire routines disrupted. [The Mother] does not seem to have taken into account how the children’s relationship with their father would be impacted by the relocation, particularly in light of the physical distance between the two households.
83.[The Father] has struggled with the loss of being able to see the children more frequently since they have moved interstate, and raised genuine concerns about the impact of the relocation on the children when it occurred. However, his desire to have the children living back in Victoria with him, appears to (be) impacting his ability to consider what is best for the children. If the children were to relocate back to [Suburb B] and reside in his primary care, it is likely that they would experience further loss and uncertainty after a period of stability they have had living in [Town H] the last eleven months. The children would no longer be in their mother’s primary care, which would be a significant change for them as she has always been their primary caregiver. [The children] would both need to change schools, makes new friends, be separated from their grandparents and extended family, and adapt to a new lifestyle and routine away from the farm. [The Father] is clearly committed to having a meaningful role in the children’s lives. However his focus on the children returning to live in [Suburb B] with him, seems to be negating a consideration of how this will disrupt the children’s lives and not necessarily be benefit them.
Following a period in which the children were emotionally upset with the sudden move and the absence of the Father from their lives, both children reported to Ms K feeling happy and settled in their current care arrangements. Ms K described that both children had made friends easily, spend substantial time with their maternal extended family and enjoy plenty of outdoor recreational activities. Ms K noted “The children appear to be thriving in this environment.”
The report described, and recommended, that due to the children’s age and strong connection with both parents, the children would likely benefit from a shared care arrangement if the parents lived in close proximity with one another. In the event the Father and the Mother remained separated by distance, Ms K recommenced that the current care arrangements continue with the children spending time with the Father during school holiday periods in Victoria and over long weekends in South Australia. Ms K also recommended that the Father and the Mother engage with a family counsellor for guidance and support in raising X’s paternity with him.
The report writer’s description of X included the following:
57. [X] presented as a confident, friendly and well-mannered 9 year old child. He was able to focus for the entirety of the interview, and he was forthcoming in discussing the circumstances of his family life. He presented as being mature and articulate for his age.
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61. [X] recalled many ''tough nights" when they first arrived in South Australia, mostly associated with missing his father[2] and having minimal contact with him. He explained that the farm environment of his grandparents' home where he moved to was familiar and comforting to him, as he spent many school holidays there throughout his childhood.
[2] Referring to the Father, not the Second Respondent.
The report writers description of Y included the following:
73. [Y] did not raise any concerns about the adults in her life and identified activities and attributes about the adults in her life who she enjoys spending time with, including her mother, father and maternal grandparents. [Y] mentioned that she gets frustrated having to share a room with [X] due to his night light disrupting her sleep when he stays up after her bedtime to read. Overall she appears to share a strong and healthy sibling relationship with [X]
Section 60CC factors
I turn now to the application of the law to those facts recited earlier. I will not recite the whole of the particular section 60CC provision here, they are recited earlier in these reasons. The headings below paraphrase those provisions but the whole section is taken into account.
The benefit to the children of a meaningful relationship with both parents
It is common ground, and I accept, that there is real and significant benefit to the children of a meaningful relationship with both the Mother and the Father. At this point no party seeks that X have a relationship with the Second Respondent.
The need to protect children from physical or psychological harm
Both the Mother and the Father are good parents and are, in different ways, devoted to the children. I am not satisfied that there is any risk that either the Mother or the Father will cause physical or psychological harm towards either child or exposed the children to psychological harm.
Any views expressed by the children
The Family Report interviews describe the children reporting that they are now well-settled. The children want to have substantial time with, and be cared for by, both the Mother and the Father. The children’s views are an important but not determinative consideration.
Nature of relationship with each of the child’s parents and other persons
The children have a warm, loving and strong relationship with both the Mother and the Father. The children share a relationship with the maternal grandparents, with whom they were living and spending substantial time with following their arrival at Town H, South Australia.
Extent to which the child’s parents have taken or failed to take opportunities
The parties, I am told and accept, have substantially complied with the August orders save for a period in which the children could not spend time with the Father due to border closures during the COVID-19 pandemic. The Father and the Mother have been able to navigate additional telephone contact between the children and Father at the children’s request, and also navigated maintaining the status quo after the expiry of time provisions in the current parenting orders pending release of these reasons.
Extent to which each parent has fulfilled or failed to fulfil obligations to maintain the child
The Father pays child support to the Mother as assessed for Y. The Second Respondent is assessed to pay and pays child support for X.
Practical difficulty and expense
The parents live about seven hours travel by car apart depending on road works and the length of comfort stops. There is a real practical difficulty for the children spending any more time with either parent than as provided in the August orders. Those orders provide for the children to spend substantial, and more than half, school holiday time and time during long weekends with the Father.
