FABER & FABER
[2020] FCCA 1162
•14 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FABER & FABER | [2020] FCCA 1162 |
| Catchwords: FAMILY LAW – Property – assessment of contributions – just and equitable. |
| Legislation: Family Law Act 1975(Cth), ss.60B, 60CC, 61DA, 65D, 65DAA, 79. |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Bevan & Bevan [2014] FamCAFC 19 Bondelmonte v Bondelmonte [2017] HCA 8 Boyle & Zahur& Anor (No.2) [2017] FamCAFC 263 Chapman & Chapman [2014] FamCAFC 91 CDJ v VAJ (1998) 197 CLR 172 Heaton v Heaton (2012) 48 Fam LR 349 Howard & Howard [2016] FamCA 455 Malcolm v Munro (2011) FLC 93-460 McCall & Clark [2009] FamCAFC 92 Morgan & Miles (2007) FLC 93-343 MRR v GR (2010) 240 CLR 461 at 467 Russell & Russell (1999) FLC 92-877 Sayer & Radcliffe and Anor [2012] FamCAFC 209 Scott & Danton [2014] FamCAFC 203 Stanford v Stanford (2012) 247 CLR 108 Starr & Duggan [2009] FamCAFC 115 Teal & Teal [2010] FamCAFC 120 |
| Applicant: | MR FABER |
| Respondent: | MS FABER |
| File Number: | SYC 8550 of 2017 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 3, 4 and 5 December 2019 |
| Date of Last Submission: | 5 December 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 14 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blackah |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Ms Spain |
| Solicitors for the Respondent: | Dignan & Hanrahan Solicitors |
| Counsel for the Independent Children's Lawyer: | Ms Falloon |
| Solicitors for the Independent Children's Lawyer: | Robertson Solicitors |
ORDERS
Parenting Orders
The parents shall have equal shared parental responsibility for the children X born in 2010, Y born in 2012 and Z born in 2014 (“the children”).
The children shall live with the mother.
The children shall spend time with the father as agreed, but failing agreement as follows:
(a)During school terms:
(i)In week 1: from 5pm on Friday until 5pm on Sunday;
(ii)In week 2: from 5pm on Wednesday until the commencement of school on Thursday.
(b)During all of the short school term holidays:
(i)In even-numbered years, from 5pm on the middle Friday of the holiday period, until 5pm on the following Friday;
(ii)In odd-numbered years, from 5pm on the middle Friday of the holiday period, until 5pm on the following Friday;
Except that:
(iii)If the father is unable to obtain leave from work in order to spend time with the children for the days and nights in any period specified in 3(b) above , the children will be with him instead from 5pm on the last Thursday or Friday of the relevant school period until 5pm on the following Sunday.
(c)During the long school holidays commencing at the end of term 4:
(i)For half of each school holiday period, with the children to spend time with the mother over Christmas each alternate year to correspond with the maternal family’s biennial celebrations, and with the father in each other year.
(d)On special occasions as follows, if the children would not otherwise be with the father on those days:
(i)From 5pm on Saturday of the weekend that includes Father’s Day, until 5pm on Father’s Day;
(ii)On each of the children’s birthday, from 4:00pm until 6:30pm if the day falls on a school day, and from 10am until 2pm if the day is a non-school day.
The father shall, in a timely manner, inform the mother in writing whether or not he us able to take leave so as to spend time with the children, and in any event not later than one calendar month before his time with the children would commence pursuant to order 3(b) of these Orders.
Order 3 shall be suspended as necessary so that the children spend time with the mother from 5pm on Saturday and for the remainder of the weekend that includes Mother’s Day.
The parent who has the care of the children on Christmas Day shall ensure that the children are available to receive a call by Skype, FaceTime or telephone from the other parent at 9am.
The children shall have telephone communication:
(a)With the father between 5pm and 5:15pm on Tuesdays and Thursdays and any Sunday when they are not spending time with him;
(b)With the mother between 5pm and 5:15pm on any Tuesdays and Thursdays and Sundays when they are not spending time with her;
(c)And also with either parent at any reasonable time(s) when the children or any of them wish to do so.
For all times that the children are to spend with the father, he shall collect them at the commencement of the time, either from school, the mother’s home or another venue agreed between them, and the mother shall collect the children at the conclusion of the time either from school, the father’s home or another venue agreed between them.
The parents may vary the provisions of orders 3 to 7 by written agreement between them.
In the event that the mother requires assistance with the care of the children while they are living with her, she shall in the first instance offer the father the opportunity to provide that assistance, in which case the father shall respond promptly to advise whether or not he is able to assist.
The mother is restrained from relocating the children’s residence further from 20km from the suburb of Suburb A NSW without the prior written agreement of the father.
Neither parent shall:
(a)Speak negatively about the other parent or members of the other parent’s family in the presence or hearing of the children;
(b)Discuss the proceedings with the children or in their presence;
(c)Show the children any document connected with these proceedings.
Each parent shall keep the other advised of his/her residential address and telephone contact number(s).
Both parents:
(a)Are at liberty to attend school and extra-curricular events in which the children are participating, and the attendance of parents is invited or otherwise permitted;
(b)Shall do everything necessary to ensure that they are both able to receive copies of all reports, order forms for school photographs, newsletters, approvals for school excursions and any other written material provided by the children’s schools.
