FIRENTES & TEUNG
[2014] FamCA 1046
•25 November 2014
FAMILY COURT OF AUSTRALIA
| FIRENTES & TEUNG | [2014] FamCA 1046 |
| FAMILY LAW – CHILDREN – With whom a child lives – where competing residence applications – where each parent wants sole parental responsibility and child to spend time with the other parent – where in circumstances of separation mother left child in care of father – where significant conflict in parent’s relationship – where significant reservations as to father’s ability to promote the child’s relationship with the mother – where it is in the child’s best interests to live with the mother. FAMILY LAW – PROPERTY – where it is just and equitable to make an order – where father had significant assets prior to relationship – where mother brought no assets to relationship – where father is significantly older than mother – where mother purchased a property after separation – where mother made modest contributions – where consideration of relevant s 75(2) factors. FAMILY LAW – COSTS – Independent Children’s Lawyer – seeks costs against both parties – each party to pay half of the costs. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 75, 79, 117 |
| Bevan& Bevan [2014] FamCAFC 19 Chapman & Chapman [2014] FamCAFC 91 De Roma & De Roma (2013) FamCA 566 Dickons & Dickons [2012] FamCAFC 154 Gahen & Gahen (No. 2) [2013] FamCA 936 Goode and Goode (2006) FLC 93-286. LAC & TRF & LKL (2005) FamCA 158 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 MRR v GRR (2010) 240 CLR 461 Norbis v Norbis (1986) 161 CLR 513 PJ & NW (2005) FamCA 162 Russell & Russell (1999) FLC 92-877 Scott and Danton (2014) FamCAFC 203 Stanford v Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120 |
| APPLICANT: | Mr Firentes |
| RESPONDENT: | Ms Teung |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta |
| FILE NUMBER: | PAC | 3617 | of | 2010 |
| DATE DELIVERED: | 25 November 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 23, 24, 25 July and 6 August 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Snelling |
| SOLICITOR FOR THE APPLICANT: | Victor Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Gardiner |
| SOLICITOR FOR THE RESPONDENT: | Gonzalez & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Shearman |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta |
Orders
Parenting:
That the mother and father have equal shared parental responsibility for the child B born … 2008.
That the child live with the mother.
That the child spend time with the father as follows:
(a) during school terms each alternate weekend from 12 noon Saturday until before school Monday commencing on the second weekend following the making of final orders and recommencing on the first weekend of each school term provided always that in the event that the father obtains other employment that permits him to be available to have the child substantially in his care then such weekends shall be from after school Friday to before school Monday.
(b) during school terms on one additional occasion each calendar month from 10:00am Sunday until before school Monday on a weekend to be agreed and in default of agreement on the first weekend of the calendar month when the child would not otherwise be spending time with the father provided always that in the event that the father’s weekend time with the child is from after school Friday to before school Monday as provided for above, this order shall be suspended.
(c) during Term 1, 2 and 3 school holiday periods from after-school on the last day of term until 12 noon on the middle Saturday of the holiday period.
(d) during the Term 4 school holiday period in 2014 and each alternate year thereafter from 3:00pm on Christmas day until 5:00pm on 12 January.
(e) during the Term 4 school holiday period in 2016 and each alternate year thereafter, from 3:00pm on 8 January until 5:00pm on 26 January.
(f) on the Father’s Day weekend from 12 noon Saturday until before school Monday.
(g) in 2015 and each alternate year thereafter from 3:00pm on Christmas Eve until 3:00pm on Christmas Day.
(h) on the child’s birthday if the child is not otherwise spending time with the father, from after school until 6:00pm if the birthday falls on a school day or from 10:00am until 2:00pm if the birthday falls on a non-school day.
(i) at such other times as may be agreed between the parents in writing.
That notwithstanding any other order, the child is to spend time with the mother from 12 noon on the Saturday before Mother’s Day until before school on Monday, on the child’s birthday from after-school until 6:00pm if the birthday falls on a school day or from 10:00am until 2:00pm if the birthday falls on a non-school day, if the child is not otherwise spending time with the mother, and from 9:00am until 5:00pm on the day the Chinese New Year celebrated each year.
That for the purposes of changeover the father or his agent shall collect the child from school if a school day or from the mother or her agent at the Y Westfield shopping centre if a non-school day and return the child to school if a school day or to the mother or her agent at the Y Westfield shopping centre if a non-school day at the conclusion of the child’s visits with the father.
That each parent have telephone communication with the child on Mondays, Wednesdays and Fridays between 7:00pm and 7:30pm when he is in the care of the other parent.
That each parent be restrained from denigrating the other parent or any member of their extended family or household in the hearing or presence of the child and shall not allow any other person to do so.
That each parent keep the other parent informed as to their residential address and telephone number both landline and mobile, and notify the other parent of any change to these details within 48 hours of such change occurring.
That each parent ensure the other parent is advised as soon as is reasonably practicable of any medical emergency or significant illness injury suffered by the child during periods of time that the child is in the care.
That each parent be at liberty to contact the child’s school to obtain information in relation to the child’s progress and to obtain copies of documents ordinarily made available to parents including but not limited to copies of school reports, newsletters and school photograph order forms.
That each parent shall be at liberty to attend the child’s school for the purposes of parent teacher interviews, presentation nights, school performances and concerts or any other academic, cultural or sporting events to which parents are ordinarily invited whether the child is in the care of that parent at the time of the event or not.
That the parents continue to attend upon the Unifam “Keeping Contact” program as to until such time as the program coordinator advises that their attendance is no longer required and shall accept and follow through with any referrals or recommendations made by the program coordinator.
Property:
That within 42 days from the date of these orders the father pay to the mother the sum of $171,859.
That in default of payment by the due date interest will accrue on the sum provided for in Order 13 or such part of that sum as may be underpaid from time to time as provided for in the Family Law Rules.
Liberty to either party to apply as to implementation or enforcement of these orders.
Independent Children’s Lawyer’s Costs:
That within 14 days from the date of these orders the father and mother each pay to Legal Aid NSW the sum of $4,973 in respect to the Independent Children’s Lawyers costs in these proceedings.