The Father’s case is that he cannot move his business to South Australia and I accept that. If I were to order equal shared care, he says, and the children were to remain in Town H or Town G, South Australia, he would be required to obtain employment as a transport worker and therefore it would be difficult for him to care for the children in a shared care arrangement. He did not consider that such a move for him would be possible or practical.
The Mother’s case is that she has no support system in Victoria, and that she and the children are well settled with maternal family support in South Australia. She indicated that she intends for the children to remain at J School until completion of Year 12. She indicated that she would move with the children should I order them to return to live in Suburb B, Victoria, but that she would find that difficult.
For an equal shared care arrangement to work, one of the parties would be required to relocate to either Victoria or South Australia where they do not want to live.
Capacity to provide for the child’s emotional and intellectual needs
I am satisfied that the Father and the Mother can both provide for the emotional and intellectual needs of the children whilst they are in their respective care. I accept that the Father and the Mother may have different parenting styles, and I do not find that one is better than the other.
Attitude to the child and to the responsibilities of parenthood
I am satisfied that the Father and the Mother have a positive attitude toward the responsibilities of parenthood.
The Father’s attitude to the responsibility of parenting X must be acknowledged. The Father has always loved and treated X as his child and that love and connection is reciprocated by X. Fortunately for X, and also for Y, the Father’s care of, and love and devotion to, X was not conditional upon his relationship with the Mother. The reality of life is that many men are prepared to play a role in the life of a child of their partner while in pursuit of, or during, that relationship. But after separation, not so much, if at all. The Father’s devotion to X continues unabated after his relationship with X’s mother has ended.
The Mother has never questioned X’s devotion to his father or vice versa. However, I am satisfied that the Mother does not understand how significant it is for that relationship to continue unabated after separation. It is to the Mother’s credit that she has not sought to differentiate the importance of X’s relationship with the Father from Y’s relationship with the Father. However, she does not give the Father much credit for maintaining X’s relationship with him.
Both the Father and the Mother seek equal shared parental responsibility. Whilst their communication could be improved, both are committed to making these decisions together for the children. The Mother has made a multitude of minor criticisms of the Father’s parenting, including allegation of excessive fast food consumption. From observing her demeanour in oral evidence and the tone of her affidavit evidence, and the parties’ joint position that the children have a close and loving relationship with both parents, I am satisfied those criticisms arise from her perception of what will assist her case to remain with the children in South Australia. I am not satisfied of the alleged deficiencies in the Father’s parenting.
If the arrangement of the Mother providing updates to the Father with respect to the children’s schooling works for the parties then I encourage them to continue with it. However the Father and the Mother can also make their own enquiries with the school to track the children’s progression and I will make provisions for this in the orders I make.
When the Mother made the unilateral decision to relocate with the children she did so on the basis of her own emotional needs over those of the children. She places little weight on the inevitable limiting of the relationship between the children and the Father due to the distance between the parties. I am satisfied that Mother did not appreciate the extent to which both children, but X in particular, were troubled by the Father’s absence in the period early after separation. The Mother does not yet fully appreciate the importance of the Father’s relationship with the children. However, I accept her case that she does continue to promote the Father’s relationship with the children.
The Father maintains his application to have the children move back to Suburb B. He understands that if such an order were made the Mother would relocate to be with, and nearby to, the children. The Father does not appreciate how profoundly unhappy the Mother would be if effectively compelled to live a long way from the support of her family and where she wants to live. The Father does not appreciate the likely very significant long-term impact on both children of their mother’s long term unhappiness if she is effectively compelled to live where she does not want to. It is likely that the children would come to feel at least some responsibility for their Mother’s inevitable unhappiness.
The Mother’s moving from Town H to the nearby Town G was raised during the final hearing. Nonetheless, the Mother should have and did not advise the Father of this relocation. The Mother proposes that the changeover place for the Father’s time on those occasions when he travels to South Australia should remain at the same place, Town H, so that this does not add to the Father’s travel. I take that sensible and practical proposal of the Mother into account.
Family violence
The allegations of family violence made by the Mother about the Father are denied in by the Father. The Mother alleges that the Father:
·Would not permit her to engage in paid employment;
·Would not permit her to engage in “mundane tasks”, as she described them, such as having a mobile phone in her name;
·Insisted that she should not have bank accounts of her own, and opened up an account for her;
·That the Father had threatened to kill her if she spoke to anyone about a medical condition;
·Engaged in intimidating conduct, referring to one example which occurred at what became final separation;
·Isolated her by moving her around to various locations throughout their relationship, ultimately not residing in an area close to her family.
The Father gave evidence that during the relationship the Mother was employed in a few casual roles from time to time, but he did not otherwise restrict her from being employed or working. He denies that he expected the Mother to be a home maker, and instead through discussions between the two of them it was agreed that she would engage in home duties. He denies that he would not permit her to open her own bank account, and that the bank set up individual accounts for both of them when they took out the home mortgage.