The mother shall ensure that any school attended by the children, and any professionals treating a child from time to time, are authorised to provide information to the father, and that those institutions and professionals have the father’s contact details.
The parents shall keep each other informed about:
(a)Any illness or injury suffered by a child including any visits to doctors or hospitals;
(b)Any medication prescribed for a child;
(c)Any appointments for specialist medical assessments or treatments, or any other therapeutic interventions, with 28 days’ notice of such appointments whenever practicable;
(d)Any other matters relevant to the children’s welfare.
For the purposes of these orders, ‘writing’ includes text messages and emails.
Property Orders
These Orders are made by way of alteration of property interests pursuant to Section 79 of the Family Law Act 1975.
That the proceeds of sale of the property situated at and known as B Street, Suburb A, folio identifier ..., in the amount of $49,930.00 currently held in a Controlled Monies account operated by Marsdens Law Group be paid to the respondent wife.
That the following Order takes effect from the operative time.
That the Court allocate, pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth), a base amount of $34,455.00 to the respondent wife out of the applicant husband’s interest in the Super Fund C.
That whenever a splittable payment becomes payable in respect of the applicant husband’s superannuation interest in the Super Fund C the respondent wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount, at the date of these Orders in the sum of $34,455.00 and that there be a corresponding reduction of the entitlement to the person to whom the splittable payment would have been made but for these Orders.
That this Order binds the Trustee of the Super Fund C.
That the operative time of these Orders is four (4) business days after the service of this Order on the Trustee of the Super Fund C.
That the Solicitor for the respondent wife shall forthwith cause a sealed copy of these orders to be served on the Trustee of the Super Fund C.
That pursuant to section 78 of the Family Law Act 1975 (Cth) that each of the applicant husband and respondent wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of all items of motor vehicles, furniture, furnishings, personalty, chattels, jewellery and monies (whether held in cash or in deposit with any bank, building society, credit union or other financial institution) presently in each party’s possession, custody or control together with all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant, subject to these Orders.
That in the event that either party should fail, neglect of refuse to sign or execute any deed, document or instrument required by to give effect to these Orders then pursuant section 106A of the Family Law Act 1975 (Cth) that the Registrar of the Federal Circuit Court of Australia at Parramatta Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
That pursuant to section 81 of the Family Law Act 1975 (Cth), these Orders are intended to operate so as to finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Faber & Faber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYC 8550 of 2017
| MR FABER |
Applicant
And
| MS FABER |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings relating to both property and parenting matters. The parties are the applicant father, Mr Faber (“father”) and the respondent mother, Ms Faber (“mother”).
There are three children to the marriage:
a)X born in 2010;
b)Y born in 2012; and
c)Z born in 2014.
The children live with the mother in the former matrimonial home in B Street, Suburb A which is now rented by the mother since its sale. The children spend time with the father each alternate weekend and half of the short school term holidays.
Competing Applications
The father seeks orders in accordance with his Amended Initiating Application filed 14 June 2019 being, inter alia, that:
a)The parents have equal shared parental responsibility for the children;
b)If the mother resides in the Sydney metropolitan area that the children live with the mother and spend significant and substantial time with the father including alternate weekend time and block time over the school holidays;
c)If the mother relocates to Melbourne that the children live with the father and spend time with the mother in Sydney in accordance with the mother’s wishes upon the provision of not less than 7 days’ notice of the intention to spend time with the children;
d)The proceeds of sale of the former matrimonial home in the amount of $49,774.77 be disbursed equally between the parties; and
e)The parties otherwise retain all interest in and entitlement to assets and liabilities in their sole names.
The mother seeks orders in accordance with her Minute of Order attached to her Case Outline document dated 28 November 2019 being, inter alia, that:
a)The mother be permitted to relocate Melbourne with the children;
b)The children live with the mother;
c)The parties have equal shared parental responsibility for the children;
d)The children spend time with the father during school term on the last weekend of each month alternating between time occurring in Sydney and Melbourne, half of the school holidays;
e)The proceeds of sale of the former matrimonial home be disbursed solely to the mother; and
f)The mother be allocated a base amount of $96,222 from the father’s interest in his Super Fund C.
The Independent Children’s Lawyer (“ICL”) proposes orders contained in the Minute of Final Orders handed up to the Court on 6 December 2019 being, inter alia, that:
a)The parties have equal shared parental responsibility for the children;
b)The children live with the mother;
c)The mother be restrained from relocating the children’s residence further than 20km from the suburb of B Street, Suburb A without the prior written consent of the father;
d)The children spend time with the father each alternate weekend in week one, mid-week time in week two, for half of the school holidays and during special occasions.
Facts either agreed or not the subject of substantial dispute
The father was born in 1984 and is currently 36 years of age.
The mother was born in 1980 and is currently 40 years of age.
The parties commenced their romantic relationship in 2007 and the mother later moved into the paternal grandparent’s home in 2008, where the father resided.
The parties were married in 2009.
At the commencement of their relationship the mother was employed as a health care worker and did not have any significant assets. The father was employed full-time as a tradesman and owned an investment property in Suburb D which was purchased for approximately $315,000 and later sold in 2013 for $260,000.
The parties have three children together.
From birth the youngest child has suffered from multiple congenital abnormalities and is currently being treated by Dr E.
Sometime between June 2011 and 2012 the parties moved out of the paternal grandparent’s home and began living in a rental property in Suburb F, New South Wales. The father paid the rent of the property and provided the mother money to maintain the household.