Liberty to apply as to enforcement of this Order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Firentes & Teung has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3617 of 2010
| Mr Firentes |
Applicant
And
| Ms Teung |
Respondent
REASONS FOR JUDGMENT
The issues for determination in the present proceedings between the applicant father and the respondent mother are twofold:
a)The appropriate parenting arrangements for the subject child B (“the child”) born in 2008; and
b)Property adjustment under section 79 of the Family Law Act 1975 (Cth) (“the Act”).
Proceedings were commenced by the father filing his application on 29 October 2012.
At trial the father relied upon his further amended initiating application filed on 16 July 2014. In that application he sought in summary the following parenting orders:
a)That the child live with the father and spend time with the mother;
b)That the father have sole parental responsibility for the child including sole responsibility in relation to the child’s passport;
c)That the child spend time with the mother every second weekend from after school Friday until before school Monday that for the purposes of the child’s time with the mother the mother pick up the child from school on Friday and return the child to school on Monday;
d)That the child spend time with the mother for the first week of the school holidays in the holidays following terms 1,2 and 3 and for the last week of the Christmas school holiday period being the week before school resumes;
e)That each party notify the other by email as soon as practicable of any serious accident or illness affecting the child whilst the child is in his or her care;
f)That the mother or her agents and servants be restrained from uploading any images or photographs of the child on Facebook or on the Internet.
The father otherwise sought in summary the following orders as to property adjustment:
a)That within 28 days the father pay to the mother the sum of $10,000;
b)That otherwise each of the parties be declared the owner of all items of property including but not limited to motor vehicles, shares and furniture, personalty including but not limited to money, jewellery, and personal effects presently standing in their name or in their respective possession and control including any superannuation, annuity or pension benefits to which they may be entitled.
The mother at trial relied upon her amended minutes of orders sought (Exh Q) and in summary sought the following orders as to parenting:
a)That the mother have sole parental responsibility for the child;
b)That the child live with the mother;
c)That the child spend time with the father during school term each alternate weekend from 1:00pm Saturday until the commencement of school the following Monday, for one half of each Christmas school holiday period, for one half of the April, July and September school holiday periods, from 12:00pm Christmas Eve until 12:00pm Christmas Day commencing 2015 and each odd numbered year thereafter and from 12:00pm Christmas Day until 12:00pm Boxing Day commencing 2014 and each even numbered year thereafter and for such further or other time as agreed between the parties provided always that the father is personally able to care for the child at times when the child is to spend time with him;
d)Specific orders in relation to Father’s Day and Mother’s Day and the child’s birthday;
e)That changeovers occur at the Y Westfield shopping centre;
f)That the child have telephone contact with the father three times per week between 7:30pm and 8:00pm when the child is living with the mother or spending time with the father;
g)That the parties be restrained from denigrating or permitting any other person to denigrate the other or any member of the others household in the presence or hearing of the child;
h)That each party ensure the other is advised promptly of any medical emergency or significant illness suffered by the child including providing sufficient details to enable both parties to be consulted in relation to such illness or condition or treatment and to visit the child;
i)That both parties be listed as enrolling parents and emergency contacts at the child’s school and extracurricular activities;
j)That the child’s school or other care providers are authorised to provide all information and documents about the child to both parents;
k)That either parent be at liberty to attend any significant school events and any significant extracurricular or sporting events;
l)That both parents be restrained from enrolling or committing the child to any activity during the time the child is to spend with the other without first obtaining the others consented to such activity;
m)That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and advise the other as to any change their to within 24 hours of such change;
n)Orders providing for interstate and overseas travel.
As to property adjustment the mother sought in summary the following orders:
a)That within 42 days the father pay to the wife the sum of $100,000;
b)That the father and mother each be declared the owner at law and equity of all items of property including but not limited to motor vehicles, shares, furniture, personalty including but not limited to money, jewellery and personal effects presently standing in their name or their respective possession and control including superannuation entitlements, annuity entitlements and pension benefits if any.
The Relationship
The father is 56 years of age. The mother is 29 years of age.
The father first married in 1992 and there are two children of that marriage, F, born in 1993 and G, born in 1994. Regrettably in 2005 the father’s first wife passed away.
In 1997 the husband had purchased two properties, one at Suburb W in the northern suburbs of Sydney and the other at Suburb T in the western suburbs of Sydney.
The father and mother, having first met in about April 2006, married in late 2006 after the mother had travelled from China to Australia on a prospective spousal visa sponsored by the father in October 2006.
The parties then cohabited in the father’s home at Suburb W with the father’s sons from his previous marriage. There is an issue between the parties as to the mother’s role within the father’s household during the period of cohabitation. The mother asserts that the majority of the homemaking and domestic tasks including those tasks relating to the children F and G fell to her. The mother says that she took the boys F and G to their activities when the father was unavailable.
The mother further says that from her arrival in Australia until separation she assisted the father in his contract cleaning job. She says she worked on Fridays and on weekends totalling about 8 to 16 hours per week. She was not paid to this work but the father received remuneration pursuant to his contract.
The mother with the father’s encouragement enrolled at TAFE in 2007 to better her later opportunities for employment. The mother enrolled at Y TAFE part time three evenings per week and at N TAFE three to four days per week, attending at various hours as required.
She did not work during 2007 except in assisting the father in his contract cleaning business.
In December 2007 the mother worked as a Christmas casual at Store X until February 2008 and then as a casual sales assistant at Store K and then as an intern with her present employer S Company until separation. The maternal grandmother assisted the mother with the care of the child so as to facilitate the mother attending TAFE and working on a casual basis.
The father in the first six months of the cohabitation was working from about 6:00 am until 3:00 pm and in the afternoons then went to his cleaning job, returning home for dinner with the family. The mother says that it fell to her to attend to most of the day-to-day chores in the home including those in relation to the father’s children F and G.
The mother complains about the father’s behaviour during the relationship, alleging that he was verbally abusive and controlling. Yet she made no complaint to the police or to her doctor in relation to the father’s behaviour.