The Father was not cross-examined on the existence of any medical issue and the Mother’s case is that he should drive half of the 12-hour or so round trips back and forth to facilitate the children’s time with him. The Father’s version of events of what occurred at separation differs from the Mother. On the evidence I am not satisfied either version is entirely accurate and the determination of that controversy, if I were able to do so, would not inform the decision as to the parenting orders I must make. The same applies to the BBQ controversy and the dispute about who said what when the Father first visited Town H at or soon after separation. I do not find that the Father, and the Father alone, made decisions as to where the Father and the Mother resided before and after the children were conceived. I accept that the Mother felt isolated being away from her extended family of origin, regardless of the how those circumstances came to be.
Section 60CG
When considering family violence, I also take into account section 60CG of the Act, also recited earlier. I am not satisfied that there is any current or final Intervention Order or that there is a risk of the children being exposed to family violence in either the Father or the Mother’s care or at changeovers.
Parental responsibility
The Mother’s case seeks to rebut the section 61DA of the Act presumption for equal shared parental responsibility with respect to X and the Second Respondent, on the basis that she alleges family violence was perpetrated by the Second Respondent against her. In the alternative, she seeks that I find the presumption rebutted as it is not in X’s best interests. Section 61DA of the Act is recited earlier.
The Mother Outline of Case relies on the case of Carlson and Ors & Bowden [2008] FamCA 1064, as follows:
[181]The position is, then, it seems to me, that an order allocating parenting responsibility can be applied for by a non-parent concerned in the care welfare and development of the child and an order can be made between two or more persons including persons who are not a parent. However, the presumption of equal shared parental responsibility applies only as between parents.
The Mother and the Father seek that I make orders for the two of them to have equal shared parental responsibility for both children. The Mother submits in her Outline of Case:
a. [The Second Respondent] has had virtually no involvement in [X]’s life.
b.[The Father] has effectively acted as [X]’s father throughout most of [X]’s life.
c.[The Second Respondent] does not seek any parenting orders in relation to [X], nor did he participate in the interview with the family consultant.
d.[The Father] and [the Mother] agree that they should share parental responsibility in relation to [X], and [X] will benefit from this.
Regardless of X’s parentage, it is common ground that the Father is not the biological father of X. The Father, an interested person, and the Mother, X’s mother, after giving notice to the Second Respondent, both seek an order for equal shared parental responsibility of both children. I am satisfied that such an order is in X’s best interests.
The Second Respondent has not spent time or communicated with X since he was around two years old. The Second Respondent is not confident that X is his child. Even if DNA testing is undertaken which confirms that the Second Respondent is X’s biological parent, a resumption of time between them, should that be agreed or found appropriate by a Court, would commence by way of introduction. The Father and the Mother are best placed to make decisions of parental responsibility for X and Y.
The Mother’s Outline of Case further details that she considers the presumption under section 61DA of the Act is rebutted regarding Y as there are “reasonable grounds”, on her case, that the Father has engaged in family violence. Nonetheless she agrees that she and the Father should have equal shared parental responsibility with respect to Y, so it is unnecessary for me to determine whether the presumption applies or is rebutted.
I find that it is in the children’s best interests for the Father and the Mother to have equal shared parental responsibility for both X and Y.
Order least likely to lead to further proceedings
Both the Mother and the Father sought final orders.
Any other relevant fact of circumstance
I refer to and repeat the discussion in these reasons of two very significant matters. One is the Father’s remarkable devotion to X, who is not his biological child, and to Y must be acknowledged. The other is the profound unhappiness to the Mother, and the likely resultant impact on the children, if the Mother is effectively compelled to live where she very strongly does not want to live, that is close to where the Father lives and far from where she wants to live and regards as “home”.
The Father will be profoundly unhappy if the children live in South Australia with the Mother. I am satisfied that he is emotionally better equipped to deal with that unhappiness and get on with life than the Mother would be if she were compelled to live in or near Suburb B.
I am not satisfied of the Father’s argument or contention that Town H, or Town G, is a backwater and the big city of Suburb B education is superior. I accept that the Father’s feeling about those matters is genuine and based on his experience of trying to make a living when he was living in or near Town H many years ago. He sees X and Y growing up there as life, and career, limiting as he found it for him. I am not satisfied that growing up in Town G and going to school by school bus from there will be, or is likely to be, life and career limiting for X and Y. I am not satisfied that growing up in or near Suburb B would better advance them in life, either. What each of them make of life will depend on many things and many uncertain things. But it will depend very much on his or her own sense of belonging, resilience and confidence in tackling their own life. That will overwhelmingly depend on the love, care and example of each of the Mother and the Father. I am satisfied that each of the Mother and the Father have many different but positive qualities that will advance X and Y in life whether they live in or near Town G or Suburb B. It is the parenting that will make the difference.