In 2014 the parties purchased the former matrimonial home at B Street, Suburb A in the state of New South Wales (“B Street, Suburb A property”) for approximately $419,000 and moved into that property. The funds to purchase the B Street, Suburb A property was obtained from the paternal grandfather and grandmother in the amount of $10,000 and $15,000 respectively.
In mid-2015 the father purchased the mother a Motor Vehicle 1 securing approximately a $22,000 loan from G Finance.
The parties separated in October 2016.
The father moved out of the matrimonial property and moved into his parent’s home. The mother remained living at the home with the children. The parties consequently reached an informal agreement for the children to spend time with the father from 5pm each alternate Saturday to 5pm Sunday.
The father continued to pay the mortgage repayments, the car loan and the Foxtel subscription until around October 2017. Thereafter the father commenced paying child support and the mother began meeting the mortgage repayments for the B Street, Suburb A property and other household bills.
In 2018 the parties sold the B Street, Suburb A property for $555,000 with the proceeds of the sale being held in a controlled monies account with the mother’s solicitors.
On 21 December 2017 the father commenced property and parenting proceedings.
Relevant Evidence
Father’s Evidence
The father was represented throughout the hearing. He relied on his affidavit and financial statement sworn on 13 June 2019 and was cross examined by the mother’s legal representative and the ICL. The paternal grandfather, Mr H also gave evidence.
The father’s case in summary is that:
a)Whilst the mother was the primary carer prior to separation, he was also an active parent to the children and helped to care for them including assisting with homework, bathing, dressing, feeding and playing with the children.
b)Since separation he has had ongoing difficulties in maintaining involvement with the children, particularly with Z and his various specialist appointments. The father says that the mother schedules appointments at times that are “impossible” for him to attend due to his work schedule. He categorically denies the mother’s suggestion that he lacks understanding of Z’s medical condition.
c)The mothers proposed relocation to Victoria with the children would impede on his ability to maintain a meaningful relationship with the children and as a result would have a hugely negative impact on them, particularly for Z. The father asserts that the relocation would cause unnecessary disruption to the children’s routine and deprive them from relationships with family and friends.
d)The contributions of the father should be assessed as favouring him and the s 75(2) factors be assed as favouring the mother, thus justifying the proceeds of sale of the former matrimonial home to be divided equally.
In answer to questions from the mother’s Counsel the father agreed to drinking alcohol approximately two to three nights per week during the relationship. The father conceded that he did not help the mother with the children during those days however asserted that he was not completely absent either as he did assist the mother with the children on other days. The father appeared to have some level of understanding of the effects of his alcoholism on the children although was not able to articulate exactly how. The father gave evidence that he “reached for the bottle rather than reaching for proper help”.
The father accepts that during the first twelve months that Z was attending physiotherapy and occupational therapy he went to two sessions because of his work commitments. The father explained that he had requested the mother to make appointments for Z that he could attend, particularly around 3pm or 4pm which he was willing to leave work early to attend but was ignored or advised that it was “not possible”.
Since separation the father says that he has requested to make separate appointments with Dr E but the mother advised he could not do that “because it doesn’t work like that” and so the father has agreed with the mother’s wishes without taking regard of his own views. The father acknowledged the difficulties associated with arranging National Disability Insurance Scheme (“NDIS”) funded appointments however took issue with the fact that he believed the mother did not attempt to enquire with doctors about alternative arrangements notwithstanding that he did not either.
On 17 December 2018 the mother gave the father notice about an appointment for Z on 25 January 2019 at 11am via text message. The father says he did not attend the appointment nor did he ask his employer to take time off work in order to attend.
The father was questioned by Counsel for the mother about a number of other appointments that the father accepts he failed to attend, such as an appointment with a Geneticist. The father clarified that whilst he did not attend that particular appointment and many others he did however have a telephone discussion with the Geneticist about Z’s medical condition.
The father says under-cross examination that if orders where made that the children live with him that he would take up new employment. The father further accepts that whilst he has not taken significant efforts to attend appointments in the past, that is, has not applied for carer’s leave, annual leave or personal leave to attend Z’s medical appointments, he is of the opinion that his new employment that he proposes will allow him to better commit to these appointments.
The father gave extensive evidence about the concerns he had if the children were permitted to relocate to Victoria. The father says in both his trial affidavit and under cross-examination the following:
a)That the proposed relocation to Victoria will impede on his ability to maintain a meaningful relationship with the children which would as a result affect the children both psychologically and emotionally.
b)That such significant change and disruption to routine, namely the change of home, school, friendship circles, doctors and his relationship with the children will have a significant psychological impact on them, particularly for Z.
c)That he is concerned about Z’s continuing capacity to travel by plane between Sydney and Melbourne.
d)That the children will be deprived from relationships with the father’s extended family.
e)That the mother has not provided any or rather limited details regarding the proposed move to Victoria, namely about living arrangements, which school or day care the children would attend, which treating doctors or specialist she proposed to take Z to, whether she would be employed and the proposed arrangements for flights to and from Sydney.
The mother’s Counsel did not cross-examine the father in respect of the property aspect of these proceedings.
Mother’s Evidence
The mother was represented throughout the hearing. She relied on her affidavit and was cross examined by the father’s legal representative and the Independent Children’s Lawyer. The mother gave evidence about a range of benefits she perceived for both her and the children in the event she was able to relocate. The maternal grandmother, Ms J, and the maternal aunty, Ms K, also gave evidence.
