Dylan & Dylan
[2007] FamCA 842
•21 August 2007
FAMILY COURT OF AUSTRALIA
| DYLAN & DYLAN | [2007] FamCA 842 |
|
| APPLICANT: | MR DYLAN |
| RESPONDENT: | MS DYLAN |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid (Qld) |
| FILE NUMBER: | BRF | 2433 | of | 2004 |
| DATE DELIVERED: | 21 August 2007 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | The Honourable Justice Carmody |
| HEARING DATE: | 15, 16 and 17 May 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Murphy of Senior Counsel |
| SOLICITOR FOR THE APPLICANT: | Barry & Nilsson |
| COUNSEL FOR THE RESPONDENT: | Mr Laurie |
| SOLICITOR FOR THE RESPONDENT: | Habermann & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Drysdale |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid (Qld) |
Parenting Orders
The parents to have equal shared parental responsibility for the children.
The children spend half school holiday periods with each parent.
The children live with the Mother and spend time with the Father not less than from after school Thursday until before school Monday in each alternate week.
The parents communicate with the children at agreed reasonable times.
The parties keep each other advised of:
a)any change of residence or telephone number;
b)any attendance by the children or either of them upon a medical practitioner or other health profession;
c)any change in the children’s circumstances affecting the care, welfare or development.
Non school changeovers to take place at the food court at the local shopping centre or as agreed.
The parents hereby authorise the children’s school from time to time to provide the other with copies of the children’s school reports and/or any other reports on school progress or behavioural issues, school circulars and school photographs at the expense of the party requesting same.
Neither parent denigrate the other or allow the other party to be denigrated to or in the presence or hearing of the children.
Any disputes about the terms or operation of this order, parental responsibility issues, changes to the order or any aspect of the care, welfare or development of the children are to be resolved in consultation with a family dispute resolution practitioner nominated by Relationships Australia or Kinections.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Carmody delivered this day will for all publication and reporting purposes be referred to as Dylan.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF 2433 of 2004
| MR DYLAN |
Applicant
And
| MS DYLAN |
Respondent
REASONS FOR JUDGMENT
This is a combined children’s and financial case. It is convenient to deal with the parenting issues first.
The rival positions
The parties are unable to agree about how much time their 15 year old son, R and daughter, B aged 10, should spend with each of them in the future.
Stating it briefly without, I hope, oversimplifying it, the key issue is whether increasing the children’s time with their father and allowing him to have a more meaningful involvement in their everyday lives is inconsistent with the best interests of either or both of them.
The father seeks either equal or defined substantial and significant time with the children on the basis that the 2006 amendments to the Family Law Act require good reasons to be shown for making an order providing for less generous amounts of time with a parent having equal shared parental responsibility.
He acknowledges that the children are expressing negative views about spending any extra time with him but says that their attitude has to be seen in the light of past events and emerging relationships. It can’t be divorced from the lengthy periods of no contact and other relationship damage that B’s unsubstantiated and now abandoned sex abuse complained has caused.
The father claims that since separation the mother has acted with the intention or effect of weakening the children’s relationship with him. The timing of the abuse allegations, he says, give context and colour to the children’s current views and clearly show that the mother cynically encouraged or, at least, allowed a situation to develop in which the father was cut off from the family as if he was a dangerous parent when, in truth, he was not. The past, he says, cannot and should not be ignored when evaluating the strength or validity of the children’s views despite their age.
His counsel also points out that the children have only known him as a ‘weekend dad’ and in the four years of separation, have never had the opportunity of spending a single school day with him. This has had the effect of casting the father in the role of secondary eg inferior and the mother as primary or dominant parent. This, he urges, is a denial of their right and need to have regular quality parenting time with him. The benefits of having equal or a lot more time with the father is best judged he says not by future fears but by the contact experiences to date which contrary to everybody’s expectations (including their own) have been overwhelmingly positive making the concerns raised by the other parties overly pessimistic.
He suggests that the mother has tended to look for reasons not to apply the new law in this case instead of asking how it might be implemented in a way that promotes the children’s long term welfare.
The father dismisses the experts’ concerns about the risks posed to the relationship as entirely conjectural and unsupported by any evidentiary facts.
He also notes that the mother, who has a proven capacity to influence her children, if committed to doing so is likely to be successful in making any court ordered arrangements work.
The father naturally wants to be involved more and as closely as possible with his son and daughter while they are still children and to re-establish his position as an equal not a “reserve” parent in their eyes.
However, there is obvious commonsense also in not burdening the children with too much unwanted change at this stage of their development. The question is how much is too much here?
The mother contends that increased time with the father would be contrary to the children’s best interests. She also opposes a 50:50, 10:4 or 9:5 arrangement. She does however, concede that three rather than the current two nights each alternate week would better achieve the statutory objects and satisfy the substantial and significant time requirement of the legislation. Chief among her reasons for this stance is the children’s clearly expressed opposition to change. Other considerations include the potentially counter-productive effect of forcing children of their age to spend more time with the father in the context of an already fragile relationship. The point pressed is that the likely benefits are outweighed by probable greater harm.
Any appreciable enlargement in the father’s overnight parenting time would, it is submitted, be too stressful for B because she is only just coping with the current arrangements and fails to have regard to the strength of her relationship and emotional dependence on the mother.
The mother’s own resistance to more contact is said to be an additional material factor. The mother portrays herself as being demonstrably pro-contact and, at least in more recent times, actively supportive of the children’s relationship with the father. She urges me to trust her instincts which are telling her to hasten slowly.
Other suggested obstacles to any additional staying over time with the father at this juncture are his alleged lack of child focus evidenced by a history of relegating the children’s interests to work commitments and the current uncertainty about where he will live and work.
The mother also claims that making the children spend more time with the father than they do now is likely to generate further litigation because the children may well refuse to comply with any additional time ordered against their wishes which may lead to contraventions and enforcement proceedings or variation applications.
The wife understandably, and not unreasonably, emphasises the importance of stability in the children’s lives, the need to have respect for their views and not to needlessly or unduly disrupt their settled routine in circumstances where everyone is still hurting and the repatriation of the father into the children’s lives is a work in progress.
The ICL is content with the amended proposal of the mother but considers that neither the husband’s preferred shared care arrangement nor his alternative 9:5 proposal is desirable. This position is taken because the children, especially B, apparently have a closer relationship with the mother, their age and strongly resistant views, the tenuous nature of their relationship with the father and the shared opinion of the expert child psychiatrist, Dr W, and family reporter, Ms A, that the children are likely to “talk with their feet” if ordered to spend more time with the father. There are also concerns expressed about B’s reaction to being left alone in her father’s household or spending too much time in school care when she could just as easily be at home with her mother on the other side of town. Ultimately the ICL does not believe that the gains made to date should be jeopardised by taking the supposed risks associated with the father’s proposal but recommends the making of orders that allow more father time to evolve naturally. To do otherwise, the ICL suggests, would be meeting the father’s needs and interests at the expense of the childrens.
If there is to be a substantial increase in time spent with the father, the ICL seeks post order family counselling along the lines of those in pars 9 and 21 of the 23 November 2005 orders.
Legislative policy and principles
The court’s discretionary power in s 65D to make such parenting order “as it thinks proper” is now governed by the 2006 shared parenting reforms[1] which introduced the prima facie but rebuttable presumption of ‘equal shared parental responsibility’ (a term of indeterminate and undefined statutory meaning) in s 61DA[2] but retained the mandatory obligation in s 60CA to regard the best interests of each child as the paramount consideration.[3]
[1] Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) effective from 1 July 2006.
[2] Strictly speaking, the paramountcy principle in 60CA governs the decision whether to make a particular parenting order or not, while 61DA(1) comes into play when a parenting order conferring parental responsibility pursuant to 64B(2)(c) is being made. Section 65AA retained the obligation in s60CA to regard the best interests of each child as the paramount consideration.
[3] See s 65AA.
The modified statutory objects in 60B also must be given practical expression.
The objects of Pt VII of the Family Law Act are stated in s 60(B)(1) as being to ensure that the best interests of children are met by:
-ensuring that children have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child;
-ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
-ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children.
According to the revised explanatory memorandum to the amending bill no particular object has priority but all are important. The overall intention is to better recognise that children have a right to enjoy the benefits of having a good relationship with and active involvement of both parents.
Section 60B(2) makes it clear that children have the right to know (presumably as intimately as possible) and be cared for (as much as is practicable) by both their parents after separation and to spend time and communicate on a regular (but not necessarily frequent) basis with both parents and that parents jointly share duties and responsibilities for their care, welfare and development. The focus is on doing all that the law reasonably can to ensure that in the majority of cases, both parents are and remain involved in raising their children after separation or divorce.
Importantly, neither ss 60B(1) or (2) amount to a presumption of law. They are merely social facts or common beliefs. Thus, unlike s 61DA neither has to be acted on unless displaced by positive evidence to the contrary.[4]
[4] Cotton (1983) FLC 91-330 per Nygh J at 78,252.
Permeating all of Pt VII is the theme that parenting is an enduring legal as well as moral obligation which remains binding on parents even though their own marriage or relationship has failed. It is not something that either of them can simply opt out of whenever they feel like it or, if, for example they re-partner or relocate. Co-operative parenting even (or especially) after separation or divorce is seen as being not only attainable and socially desirable but integral to the welfare and development of children who have a recognised right to be properly fathered as well as mothered until adulthood.
The Act expressly acknowledges that as a general rule most children benefit from having a meaningful relationship with and maximum involvement of both parents, including regularly spending significant and substantial, if not equal, amounts of time with each of them as well as other people significant to their care, welfare and development such as grandparents and relatives.[5] This proposition is based on a combination of rights based arguments and an instinctive feeling that knowing and having a relationship with both parents must be better for the child than knowing and having a relationship with only one of them.[6]
[5] Mullane, G R, ‘Better use of social science research in the Family Court’, (Paper presented at 3rd National Family Court Conference, Melbourne, 1998).