I turn now to step one of the preferred approach. The parties sensibly agreed on a joint asset and liability table. The final joint list of assets and liabilities was submitted as exhibit F5 and is as follows:
| Asset Pool | ||||
| Assets | ||||
| Asset | Husband | Wife | Joint | Totals |
| Remaining proceeds FMH | $ 195,669.00 | |||
| Father’s business | $ 110,000.00 | |||
| Part Property Settlement | $ 21,000.00 | |||
| legal fees | $ 3,000.00 | |||
| Part Property Settlement | $ 30,000.00 | |||
| Motor Vehicle 1 | $ 6,500.00 | |||
| Totals | $ 134,000.00 | $ 36,500.00 | $ 195,669.00 | |
| Gross Asset Pool | $ 366,169.00 | |||
| Liabilities | ||||
| CBA Loan | $ (15,563.00) | |||
| C Company Loan | $ (5,899.00) | |||
| Total Liabilities | $ (21,462.00) | $ (21,462.00) | ||
| Totals | $ 112,538.00[3] | $ 36,500.00[4] | $195,669.00 | |
| Net Asset Pool | $ 344,707.00 | |||
| Superannuation | ||||
| Super Fund 1 | $ 38,021.00 | |||
| Super Fund 1 | $ 79,790.00 | |||
| Total Super | $ 117,811.00 | |||
| Super Split to Wife @ 50/50 | $ 20,884.50[5] | |||
[3] And can also be described as the Father’s “keep”.
[4] And can also be described as the Mother’s “keep”.
[5] The agreed position.
Hence by the end of the hearing there were no disputes about the assets pool. I accept the pool as submitted by the parties. The Husband’s “keep”, including debt he will bear, is $112,538 and the Wife’s “keep” is $36,500, and the remaining undivided assets are the funds in trust of $195,669 plus any interest earned.
Step two: section 90SM(4)(a), (b) & (c) contributions
At the commencement of the relationship the Mother owned a property in Town E, South Australia. The parties did not otherwise have any assets of significant value. In 2016 the Mother’s Town E property was sold for $120,000. The Mother retained the sum of $26,060.75 from the sale.
The Father brought in a motor car and motorcycle which he asserted were jointly of a value roughly equal to the equity the Mother had in the Town E property and that assertion was not seriously disputed.
During the relationship the Father worked full time, including opening his own transport business. The Mother engaged in home duties. The Father received a small inheritance totalling $8,000 during the relationship and those funds were applied to family purposes.
Following separation the Father continued to meet the mortgage repayments and outgoings of the FMH. In 2021 the FMH was sold for $597,000 and the balance after payment of debt was $246,699. Each party by agreement have received part property settlements, and the balance of $195,669 was held in the Father’s solicitors’ trust account at final hearing. The Father received a partial property settlement of $21,000 and the Mother received $30,000 from the sale proceeds.
The overwhelming contributions of the Mother and the Father were the many years of hard and diligent work in different roles during the relationship. Looking back through the veil of grief of the breakdown of their relationship, each now sees many faults in the other’s contribution. Both parties asserted that overall contribution should be regarded as equal. I accept those submissions.
Step three: section 90SF(3) factors
The step three adjustment is where the parties are apart is this dispute. The Father seeks a 5% adjustment giving a disparity on account of those factors of 10%, or in this case of about $34,400, in the Mother’s favour if the children live with the Mother, as I have found. The Mother seeks an adjustment of 10-15%, giving a disparity on account of those factors of 20-30%, or $69,000 to $103,423.
Age and state of health
The Father is currently aged 49 years old. After the final hearing he had surgery but he says, and I accept, is otherwise in good health. The Mother is aged 41 and is in good health.
Income, property, financial resources and capacity for employment
Each party’s assertions of income and expenses in their financial statements were unchallenged.
The Father runs his own business earning approximately $92,000 per annum with income tax of about $22,464, leaving a net of tax income of about $70,000 per annum. He pays child support for Y of $156 per week ($8,112 per annum) as assessed, leaving a net of tax and child support income of about $62,000.
The Mother works casually as a part-time domestic worker, earning approximately $1,300 a year according to her financial statement. She is in receipt of Centrelink payments of about $24,232 per annum, child support from the Second Respondent for X of about $142 per week (or $7,384 per annum), and $156 per week or $8,112 per annum child support for Y from the Father, a total of $789 per week or $41,000 per annum without tax. Both parties are capable of employment.
The current disparity of income after tax and child support is about $21,000 per annum.