The mother’s case in summary is that:
a)During the relationship the mother was primarily responsible for all home duties and caring for the children.
b)The mother has been subjected to emotional and psychological abuse by the father and the paternal family during the parties’ relationship. As well, the mother further alleges that whilst there was no physical violence the father was controlling and actively sought to isolate the mother from family and friends.
c)The father has no real level of understanding of Z’s medical condition and has made no efforts to understand. The mother is of the opinion that the father believes Z is normal or will be fine and so for the father to spend increased amounts of time with Z will “endanger his progress or have him regress”.
d)The father has chosen not to participate in the care of Z to the extent the mother has done so or indeed at all.
e)The father does not have the capacity to meet the emotional needs of the children.
f)The mother was the homemaker during the relationship and sometime after their separation, namely in September 2017 she began meeting the mortgage repayments, paying for the rates and utilities. At this time the father stopped making those repayments and began paying child support.
The mother says that in respect of co-parenting with the father she finds it difficult to do so because the father has never previously worked with her to care for the children. The mother is of the opinion that the father’s definition of co-parenting is about making his own life easier and not about “what the children want and what is needed”.
The mother was cross examined by the father’s Counsel about a series of text messages between the parties. In circumstances where the mother has asked the father for assistance with the children at times not in accordance with orders and the father has responded with being able to assist, the mother gave evidence that he was “sometimes helpful”.
In answer to questions about any poor communication between the parties the mother says the following:
“It’s not from my side… I make sure that Mr Faber is aware at all times of Z’s conditions, the girls’ conditions, appointments, illnesses. I make sure he knows about parent teacher interviews, things that are going on at school. I make sure he knows everything so that he can be involved and on the other side of it I get nothing back”
The mother further says that she and the father cannot get along “as people” however when it is about the care and welfare of the children and the communication is done via text message the parties can keep each other reasonably informed.
The mother says the following in respect of continuing to reside in Sydney with the children:
a)That she will not be able to re-enter the work force because she has no one to help with the children; and
b)That she does not have the long-term or rather reliable support to be able to care for the children, particularly with Z’s increased needs.
In respect of the cost of travel between Melbourne and Sydney the mother believes the cost per trip is approximately $1500 to $1700. The mother accepts that her weekly income is about $1070 and has weekly expenses of $1074. However, the mother asserted that if she was permitted to relocate to Melbourne she would have less expenses in comparison to the expenses associated with continuing to live in Sydney. The mother says that she would no longer need to pay for Z to attend three different schools and would be living with her parents initially.
The mother further explains that when she does move out of her parents’ home that she plans to rent a two bedroom home for approximately $500 to $600 per week. The mother has not made substantial enquiries in relation to this and appeared to be speaking on the run.
In answer to questions from the father’s Counsel the mother acknowledged that the expenses outlined in her financial statement would ultimately remain the same. The mother clarified that she planned to financially sacrifice in order to save money to fund the trips from Melbourne to Sydney as she believed it was more “important for the children to spend time with their father as allocated than where the money is coming from”
The mother proposes to travel from Tullamarine Airport, Victoria with the children to the father’s residence in Sydney which the parties agree that it will take not less than five hours. The mother also proposes to drive down to Sydney during the school holidays.
The mother conceded under cross-examination that if relocation to Victoria was not permitted that she “would not leave her children”.
In relation to the issue of Christmas holidays the mother says that she has no problem for the children to spend each alternate year with the father in so far as the year that she gets to spend time with the children falls on the year her family have their Christmas reunion in Melbourne.
The mother gave evidence that in respect to the proposed relocation to Victoria she preferred to have her family in Melbourne to support her with the children rather than the father because she “was in a relationship with him for 10 to 12 years and it wasn’t a very pleasant relationship and so to have to rely on someone who has caused you so much damage it’s not really that nice…”.
The mother further says that the father and the children have never had a meaningful relationship. The mother is of the opinion that the father and the children have a “form of relationship” but was reluctant to accept that the relationship had any substance. She further explained that she believed that the father was incapable or lacked the capacity to meet the children’s emotional needs. The mother is also of the opinion that in respect of Z’s medical care that the father will take him to the hospital (should the need arise) rather than take any preventative measures to keep him out of the hospital.
There is no doubt that the mother is highly critical of the father. The mother throughout her cross-examination found it difficult to give any credit to the father.
The Family Report of Ms L
In evidence before the Court is a report prepared by Ms L, who was cross-examined at the final hearing by Counsel for both parties and the Independent Children’s Lawyer.
Many of the matters which are referred to in the report are simply restatements of matters which the parties have asserted[1]. Ms L conceded that many of the opinions in the family report were based on her perceptions of things. Ultimately, the weight afforded to any expert opinion[2] is dependent upon the establishment of facts which were the factual premises upon which the opinion was based.
[1] See generally cross-examination of Ms L on 5 December 2019.
[2] Presumably, the expert having established specialised knowledge.
Ultimately, the opinion of the expert was that if the Court finds that there was “a history of family violence, including a pattern of ongoing coercive and controlling violence and involving emotional and psychological abuse (exacerbated by parental alcohol abuse), verbal assault, intimidation, threats, personal denigration, stalking and monitoring, financial abuse and cultural and social isolation directed against her by the father and/or his parents… then the Court should consider making an order that would allow the children to live with the mother and permit the mother to relocate to live in Melbourne with the children…” Conversely, if those findings are not made, then the Court should consider making an order that would allow the children to live with the mother in Sydney and spend time with the father.