The subject child B was born in 2008. The child is presently aged six, in Year 1 at H School and it appears that he is progressing well with his studies. The child attends after school care, being picked up variously by the father’s sister, the older children, the mother or a carer organised by the father. The father’s sister then cares for the child from about 5:00 pm each day since the child started school.
The day following the birth of the child the maternal grandmother arrived in Australia to live with the parties until February 2009.
In July 2009 the child commenced attending a childcare centre five days a week. This facilitated the mother enrolling in a diploma course at N TAFE. The mother or the maternal grandmother, who was here for about eight months, would drop the child to childcare in the morning and collect him from childcare in the afternoons on the days or part she was required to attend.
The mother would also assist the father in his cleaning contract on some afternoons, with the child being cared for by his half-brothers or the father’s sister, aunt L.
The father makes no concession that the mother made any contribution within their household or financially.
Separation
On 25 January 2009, about seven months after the birth of the child the father asserts that they separated when the mother left the matrimonial home with the maternal grandmother, leaving the child in the care of the father.
The circumstances of the parties’ separation appear to be somewhat unclear. In February 2009 the mother commenced to receive Centrelink benefits, the inference being that at or shortly prior to that time she had represented to Centrelink that she was no longer living in the home. The father conceded in oral evidence that about this time he had been asked to resign from his employment as a manager as a consequence of dishonesty allegations levelled against him. The father denied that he had told the mother to make an application for Centrelink benefits as a single parent, but he did acknowledge that she did make that application in February 2009. The father acknowledged that he could offer no evidence or provide any documents in relation to the mother’s circumstances from February 2009 to June 2010 that would support his contention that they were in fact living separately and apart. Indeed he acknowledged that he paid for her TAFE fees and university fees after the date that he asserts separation, with those fee invoices in mid-2009 addressed to the mother at his Suburb W home.
In June 2010 the father sent to the mother emails (Exh P and T) clearly relating to the parties’ separation at that time.
On 15 June 2010 the father attended on the Y Hospital Child and Family Health Services in relation to the child. He represented to the service that the mother had walked out on himself and the child “the day after …”, that is 3 June 2010. The father’s representation to the service is consistent with the mother’s evidence and completely inconsistent with his own assertion as to separation.
On 8 June 2010 the father attended upon the Y Medical Centre in relation to the child and was seen by a Dr M. The Centre’s notes record “biological mother left him ... Dad is managing with help of his own family.” There is no earlier reference to the separation of the parties going back to 2 February 2009 in the Centre’s notes. Once again the father’s representation to Dr M is consistent with the mother’s evidence and completely inconsistent with his own assertion as to separation.
Centrelink was provided with the aunt’s address as that of the father to evidence for the purposes of the application for benefits the alleged separation. The real arrangement came out in oral evidence. The father having lost his job in February 2009 and not working again until October 2009 was on Job Search unemployment benefits during that period as a single man at the rate of $280 per week. His mortgage payments he says were $800 per week for both properties.
A scheme was devised by the father where the mother went on a supporting parents benefit as though the parties were separated to assist with mortgage payments while the husband was unemployed. Funds received were then used to meet mortgage and other living expenses. The father drove the mother to the Centrelink office and told her what to say.
The father in cross-examination when asked was the mother primarily responsible for the child’s care until April 2009 responded “probably”. Then when asked if she was still responsible for the child’s care until June 2010 he replied “yes”. Once again this concession is consistent with the mother’s evidence as to separation.
The mother asserts that the parties separated on a final basis in early June 2010 when she moved out of the home at Suburb W to a studio unit at Suburb Y, about ten minutes from the child’s childcare centre. She says at that time the child was about two years of age.
The father has sought to mislead the court in these proceedings as to the parties’ separation. The mother’s account of separation is accepted.
Otherwise the court has had the opportunity of hearing the oral evidence of both parties. The father’s evidence was often self-serving, unresponsive, vague and uncertain. The mother on the other hand was clear, concise and made appropriate concessions. Where there is a conflict between the evidence of the father and mother except where the father’s evidence is objectively corroborated then the court accepts the evidence of the mother.
The mother explains that she left the child with the father as he asked her not to take him. She felt sorry for him and his sister L, who had a cancer scare and who had a close bond with the child. The mother said she had lost her self-esteem due to the father’s abuse during the marriage, that she felt unclean and that she did not know what it would be like to be on her own and did not want the child to suffer. If she had known what help in terms of refuge and Legal Aid was available to her she would have taken the child with her.
The mother says that thereafter at first she would pick up the child several afternoons a week from childcare at about 5:00pm and took the child to the father’s home till about 7:00pm then left. Her lease at that time did not permit the child to stay with her at her home.
After moving in August 2010 she picked up the child from childcare and took him to her home and the father’s sister would then collect the child from her. On the weekends she collected the child from the father to spend time with him.
The parties were divorced on 6 September 2010 with their joint divorce application asserting separation on 25 January 2009. A false assertion.
In July 2010 the father asked for the car that he had previously made available for the mother’s use to be returned to him (Exh V). The mother was unable to afford to purchase another car and later moved to another home unit in the Suburb Y area which was closer to the child’s childcare so she can walk there and back.
This arrangement she says continued until about May 2011. The mother also during this period had the child on weekends usually for about five hours on a Saturday or Sunday, although this time was sporadic and subject to the father’s agreement.
In May 2011 the mother moved to a larger two bedroom home unit in Suburb Y. This afforded a separate bedroom for the child to facilitate him staying overnight with her. From about June 2011 onwards the mother’s weekend time with the child was more regular. She had the child from about 12 noon to 5:00pm on many Saturdays and Sundays in addition to her time with the child after childcare on weekdays.
The child is an Australian citizen and holds an Australian passport.
On 8 April 2011 the father travelled to Country D in Southeast Asia and remarried. His present wife and the child born to the father and his present wife in 2013 remain in Country D as the father is unable to obtain appropriate visas for them to enter Australia. The father asserts that these visa difficulties can be overcome upon his new wife confirming the child is his by DNA test. His new wife, he says, refuses to do so.