At the end of the step two contribution assessment stage each party has an assessment or position of about half of a non-superannuation pool of $334,707 or $167,353 each plus about $58,000 (half) of superannuation. The parties’ superannuation will not be available to them for many years yet as they have many years of child raising, and hopefully working, ahead of them before retirement and an ability to access superannuation.
It is common ground that the future income of the business must have been taken into account in the accountant’s conclusion of a value of the business of $110,000. The parties agree with that valuation. How and to what extent is not known and I cannot speculate, but that concept remains relevant and must also be considered. The Father’s business is in reality his job, although it has value apart from that.
Care of children under 18 years
As I have determined above, the children shall live with the Mother and spend time with the Father. It is unlikely the Father will move to the area of Town G or Town H. If he does, common sense and the opinions in the family report cry out for a reconsideration of the children’s living arrangements. The Father indicated that it would be difficult for him to move, and I accept that evidence. I accept that the likely scenario is that the children will remain living with the Mother and spending time with the Father on school holiday periods and long weekends. I accept that this means the burden and expense of child rearing shall fall mainly to the Mother.
Commitments of each of the parties to support themselves or a child
The Father will need to provide for the children when they are with him.
Responsibilities of either party to support any other person
Neither the Father nor the Mother are in new relationships or have other dependents. The Mother lived with the maternal grandparents until recently and continues to have their support.
Pension or benefit
The Mother is in receipt of Centrelink entitlements and child support from the Father and the Second Respondent.
Reasonable standard of living
The Father and the Mother had a modest lifestyle during the relationship and I find each will continue to lead a modest lifestyle.
Whether party cohabiting with another person
Neither party cohabits with another person.
Child support to be provided
The Father makes child support payments to the Mother as assessed for Y and the Second Respondent for X. If it ultimately turns out from DNA testing that the Second Respondent is not X’s father then that child support will stop.
Any fact or circumstances required to take into account
Since X was only a few months old the Father has taken on the role of his father. The Father was under no legal obligation or duty to do so. The authorities deal with when and how this should be dealt with.
The Robb and Robb issue
In her Outline of Case, at [127] the Mother asserted that, “…it is not appropriate for there to be an adjustment in favour of the Husband pursuant to s 75(2)[6] of the Act and Robb and Robb [1994] FamCA 136…”
[6] It is clear the reference to s 75(2), the provision applying to married, or once married to each other, couples was a mere ‘slip’ and the references in the Outline of Case to section 75(2) were intended to be a reference to s 90SF(3) and is of no consequence.
Section 90SM(4) at (a), (b) & (c) sets out three categories of “contribution”, that for convenience are often described as “contribution”. Section 90SM(4) is, for present and practical purposes, identical to section 79(4), the section applicable to married or once married couples. Hence the body of jurisprudence about section 79 and section 75 of the Act, built up and refined over the many years of application of the Act, provide guidance, and often binding guidance, as to the application of the almost identical provisions of sections 90SM and 90SF.
Section 79(4)(c) describing the homemaker and parent contribution uses the words, “…contribution… to the welfare of the family …and any children of the marriage…”. Section 90SM(4)(c), inserted into the Act by Act No115 of 2008, that is long after In the marriage of Robb, G and Robb, DJ (1994) 18 FamLR 489; (1995) FLC 92-555 (‘Robb & Robb’) was decided, when describing the homemaker and parent contribution uses the words, “…contribution… to the welfare of the family …and any children of the de facto relationship…”.
In Robb & Robb at 81,547 the Full Court observed as follows:
In considering whether the justice of a case requires some act done by a party to be taken into account under s. 75(2)(o), the Court should, we think, have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act, and also, perhaps, to ordinary notions of justice and equity between the parties.
In this case, the wife had a legal duty to maintain the children of her prior marriage, which duty had primacy over the duty of any other person, other than the children's father, to so maintain them: ss. 66A and 66B of the Act. The husband, on the other hand, had no legal duty to maintain these children at any time during the marriage because, by s. 66G, a step-parent has such a duty only if he or she is a guardian of the child, or has custody of the child by an order of a court, or a court having jurisdiction under Part VII of the Act by order determines that it is proper for the step-parent to have that duty. None of those preconditions existed in this case.
Accordingly, in contributing to the support of these children the wife was merely honouring a legal obligation which she owed to the children, whilst the husband, in making his contribution, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations. Upon that basis, whilst we consider the justice of the case clearly required the husband's contribution to be taken into account under s. 75(2)(o), the same cannot be said of the wife's contribution…In making that contribution the wife was in no way discharging or assisting to discharge any legal obligation of the husband.
[Emphasis added]
Robb & Robb was referred to in Bokin & Wild (2022) FLC 94-122; [2022] FedCFamC1A 209 in the following terms:
49.Not only did the appellant fail to quantify his purported Robb & Robb claim, he expressly renounced it as a s 90SF(3) consideration.