Such opinion was not altered following cross examination.
The Children
Z, aged 5 years and 4 months at the time of final hearing, is the youngest of three children. Z has been assessed as having Level 2 Autism Spectrum Disorder, a moderate Developmental Delay and a number of co-occurring medical conditions including a rare genetic condition known as defective Chromosome 13.
Although Z was not interviewed separately, the family report writer, Ms L, reported that Z “presented as a neatly groomed and well cared for child who is sweet natured, quiet and has a delightfully engaging smile and spirit. She further observed that Z appeared to be “processing and sensing his physical environment and navigating social interactions in a unique way” and that sadly Z had limited use of language which included “two to three-word sentences”.
At the time of final hearing Z was attending N School in the Stepping Stones Program which provided early intervention for children with developmental delays and disabilities. Z has also been accepted at M School for 2020. The parties reported to Ms L that Z was “making encouraging progress and developing strongly within the parameters of his care needs”.
There is no doubt that Z will require a substantial level of support throughout his life.
Y is the second eldest of the children. Y was observed by Ms L as a “healthy, physically active, neatly groomed and well cared child who impressed as a friendly, socially gregarious and outgoing with a lively sense of humour”.
Y was in year 2 at the time of final hearing and attends Suburb A Primary School. The parties have described her to be progressing relatively well with “no learning difficulties or additional needs”.
Ms L’s observations indicated that Y was truly fond of both parents and that she was well aware that her parents could not agree on whether she and her siblings would be relocating to Melbourne. Y told the family report writer that she “felt nervous about the idea of being in the sky” and that if she stayed in Sydney she would “see dad more”, “not spend money on travel” and “miss some people in her family, like [her paternal grandfather] and Nan [her paternal grandmother] and cousins from dad’s side of the family who live in Sydney”. Y also discussed the idea of moving to Melbourne and reflected on previous occasions of seeing her family members in Melbourne which was “fun”. She also reflected on the fact that her family members in Melbourne were at times “more strict”.
Y told Ms L that she did not want to move schools or move from her friends. Interestingly, Ms L reported Y saying during the interview that “it is not fair if we have to go to Melbourne and not see Dad anymore”.
Ms L believes that Y has expressed views consistent with her growing emotional needs and current attachments.
X is the eldest of the three children. Similar to the other children Ms L observed X to be “neatly groomed, well cared for, physically active and healthy child. X impressed as a conscientious and thoughtful child, who seems naturally reserved and sensitive to the needs of others”.
X was in Year 3 at the time of final hearing and also attended Suburb A Public School. At present X feels that the time she spends with her father is not enough and that she would like to spend “a bit more time every second weekend”.
The family report writer observed X to be the most sensitive about her parents’ ongoing conflict. Ms L invited X to write a message to the Court about what she thinks about moving to Melbourne. X requested the following message to be conveyed on her behalf:
“… I have lived here [Sydney] for all my life, but I can’t decide where I want to live because both are good. Some of my family – on Dad’s side – are here in Sydney. I have lots of cousins but not so many aunties in Melbourne; and Dad’s grandmother is in Sydney [Poppa and Nana]. She lives with my cousin …”
X’s views appear to be developmentally appropriate as she holds conflicted loyalties and is unable to hold two opposing feelings comfortably or as Ms L states “see shades of grey”. Despite this X has a sophisticated level of maturity that allows her to have a positive relationship with both parents.
Parenting
Relevant Legal Principles
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of the proceedings.
The children’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.[3]
[3] Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]; The Full Court in Goode v Goode[3] mandated that the legislative pathway must be followed in all parenting cases. The High Court in MRR v GR [2010] HCA 4 affirmed the legislative pathway
In Starr & Duggan[4] the Full Court stated that the legislation does not mandate consideration of the relevant sections in any particular order. The Full Court in McCall & Clark[5] also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be dual consideration of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.[6] Consideration does not mean discussion.[7]
[4] [2009] FamCAFC 115 at [38] per Boland, Thackray & Watts JJ
[5] [2009] FamCAFC 92
[6] See discussion in Starr & Duggan [2009] FamCAFC 115 at [35]-[36]
[7] Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents.
High Court held in MRR v GR[8] that s 65DAA(1) “is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent”. The Court held further that s 65DAA(1)(b) “requires a practical assessment of whether equal time parenting is feasible”.
[8] (2010) 240 CLR 461 at 467 [15].
The application of the statutory provisions in the context of relocation cases has been discussed by many authorities. The Full Court in Malcolm & Munro[9] approved what was said by Justice Boland in Morgan & Miles[10].
[9] (2011) FLC 93-460
[10] (2007) FLC 93-343, se in particular at [79-81]
In Sayer & Radcliffe and Anor[11] the Full Court discussed the approach to be taken when a parent is seeking to relocate as follows:
It is now well established principle that whilst some special requirements may apply, relocation cases are guided and judicial officers are bound by the same legislative pathways as other parenting cases under the Act. In other words relocation is not to be treated as a discrete issue in the making of parenting orders ... A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents … It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway. (citations omitted)
[11] [2012] FamCAFC 209 at [47]
In Heaton v Heaton[12] the Court held that what is required in relocation cases is for the Court to determine the children’s best interests by reference to the well-known “primary” and “additional” factors referred to in s 60CC in the light of the competing proposals of the parents.[13]
[12] (2012) 48 Fam LR 349 (“Heaton”) at [32].