[6] Perry, A and Rainey, B, ‘Supervised, Supported and Indirect Contact Orders: Research Findings’, (2007) 21(1) International Journal of Law, Policy and the Family, 21 at 23.
In the eyes of the law the parent who has less time with the child is no less important in his or her life. Children who are cared for by complementary rather than competitive parents (regardless of whether they are still married, separated, have never married or even lived together) are assumed to be more likely to develop into healthier, well balanced, better adjusted and more fully socialised adults and, in their turn, become more successful parents and partners than those who do not.
A primary goal is to make both parents meet and fulfil their parenting responsibilities, preferably jointly, as well as enjoy the rewards of being a parent. Another purpose is to shield familial relationships from being damaged or destroyed by separation or divorce and when, sadly, that can’t be avoided, to repair and rebuild them on stronger and firmer foundations.
Achieving shared residence or more parenting time here means that the father has to argue against the status quo and concepts such as the primary residence and settled home environment and persuade me not to act on the stated preferences of the children.
The suggested 'preferred' role of the mother has long been rejected as the norm in family law proceedings it nonetheless remains a relevant factor, especially when, young children are involved.[7]
[7] cf. Gronow (1979) 144 CLR 513.
Nor is the established pattern of residence and contact that has been built up to the date of hearing of any special advantage. It is, at best, a factor of "variable quality".[8] The father has no onus of showing that there is a positive benefit in disturbing or displacing it. Rather, the distinctive nature of welfare based proceedings imposes a purely evidentiary rather than persuasive onus on the litigating parents to present all available relevant evidence to enable the Court to decide which of their proposals or other option is more consistent with the children’s best interests. Nonetheless, the continuity of existing relationships, surroundings and other influences are obviously material to the children's future development.
[8] Mathieson (1997) FLC 90-230 at 76,222 per Fogarty J.
Likewise, while none of the paragraphs in s 60CC(3) expressly refers to the question of the status quo, a number of them including par (b) the nature of the relationship between the child and each parent, (d) the likely effects of change, and (m) any relevant fact or circumstance,[9] give implied support to an approach which favours a primary long-term caregiver in determining residence cases.
[9] Parker, S, Parkinson, P and Behrens J, Australian Family Law in Context - Commentary and Materials, 2nd ed., LBC Information Services, 1999 at p 907.
All this really means, however, is that the removal of children from the household of the person who has otherwise had full-time responsibility for them should only be done for a good reason, such as, for example, where that parent is not a fit or viable carer.
The clear intention of parliament in revamping the law of parenting is for the courts to actively promote the meaningful involvement of both parents to the maximum extent possible in most, if not all, separating families. The new laws do not blindly accept that children need to spend most of their time with one parent in one stable household. Instead, the goal is to ensure that as many children as possible from so called broken homes grow up in safe and secure households with the love and support two (not just one) of their parents. Thus, it can reasonably be anticipated that to an increasing number of children in transition from an intact family unit to a fragmented one “home” will be a word denoting two separate but nonetheless safe, stable and secure households. This of course is not to be done at the expense of the safety of a significant minority of children in need of protection from preventable physical or psychological harm by their own parents or their partners.
In this respect the 2006 changes do not vary the basic principles established by the Full Court in B and B[10] and acted upon consistently in this court in the decade or so since then.
[10] (1997) FLC 92-755.
The role of the court in making orders affecting children in the aftermath of family breakdown is still to ensure that parenting arrangements properly reflect their best interests as reflected by their views, rights, circumstances and overall needs.
What is different is the suggested way for achieving the s 60B objects and for reaching a best interests solution to post-separation parental responsibility and parenting time issues in the majority of cases. Section 61DA now requires the court to apply a presumption that it is in the best interests of the child for a parenting order to provide for the parents to have equal shared parental responsibility for the child. The presumption is rebuttable and does not say anything about the amount of time the child spends with each parent. This matter is dealt with in s 65DAA which mandates consideration by the court in equal shared parental responsibility cases of the child spending equal or substantial and significant time with each parent.
Parenting disputes have traditionally involved “ruleless” or flexible decision-making and attracted the exercise of a customised judicial discretion. The elevation of assumptions or social policy objectives to legal rules was seen by some as incompatible with the best interests standard.[11] Burdens of proof and presumptive reasoning or results based on fixed or general formulae were rejected because of the potential of their constraints to impair or subvert the inquiry into what is in the best interests and overall welfare of the particular child.[12] The inquiry (which is neither entirely inquisitorial nor wholly adversarial) has been evidence driven and child centred with each case turning on its own unique circumstances with the aim of achieving individual justice for each affected child rather than distributive justice for the parents. While most children are deemed by s 60B(1)(a) to benefit from dual parental involvement it is the best interests of the particular child rather then children in general that counts.
[11] cf. U and U [2002] 211CLR238 per Kirby at 282.
[12] B and B: Family Law Reform Act 1995 1997 FLC 92-755 at 84,214 and 84,220.
The value of the presumption as a chief operating principle has been questioned by me extracurially.[13] In light of this and because of public warnings to the court about not taking a “business as usual” approach and failing to give full effect to the new amendments, it seems appropriate to say something about judicial independence and probity.
[13] See Carmody, T,‘The 2006 Pt. VII Reforms: a judicial perspective’, (2006/07) 19 Australian Family Lawyer, 22.
In Fardon v Attorney-General (Qld)[14] Chief Justice Gleeson noted (in the context of controversial preventative detention laws) that if courts were to set out to defeat the intention of parliament because of disagreement with the wisdom of the law then the judiciary’s collective reputation for impartiality would quickly disappear. His Honour went on to say:
Many laws enacted by parliaments and administered by courts are the outcome of political controversy, and reflect controversial political opinions. The political process is the mechanism by which representative democracy functions. It does not compromise the integrity of courts to give effect to valid legislation. That is their duty. Courts do not operate in a politically sterile environment. They administer the law, and much law is the outcome of political action. [15]
[14] (2004) 210 ALR 50.
[15] (2004) 210 ALR 50 per Gleeson CJ at [21].
Likewise in Nicholas v R[16] Brennan CJ stressed the need for courts and the judges comprising them to be seen to be true and loyal servants of the law. They administer it without question. They do not decline to do so because of personal beliefs.
It is for the parliament to prescribe the law to be applied by a court and, if the law is otherwise valid, the courts opinion as to the justice, propriety or utility of the law is immaterial. Integrity is the fidelity of legal duty, not refusal to accept it as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests.[17]
[16] (1998) 151 ALR 312.
[17] (1998) 151 ALR 312 at [37].
An improper refusal to administer the civil law however wrong a judge thought it to be would elevate the courts opinion to the level of a constitutional imperative and amount to an uncontrolled power of judicial veto over the exercise of legislative power.
This of course is unthinkable. Regardless of whether or not presumptions are, as some authors say, “the bane of the law”, [18] the debate about the utility of the role in a “best interests” regime has been won and lost. Any further discussion on the validity of presumptive thinking in a family law setting is an arid and distracting one. The law is the law and it doubtless provides a sound practical basis for deciding children’s issues. The making of parenting orders has nothing to do with implementing government policy. The judicial task is to apply and enforce both the letter and spirit of the law regardless of what some may privately think about it. A contrary opinion is no objection to the validity of the law or the courts duty to administer it.
[18] Ross, D, ‘Presumptions in Criminal Law’, (2007) 29 Australian Bar Review 27.
Importantly, because of the retention of the paramountcy principle (albeit in a renumbered section in a different Division of the Act) in s 60CA,[19] the presumption of equal shared parental responsibility and all of its consequences remain subject to a broad discretionary judgment based on best interests criteria. Such an approach by itself, of course, does not authorise a court to ignore or override statutory provisions.[20]
[19] Previously s 65E in Part VII - Division 6.
[20] Dickey, A, Family Law, 5th Ed , Thomson Lawbook Co, Sydney, 2007 at 305.
Logically, if s 61DA and s 60CC(2) and (3) are conducting the same search and looking for the same thing as s 60CA viz., the best interests based solution, then regardless of the route or reasoning ie the presumption or a full s 60CC inquiry, the final result should also be the same. This, of course, begs the question why have a presumption of equal shared parental responsibility at all if the s 65DAA ‘consideration’ and favoured conclusion of equal or substantial and significant parenting time can be overridden (or even confirmed) by the best interests principle?
The answer is that while the standing and superiority of “best interests” as the ultimate determinant remains unaffected by the 2006 changes to Part VII the practical content of that concept has been substantially modified by the 15 paragraphs of s 60CC and the expanded legislative objects in s 60B. The idea of co-parenting and the substantial and significant time requirement suggest that similar facts may legitimately produce different results depending on whether or not the 2006 amendments govern the discretion.
On this basis s 61DA is arguably not a genuine presumption at all but simply a convenient device giving direct access to an ordained legal conclusion instead of allowing the court to reach it forensically via traditional judicial methods.
Whether the strong shared parenting messages sent by the 2006 amendments have the practical effect of increasing shared parenting and parenting time after separation or not is yet to be seen. But they may underestimate the significance of parents making their own decisions about shared parenting based on factors beyond the influence of parliament or the courts and why they went to court in the first place.
Family breakdown brings about a drastic restructuring of lives and reorganisation of relationships. The interactions between children and their parents are permanently altered regardless of where or with whom they live. The gender influenced roles previously played by the parents have to be adjusted to meet the new circumstances. Mothers are often forced to return to the workforce and fathers have to acquire more domestic skills than they needed before. Sometimes the breadwinner and homemaker roles reverse completely. You can not, of course, legislate good parenting or a positive personality changes. There are no guarantees that parents who were uninvolved before separation will be anymore committed or available after family breakdown.