50.In so far as the appellant contends that the primary judge double counted the contributions of the respondent’s father in his provision of financial support for the family by also taking that fact into account in her Honour’s consideration of this issue, we reject that submission. The evidence of the respondent’s father’s contributions is relevant to negate the appellant’s contention, as we understood his argument, that he provided financial support for Ms B.
51.If the appellant sought to pursue a claim based on Robb & Robb it was incumbent upon him to adduce evidence which was sufficient for the primary judge to assess and weigh that claim. He did not.
52. This ground of appeal is not established.
In Elford & Elford (2016) FLC ¶93-695, [2016] FamCAFC 45 (‘Elford’), the Full Court observed as follows:
35. In Robb and Robb (1995) FLC ¶92-555, this Court made the point that because s 79(4)(c) refers, relevantly, to contributions made to “contributions to the family constituted by the parties to the marriage and any children of the marriage”, contributions of the type made here by the husband to children who were not his, needed to be taken up by reference to s 75(2)(o). Although not recognised in those terms by his Honour, he was plainly alive to that distinction and gave consideration both to the important s 79(4)(c) contributions made by the wife and to the husband’s “contributions” to children who were not his, albeit that this needed to occur by reference to s 79(4)(e) rather than s 79(4)(c).
36. The evidence about what role each party fulfilled was not controversial. The wife received child support from the father of the children but recognition was given to the husband’s actions in paying for the outgoings in relation to the house that everyone occupied and paying the private health insurance premiums for the wife and the children (albeit that he obtained a tax deduction for them). Provided no “double counting” occurs by giving weight to those matters pursuant to s 75(2)(o) and in recognising that the husband was assisting the wife to fulfil her own legal obligations towards her children, we see no error of principle. It is not contended that any such double counting occurred here.
The evidence about what role each party fulfilled was not controversial in that case. The wife received child support from the father of the children but recognition was given to the husband’s actions in paying for the outgoings in relation to the house that everyone occupied and paying the private health insurance premiums for the wife and the children (albeit that he obtained a tax deduction for them). Provided no “double counting” occurs by giving weight to those matters pursuant to s 75(2)(o) and in recognising that the husband was assisting the wife to fulfil her own legal obligations towards her children, we see no error of principle. It is not contended that any such double counting occurred here.
The guidance of the Full Court in Robb & Robb is binding on me. The Father did not specifically press that the principles of Robb & Robb, nor did he “renounce” or abandon those principles. The parties do not contract in and out of the different provisions of Part VIII or of the authorities. In this case as in Elford the roles of he parties were not in dispute. The Mother was the major homemaker and parent and contributed income when she could. The Father was the major income earner and contributed to parenting when he could. The unassailable fact is that the Father, in earning the income and so providing for the day to day needs of the family, supported X as he did the Mother and Y. He had no legal obligation to do so. The law recognises that as a matter that should be taken into account, but only once, as a section 75(2)(o) or 90SF(3)(r), “any fact or circumstance… the justice of the case requires to be taken into account”.
I am satisfied that the Second Respondent has throughout the relationship of the Mother and the Father, paid child support. That he has done so must be taken into account and reduces the weight that may otherwise be given to this factor. There may be cases where an examination of the dollar or proportionate percentage expense of each person in the household and the income of each person is appropriate but that would not sit comfortably the modern approach to section 79(4) and 90SM(4) of wholistically considering all of the parties contributions and the application of section 75(2) or 90SF(3) factors.
However, represented by counsel, the relevant parties each pressed that contribution during the relationship be found to be equal. Although a Robb & Robb contribution, under orthodox principles, is to be taken into account as a section 75(2)(o) of 90SM(r) matter at the third step, it fundamentally remains a contribution factor. In the circumstances where the parties pressed overall equality of contribution, that must include the Robb & Robb issue. To do otherwise would require the parties to be expressly put on notice that I was considering acting differently to how they put their cases. Hence, I do not take this factor into account at the third step stage but regard it as taken into account at the second contribution step analysis.
Conclusion as to section 90SF(3) factors adjustment.
The most significant factors are the burden and joy of the care of the children being mostly with the Wife and the net of tax and child support income disparity. The income disparity is about $21,000 per annum. The child support formula or assessment takes into account the greater time the children are cared for by the Mother. But that greater burden, notwithstanding the joy involved and the manner that child support assessment takes that into account, still calls for an adjustment. The income disparity also calls for an adjustment.
In the circumstances of the parenting orders I have decided are in the children’s best interests, the Father seeks a 5% adjustment. That would be an adjustment of $17,235 and a disparity of $34,470. The Mother seeks an adjustment of more than 15% or a disparity of more than 30%, and that being a disparity of more than $103,412. At lower end of what the Mother seeks, 15%, would mean an overall division of 65/35, or one party receiving almost double of the parties’ combined life’s work of asset accumulation.