The father travelled overseas with the child for about one month for the wedding in April 2011, without the mother’s consent, and with no regard to her relationship with the child.
In December 2011 the father again travelled overseas to China with the child for about six weeks. The mother requested that the child remain in Australia with her but the father refused. The father failed to give to the mother any contact details so as to facilitate her communication with the child whilst the child was overseas.
The mother holds ongoing concerns in relation to the father’s overseas travel with the child, particularly having regard to his remarriage in Southeast Asia and there being a child of that marriage.
The mother says her time with the child was restricted as the father would not permit the child to stay with her continuously for more than about eight hours. As a result the child only stayed with her overnight on a handful of occasions.
However the mother has placed her own interests over those of the child, particularly in terms of her ongoing studies. Yet the mother had no security in terms of assets or qualifications that would allow her to assume a greater role in the child’s life for a period after separation in mid-2010. She was assiduous in gaining qualifications such that she could offer the child something better.
Until August 2012 the child was enrolled in the AA childcare centre five days per week. This facilitated the mother being able to spend time with the child through four afternoons per week as referred to above.
However in August 2012 the father unilaterally removed the child from that childcare centre and placed him in a childcare centre in the Suburb V area closer to where his sister L works. This change was not discussed with the mother, and the father knew it precluded the mother being able to spend any time with the child mid-week. It was a deliberate act on his part to disrupt the child’s relationship with the mother. The father’s sister was complicit in the new arrangement, conceding she did not tell the mother as it “was not my decision” and “the child did not want to be with her”.
The father’s unwillingness to promote the child’s relationship with the mother is further evidenced by the fact that he has no photos of the mother in his home and refers to her by her first name to the child. He allows the child to refer to the aunt as “mum”.
The father would drop the child off to day care early in the morning and then the child would be collected by the father’s sister or one of the child’s half-brothers in the afternoons. The brother and the father’s sister would then care for the child until the father returned from employment.
Subsequent to separation the mother complains that the father had prevented the child spending overnight time with her. He acknowledged that from mid-2010 to mid-2012 he did not facilitate the child having any overnight time with the mother and that this was a “bit tough” on the child. He asserted that the mother had only a “bit involvement” in the child’s life and that she never asked for overnight time.
The parties attended mediation in mid-2012 and the parties agreed that the child would continue to live with the father and the child would spend time with the mother from 11:00 am Saturday to 11:00 am Sunday each week for a three month trial period. Following mediation, their signed agreement inadvertently referred to the commencement of the mother’s time with the child to be from Saturday 9 June 2013 instead of 9 June 2012. The mother says that as a consequence of this error, the father has on occasions refused to facilitate overnight time with the mother.
The mother further complains that notwithstanding the terms of the mediation agreement that the father and his sister have not facilitated the child spending time with the mother on about 25 per cent of the weekends that the child was to be with her.
By mid-October 2012 the father was obstructive in relation to the mother’s time with the child. The mother did not see the child in the period from 20 October until after she filed her Response on 22 November 2012.
On 25 February 2013 the mother and father formalised interim parenting arrangements pursuant to consent orders made on that day. Those orders provided in summary:
a)That the father and mother have equal shared parental responsibility for the child;
b)That the child live with the father when not residing with the mother;
c)That the child live with the mother during school term and holidays each Wednesday from after school or 3:00 pm until the commencement of school the following day Thursday or 9:00 am and each Friday from after school or 3:00 pm until 4:00 pm Saturday;
d)That both parties ensure that the child is always supervised by a responsible adult whilst the child is in that party’s care.
On 13 December 2013 further interim parenting orders were made the following a defended interim hearing (Firentes & Teung [2013] FamCA 974). The orders in summary provided:
a)That interim orders made on 25 February 2013 be discharged;
b)That the father and mother have equal shared parental responsibility for the child;
c)That the child live with the father when the child is not otherwise living with the mother;
d)That the child live with the mother during school term in a two-week cycle and in the first week of such cycle from after school Tuesday until before school Wednesday and then from after school Friday until 4:00 pm Saturday and in the second week of such cycle from after school Tuesday until the commencement of school Wednesday and from after school Friday until 4:00 pm Sunday;
e)That the child live with the mother for one half of the terms 1, 2 and 3 school holiday periods;
f)That the child live with the mother for defined periods during the 2013/2014 Christmas school holiday period;
g)That the child live with the mother at such other times as the parties may agree in writing;
h)That changeovers, where not at school, be facilitated by the father or his agent delivering the child to the mother’s residence at the commencement of the child’s time with the mother and collecting the child from the mother’s residence at the conclusion of the child’s time with the mother;
i)That at all times the father and mother ensure the child is supervised by a responsible adult;
j)That the mother and father be at liberty to attend on such occasions as are significant to the child’s welfare, schooling, sport, religious education and extracurricular activities where the attendance of either or both parents is to be reasonably expected.
The parties were otherwise ordered to enrol in and participate in the Unifam counselling and mediation services Keeping in Contact program. As a consequence of the orders the child has been spending five nights a fortnight with the mother during school term and half of the school holiday periods.
The father has a disparaging attitude to the mother, seeing her as having no strong bond with the child or any primary role in the child’s life and seeing her as interested only in the financial outcome of the proceedings, claiming that she had fraudulently claimed Centrelink benefits in relation to the child.
The father gives the mother no credit at all for any homemaking and parenting in the home during cohabitation, and nor does he acknowledge any role by the mother in the lives of his two older sons. He acknowledged that his position was that she did nothing. Yet he has failed to adduce evidence from his two adult sons who it is to be inferred would be able to give clear and precise evidence as to their engagement with the mother and her role within the home. It is to be inferred that in all probability the evidence of his sons would not assist the father’s position.