Disputes over parenting time that do not revolve around new relationships or inter-state moves often tend to be underpinned by unresolved relationship issues many of which have little to do with contact per se. Some parents want the courts to allocate blame and vindicate their position. It is important to many parents that a third party decision is made as to who was to blame for the failure of the marriage or relationship. These expectations are inevitably disappointed, however, because, unlike one or other of the parents, the court is not as interested in the past as the future.[21] Whose fault it was is often not as important a question as “what now?”. Failure to recognise and accept this results in bitterness, frustration, conflict and, ultimately, damage to the children not to mention a waste of time and money.[22]
[21] Smart, C and May, V, ‘Why Can’t They Agree? The Underlying Complexity of Contact and Residence Disputes’, (2004) Journal of Social Welfare and Family Law 347 at 348.
[22]Burrett, J and Green, M, Shared Parenting: Raising your Children Co-operatively after Divorce, Hinch Publishing Company, Sydney 2006 as reviewed by Lewis, P, (2006) 19 Australian Family Lawyer 47 at 47.
Money issues lie at the root of a lot of family litigation. Fathers can see mothers as unjustly wielding the power they have over contact and bartering with parenting time in order to force them to pay more child support or to achieve a better property settlement. While mothers say that the fathers have little real interest in their children and don’t really deserve to have contact with them.[23]
[23] Smart, C and May, V, ‘Why Can’t They Agree? The Underlying Complexity of Contact and Residence Disputes’, (2004) Journal of Social Welfare and Family Law 347 at 352.
Maternal attitudes toward parental involvement play a central gate keeping role in either facilitating or limiting opportunities for fathers to parent and develop close relationships with their children. The willingness of a father to provide financial support is seen as a sign of love and commitment without which he is deemed to have forfeited the rights of fatherhood. When fathers pay higher levels of support they are perceived to be more competent than fathers paying less support and there is less maternal reticence to contact.[24]
[24] Kelly, J, Children’s Living Arrangements following Separation and Divorce: Insights from Empirical and Clinical research, (Paper delivered at the 12th National Family Law Conference, Perth, October 2006).
This form of moral evaluation remains a deeply imbedded cultural value[25] and is now reflected in the best interest process by the so called family friendly doctrine in s 60CC(4) which makes a parent’s historical participation in the child’s family life in both emotional and financial respects a relevant best interests factor and directs the court to assess parental conduct after separation as well during the relationship.
[25] Smart, C and May, V “Why can’t they agree? The underlying complexity of contact and residence disputes” (2004) Journal of Social Welfare and Family Law 347 at 352.
There is also a perception in some quarters that the family justice system is biased against “non-residential” fathers and improperly denies or restricts the time they can spend with the children. The reality, of course, is that the breakdown in contact is more commonly due to the poor behaviour of one or other parent.[26] Some fathers really are unwilling to financially provide for their children while some mothers irrationally or unreasonably oppose ongoing contact after separation or divorce.[27]
[26] Re B: Re O (2007) 1 FLR 559 per wall LJ at 561-562.
[27] Smart, C and May, V “Why can’t they agree? The underlying complexity of contact and residence disputes” (2004) Journal of Social Welfare and Family Law 347 at 352.
Other parents will fail to maintain a meaningful relationship with their children following separation and divorce because of weak attachments or personality limitations associated with egoism and narcissism.
The best interests criteria
The width of the discretion judges have in making child related decisions means that predictions, perceptions, assumptions and within reason even intuition and guesswork can all play a part in the reasoning process in the best interest exercise. [28]
[28] CDJ v VAJ (No. 1) (1998) 197 CLR 172 at 213.
This is because best interests are really values not facts. They are not susceptible to scientific demonstration or conclusive proof. The same body of evidence may produce opposite but nonetheless reasonable conclusions from different judges. There is not always only one right answer. Informed and honest minds can genuinely disagree and yet neither be totally wrong nor completely right. Sometimes, the least worst situation may be the best available. Many cases are finely balanced with the only option being a choice between two or more imperfect alternatives.
No matter how legally correct it is, one or both parents and sometimes even the children will be aggrieved by the decision. That is because of the “serious discrepancy between legal and lay notions of fairness”.[29]
[29] Smart, C and May, V, ‘Why Can’t They Agree? The Underlying Complexity of Contact and Residence Disputes’, (2004) Journal of Social Welfare and Family Law 347 at 353.
Notably, the statute aspires to promote “meaningful” not “optimal”[30] or “ideal” relationships. What ‘meaningful’ is in any given situation depends very much on its own unique circumstances but reciprocal love and affection and mutual respect and concern are common features.
[30] Godfrey & Sanders [2007] FamCA 102 per Kay J at par 36.
What is clear is that meaningful parent-child relationships and involvements take time and effort to build and maintain. Presumably the greater the range of contexts for interaction between parents and their children, the better.[31] Thus, the more active participation a loving parent has in a child’s everyday life, the closer and more meaningful their relationship with each other is likely to be.[32] However, a relationship that is potentially damaging to a child might be seen as a no less “meaningful” to the adults and perhaps even the child. An emotionally or developmentally undesirable or inappropriate relationship (eg. what psychiatrists refer to as an enmeshed or anxious attachment) is an example. Conversely, indirect or written only communication contact provides an example of a low level of parental involvement in a child’s life where there is not much of a relationship.
[31] Smyth, B, ‘Parent-Child Contact Schedules after Divorce’, (2004) Family Matters No 69 Australian Institute of Family Studies 32 citing Lamb, M.E and Kelly,J.B, ‘Using the Empirical Literature to Guide the Development of Parenting Plans for Young Children: A Rejoinder to Solomon and Biringen’, (2001) 39(4) Family Court Review, 365-371.
[32] cf. s 65DAA(3).
Court orders can not, of course, conjure up meaningful relationships between parents and children. All they can do is create or maintain the circumstances that make meaningful relationships (or involvement) possible. [33]
[33] Parkinson, P, ‘Decision-making about the best interests of the child: the impact of the two tiers’, (2006) 20 Australian Journal of Family Law 179 at 184.
Children are entitled by what might be called the “warts and all” principle to have a relationship with each of their parents; not the one they want or someone else’s notion of a perfect or model parent.
The law does not, however, give either a child or parent any right of contact that is contrary to the child’s welfare and, regrettably, there are, cases where substantial or, for that matter, significant or any unsupervised face to face time with a parent can do more overall harm than good eg. where there is family violence or child abuse.
The desirability of a child maintaining a relationship with each of his or her parents depends on whether there is a chance of a genuine relationship which is meaningful and likely to be beneficial to the child. It is not, in other words, a question of contact for contact’s sake.[34]
[34] Cotton and Cotton (1983) FLC 91-330 at 78,251 per Nygh J.
As Bennett J said in G and C [35]:
… the court must evaluate the nature and quality of the relationship to establish whether there is any ‘benefit to the child’ in having or continuing a relationship and whether such relationship is or will be ‘meaningful’ in the relevant sense.
[35] [2006] Fam CA 994 at par 68.
Professor Parkinson identifies a number of reasons why a child may in fact not benefit from an ongoing relationship with both parents even in the absence of violence or abuse.[36] The court may conclude that there is not any advantage to the child due to, for example, his or her having strongly resistant views or because the relationship has irretrievably broken down or the parent may be emotionally unavailable because of mental illness.
[36] Patrick Parkinson, ‘Decision-making about the best interests of the child: the impact of the two tiers’, (2006) 20 Australian Journal of Family Law 179 at 185.
Another situation may be where a non-resident parent has failed to fulfil his obligations as a parent by continually cancelling contact visits on short notice or by repeatedly not turning up to collect the child. Alcoholism, drug abuse and/or chronic parental conflict may also make having a close and genuinely worthwhile relationship or positive contact experience from the child’s point of view practically impossible.
Subject to these or similar exceptions, having parenting time will rarely be wholly negative. There will usually be some practical advantage in it for the child.
The best interests of a child are now ascertained for family law purposes by reference to the statutory objects in s 60B, the presumption in s 61DA and two tiers of mandatory criteria set out in s 60CC. There are two primary considerations contained in subs (2) and 13 additional (not secondary) factors in subs (3). The primary matters are consistent with the concept of equal shared parental responsibility in s 61DA and reiterate in slightly different language the sentiments expressed in the first two of the objects stated in s 60B.
The phrase “meaningful involvement…to the maximum extent…” in s 60B(1)(a) becomes ‘meaningful relationship’ in s 60CC(2)(a). Elsewhere the phrase “close and continuing “relationship” is used.[37] Section 60CC(3)(e) , by contrast, refers to ‘personal relations and direct contact with both parents on a regular basis’. It is unclear why different language is used and whether the same meaning is intended or not but, of course, frequency does not capture length, quality or value of visits.
[37] s 60CC(3)(c).
The Attorney-General’s explanatory memorandum on the amending bill makes it clear that the reason for separating the best interests factors into two discreet categories is to elevate the hierarchical importance of the primary considerations and accentuate the revised objects of Part VII of the Act. This, supports the proposition that the “primary considerations” should be considered first when deciding where the best interests of a child lie. [38]
[38] Dickey, A, ‘Best interests of the child: Significance of “primary considerations” and “additional considerations”’, (2007) 81 Australian Law Journal 234.
The primary considerations often compete and sometimes conflict with each other to such a degree that and only one can realistically prevail. The court is required to put safety first but not necessarily to the point of denying the child the chance to have a good relationship with a ‘dud’ or dangerous parent but in some cases “…the twin parenthood and safety goals may be mutually exclusive”.[39]
[39] Chisholm, R., ‘The Family Law Amendment (Shared Parental Responsibility) Bill 2006: Putting Children at Centre Stage, (Paper presented at the Contact and Relocation: Focusing on the Children Conference, Byron Bay, 1 May 2006) at 9-10.
Thus, although notionally of equal rank par 60CC(2)(b) might countermand par 66CC(2)(a) where the risk of potential harm outweighs the perceived benefits of joint or shared parenting or contraindicates an ongoing relationship with both parents. That is, the perceived benefits of a meaningful relationship give way to the extent that there is a need to protect against the risk of abuse related harm. This is made clear in the explanatory memorandum – “…the safety of the child is not intended to be subordinate to the child’s meaningful relationship with both parents”.[40]
[40] Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth), at [48].