I refer to and repeat the shopping list of section 90SF(3) factors or provisions recited earlier.
I refer to the observations of the Full Court on section 75(2) (and, by extension, section 90SF(3)) adjustments in Hobson v Hobson (2020) 61 Fam LR 557, [2020] FamCAFC 251 (‘Hobson’). In that matter, the trial judge made an adjustment of 4% on account of section 75(2) factors. The Full Court found that adjustment to be inadequate and upheld the wife’s appeal and remitted the matter for another hearing. I am assisted by the general principles of Hobson but the underlying facts, both extent of income disparity and the size of the asset pool, are very different and not comparable and so that case does not provide guidance as to the particular percentage adjustment in this case.
The observations of the Full Court in Clauson & Clauson (1995) FLC 92-595 (‘Clauson’) have guided judges and practitioners since 1995. In Clauson the Full Court did not interfere with a contribution assessment of 75/25 in the husband’s favour. But on a re-exercise of discretion, the Full Court made a section 75(2) adjustment of 25% and included the observation (at 81,911) about consideration of section 75(2) factors that:
…in any event it is the real impact in money terms which is ultimately the critical issue.
In Rosati v Rosati (1998) FLC 92-804 (‘Rosati’) the Full Court had reason to re-exercise the discretion in the division of the parties’ assets in a $1,500,000 pool of assets back in 1998. After finding that section 79(4) contribution should be regarded as 60/40 in the husband’s favour the Full Court found a 10% adjustment on account of section 75(2) factors was appropriate. But it is significant how the Full Court addressed the income disparity on account of section 75(2), way back in 1998, and it was addressed as follows at 85,046:
On our adjusted figure for the value of the parties net assets ($1,503,863), adjustment of 10% in the wife’s favour results in an increase in her entitlement of $150,386, and a corresponding reduction in the husband’s entitlement, producing a differential movement between them of $300,772 …
Decisions where the Full Court finds error and re-exercises the discretion or decision are of particular assistance to Judges and practitioners where the facts are similar enough to be roughly comparable. The principles of law stated on appeal would ordinarily be binding on the Trial Judge and the re-exercise of discretion on the facts a helpful example, although not binding.
In Wayne & Wayne [2010] FamCAFC 33 (‘Wayne’), the Full Court dealt with an appeal where the total asset pool was $937,000 (in 2010 dollars), the parties had 4 children aged 18, 16, 10 and 8. The 18 year old could be regarded as independent and the 16 year old, having left school, and was soon enough to be working or looking for work. The 10 and 8 year old children lived in a 5/9 nights per fortnight in school term and shared holiday arrangement, with the husband for the 9 nights. The 16 year old also lived with the husband. The husband was found to have a full time earning capacity of $45,000 to $50,000 and the wife worked 35 hours per week and had slightly less earning capacity[7]. Contribution was found to be 48/52 in the wife’s favour and that was not interfered with on appeal.
[7] See at [58] and despite complaint the Full Court did not interfere with those findings.
In Wayne, in those circumstances, the Learned Trial Judge made a section 75(2) or third step adjustment of 10%. The Full Court found the extent of that adjustment to be an error of law and decided the adjustment should be only 4% in the circumstances. The rational of that decision can be easily discerned from the following paragraphs of the appeal decision:
[107]It is also important to recall what was said in Phipson & Phipson [2009] FamCAFC 28 when the Full Court was dealing with another appeal from the trial Judge in the present proceedings:
[39]It is always important to keep in mind that an adjustment of X% for s 75(2) factors leads to a disparity in the value of property received by the parties representing 2 x X%. It is that disparity, measured in “money terms”, that requires consideration in determining whether the result is just and equitable: see Campbell v Kuskey (1998) FLC 92-795 at 84,928.
[108]The 10% adjustment his Honour made on account of s 75(2) factors has led to a disparity in favour of the wife equivalent in value to 20% of the assets. In money terms this represents $187,733 out of a total asset pool of $938,665. Apart from the issues associated with the care, accommodation and maintenance of the children, the s 75(2) factors largely balanced out (save that as a result of the assessment of contributions the wife would have more capital than the husband). The husband was going to have whatever responsibility remained for the care, accommodation and maintenance of [X]. Both parties would have significant responsibility for the two younger children. It is true the wife will have the children with her about 20% more of the time than the husband, but this amounts to only a little more than 70 additional days a year.
[109]In our view an assessment leading to a disparity of $187,733 in the capital/superannuation to be received by each party was outside the reasonable ambit of the trial Judge’s broad discretion, even taking into account the matters found by his Honour relating to the non-payment of child support in the period after the husband gave up his employment. Our conclusion is sufficient to enliven appellate intervention (House v The King (1936) 55 CLR 499 and Norbis v Norbis (1986) 161 CLR 513). The appeal will therefore be allowed.