The father’s initial employment during cohabitation was manager of a business at Suburb Y. He worked six or seven days per week working mostly between 8:00 am and 5:00 pm Monday to Saturday. The business was about five or ten minutes from the home at Suburb W. He says that following the birth of the child he took the young baby to his sister’s home every day Monday to Saturday, notwithstanding that the maternal grandmother was living in the home to assist with the child.
The father thinks that it would not be a good idea for the mother to have any say in the child’s life in terms of parental responsibility as he continually argues with her. Yet he suggests that he would be happy to consult with her provided he had the final decision. Notwithstanding his assertions that the child is suffering and having difficulties at school as a consequence of time spent with the mother, the father concedes that there is no mention of any such difficulties in the child’s Semester 1 2014 school report.
When it was suggested to the father that the child loves the mother, the father prevaricated, suggesting that the child was only “okay” with the mother and did not love her.
The mother acknowledges the role that the father, the aunt and the older siblings have had in the child’s life. She asserts that the older siblings are now young men at university and working, with their own lives to lead. Yet the mother has concerns that she is constantly denigrated to the child by the father and his sister.
The mother has friends among the parents at the child’s school and the child enjoys time with his school friends during time with the mother. The mother is actively engaged with the child’s school and teachers. The child attends Sunday School with the mother and is learning martial arts and Chinese.
The Paternal Aunt: Ms L F
Ms L F, the child’s paternal aunt gives evidence in support of the father as to his assertion of the parties’ separation in January 2009.
She could offer no insight as to where the mother went in January 2009 at the time she asserts separation. She could recall email communications between herself and the mother in June 2010 (Exh L) that clearly refers to the parties’ separation at that time. She gave evidence as to the father moving between her home and his in 2009. That evidence is not supported by the father save in the parties’ false representation to Centrelink that he and the mother had separated.
The father’s sister’s assertion as to parties’ separation is rejected.
The paternal aunt asserts a significant involvement in the child’s life after birth and since the parties’ separation, particularly in caring for the child after childcare or school on occasions in the evening until the father rises in the morning so as to be able to take the child to firstly childcare and now school.
She says that she was at the father’s home for a “fair bit of time” but was working during the day and she would otherwise return to her home in the evenings. She had worked full time Monday to Friday until February 2013 as an executive assistant. She left home at about 7:00 am and did not return until about 6:00 pm. After the parties’ separation she assisted in collecting the child from childcare.
She asserts that the mother is not fond of the child and had no relationship with the child which is why she “stepped in”. This notwithstanding her concession that the mother breastfed the child for six months.
The aunt acknowledges the importance to the child of a relationship with the mother, yet when asked what time the child should spend with the mother responded that “the child does not want to go”.
She allows the child to call his mother by her first name. She is unsupportive of the mother-child relationship and unwilling to promote that relationship. She was unhelpful in relation to the child’s homework book, making it difficult for the mother to engage with the child in that regard. She failed to communicate with the mother in relation to what she perceived were issues in relation to the child’s health and behaviour. She does not have the mother’s phone number but concedes that she could communicate and cooperate with her for the good of the child.
The aunt works part-time three days per week 9:00 am to 5:00 pm in a Sydney business. It takes her 45 minutes to get to her home. She has been residing for the two months before trial at her mother’s home at Suburb V, about a half hour from the father’s home at Suburb W. She assists with the child’s after school pickups when she can, otherwise the father’s son F does so.
The father is unsure as to whether the aunt is able to continue her involvement in the afternoon care of the child into the future. In that event the father will be reliant upon his two sons now aged 21 and 20, who are both students and working to collect the child from school and care for the child during the evenings Monday to Friday or rely upon a paid child carer.
The Mother’s Proposals
The mother proposes that the child will reside with her and spend time with the father on weekends and during school holiday periods.
It is her intention that the child remain at H School, as she lives about five kilometres from the school and can transport him to and from school as she currently does when the child is in her care.
The mother suggests that a transition period may assist the child but has reservations that the poor communication between her and the father would prove a difficulty.
The Family Reporter
Child Responsive Memorandum: The family reporter in these proceedings Mr I provided a Child Responsive Program memorandum dated 25 November 2013 (Exh B). The memorandum prepared at an early stage in the proceedings provided to the court at that time an overview of the issues raised.
At the time of the preparation of the memorandum the father proposed in his response that he have sole parental responsibility for the child and that the child spend time with the mother from after school Friday until midday Saturday each week only and the transitions occur at Y police station when not at school. On interview with the family reporter the father informed the family reporter that he was seeking sole custody and that it “should be enough” for the child to spend time from Friday after school until Saturday each week with the mother.
Among the key issues identified by the family reporter were the following:
a)The mother alleged that the father had engaged in family violence behaviour towards her and also exposed the child to such behaviour;
b)The mother and father’s differing accounts as to separation and the amount of time the mother had spent with the child between their separation and the making of interim orders in February 2013;
c)The father reported a range of significant emotional and behavioural problems for the child which he said had developed since the child had commenced to spend overnight time with the mother;
d)The father made allegations regarding maltreatment of the child by the mother.
The father reported that the mother had had limited contact with the child since separation in January 2009, alleging that the mother had seen the child at Christmas and other times at his invitation. The father further alleged there had been a period of 18 months from 2010 in which the mother had not seen the child at all. All of these assertions made to the family reporter are not supported by the evidence at trial.
As to the behavioural issues complained of by the father including “shitting his pants”, “wetting his pants”, “biting his nails”, “crying” and returning “red eyed” from spending time with the mother, the father said that he had seen a psychiatrist or psychologist that his doctor had referred him to at a hospital and had been told the problems were related to parental conflict and would not resolve while the conflict persisted.
The father made further complaints as to things that occurred whilst the child had been with the mother, none of these complaints were substantiated and the father simply relied upon the child’s alleged report with none of the issues raised by the father with the mother or otherwise.
Concerningly the father informed the family reporter that the child did not know his mother and referred to the paternal aunt as his mother.
On the other hand the mother complained about the father’s behaviour during their relationship in that the father had “yelled at me” and “threatened to kill me” and threatened to “hunt me down” if she were to leave the relationship. The mother further complains that the father had been physically violent towards her and had grabbed her by the hair and hit her on the wall. The mother said however that the father had “hurt me more emotionally”.