The diverse yet related additional considerations in subsection s 60CC(3) include the child’s own views, the nature of his or her relationship with each parent and other relatives, especially grandparents, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent, the likely effect of changing the child’s circumstances including separation from those he or she has a relationship with, the impact of practical difficulties and expense on the child’s right to maintain personal relations and direct contact with both parents on a regular basis, the capacity of the parents and relevant others to provide for the emotional, intellectual and other needs of the child, the maturity, sex, lifestyle and background including culture and traditions of the child and parents, parental attitudes, family violence issues (if any), whether it would be preferable to make a parenting order least likely to lead to the institution of further child related proceedings and any other relevant fact or circumstance.
Theoretically the balance of these considerations can lead to a best interest based outcome at odds with that envisaged by the ss 60B(1)(a) object, the ss 60CC(2)(a) assumption and the s 61DA presumption.
This possibility is also recognised in the Attorney-General’s explanatory note[41] which anticipates “…some instances where (the) secondary considerations may outweigh the primary considerations.” Just how many s 60CC(3) factors it takes to do this in contested cases where abuse, violence or neglect are not raised is uncertain.
[41] Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth), at [50].
Subsections 60CC(4) and (4A) provide that in considering the attitude of a parent to the child and responsibilities of parenthood for the purposes of par 60CC(3)(c) and (i) the court must take into account the extent to which the parents have fulfilled, or failed to fulfil, their parental responsibilities in the past especially in the post separation period. This includes the time spent with the child and level of participation in his or her life generally and, in particular, decision making about long term child related issues, the extent to which he or she has co-operated with the other and provided financial support for the child. Thus, a record of laziness, underperformance, interference or obstruction in discharging the parental role and functions, can (not must) legitimately affect the allocation of parental responsibility and calculation of parenting time. This reflects research findings that more frequent contact with committed fathers is significantly linked to more positive adjustment and better achievement compared with those with less involved fathers.[42]
[42] Kelly, J, ‘Children’s Living Arrangements following Separation and Divorce: Insights from Empirical and Clinical research’ (Paper presented at the 12th National Family Law Conference, Perth, October 2006).
In combination subs 60CC(3)(c), (i) and (4) create obvious problems for a resident parent, commonly the mother, who has not facilitated (or encouraged) a close and continuing relationship with the father where there is no good reason not to and conversely for the lax non-resident parent, usually the father, who fails to take advantage of post separation parenting opportunities.
This is obviously intended as an incentive to parents not to use the child as a pawn or bargaining chip in adult games and to encourage the income earned to meet child support responsibilities and for the interim resident parent to think twice about unilaterally suspending or impeding contact for non child related reasons.
The considerations in s 60CC(3)(c)(i) and subs (4) are equally applicable to the viability of parenting time arrangements and are no less pertinent to the capacity of the parents to communicate with each other and resolve difficulties that might arise in implementing such arrangement. This criterion links parental behaviour to the question of what parenting order to make and subs 60CC(3)(c)(i)(4) provide considerations for determining the child’s best interests. Thus, one informs the other.
Section 13C is also relevant to the future capacity issue. It provides for orders to be made (preferably on the advice or as recommended by a family consultant) for attending family dispute resolution, counselling or participation in programs or courses for a suggested purpose or making an appointment with a family consultant.[43]
[43] s 11E-F.
This is intended to build the capacity for communication and implementation in the future where it might currently be lacking. A failure to comply is reportable and may be actionable at the discretion of the Court.
Preconditions to applying for variations of parenting orders and using alternative dispute resolution processes to reach agreement about the operation of or changes to an order is provided for in ss 64B(2)(g) and (h). An example of an order made under either of these paragraphs might be to consult with a family dispute resolution practitioner before returning to Court.[44]
[44] See s 64B(4)(A).
Joint or Co-parenting
The court intervenes as little as possible with parental autonomy and responsibility. When it does only to the extent that the welfare of a child requires it.
The statutory concept of “parental responsibility” is defined in s 61B as meaning all the duties, powers, responsibilities and authority parents have by law in relation to their children. It is something all parents have in common by virtue of their legal status. Parental responsibility is to be exercised for the benefit of the child and except with consent or by court order is non-transferable and non-delegable. They do not share it. Nor is it held jointly. The authorities and duties are concurrent and co-extensive.
Section 61DA has the intended purpose and effect of converting s 61C parental responsibility into an equally shared or dual (not joint) responsibility[45] after separation or divorce.
[45] cf s 60B(2)(c).
Parents who share (whether equally or unequally) parental responsibility (whether under s 61DA or not) pursuant to a parenting order are taken to be required to consult (whether as prescribed in the order under s 64B(2)(e) or otherwise) and make a genuine effort to make major long term decisions jointly. However, a failure to do so does not stop third parties from acting on a unilateral decision or acting on the advice of one parent without checking with the other.[46]
[46] s 65DAC(4).
This means that in exercising that responsibility they will have to co-operate with each other and make a genuine effort to reach a consensus about matters affecting the care, welfare and development of the children. This shared decision making function and responsibility supports and reinforces the perceived advantages to children in having both parents participating co-operatively rather than competitively in all important aspects of their upbringing despite the potential for renewed conflict and increasing the risk of future litigation.
The same obligation may be implied but it is not expressed to apply to parents or parties who retain s 61C parental responsibility.
A primary parental duty is to house, educate and provide for all the children.[47] The parties apparent attitude and post separation track record in fulfilling this and the other responsibilities as a parent including major long term decision making, spending regular time and communicating with the children and co-operating with the other parent in doing so is by virtue of s 60CC(4) a highly relevant best interest consideration under both ss 60CC(3)(i) and s 65DAC.
[47] s 3 Child Support (Assessment) Act 1989(Cth).
Moreover s 60B(2)(c) emphasises that parents’ duties concerning the care, welfare and development of their children are jointly shared ones.
Nonetheless, prescribing co-operation between separated or divorced couples is a bit like making road rules. Just because they are there doesn’t mean they’ll be obeyed. Stop signs don’t stop cars, drivers do. It is just as hard to see how the duty to consult and act jointly in deciding the school they go to, the subjects they do, the doctors they see, the surnames they use and so on is going to work in practice in every case of agreed or otherwise equal shared parenting given that it “takes two” and a good reason can always be found for not making arrangements work if you want to.
All parties in this case agree that it would be in the children’s best interests for the court to exercise its power under s 65D to make a parenting order allocating equal shared parental responsibility for the children. The effect of this is to displace the pre-existing legal position under s 61C.
The search for the best interests solution to post-separation parenting is, of course, not confined to what parents agree about or propose except to the extent that what they put forward happens to coincide with the paramount consideration.
Hence, the rule reinforced by the High Court in U v U[48] that the court is not limited to merely choosing between the proposals of the parties but must adopt or devise, if necessary, its own set of arrangements by reference to the matters stated in s60CC and elsewhere in the Family Law Act.
[48] (2002) FLC 93-112.
This requires a parenting time regime that maximises the strengths of the parent seeking more time in meeting the emotional and intellectual needs of his or her children while being sensitive to the children’s views and wishes.
However, due account must be taken of the fact that parenting proceedings are conducted in a framework of adversarial procedure which entitles the parties to conduct the litigation largely, if not entirely, on their terms subject to the paramountcy principle.
The agreement reached here between the parties to equal shared parental responsibility is the most appropriate one in the circumstances. The presumption in s 61DA applies and is not displaced by any of the considerations in s 61DA(2). Thus, the question of equal or substantial and significant time arises for consideration.
Parenting time
“Calendars and clocks exist but …
we all know that an hour can
seem like eternity or pass in a flash,
according to how we spend it.” [49]
[49] Ende, M, Momo , (1985) Puffin Books London at 55.
Section 65DAA shifts the focus from parenting responsibility to the distinctly different concept of parenting time.
Where, as here, parental responsibility is or is to be equal shared, 65DAA requires the court to consider making an order for children spending either equal[50] or substantial and significant time with both parents. The provision is not a presumption of 50/50 joint custody and shared or so called co-parenting under the statute does not automatically mean that either residential care or parenting time is or has to be, distributed equally.[51]
[50] It is uncertain which parent a child ‘lives with’ when he or she spends equal time with both under 65DAA(1) or conversely whether a child who lives with both parents spends (equal) time with each or neither of them.
[51] Wilson, G, ‘The non-resident parental role for separated fathers: a review’, (2006) 20 Australian Journal of Law, Policy and the Family 286.
The Court’s power to uphold children’s right to regular and direct contact with parents and to achieve the statutory objects of shared parental responsibility and meaningful involvement in their lives by, among other things, spending substantial and significant if not equal time with both of them, is confined and constrained by the “reasonable practicality” provisions of s65DAA(5).
The relevant factors in determining the viability of an order requiring a child to move between two households for roughly equal and substantial periods of time are found in cases such as T & N.[52] These include geographical proximity ie. how far apart the households are from each other, the current and future, not past, capacity (including financial) to juggle new family or employment obligations in coping with a proposed equal or substantial and significant parenting time arrangement, the ability of both families to handle logistics associated with shared care e.g. forgotten homework or uniforms, the parent’s historical and likely future willingness to communicate and resolve problems arising out of such issues as religious adherence, cultural identity, extra curricular activities, discipline, hygiene, diet and sleeping patterns and, finally, the overall welfare of the child and his or her attitude to the workability or desirability of such an order.
[52] (2001) FMCAfam 222.
Section 65DAA(5) also reiterates some of the research results of the Australian Institute of Family Studies concerning shared post separation parenting arrangements. The relevant report, Parent-child Contact and Post-Separation Parenting Arrangements,[53] contains a summary of the common elements found to exist within families who were able to organise successful point or shared care: commitment by parents to make it work and the willingness to make arrangements centred around such considerations as the child’s activities, family friendly work practices, financial independence and the competence of both parties in parallel parenting roles.
[53] Smyth, B (ed), Parent-Child Contact and Post-Separation Parenting Arrangements (2004) Australian Institute of Family Studies, Report MO9 < > at p.29.