[13] cited with approval in Boyle & Zahur& Anor (No.2) [2017] FamCAFC 263 at [34]
Decisions in respect of children’s best interests and decisions in parenting proceedings are discretionary, with such discretion to be exercised within the legislative framework. It is apposite to be reminded of what the High Court has said in respect of the Court’s discretion in this regard. CDJ v VAJ at 219 [151]; [152] per McHugh, Gummow and Callinan JJ :
parenting cases which “necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof”:[14]
The evidence in [parenting] cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.[15]
[14]CDJ v VAJ (1998) 197 CLR 172 at 219 [151]; [152] per McHugh, Gummow and Callinan JJ.
[15] Cited with approval in Boyle v Zahur & Anor (No.2) [2017] FamCAFC 263 at [11]
Furthermore, the High Court[16] has stated, being a reminder of the discretionary nature of parenting decisions, that[17]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (references omitted)
[16] Bondelmonte v Bondelmonte [2017] HCA 8 at [32]
[17] These were obiter comments in the context of an appeal with considerations different to the present case
Parenting cases are always difficult. Determining where children are to live in circumstances where the parents propose to live significant distances apart, is even more difficult. This was one of those difficult cases, and ultimately one which was made all the more difficult because of the children’s ties to the mother and the mother’s strong wish to relocate.
Court’s Determination
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the interests of the child for the child’s parents to have equal shared parental responsibility for the child.[18] The presumption applies in the circumstances of these proceedings.
[18] Family Law Act 1975 (Cth), s61DA
Both parties sought an order for equal shared parental responsibility. Such an order would require the parties to consult each other about major long term issues and make a genuine effort to reach agreement about those issues. While the parties have had some difficulties in communication, the evidence overall supports an order for equal shared parental responsibility. It is therefore appropriate to make such an order.
The making of an order for equal shared parental responsibility triggers the operation of s65DAA, that is, the Court must consider equal time or significant and substantial time in certain circumstances.
The children all have meaningful relationships with each of the parents. The children’s relationship with the father has been somewhat damaged by the father’s historical alcohol abuse and lack of involvement. However, it is nonetheless a meaningful relationship which the children benefit from.
The mother has been the children’s primary carer, and according to Ms L, is the children’s key security figure. For the children to spend significant time away from the mother, such as primarily living with the father, would mean a significant adjustment for them, and is according to Ms L’s expert opinion, not in their best interest.
The mother did not make any allegation of ongoing or current family violence. Her evidence as to historical allegations was limited. The family report contained much hearsay; matters which the mother did not address in her evidence in chief and matters which the father was not cross-examined about, therefore being of limited, if any weight. The mother says “There was no violence in the relationship.”[19] There was no evidence of child abuse. The mother did not submit to this Court that the father posed any risks to the children arising from the allegations of family violence.
[19] Affidavit of Ms Faber filed 14 June 2019.
The father has admitted that he drank to excess during the parties’ relationship and that he was an alcoholic. The father has been abstinent from alcohol for over 2 years. The mother accepts that the father is capable of changing and has adopted a different lifestyle now which does not include alcohol abuse.
The mother herself drank to excess during the parties’ relationship. She no longer does so. The Court accepts her evidence that she was a problem drinker during periods of time while the parties were together but that she is no longer so. The court accepts the mother’s evidence that she has altered her lifestyle and is free of abusive levels of alcohol.
The parties’ relationship was marred by alcohol fuelled arguments.
The mother has a strong dislike for the father and the paternal family. She has felt unsupported by the father during their relationship. Her material is replete with disrespectful remarks about the father. Her oral evidence was even more so, including against the paternal family. Her apparent descriptions to the family consultant, not otherwise the subject of any evidence, paint a picture of a woman victimised. Such a picture has not been established on the balance of probabilities. The Court finds that while the paternal grandparents were likely intimately involved in the parties’ daily lives during periods of time when the parties lived with them and perhaps remained highly involved thereafter, that the differences in approach were to a large extent cultural. The father’s family appears to be old-world, conservative, unsophisticated and patriarchal. The father is their only child. It is of little surprise that the mother described the father as their “little princeling” to the family consultant. The mother’s subjective reactions may well be understandable.
It is also of significance that the mother seems unable to come to terms with the fact that the father and his family have left the Catholic Church and are now members of a different church, she is scathing about this.
The mother asserts that the father is irresponsible and unreliable, and that he has no understanding of Z’s special needs. The mother’s assertions have not been established on the evidence. The Court finds that the father does have an adequate and appropriate understanding of Z’s medical and other special needs, and that he is able to meet those needs. The Court also finds that the father is a sufficiently capable parent who is able to meet all of the children’s needs. There is no evidence that the children have been placed at risk while in the father’s care post separation.
While the father has not been the most involved parent, particularly in respect of attending appointments for Z, this is not because he was disinterested. Rather, the father believes that the mother is a capable parent who is able to make appropriate decisions, and that he trusts her implicitly in respect of appropriate medical and allied health care arrangements which have been put in place for Z to date. In addition, the mother has not been very accommodating in making or attempting to make appointments which would suit the father’s work schedule or in consultation with him. There is of course, in the father’s lack of involvement, an element of what the mother asserts – namely, that he does things to suit himself and make his own life easier.