The mother, consistent with evidence at trial, informed the family reporter that she and the father had separated in mid-2010 and she regularly saw the child either at the father’s home or at the child’s day care centre. She complained that there were periods of six to eight weeks that she did not see the child when the father travelled overseas with him.
The Family Report: the family reporter prepared a Family Report dated 10 April 2014 to assist the court in the final hearing of these proceedings. The issues identified in the family report reflected those identified earlier in the proceedings in the memorandum.
In interview the father complained that the mother’s interest in the child was only in relation to their financial dispute and further claimed that the mother had previously fraudulently claimed Centrelink payments in relation to the child. The court’s findings in relation to the Centrelink issue are set out above. They are not as represented by the father to the family reporter.
The father further informed the family reporter that he had ceased working as a professional when the mother left the marriage and had obtained his current employment to be able to care for the child. Once again the father has misrepresented the circumstances to the family reporter. The father was in fact asked to resign his employment as a consequence of allegations of dishonesty and had already obtained his current employment well before the parties separated.
Notwithstanding that interviews with the family reporter were conducted some two months after the commencement of school term, the father was unable to provide to the family reporter the child’s teacher’s name. The father further misrepresented his police history to the family reporter, failing to disclose previous convictions in 1992.
In interview the mother reported that she was able to communicate with the father by text message about the child. She informed the father on occasions when the child might be unwell but received no reciprocity in this regard from the father. The mother reported no health or developmental concerns for the child and described him as “quite healthy”. The mother had no concerns as to the child at school explaining to the family reporter that she spoke to the child’s teacher regularly in relation to his progress. The mother also informed the family reporter as to the child’s engagement with his friends, his like of reading, her engagement of the child in the Chinese school on Saturdays and other activities that the child was engaged in or she proposed to engage him in. The mother, it appears, presented to the family reporter as an interested and engaged parent.
As to violence and the relationship the mother informed the family reporter that “it takes me a long time to recover from that” and that “a lot of the time it was just emotional abuse, just putting down”. The mother reported that she had felt very scared and confused in the relationship and that she had really wanted to work on the relationship with the father. She informed the family reporter that there had been occasional physical violence at the hands of the father but she had not required medical attention. He would “pinch really hard”, “pull my hair”, “slap on the face” and “bang against the door”. She further reported that the father would yell at her. She said that the breaking point for her was an occasion when the father had been holding the child and yelling at her.
The mother reported that she still had a relationship with the father’s older children F and G. She identified them as being on the father’s side but that they still talk to her occasionally by telephone or text. Of some note is the mother’s report to the family reporter that the paternal aunt had driven her and the child home after a recent parent teacher interview at the child’s school.
The paternal aunt was interviewed by the family reporter. She informed the family reporter that the child refers to her as “mummy” or “auntie”. On interview she outlined to the family reporter her engagement with the child. The aunt complained that the mother did not assist the child with his homework but clarified that she did not send the homework book with the child when he spent time with the mother. The aunt blandly asserted that it was the mother’s responsibility to arrange homework for the child with the class teacher.
After observation of the child with the mother, the family reporter concluded that the mother’s interactions with the child were appropriate to and supportive of his development. There were no concerns arising from the observation.
As to observations of the child with the father and the aunt, the family reporter concluded that the child’s interactions appeared warm.
In evaluation the family reporter observed that the child appeared to have established generally positive relationships with his father, paternal aunt and mother. Regrettably the family consultant was unable to assess the child’s relationships with his older brothers through observation or interview, although the mother reported positive views regarding the child’s older brothers.
The child’s relationship with the father’s new wife and his new younger brother was not possible to be tested or observed. It is of note that the child did not include either in his family drawing nor did he indicate that he was aware of them in his interview.
The family reporter observed that some of the views expressed by the father suggested that he may have difficulty differentiating his own needs from the child’s needs. He also expressed very negative views about the mother and her capacity to adequately care for and parent the child. This situation, noted the family reporter, is likely to serve as a significant restraint to the child being able to enjoy positive relationships with both of his parents. Whilst the mother expressed concern regarding the potentially negative impact of the father’s anger and views regarding her on the child, she did not express significantly negative views regarding the father.
As to the father’s expressed concerns in relation to emotional and behavioural problems for the child, the family reporter concluded that the child’s presentation in late November and then again in March 2014 was not consistent with the father’s concerns.
The family reporter further observed that involving a child in, or exposing them to, high levels of parental conflict is associated with poorer long-term outcomes for the child’s development and well-being. Typically these poorer outcomes are evidenced by negative emotional states and behavioural difficulties. It is possible, he said, that the conflict between the child’s parents is negatively impacting on the child.
In conclusion the family reporter observed that apart from concerns regarding the father’s capacity to promote a positive relationship between the child and the mother there were no significant concerns identified regarding the capacity of either parent to meet the child’s needs or ensure that others are able to meet them.
For the child it will be necessary to find a balance between maintaining his important relationships and protecting him from the apparent conflict between his parents.
The family reporter observed that typically equal time arrangements or those otherwise involving significant and substantial time with each parent are contra-indicated in situations of high parental conflict. It is likely that, in the absence of significant improvement in the father’s attitude towards the mother, that the least detrimental outcome for the child will be that he lives with one parent and spends alternate weekends from after school Friday until before school Monday with his other parent.
It was recommended that arrangements for the child to live with or spend time with each of his parents be subject to judicial determination.
The family reporter concluded that the father’s hostile attitude towards the mother was likely to impair significantly the capacity of the parents to exercise equal shared parental responsibility for the child. The family reporter said that orders that provided for the parent that the child predominantly lives with to have sole parental responsibility for him could be considered as a means of reducing conflict over the child. However, it is not clear that such a situation would necessarily lead to optimal parenting decisions being made for the child. It is possible that if the father were to have sole parental responsibility for the child he would exercise this in a manner to diminish the child’s relationship with the mother.