The combined force of ss 60CC(2)and (3) and 65DAA(5)(d) ensure that there is a child focus to the decision and that account is taken of the child’s age, views (including factors that may have influenced them), the general benefit to the child of this kind of arrangement, the nature of the relationship the child has with each parent and any practical difficulties.
The best interests based solution to the parenting time problem here hinges, to a large extent, on whether Mr Murphy SC is right about what the law now requires and whether the time children are to spend with the parents is to be divided more or less equally or in such a way that both parents have at least substantial and significant time with the children or whether there is a best interests based objection under s65DAA or 60CC rendering those arrangements either undesirable or impracticable. The impact of an arrangement involving equal or substantial and significant time with a parent would (probably) have on the child (but notably not the other parent) is an express s 60CC(3) consideration.
Children seem to be able to cope with different rules, styles and a range of shared care patterns as long as their parents are positive about them. Secondary school aged children seem to struggle a bit with changing homes during school week, probably because of the increasing homework and social demands.
Where children are stuck in the middle of high levels of ongoing conflict and parents do not protect them from this conflict, and/or the children are travelling considerable distances between schools and homes and/or the children and/or a child is not good with change etc., then it may well be that the child’s wellbeing will be threatened.
Applying ss 65DAA(1) and (2) (which are in relevantly identical terms), involves three crucial and consecutive steps. The first is to consider whether equal or substantial and significant time would be in the best interests of the child. The next is to decide whether it is reasonably practicable to make an order of that kind within the definition in subs (5). Finally, if it is (eg both in the child’s best interests and reasonably practicable or workable) the court is to consider making an order to that effect.
The effect of s 60CA is that the best interests of the child are the paramount consideration in deciding whether or not to actually go on to make a parenting order of that kind.
When used as a transitive verb the word “consider” means to actually think about or genuinely ponder over. It denotes an active subjective cognitive process.[54]
[54] cf Ticknor v Chapman (1995) 57 FCR 452 at 462, 476 and 495.
The Full Court recently held in Goode [55] that when used in s 61DAA the term ‘consider’ means:
…a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA(1)(a) … and in (b) are met. The same considerations apply to s 65DAA(2).
[55] Goode and Goode (2006) FLC 93-286.
This interpretation, the Honourable Richard Chisholm concedes,[56] might be entirely apposite in connection with par (c) of sub s 65DAA(1) and par (e) of sub s 65DAA(2) but argues that it makes no sense at all in relation to paragraphs 65DAA(1)(a) and (b) or 65DAA(2)(c) and (d) and tends to make ss 65DAA(1)(c) and 65DAA(2)(e) redundant.
[56] Chisholm, R, ‘Recent Major Decision –Goode and Goode, LexisNexis, Australian Family Law Bulletin, 220 January 2007 at [905].
It is admittedly hard to envisage a situation where subs (1)(c) and (2)(e) could have any real work to do when the desirability and reasonable practicability provisions of subss 65DAA(1)(a) and (b) and (2)(a) – (d) are satisfied because consistently with s 60CA a parenting order providing for equal or substantial and significant time would be virtually inevitable.
Yet the note to s 61DA(1) makes it unambiguously clear that the presumption of equal shared parental responsibility relates solely to the allocation of parental responsibility for a child as defined in s 61B and does not provide for a presumption about the amount of time the child spends with each parent (because this is dealt with in s 65DAA) and the note to that section reinforces the ultimate authority of s 60CA and the clear distinction it draws between a court considering making an order, on the one hand, and actually going on to make that order, on the other.
The Full Court’s directive in Goode to lean positively or favourably towards making an order under subss 65DAA(1)(c) or 65DAA(2)(e), does not imply that a equal or substantial and significant time order has to be made. This is so even if the presumption applies and is not rebutted or displaced by the child’s best interests under s 60CC or found to be impracticable under s 65DAA(5). Otherwise that would, in a practical sense, mean that contrary to the disavowment in the legislation itself, the amendments would have unintentionally but no less effectively created a presumption in favour of equal or substantial and significant time when there is an order for equal shared parental responsibility.
This highlights the paramountcy principle’s duality of functions. As Anthony Dickey explains[57]:
On the one hand, it can serve a positive entity function by requiring that the best interests of the child be the sole[58] [sic] determinant of a decision. On the other hand, it can serve a negative, defeating function by requiring that the welfare of the child simply override a prima facie decision where it can be established that this does not promote the welfare of the child.
[57] Dickey, A, Family Law , 5th ed, Thomson Lawbook Co, Sydney NSW, 2007.
[58] cf AMS v AIF (1999) 199 CLR 160 per Hayne J at 230.
Thus, even though a preliminary conclusion in favour of an equal or substantial and significant parenting time order is reached at the end of the third step, the paramount consideration may operate in some cases so as to prevent the court from ordering it.
This may seem an odd, even irrational, result given that the practicability of making the order is conditional upon a best interests outcome at step 1. Although it may be difficult to conceive of such a situation in the real world, it is theoretically possible for the best interests of a child to stand in the way of actually making the order considered most likely to promote his or her best interests. It may be, for example, that the impact on the other parent or the child’s reaction to the making of the order is judged to be so negative that imposing the legally correct best interests solution, may, in practice create more burdens than benefits. This might happen where a child’s wishes were not acted on as being contrary to his or her welfare in the first round of the best interests examination, but end up prevailing because it might be better overall to do what the child, especially an older one, wants even though it might be objectively inconsistent with what he or she really needs.
It might also occur in a relocation case in which the parents with equal shared parental responsibility take extreme and irreconcilable positions such as the moving parent refusing to stay and the opposing parent refusing to leave for the child’s sake. The dilemma for the judge in such a situation is to decide whether the child should move or stay put when the ideal outcome would be for the child to have equal time with both in either location. A case like this which forces a choice between two equally undesirable alternatives might mean that the child will not get the benefit or the most favourable child-centred option the Court could make because it is not on offer. [59]
[59] cf C and C (2002) 211 CLR 238 at 246 re: limits on the discretionary power to make orders outside the general scope of the orders sought by the parties in adversarial type proceedings.
Intractable parental conflict, although more rarely these days, could be an insurmountable obstacle to implementing the best interests solution.
The question has to be asked in light of all this whether it and for that matter subss 65DAA(1)(b) and (2)(d) are necessary at all. Each of those considerations already form an integral part of the best interests exercise and are in fact derived from the leading cases decided before the 2006 amendments when joint or co-parenting and shared residence were very familiar options whether proposed by either of the parents or not.
Unfortunately the intended purpose of s 65DAA might very well be lost in its own web of words and the ‘belts and braces’ approach it takes to trying to entice courts into the dangerous realm of finding a stock standard or “off the shelf” response to unique and multi faceted parenting problems.
50:50 arrangements
Typically, shared care occurs where children are of primary school age between five and 12 years.
In their new book Shared Parenting: Raising Your Children Co-operatively After Divorce, Burrett and Green[60] define shared parenting as:
[60] Burrett, J and Green, M, Shared Parenting: Raising your Children Co-operatively after Divorce, Hinch Publishing Company, Sydney 2006 as reviewed by Lewis, P, (2006) 19 Australian Family Lawyer 47.
… an arrangement following separation whereby children have two homes and spend substantial amounts of time – including weekends and week days – with parents who share in their upbringing and development. In practice it means:
· Children spending ordinary and fun times with each parent;
· Children sleeping eating working and playing in each home;
· Each parent listening and talking to the children;
· The parents sharing the big decisions about children’s lives;
· Each parent being involved in the children’s schools, sport, music and other activities;
· Each parent being fully aware of the physical, intellectual and emotional health of the child; and
· Children being part of two extended families – grandparents, uncles and aunts, cousins, friends.
In Chapter 3 the authors debunk what they call the “myth” that “shared parenting works only when parents can collaborate”. They say:
This is not necessarily true although effective parental collaboration is always desirable. It is a pity if lawyers, judges and counsellors discourage shared parenting when collaboration is lacking, because it may discourage parents from trying to develop better collaboration or from embarking on shared parenting with a clearly mapped out parenting plan that requires minimal collaboration. It also contributes to the myth that shared parenting is not desirable just because judges don’t tend to make shared parenting orders. But this is simply because judges only make orders in highly contested cases, where parents are engaged in bitter, drawn out disputes, where shared parenting is unlikely to work for the children.[61]
[61] Burrett, J and Green, M, Shared Parenting: Raising your Children Co-operatively after Divorce, Hinch Publishing Company, Sydney 2006 as reviewed by Lewis, P, (2006) 19 Australian Family Lawyer 47 at 48.
On this basis, mutually antagonistic parents can still make shared residence arrangements work as long as they establish clear guidelines about what and how to communicate to avoid conflict developing and if necessary to negotiate with third party assistance.[62]
[62] Kaspiew, R, ‘Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation’, (2007) 29 Sydney Law Review 131
However, the interests of children post-divorce are generally thought to be best served when children are co-parented by two complementary rather then competitive parents, or those who are at least containing their conflict.[63]
[63] Smyth, B, ‘Time to Rethink Time’, (2005) Family Matters: No 71 Australian Institute of Family Studies 8.
Research is consistently showing that co-operative parents capable of shared parenting fit a particular mould: relatively affluent, low rates of hostility, flexible work arrangements and physical proximity.[64] They are the 95% of parents who never cross the threshold of the Family Court but that does not automatically mean that the other 5% will not be able to co-parent and reach a consensus on important child related issues post-separation or divorce despite not having equally shared parenting during their relationship.
[64] Young, L, ‘Family Law: Is it Laws or Families That Need Reforming?’ (2006) 15 Developing Practice at 5.
According to Alison Tucker,[65] shared residence can work well when certain factors exist – such as children who can easily adapt to change, who have strong attachment relationships with each parent and supportive emotional relationships with step families and extended families, and when their developmental needs are prioritised with easy access to friends, sport and other interests. It is viable when siblings have similar temperaments and all the children in the family can cope with the demands. It can be sustained when parents provide predictability and minimise the “suitcase” factor, when parents truly are cooperating with each other and when they have the emotional and material resources to manage this arrangement.