…
[112]In our view, given that the children will be with him around 40% of the time, the husband’s accommodation needs for the children would not be significantly different to those of the wife. However, in light of the agreement in relation to child support, we accept that the wife will bear the greater proportion of the burden of maintaining the two younger children (at least for the time being). The husband, on the other hand, will have whatever responsibility remains for accommodating and maintaining [X]. The others 75(2) factors, in our view, are evenly balanced, save for the fact that as a result of the assessment of contributions the wife will have 4% (or $37,546) more of the assets/superannuation than the husband.
[113]Taking these matters into account, and the failure of the husband to pay child support after giving up his employment, we consider there should be a 4% adjustment for s 75(2) factors, creating a disparity of 8% between the parties – or in money terms an amount of $75,093.
In Lovine & Connor and Anor (2012) FLC 93-515, [2012] FamCAFC 168 (‘Lovine & Connor’) another Full Court approved the observations in Wayne and demonstrated that the percentage, the actual dollar amount of the adjustment and the disparity the adjustment creates should be taken into account when considering a section 75(2) adjustment.
The disparity that a 15% adjustment made between the parties in Lovine & Connor contributed to that Full Court finding that such an adjustment was wrong in that case. However, the facts of that case are very different to this one and so that case does not assist with what would be an appropriate adjustment in dollar or percentage terms but the cited principle remains applicable. In Wallis & Manning (2017) FLC 93-759 the Full Court, after a discussion of the section 75(2) factors applicable to that case, concluded:
[169]In our view, s 79(4)(e) requires those matters to be taken into account in arriving at orders that are just and equitable as between the parties. In arriving at an appropriate assessment for those factors, a dollar value of it should be uppermost in our minds [79] and, of course, the ultimate disparity in entitlements which it might produce. That dollar value is, in turn, dependent upon the value of the interests in property of the parties.
In Varnham & Moses (2021) FLC 94-007 the Full Court again approved the “real money” approach of Wayne, and of Phipson & Phipson [2009] FamCAFC 28 (cited in Wayne), and of Lovine & Connor.
There can thus be no doubt that settled law requires, when considering all relevant section 75(2) or 90SF(3) factors that the “real money” as well as the “percentage” must be considered, as well as the disparity between the parties, that any adjustment creates.
Balancing all of those matters I am satisfied that an adjustment of 10% ($34,700), giving a disparity of 20% ($69,400) is appropriate. $34,700 is about 1½ times the annual income disparity and the disparity on account of this adjustment is about $69,400, an amount equivalent to about 3⅓ times the net of tax and child support income disparity. I also take into account that the Father, being in business, has the possibility of earning a greater or lesser income than presently.
Step four: just and equitable conclusion & calculations
Hence of the non-superannuation pool, with a third step adjustment of 10% from the equality of the end of the second step analysis, the resultant 60/40 division sees the Mother with 1½ times the non-superannuation assets of the Father. The Mother will end up with $206,824 of assets and the Father $137,883 of assets. The parties agree on a superannuation splitting order in a fixed sum. I am satisfied that orders to this overall effect are just and equitable.
The conclusionary calculations are as follows: The total non-superannuation pool of $344,707 at 40% is $137,883 (rounded). The Husband already has “kept” $112,538 and hence from the proceeds held on trust should receive the difference of $25,345 (rounded), and the Mother should receive the balance of $170,324. Interest earned on top of the $195,669 held in trust should be divided 40% to the Father and 60% to the Mother, with each to be responsible for the income tax on the interest each receives.
The parties agree a superannuation split of $20,884.50 should be made. Because that asset is of a different nature to the other assets and will not be available for many years, I am satisfied it is appropriate to deal with that different asset differently. The parties have provided the superannuation trustee with procedural fairness. Somehow the draft superannuation payment splitting order assumed that the Mother and the Father were married and described them as “husband” and “wife” and I have amended the form of that order to describe them with their full name and otherwise as “the Mother” and “the Father”. The superannuation payment provisions are contained in Part VIIB of the Act, and by section 90XA of the Act apply to the parties to a marriage or to the parties of a de facto relationship. The Mother, Ms Cordell, and the Father, Mr Demos, were parties of a de facto relationship, hence the same legislative provisions apply and the slight glitch in the proposed order provided to the trustee of describing them as “husband” and “wife” has no consequence.
The evidence of the parties in closing, in the joint asset statement, of the figure to give the effect to the intended equalisation of superannuation as at the date of hearing was $20,884.50. The minutes of orders sought have a slightly different figure, however I will proceed on the figure of the joint asset statement.
I will make orders in those terms.
I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 21 September 2023
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