It was recommended that the question of parental responsibility be a matter for judicial determination.
The Family Reporter’s Oral Evidence
Asked about the “disruption” to the child if there was a move to the child living primarily with the mother, the family reporter said:
I would probably consider it more of a significant change than necessarily significant disruption if other factors in life were to remain constant such as his – attending the same school. I am not – where the disruption may come, if such orders were made, is likely to be in response to [the father] and other members of his household’s response to such orders. In terms of a transition period, given the child has well established relationships with each parent, I don’t know that I would be suggesting a transition period is necessary.
The family reporter expressed the view that the continued engagement of the parties in the Keeping Contact program would be of assistance in helping to manage their conflict.
The following exchange took place with the family reporter during his oral evidence:
If the child remained in the father’s care with that overarching concern about his continued negative views of the mother and him unable to differentiate between his own needs and the child’s needs, what are the risks to the child and to the child-mother relationship? Okay. Well…
I assume there are risks that are long term and short term. Is that right? Yes. I probably mostly consider the long term risks to the child. If the child is raised predominantly in an atmosphere where he struggles to determine the reality of his experience against the reality of what he’s told he should be experiencing, that may result in difficulties at an emotional level, in difficulties that are exhibited at a behavioural level. Acting up behaviours. He may become an angry child. He may become a sad, withdrawn child. He may be a child that struggles to concentrate at school with the cascade then of poor academic performance. And it may be that he struggles in establishing peer relationships. It may be that later in life he struggles in establish and maintaining suitable partner relationships. It may also be that his – he has a positive enough of an experience of his mother to be certain of himself and counter, “Well, dad is just like that and that is just how it is.”
That would be a difficult for a six year old, I expect? It would be very difficult for a six year old. Unfortunately what we know about children in these circumstances in drawn off larger numbers of children where some exhibit very severe adverse consequences and some not as much if at all that are discernable. It’s simply not possible at age six for [the child] to predict which pathway he will follow.
What does that say if those concerns are realised in the evidence before the court about the father’s reflective capacity in terms of being able to properly reflect upon the child’s needs. Does that indicate that that reflective capacity is significantly dysfunctional? That would be one conclusion to draw from it. There may be other reasons to compromise someone’s reflective capacity. I note there’s a history of military service. Sometimes experience of trauma can compromise one’s reflective capacities. There may be a number of – and loss – the loss of his first wife. There may be a number of reasons that without accruing blame that someone’s reflective capacity is not – is comprised, however, the results for the child of being raised by an unreflective parent or a parent with compromised reflective capacity may ultimately be the same regardless of the cause of that limit – regardless of the cause to the limits of those reflective capacities.
Well, if the evidence before the court supports your suspicions that are reflected in your report in relation to the father and his attitudes and perceptions of needs, does that indicate to you that there is, to some extent, a diminished reflective capacity in him? That’s one I am concerned about and a parent with a diminished reflective capacity has then a limited capacity to change their behaviour. Basically they don’t – they are not in a position to consider the implications of what they do from other people’s perspectives particularly and without the capacity to consider what you are doing you are without a basis to choose to do something different.
This would then link into the concerns you would have, both short term and long term for the child? Yes.
The Independent Children’s Lawyer’s Proposed Orders
At the conclusion of the evidence of the Independent Children’s Lawyer provided to the court a minute of proposed orders sought by the Independent Children’s Lawyer (Exh CC). In summary those orders sought provided as follows:
a)That the parties have equal shared parental responsibility for the child;
b)That the child live with the mother;
c)That the child spend time with the father as follows:
i)During school terms each alternate weekend from 12 noon Saturday until before school Monday commencing on the second weekend following the making of final orders and recommencing on the first weekend of each school term;
ii)During school terms on one additional occasion each calendar month from 10:00 am Sunday until before school Monday on a weekend to be agreed and in default of agreement on the first weekend of the calendar month when the child would not otherwise be spending time with the father;
iii)During term 1, 2 and 3 school holiday periods from after-school on the last day of term until 12 noon on the middle Saturday of the holiday period;
iv)During the term for school holiday period in 2014 and each alternate year thereafter from 3:00 pm on Christmas Day until 5:00 pm on 12 January;
v)During the term for school holiday period in 2016 and each alternate year thereafter, from 3:00 pm on 8 January until 5:00 pm on 26 January;
vi)On the Father’s Day weekend from 12 noon Saturday until before school Monday;
vii)In 2015 and each alternate year thereafter from 3:00 pm on Christmas Eve until 3:00 pm on Christmas Day;
viii)On the child’s birthday if the child is not otherwise spending time with the father from after school until 6:00 pm if the birthday falls on a school day or from 10:00am until 2:00 pm if the birthday falls on a non-school day;
ix)At such other times as may be agreed between the parents in writing.
d)That notwithstanding any other order the child spend time with the mother from 12 noon on the Saturday before Mother’s Day until before school on Monday, on the child’s birthday from after school until 6:00 pm if the birthday falls on a school day or from 10:00 am until 2:00 pm if the birthday falls on a non-school day, and from 9:00 am until 5:00 pm on the day the Chinese New Year celebrated each year;
e)That for the purposes of changeover the father or his agent shall collect the child from school if a school day or from the mother or her agent at the Y Westfield shopping centre if a non-school day and return the child to school if a school day or to the mother or her agent at the Y Westfield shopping centre if a non-school day at the conclusion of the child’s visits with the father;
f)That each parent have telephone communication with the child on Mondays, Wednesdays and Fridays between 7:00pm and 7:30pm when he is in the care of the other parent;
g)That each parent be restrained from denigrating the other parent or any member of their extended family or household in the hearing or presence of the child and shall not allow any other person to do so;
h)That each parent keep the other parent informed as to their residential address and telephone number, both landline and mobile, and notify the other parent of any change to these details within 48 hours of such change occurring;
i)That each parent ensure the other parent is advised as soon as is reasonably practicable of any medical emergency or significant illness injury suffered by the child during periods of time that the child is in the care;
j)That each parent be at liberty to contact the child’s school to obtain information in relation to the child’s progress and to obtain copies of documents ordinarily made available to parents including but not limited to copies of school reports, newsletters and school photograph order forms;
k)Each parent shall be at liberty to attend the child’s school for the purposes of parent teacher interviews, presentation nights, school performances and concerts or any other academic cultural or sporting events to which parents are ordinarily invited whether the child is in the care of that parent at the time of the event or not;
l)That the parents continue to attend upon the Unifam “Keeping Contact” program as to until such time as the program coordinator advises that their attendance is no longer required and shall accept and follow through with any referrals all recommendations made by the program coordinator.