The maternal family also have a very low view of the father and his parents. The mother’s sister and mother both gave evidence. They were very critical of the father and his lack of parenting capacity and they were critical of the father’s parents. The maternal grandmother when asked about the help and support which the paternal family could offer gave evidence that when you have been “damaged by your in-laws” it’s difficult to pick up. The maternal grandmother has told the mother that her support is in Melbourne and that it would be better for the children if she lived in Melbourne. The maternal aunt’s evidence was just as negative regarding the father. Her belief was that the father does not play a parenting role at all.
The mother is adamant that she wants to move to Melbourne. She described in her oral evidence what she believes is a strong support network which exists for her there, made up of her family and her high school friends. The mother has not lived in Melbourne for over 13 years. She visits Melbourne with the children on a regular basis. She has some friends in Sydney, although except for one cousin, no other family. She is able to rely on her cousin for assistance when required. The mother believes that she will be much happier if she is permitted to relocate to Melbourne with the children. Ms L notes that there is a high level of anxiety in the mother, and that her commitments to the children, particularly raising a child with disability, have been much stronger than those of the father.
The mother has to date been a much more involved and proactive parent than the father. While the reality of the father’s life is that he is in full-time employment, he has to balance this against meeting the needs of the children. It is a balancing act familiar to all working parents. Being separated and having a child with special needs makes this balancing act even harder.
The children have always lived in Sydney. Both girls have strong friendship groups and enjoy the activities which they are engaged in. Z’s treaters are all in Sydney, although similar support would be available to him in Melbourne. All three children spend regular time with the father and the paternal grandparents. They have strong and loving attachments to the paternal family, including the father’s extended family. The two older children are not keen on a move to Melbourne, although one of the girls is more ambivalent about it than the other.
Even as early as April 2019, the mother had started looking at schools for the children in Melbourne with a view to moving there at the conclusion of the 2019 school year, in time for the children to be settled and commence the new 2020 school year in Melbourne. The final hearing dates in December 2019 were given on 21 June 2019. She had considered areas where she proposed to live, and had somewhat turned her mind to how much it would cost her to live in Melbourne. The mother’s proposal for the cost of travel would see the parties having to pay approximately $8000 in travel costs without taking into consideration the proposed travel by car. The evidence does not show that the parties have the financial capacity to meet the costs of such travel, although the mother has indicated that she will do what it takes.
Z has been accepted in a school which caters for children with special needs in Sydney. The two older children already attend a local primary school where they have been enrolled since kindergarten.
It was agreed that the time to travel, door to door, would be more than 5 hours by aeroplane. Travel by car is approximately twice that. The mother was of the view that despite Z’s special needs, frequent travel to and from Melbourne whether by air or road would not have any detrimental effect on him.
The father does not propose to move to Melbourne if the mother and the children are permitted to relocate. He says that his parents, his support network and his employment are all in Sydney.
Frequent interstate travel is taxing. To sit in a car for 8-10 hours is difficult. To travel by plane with all of the additional travel and preparation and waiting is also difficult. If it is regular and for children who are soon to be teenagers, it will become more tiresome as time goes on. The children, if they were to live in Melbourne, would over time establish their new lives there. They would have friends and extra-curricular activities. There would be family functions, parties and other things to attend to which make up daily life. If the children were to live in Melbourne it would mean that their father would not be able to be involved in these regular and normal day to day events. It would mean that they would not get the benefit of having their father take them to Saturday morning sport, or after school activities, it would mean they would not get the benefit of having the regular interaction with their father such as receiving help with homework or chatting about their day at school on the way home. It would mean a significant lack of ability to have their father involved in their lives. This would be a substantial loss to the children. Living in Melbourne would also mean the loss of the paternal grandparents in the manner they have been involved to date. Staying in Sydney would see the children maintain their relationships with the maternal family as they have to date.
The mother does not support the children’s relationship with the father. The mother does not believe that the children have a meaningful relationship with the father. Her evidence is that they have “a form of relationship.” The mother’s belief is that the children have never had a meaningful relationship with the father. The mother “can’t cope with having the [paternal grandparents] … involved” with the children.
If the mother and the children were to relocate to Melbourne, it is highly likely that the mother would not promote any relationship between the children and the father. Despite her suggestion that she would do whatever it took to ensure that the cost of travel could be met, her dislike of the father and his family is so palpable that she would likely not make any effort to support the children’s relationship where the children might for example display some resistance at travelling to Sydney to spend time with the father.
This then begs the question of what might happen if the mother was not permitted to relocate with the children to Melbourne? She would no doubt blame the father for any unhappiness which such a loss might bring. She has already indicated that she does not “want to lose time with my children if I stay in Sydney”, that is, she sees the children spending time with the father as an imposition on her time and relationship with the children.
It will no doubt be difficult for the children if they are to stay in Sydney to deal with the mother who will be gravely disappointed at not being permitted to relocate with the children to Melbourne. She is their primary carer and her health and wellbeing are very important, but not at the expense of the children’s relationship with the father. Ms L has given evidence that in circumstances where the mother was not permitted to relocate, if the mother was assisted by professional interventions this would help her adjust and help her to become more child focused.