[65] ‘Children and their Suitcases’, (2006) 18(4) Australian Family Lawyer 16.
The key she says is to place children in the centre of any discussion about residence arrangements. This means considering factors such as each child’s age, temperament, development capabilities and attachment relationships. Then there is the consideration of the parents’ availability. On that basis, parents adapt themselves around the children rather than the children having to work around the parents. By virtue of their maturity, adults are more likely to have resources to draw on. Children and young people do not. They are more vulnerable because of their immaturity. If too much is demanded of them too quickly, they are more at risk in their development.[66]
[66] Tucker, A, ‘Children and their Suitcases’, (2006) 18(4) Australian Family Lawyer 16 at 18-19.
Earlier studies suggest that there are a number of factors both relational and structural that are more conducive to making shared care a viable option for separated or divorced parents. These factors include:
· Geographical proximity
· The ability of parents to get along well enough to develop a business-like working relationship
· Child focussed arrangements with children and their activities forming an integral part of the way in which the parenting schedule is developed
· A commitment by everyone to make it work
· Family-friendly work practices for both mothers and fathers
· Reasonably well off financially
· Shared confidence that the father is a competent parent.[67]
[67] Smyth, B, Qu, L and Weston, R, (2004), “The demography of parent–child contact” as cited in Smyth,B (ed), ‘Parent–child contact and post-separation parenting arrangements’, Research Report No 9, Australian Institute of Family Studies: Melbourne.
Seminal research undertaken by the Australian Institute of Family Studies led by Dr Bruce Smyth into patterns of post separation father-child contact in Australia found that just over one third of children have either weekend or alternative weekend contact with almost half seeing their father less frequently than that and one quarter having contact less than once yearly.[68]
[68] Altobelli, T, ‘Editorial’, (2006) 20 AJFL 111.
Dr Smyth says the comparatively low level of shared parenting after separation and fractured co-parenting patterns may be attributable to the law or the legal process but is more likely to be related to the personalities of the parties or social phenomena. For example, re-partnering, reportedly has a profound impact on patterns of parenting after separation. Thus, more than 42 per cent of fathers who have not re-partnered see their children at least once a week but much fewer of those who have see their children as often as that. Fifty-nine per cent of non re-partnering mothers see their children at least once a week compared with 15 per cent of those who have re-partnered.
There are increasing doubts also about the long term stability of equal parenting time. Its sustainability is questioned by Dr Smyth[69] on the basis of recent Australian data looking at changes in patterns of care between 2003 and 2006 which suggests that equal or near equal care of children after separation is one of the least durable patterns of parenting after separation. Dr Smyth found that shared care was considerably less enduring than the more common traditional arrangements involving weekly or fortnightly contact and many of the families in which shared care was occurring had converted to this traditional pattern within three years. This finding is perhaps not surprising given the enormous logistical challenges for children in moving between households on an equal or near equal time share. Only 38 per cent of the random sample had maintained shared care across the three year period examined. The children may have been getting older which might account for the change.
[69] Smyth, B. & Richardson, N. (2006), “Patterns of parenting after separation: Some pre-reform empirical insights and musings”, (Paper presented at the 12th National Family Law Conference, Perth, 24 October 2006).
Dr Smyth suggests that shared care can work well. That almost two-fifths of the 10 per cent exercising shared care were still in this pattern of care three years on attests to this.
At the same time it is probably not too hard to understand the many practical problems facing children and parents in making it work on a permanent basis and the conversion to more traditional patterns.
Substantial and significant time
The obvious purpose of parenting time is to promote the main legislative objects by maximising the ability of each parent to meaningfully and adequately contribute to raising children so as to help them achieve their full potential as adults. It also helps to ensure that parents fulfil their duties and meet all their responsibilities in relation to their children.
Subsection 65DAA recognises the importance of finding or creating ways that both parents are able to develop a meaningful relationship with their children and enjoy important events including every day time with the child. It accepts having a meaningful relationship and equal shared parental responsibility generally involves both parents spending substantial and significant time with their children.
The concept of substantial and significant time is intended to focus the court’s attention not only on how much time but also on the way that time is spent and whether it is conducive to the development or maintenance of the close and meaningful relationship between parent and child envisaged by ss 60B and 60CC(2)(a). It covers time that includes week days as well as weekends and holidays, allows parents to be involved in the child’s daily routine and to enjoy occasions and events of special significance to either the child or the parent such as sporting events, birthdays or concerts. It includes helping with homework, talking about child related problems, providing emotional and developmental support to children, praising children’s accomplishments. As a general rule, reprimanding or disciplining children for unruly or bad behaviour, is a defining characteristic. [70] It would also involve a child in events such as family weddings and christenings. For some children it may also include special religious or cultural events.
[70] Parkinson, P, ‘Decision-making about the best interests of the child: the impact of the two tiers’, (2006) 20 Australian Journal of Family Law 179 at 184.
The statutory definition of substantial and significant time encompasses both what a parent and child do together and how much time they take to do it. This is clearly based on the theory that building up, restoring or supporting a sound and durable relationship between parents and children after family break down takes time as well as effort.
Section 65DAA(4) gives the court flexibility in deciding what are important events for each individual child and his or her parents, and what substantial and significant time is in the context of the particular family unit.
What matters is how time is spent and experienced, not just how it is calculated or distributed. Notably, however, though both quantitative and qualitative in scope, the definition says nothing explicitly about the duration or frequency of the time that satisfies its requirements.
It could be that the push for 50/50 care of children after divorce by many non resident fathers is really a proxy for the yearning of having “being close” time with children. More broadly, could the apparent obsession with numbers (hours, days, timesplits?) in the context of caring for children after separation reflect a deeper concern about what the time might mean; time to develop more closeness with a child; time to continue or generate an intimate, satisfying relationship; time to strengthen, enhance or even maintain one’s identity as “father” or “mother”? [71]
[71] Smyth, B, ‘Parent-Child Contact Schedules after Divorce’, (2004) Family Matters No 69 Australian Institute of Family Studies 32 citing Lamb, M.E and Kelly, J.B,‘Using the empirical literature to guide the development of parenting plans for young children: A rejoinder to Solomon and Biringen’, (2001) 39(4) Family Court Review, 365-371.
According to Kelly and Lamb[72] the greater range of context for interaction between the parents and children the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development as well as for greater opportunities for parents to build emotional bonds with their children.
[72] Lamb, M.E and Kelly, J.B, ‘Using the empirical literature to guide the development of parenting plans for young children: A rejoinder to Solomon and Biringen’, (2001) 39(4) Family Court Review, 365-371 as cited in Smyth, B, ‘Parent-Child Contact Schedules after Divorce’, (2004) Family Matters: No 69 Australian Institute of Family Studies 32.
Kelly and Lamb argue that it is the intermingling of different activities and experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family well-being. For instance, “overnight” stays allow for the experience of mundane, everyday routines, as well as special moments – such as putting children to bed, reading to them, saying goodnight, and starting the day together over breakfast. “Focussed one on one together time” such as playing a game, talking in the car, reading a book together, or helping with homework, sends a clear signal to children that they matter. “Outdoor time” such as fishing, netball or hiking, provides opportunities for children’s emotional, physical, social and cognitive development and gives parents the chance to mentor and to remain engaged with their children. “Fun times” such as long weekends and school holidays or “special times” such as birthdays, Mothers and Father’s Day and Christmas, foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds and then create positive lifelong memories.
But while these and other types of time are important for children and parents, so-called “in the moment time” warrants special attention. This, according to Kelly and Lamb, involves unstructured, spontaneous, intimate time where parent and child are free to “hang out”, talk about things, social activities that are important to them such as a teenage daughter talking about a boyfriend problem while her father peels potatoes. Post separation parenting arrangements that involve thin slices of parent-child time such as daytime only contact each Saturday afternoon runs against the experience of “being” time as this type of time needs to feel natural and unimpeded to create the conditions for free flowing interpersonal engagement.
They say that in many ways “in the moment” time represents the holy grail for many separated parents and their children because it brings into awareness the kind of closeness, warmth and mutual understanding that remain elusive when parenting from a distance. Fluid, meaningful time cannot be scheduled especially with children. It needs to be cultivated.
Thus, the benefit to a child of spending time with each parent is not measured solely in hours or weeks. An emotionally close and warm relationship between parents and children requires the right amount and mix of time. The emphasis is not merely on the quantity but also the quality of time that is spent with each parent. Both elements are important.
This is congruent with a solid body of data suggesting that it is the “quality of relationships” between parents and between parents and children that exerts a critical influence on the children’s well being, not the “amount of time per se”.[73]
[73] Smyth, B, ‘Parent-Child Contact Schedules after Divorce’, (2004) Family Matters No 69 Australian Institute of Family Studies 32 citing Lamb, M.E and Kelly, J.B,‘Using the empirical literature to guide the development of parenting plans for young children: A rejoinder to Solomon and Biringen’, (2001) 39(4) Family Court Review, 365-371
The homemaker contributions of a wife must be assessed in financial terms and given substantial, not merely token, monetary value and can be found to equate with the income earning activities of her husband after a comparatively short period if she undertakes particularly significant domestic responsibilities such as, for example, bearing and looking after children within a few years of marriage. This inevitably means that in some cases a homemaker contribution is rewarded out of pre-marriage or business assets.[115]
[115] See, for example, Shaw and Shaw (1989) FLC 92-010.
Likewise, a substantial homemaker and child-care contribution during a marriage that lasts a significant period of time can even justify a share of the property acquired after separation.
As Hodgson JA pointed out in a recent de facto property case of Howlett v Neilson,[116] a homemaker in a 10 year relationship in which substantial assets of, say, $5,000,000 brought in by the other party have not increased markedly by the time it ends, may be entitled to a distribution of property because, although the contribution of the parties was equal in wealth and welfare terms, it has cost her a lot more in terms of lost opportunities for developing skills and career advancement.
[116] (2005) 33 Fam LR 402.
In other cases, however, domestic activities may not be regarded as having made a substantial or significant contribution to his or her partner's accumulated wealth. This may be particularly so in a short marriage or where the spouse's business activities involve the exercise of special skills, enterprise or expertise.
Thus while in principle, the entitlement of each party to a share of the property pool is the same however long or short the marriage may have been, assets the parties bring with them into the marriage or acquired by inheritance or gift during it or accumulate post-separation, are sometimes treated differently in practice from the ‘fruits’ of joint effort.
If one spouse brings substantial assets into the marriage but the other does not, the disparity is ordinarily regarded as significant. The weight or value to be attributed to a significant initial or sole contribution at the end of the marriage, however, depends on the totality of each party's contributions to their property and to the welfare of the family during the partnership. Whether and the extent to which it is appropriate to distinguish “matrimonial” property from other property or to separately value and assess contribution to a particular asset or group of assets, will rest on the requirements of justice and equity in any particular case. The contribution made by one party to the non-matrimonial property of the other is simply accorded the weight it deserves. Nothing more or less than that.
The justice and equity requirement in s 79(2) may apply to deny a non-owners claim to a share in property of the other party because of its source or, alternatively, the homemaker contribution of the other spouse has not had time to erode or offset it.
The duration of the marriage is highly relevant to the calculation of each party’s share to pre-marriage or what is often referred to as “non-matrimonial” property. The way parties organise their financial affairs is also a relevant matter.
It is not unusual for the court to attribute diminishing significance to initial contribution of valuable property by one spouse as the period of cohabitation lengthens and, thus, the contributions, including the domestic contributions, of the other spouse increase.
This may well be the situation, for example, where the marriage was of longish duration, or where the breadwinner’s activities not only imposed an extra domestic burden on the other but could not have been carried on unless the other spouse assumed that extra burden. [117]
[117] Ferraro and Ferraro (1992) 11 Fam LR 124 at 171.
It is important to remember however, that entitlement to a particular asset or a share in the overall pool of property depends on the comparative contribution made by the parties not on how the property is classified.
Step 1 – The contents and value of the net pool
The net divisible agreed non superannuation assets are argued at $1,032,985:
Assets
A Property
$350,000
T Property
$110,000
B2 Property
$780,000
Nissan Patrol motor vehicle
$20,000
Magna Motor Vehicle
$6,500
Contents – T Property
$3,650
Household goods and chattels (husband)
$10,000
Household goods and chattels (wife)
$6,000
Jewellery
$1,635
Total
$1,296,785
Liabilities
National Australia Bank Mastercard
$8,800
National Australia Bank mortgage – B Property
$147,000
Mr X
$18,000
National Australia Bank mortgage – A Property
$90,000
Total
$263,800.00
Step 2 –The parties wealth and welfare contribution
The relevant law treats the contribution of each party to a marriage as being of equal notional value and generally measures both according to the overall financial success (or failure) of the marital partnership. The direct financial contribution of a breadwinner is not seen as any more significant, in dollar terms, than the indirect contribution made during the marriage by the homemaker/parent.
What is important is somehow to give a reasonable value to all the elements that go to making up the entirety of the marriage relationship[118] including the efforts at overall achievements of each party in their allocated or preferred role.
[118] cf. Aleksovski (1996) FLC 92-705 per Kay J (dissenting) at 83,443.
The aim is to achieve equity not equality.
This marriage lasted for 13 years. It produced two children now aged between 16 and 10. The asset value of the partnership almost doubled from $520,000 in 1990 to $1.035 M at the date of separation.
In 1990 the husband was 33 years old. He had been working as a qualified architect for 8 years earning $60,000 per annum plus $20,000 in family trust distributions. His property of nearly $450,000 included a rental investment at A purchased in 1983 for $135,000, generating $20,000 per annum, as well as his own residence at C worth $185,000, a $28,000 car and $30,000 in savings.
The A property is still owned by the husband and is valued at $350,000. $50,000 was spent on improvements during the marriage. It has produced $35,000 since separation in rental receipts.
The husband’s initial savings were exhausted on renovating the wife’s I property which she brought in at $85,000 which was sold in 1992 for $185,000 and paying off $5000 in accumulated credit card debts.
The next major asset was $50,000 in shares which was about the same as it was at commencement. The husband’s $200,000 contribution to the former matrimonial home came from $150,000 in savings and a compensation payout of $50,000.
The C house was sold for $145,000 (a profit of $30,000). D property was purchased for $80,000 in the same year. It was improved by the construction of a house for $145,000 and $50,000 worth of improvements. It was sold in 1995 for $430,000 or a profit of $155,000.
In 1995 two more properties were purchased. One at C from the D property proceeds for $267,000 and a home and land package at B for $520,000 on borrowed funds.
B was subdivided in 1993 and part of it sold off for $107,000. The house and land was sold in 1999 for $450,000.
The H property was acquired in 1996 for $125,000 and sold the following year for $200,000 or $75,000 in profit.
In 1999 the B2 property was purchased for $270,000 with $130,000 in improvements. It is now worth $380,000 more then it was ten years ago.
The parties purchased an investment unit at T in 2001 for $75,000 on mortgage loan terms. They have spent $15,000 in improvements.
Husband’s initial contribution
The husband’s initial contribution was $438,000 or 84% of the net property value at commencement and represents 42% of the current value. He had $350,000 more than the wife at commencement.
His parents also made an interest free bridging finance loan of $82,000 on his behalf.
The Full Court has consistently emphasised the importance of giving appropriate weight or credit to a spouse’s disproportionate initial financial contribution.
However, the difficulty of reflecting substantially disproportionate contributions at the beginning of the marriage in an order directed to the division of the property at the end of the marriage is, as the Full Court recognised in Zyk, [119] an acute one. How and to what extent the erosion principle applies in any given set of circumstances is not susceptible to precise analysis. That is largely because it depends upon a number of variables, such as the initial difference, the use subsequently made of those assets, whether or not they have increased in value due to the efforts of the parties or external forces, the length of the marriage, and the size and impact of other contributions made in the intervening period.
[119] (1995) FLC 92-644 at 82,517.
The cases reveal four basic methods of calculating the value to be given to pre-marriage assets or financial contributions made directly or indirectly by or on behalf of a party at the outset or an early stage of a marriage. Three of them are discussed in John Wade’s well known text Property Division upon Marriage Breakdown. [120]
[120] (1984) CCH Australia Limited at pp234-235.
Under the first approach the donee is awarded the value to which the property has appreciated at the date of trial. Instead of the actual cash contribution being returned to the parties, they each receive the proportionate value of their initial contribution as at the date of hearing. Thus, in Freeman[121], the parties to a seven year marriage have both made predominantly financial contributions to the purchase of their jointly owned home. However, they were not credited with their actual cash contributions (approximately $11,500 from the wife and $2,800 from the husband). Instead, the wife received approximately 80 percent of the value of the home at the date of hearing as she had financially contributed 80 percent of the initial capital value.
[121] (1979) FLC 90-697.
In Zyk the parties were married for eight years. The wife's initial contributions were five times that of the husband. The couple had no children. Their net assets at trial were $806,452. A property division of 35 per cent to the husband and 65 per cent to the wife was upheld by the Full Court, which expressed the view that where parties start their marriage with little or no property their contributions during the marriage will usually be regarded as approximately equal.
This method of valuation is especially applicable to childless marriages which only last for a short time after the contribution is made: Crawford.[122]
[122] (1979) FLC 90-647.
In Kennon[123] a childless couple cohabited for a period of about five years. At the time of the trial the husband had net assets of about $8.7M. All the assets at the date of hearing either existed at the time cohabitation began or could be traced to pre-existing assets. The wife had domestic assistance in the course of the marriage. The Full Court awarded the wife $400,000 by way of contribution and $300,000 for s 75(2) factors.
[123] (1997) FLC 92-757.
In the case of GBT and BJT [124] a property settlement determination of 87.5 per cent in favour of the husband and 12.5 per cent to the wife was made in the context of a marriage lasting six years. Both parties had been married before but neither had any children. At the commencement of the relationship the husband was a partner in an accountancy firm that employed the wife as a secretary. The husband established his own practice shortly after the marriage. The wife worked in the business for three years before retiring. She had re-partnered and was earning a good wage at the time of trial.
[124] [2005] Fam CA 683.
Allowing the appeal, Kay, Holden and Warnick JJ reduced the wife's contribution by 5 per cent from 12.5% to 7.5% representing a 40% reduction in the amount awarded.[125]
[125] GBT and BJT [2005] Fam CA 683 at [58]-[60].
In Kardos v Sarbutt,[126] a childless de-facto couple co-habited for three years. At the trial each received a return of their initial capital and otherwise equally shared the capital growth subject to a minor adjustment for the fact the wife had provided the use of her house as the parties’ joint residence.
[126] (2006) 34 Fam LR 550.
The Court of Appeal increased the wife’s award to recognise the disproportionate capital gain of her property over the husband’s during the relationship.
The issue of initial contribution was most recently considered by the Full Court in Williams.[127] There the husband sought a greater acknowledgement of his contribution of a farm to the asset pool at the commencement of a ten year relationship which had substantially increased in value at the date of hearing. The trial judge credited him with a loading of 7.5% on account of his initial contribution. The husband challenged the adequacy of this adjustment but the Full Court held that while it was valid to look at the current day value of the farm, a lack of evidence attributing the increase to market or other forces rather than the neutral effort of the parties and the wife’s own substantial financial contribution meant that the weight given to the husband’s farm contribution was not outside the acceptable range.
[127] (2007) FamCA 313.
In commenting on the result in Kardos the Full Court in Williams[128] said:
We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution …Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
[128] (2007) FamCA 313 at [26].