Ms L was also of the opinion that the opportunity for the children to repair[20] and maintain their relationship with the father would help them long-term.
[20] The evidence suggests that the girls’ relationship with the father, had at times been negatively affected by his drinking and/or absenteeism.
On balance, the Court finds that if these children were permitted to relocate to Melbourne, they would not be provided with the opportunity of having a meaningful relationship with the father. In this parenting situation, the children would more than likely slowly drift away from the father if distance became a significant factor. Their relationship with the father is more important than the mother’s relationship with her family.
The recommendations of the family consultant are that if they remain in Sydney the children spend time with the father each alternate weekend and during afternoons in the alternate week. The family consultant opined that if the level of mistrust is very high by the mother, then time with the father should be less. The basis for such an opinion was not explained[21], nor was the basis for the opinion that if the parents are not on the same page about Z then there should be less time with Z and perhaps more time with the girls. Presumably it was to alleviate any potential risk of harm to Z.
[21] Or established
As already noted, there is no evidence that the father is not able to meet Z’s needs but even more so, there is no evidence that he has ever placed Z at risk as a result of not being able to meet his needs. Z will be attending school, he will have different teachers and carers look after his needs, he already has an extended family who helps look after him. Z has a support network of health and allied health professionals who the parents are engaged with, albeit the mother much more so than the father.
If the children start spending time with the father which is longer than what has been occurring pursuant to the interim orders, this will provide the mother with some more down time and respite. It will allow the father to show that he is responsible and capable and to start to re-earn the mother’s trust. It will allow the parties the opportunity of learning to co-parent which will only be to the children’s benefit.
The children will benefit from spending regular weekly time with the father, while retaining their primary attachment with the mother. While as noted earlier, the mother will no doubt be disappointed that she and the children will not be relocating to Melbourne, the mother has the capacity, particularly with professional assistance, to continue to provide for the needs of the children even if her needs takes second place to those of the children.
In respect of the short school holidays, the Independent Children’s Lawyer proposes that if the father is not able to take leave, then the children should essentially remain with the mother, except for the first weekend of such holidays. Such an order would ensure that not only the father be available personally, but if not so, then it would give the mother more flexibility of spending longer periods of time with her extended family in Melbourne (if she chooses).
Property Adjustment Proceedings
The property aspect of these proceedings required little hearing time.
The father asserted that the net proceeds from the sale of the former matrimonial home, currently held on trust, ought to be disbursed 50% to the father and 50% to the mother. The father also sought that each of the parties should thereafter retain all assets including superannuation and liabilities which are in their sole names.
Conversely, the mother asserted that the net proceeds ought to be disbursed 100% to her and that a base amount of $96,222 be allocated to her from the father’s interest in his Super Fund C.
Relevant Legal Principles
The overall approach to the determination of an application for property adjustment orders pursuant to s.79 Family Law Act 1975 (Cth) was set out by the High Court in Stanford v Stanford.[22] Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan[23], Chapman & Chapman[24] and Scott & Danton[25].
[22] [2012] HCA 52; (2012) 247 CLR 108
[23] [2014] FamCAFC 19
[24] [2014] FamCAFC 91
[25] [2014] FamCAFC 203
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.79(4)(a) to (c), the matters set out in s.79(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[26]
[26] see generally Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120
The just and equitable requirement is “one permeating the entire process”[27].
[27] Bevan supra at [86]
The Pool
The Court determines that the pool consists of the following:
Assets:
Description
Ownership
Value
Sale proceeds
Joint
$49,930
Motor Vehicle 2
Father
$19,000
Westpac Savings (account number ending ..67)
Joint
$0
Westpac Savings
(account number ending ..91)
Father
$0
NAB Savings (account number ending ..19)
Father
$200
Westpac Savings
Mother
$3
Motor Vehicle 3
Mother
$21,995
TOTAL
$91,128
Superannuation:
Name of Fund
Member
Value
Super Fund C
Father
$110,269
Super Fund O
Mother
$36,137
TOTAL
$146,406
NET TOTAL ASSETS
$237, 534
Determination of Adjustment
The pool is very modest, and made up largely of superannuation.
The parties’ contributions are assessed as equal.
The father is employed and the evidence is that he will continue to be employed. The mother will remain the children’s primary carer. She has qualifications which could see her return to employment. The three children are all school age children.
The parties are of similar age, except that the mother is few years older that the father. There are no medical issues for either party which might impact upon their capacity to earn an income.
It is appropriate for there to be an adjustment in the mother’s favour for s75(2) factor, such an adjustment being 10%. This will create a significant differential between the parties.
As such, the mother is to receive 60% of the net pool, namely $142,520 and the father 40%, namely $95,014. It is appropriate, given that the father is employed and lives in rental accommodation with his parents, that the entirety of the net sale proceeds go to the mother, who has more of an immediate need for such funds.
Therefore, the split is to be as follows:
To the mother:
Description
Value
Sale proceeds
$49,930
Savings
$3
Motor Vehicle 3
$21,995
Super Fund O
$36,137
Super Fund C
$34,455
TOTAL
$142,520
To the father:
Description
Value
Motor Vehicle 2
$19,000
Savings
$200
Super Fund C
$75,814
TOTAL
$95,014
In all of the circumstances, the proposed orders are just and equitable.
Conclusion
For all of those reasons orders as set out at the forefront will be made.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 14 May 2020
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