Thus, the contribution is the appreciated not the initial value. The increase should normally be credited solely or mainly to the contributor rather than equally shared because it cannot properly be regarded as the ‘fruits of the relationship’. These cases suggest that where there are no other s 75(2) factors leading to a different result in a marriage of no great length, a childless couple who make roughly equal contributions during the marriage will usually see a property order made leaving the bulk of the assets remaining with the party contributing them. There are, however, some cases in which justice and equity may require the non-financial contributions of the non-owner of the property to have substantial offsetting effect where it can be shown, for example, that the market value increased because of the joint efforts of the parties directly or indirectly. In other matters the non-financial contributions of one partner may allow the other to advance his or her career and earn a high income that enables the property in question to be maintained and retained and, thus, rise in value.[129]
[129] cf Bilous v Mudaliar (2006) 35 Fam LR 155 per Ipp JA at [62]-[63].
Alternatively, the donee party may receive the original value plus half the acquest increase in value or whatever his or her contribution expressed as a percentage is assessed to be, over the length of the marriage eg Foster v Foster.[130]
[130] [2003] 2 FLR 299; See too Burgess v Burgess [1996] 2 FLR 34.
In Clauson[131] for example, assets brought into a nine year marriage by the husband increased from $700,000 to $1.27 million. The Full Court accepted the wife’s contention that the net increase should be treated as having been contributed to jointly so that overall the husband was awarded 70 percent to the wife’s 30 percent (ie $700,000 + $570,000 ÷ 2).
[131] (1995) FLC 92-595.
This pseudo mathematical approach was held to provide a rough and primitive (though no less valid) initial point of reference.
A second option is to give credit for what the contribution was worth when it was made but not its current day value. For example, in W and W ,[132] the husband was given $20,000 credit for the contribution of the same amount he made seven years previously, with the wife receiving the balance which had been built up over time due to inflation.
[132] (1980) FLC 90-872.
This approach is not usually appropriate in a long marriage.
Under the third alternative, the significance of initial or early contributions reduces either over time or as a result of the offsetting contribution of the other spouse.[133]
[133] cf. Alekskovsky and Alekskovsky (1996) FLC 92-705.
The so called “erosion principle” was established in Crawford and Crawford[134] and is best illustrated by Bremner and Bremner.[135]
[134] (1979) FLC 90-647.
[135] (1995) FLC 92-560.
In Bremner, the parties married in 1969 and separated in 1991. There were two children of the marriage. At commencement, the husband was the registered owner of unimproved acreage at Marsden which he had purchased 10 years earlier. At the time of the hearing 25 years later, the land had appreciated in value from 125 pounds to $220,000 and represented just over 60 percent of the total net assets available for distribution. Both parties had worked for wages throughout the marriage. The wife was primarily responsible for homemaking and parenting. The trial judge divided the assets equally between the parties based on their contribution without any adjustment for s 75(2) factors.
The husband appealed on the ground that insufficient weight had been given to his initial contribution of the Marsden land. He relied on the fact that the block had remained his separate property throughout the relationship and had not been contributed to by the wife in any direct or indirect sense except for the payment of council rates and maintenance costs out of household funds. The appeal was dismissed. The strength of the contribution Mr Bremner made at the inception of the marriage had been completely eroded, partly by the passage of time but mainly by the offsetting contribution of the wife even though hers was no greater than his.
The reasoning in Bremner reflects the nature of the marriage relationship as a partnership to which the parties make many and varied, often unique and indefinable, tangible and intangible contributions. There is no doubt, as Nicholson CJ observed in his brief concurring opinion, that the fairness of the result in Bremner is difficult to argue with.
In Hunt v Zuryn[136] the Full Court made it clear that an assessment of contribution ought adequately recognise, where it can be demonstrated, that much of the party’s wealth derived from the capital growth in assets introduced by one the party’s at the commencement of the marriage but at the same time must also reflect the other contributions of all kinds that each made in the course of that relationship.
[136] (2005) FLC 93-226.
In that case,[137] the parties (the husband aged 50 and the wife 42) lived together for 11 years. They had two school-age children. The husband brought in between $257,000 and $339,000, compared with $46,000 for the wife. The pool at trial was $1.2 M. The wife earned $30,000 per annum throughout, whereas the husband was employed (sometimes part-time only) for 5 out of the 11 years. He spent the remaining 6 years renovating various investment properties registered in his name.
[137] (2005) FLC 93-226
The trial judge assessed the wife's entitlement based on contribution at 25%. The Full Court altered this to a 32.5% contribution.
As explained in Lee Steere: [138]
By bringing pre-marital assets, however acquired, into the pool, that party is to that extent making a contribution which cannot be matched by the party who brings few, if any, assets into the marriage.
The longer the duration of the marriage, depending on the quality and extent of her contribution, the more the proportionality of the original contribution is reduced . . . The proposition that the strength of a contribution made at the inception of the marriage is eroded, not by the passage of time but by the offsetting contribution to the other spouse, still holds true.
[138] (1985) FLC 91-626 at 80,079.
This statement was made in the context of a wife’s contribution over an eight year marriage in which there were three children giving her 20% of a working farm which her husband had brought into the marriage by way of contribution.
In Pierce [139] the disparity was $214,500 or 90% of the total $240,000 introduced to a 10 year marriage. It was used to buy the family home two years after cohabitation commenced for $235,000 and registered in the husband’s sole name. There were two children of the marriage who were residing with the husband at the time of trial. The net pool was valued at $320,000, 80% of which was the family home. The contribution during the marriage was equal and the husband was allowed 5% for post-separation child care. There was no s 75(2) adjustment. The husband was awarded 55% of the property at trial. On appeal the Full Court reassessed contribution 70:30 in his favour holding that the trial judge had failed to give enough weight to the greater initial and post-separation contribution of the husband.
[139] (1999) FLC 92-844.
Significant weight was given to Mr Pierce’s initial contribution which expressed in dollar terms was valued by the Full Court at about at $50,000 of the extra $64,000 he was awarded (22% of the $224,000); that is 15% of the final pool and 22% of his initial capital. Accordingly, the husband’s contribution at commencement, despite its significance and importance to the family’s economic success, diminished by nearly 80% over 10 years when the parties net worth went from $226,000 ($214,000 of it the husband’s) to $319,190 10 years later. This was an increase of about $9500 per annum due solely to the appreciation of the former matrimonial home contributed to equally during the marriage.
The Full Court[140] referred to Fogarty J in Money:
…respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution. [141]
[140] (1999) FLC 92-844.
[141] (1994) FLC 92-485 at 81,054
Then went on to say at [28]:
In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight (of the initial contribution) … regard must be had to the use made by the parties of that contribution.
The fourth and final method is to make no allowance for the value of an initial contribution made at the beginning of a long marriage.
In Rogers,[142] the Full Court gave a husband a half interest in the matrimonial home in circumstances where substantial parental gifts to the house and household during their 18 year marriage were not credited to the wife as a special advantage over the husband on the basis that the gifts “mixed” with the husband’s efforts of working on the house, paying for the mortgage and caring for the children during 14 out of a total of 18 years of marriage.
[142] (1980) FLC 90-874.
There may be other situations where it is appropriate to assess the contributions of the parties by reference to their direct financial contribution or that an order which results in returning to each party that which they contributed directly would be just and equitable. However, this, in my opinion, is not such a case.[143]
[143] cf. McMahon (1995) FLC 92-606.
The marriage I am concerned with here lasted for nearly a decade and a half. My principal task is to measure and value contribution not time, but the duration of a marriage is relevant under par (d) of s 79(4) and may, of course, be highly significant in assessing pars (b) - (c) contribution too, because, as I mentioned earlier, the shorter the duration of the marriage the less counter-veiling weight the domestic role may attract. Conversely, in a marriage of considerable duration there is a greater likelihood that the contribution by one party in the capacity of homemaker and parent will be treated as more or less equal to the financial contribution of the other party even where that financial contribution has been a considerable one.[144]
[144] See Harris and Harris (1991) FLC 92-254.
As hard as it is to assess the relative value of fundamentally different types of contribution over a lengthy period and doing the best I can to be fair to both parties, contributions should be assessed in the husband’s favour at 65:35 or about $310,000 more even after factoring in the wife’s substantial post separation welfare contribution.
In this case the husbands capital at commencement provided the platform for building wealth and its significance, though diminished over time principally because offsetting contributions both directly by the wife to the family and indirectly to property, should as a matter of economic justice, be reflected in a more generous contribution-based assessment.
s 75(2) factors
The children are aged 16 and 10 years and live with the mother. The wife’s oldest son from her previous relationship (K) now 22 was dependent on the husband’s income except for $35 per week child support over the period of the marriage. He was treated as a member of the family and the husband estimates spending about $150,000 or $12,000 per annum on education and related costs. K also lived rent free in the husband’s A property for eighteen months. The wife has re-partnered. She helps run her de-facto’s shop which has an uncertain income.
The wife’s partner has recently acquired a family home to which she contributes on a voluntary basis.
The husband has also re-partnered. He lost his $130,000 per year job as an architect just prior to trial but has much the same earning potential.
In my view the parties net property should be divided 55/45 in favour of the husband to sufficiently reflect the significance of his initial contribution to the relationship and the use to which it was put during the marriage, his substantial earnings and the discharge of his financial responsibility for the family, the wife’s homemaking and parenting roles, the benefit to the husband of living in the former matrimonial home since separation, the post-separation financial and parenting responsibility for the children discharged predominantly if not solely by the mother and her ongoing parenting obligations and income earning disparity which together justify a 10% upwards adjustment to the wife’s contribution-based entitlement to produce the overall result.
This means that the ownership interests of the parties have to be adjusted and their property divided so that the husband retains or receives $568,142 and the wife $464,843.
The parties are directed to exchange and file draft orders giving effect to this judgment by close of business on 7th September 2007. The terms of agreed orders will be considered in Chambers. Otherwise, the matter will be listed for the making of final orders at 9.30 am on 14th September 2007.
I certify that the preceding three hundred and sixty-seven (367) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carmody
Associate:
Date: 21st August 2007
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