In submissions, counsel for the Independent Children’s Lawyer contended that the proposed orders had two main aims. Firstly, to maintain a positive relationship between the child and both of his parents and secondly to maintain a meaningful relationship between the child and his father in the context of the father’s working commitments. It was submitted by the Independent Children’s Lawyer that the mother was in the best position to promote a relationship between the child and his father. The father’s attitude on the other hand towards the mother has been relentlessly negative from the outset of the proceedings. The evidence, it was submitted by the Independent Children’s Lawyer, does not bear out the father’s perceptions as to the mother’s incapacity to care for the child and unfortunately the paternal aunt is as negative as the father is in relation to the mother’s capacity.
It was further submitted on behalf of the Independent Children’s Lawyer that the orders proposed cater for the father’s current work commitments and in the event that his work arrangements change then orders could facilitate his collection of the child on weekends from after-school on Friday.
Counsel for the Independent Children’s Lawyer supported an order for shared parental responsibility having regard to the evidence from the mother that her relationship with the father had improved, she was able to communicate with him and that there had been an absence of conflict at changeovers.
Discussion
The relevant principles in relation to parenting proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
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 child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply in respect of final proceedings where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
The Full Court in Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Meaningful relationships:
In Mazorski & Albright [2007] FamCA 520, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
Some of the Court’s considerations below also impact on this factor. The primary concern is the determination of orders that would prospectively facilitate a meaningful relationship between the child and both parents. The capacity for those relationships to be developed is, at present, significantly impaired by the father’s view of the mother and his unwillingness to promote a relationship between the child and the mother. The evidence touching upon this consideration is set out above. The long term risks to the child of this attitude of the father and that of the paternal aunt raise significant concerns as to the child remaining in the father’s primary care.
The mother on the other hand acknowledges the father’s role in the child’s life and there is nothing to suggest that she would not seek to promote a meaningful relationship between the child and the father.
The Independent Children’s Lawyer seeks orders that would promote a meaningful relationship between the child and both parents. Those orders would remove the overshadowing and damaging attitude of the father in regard to the mother from being a concerning factor.
Section 60CC(2)(b) – Need to Protect:
In the context of this matter it is appropriate to consider the need to protect the child from psychological abuse and long term consequences that may arise therefrom.
As referred to above:
The family reporter observed that some of the views expressed by the father suggested that he may have difficulty differentiating his own needs from the child’s needs. He also expressed very negative views about the mother and her capacity to adequately care for and parent the child. This situation, observes the family reporter, is likely to serve as a significant restraint to the child being able to enjoy positive relationships with both of his parents. Whilst the mother expressed concern regarding the potentially negative impact of the father’s anger and views regarding her on the child she did not express significantly negative views regarding the father.
The family reporter was of the view that:
If the child is raised predominantly in an atmosphere where he struggles to determine the reality of his experience against the reality of what he’s told he should be experiencing, that may result in difficulties at an emotional level, in difficulties that are exhibited at a behavioural level. Acting up behaviours. He may become an angry child. He may become a sad, withdrawn child. He may be a child that struggles to concentrate at school with the cascade then of poor academic performance. And it may be that he struggles in establishing peer relationships. It may be that later in life he struggles in establish and maintaining suitable partner relationships.
There is a risk to the child if he remains in the primary care of the father.
This is highlighted further by the disparaging attitude of the paternal aunt to the mother and her relationship with the child. The aunt sees no benefit to the child in a relationship with the mother.
Best Interests of the Children: The Additional Considerations: s 60CC(3)
The Court has had regard to each of the additional considerations set out in section 60CC(3) of the Act. The relevant considerations are as follows:
(a) Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
By reason of the child’s age no weight can be afforded to his views.
(b) The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
The child’s relationships with each parent are considered above. They are well established. The relationship with the father is overshadowed by his attitude to the mother and lack of capacity to promote a meaningful relationship between mother and child. Of further concern is the relationship between the paternal aunt and the child in circumstances where the aunt has demonstrated little capacity to promote the child’s relationship with the mother.
The father’s lack of reflective capacity in relation to the child was touched on by the family reporter:
Well, if the evidence before the court supports your suspicions that are reflected in your report in relation to the father and his attitudes and perceptions of needs, does that indicate to you that there is, to some extent, a diminished reflective capacity in him? That’s one I am concerned about and a parent with a diminished reflective capacity has then a limited capacity to change their behaviour. Basically they don’t – they are not in a position to consider the implications of what they do from other people’s perspectives particularly and without the capacity to consider what you are doing you are without a basis to choose to do something different.
This would then link into the concerns you would have, both short term and long term for the child ? Yes.
The risks to the child of the context of the present relationships continuing without change are readily apparent.
The maternal grandmother, aged 61, now has permanent residence in Australia with the maternal grandfather able to come and go on a visitor’s visa. The maternal grandparents will stay till March 2015 and then return to China for their son’s wedding. They have in that context a relationship with the child.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The factual matters pertaining to this consideration are set out above. The father’s demeaning attitude to the mother is of significant concern in that there are grave reservations that he has any willingness to promote the child’s relationship with the mother. The mother sees the father having a role in the child’s life and she will promote and encourage that relationship.
(d) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders sought by the Independent Children’s Lawyer provide for a change of primary residence. The effect of the “disruption” of an immediate change of primary residence on the child was put to the family reporter who said:
I would probably consider it more of a significant change than necessarily significant disruption if other factors in life were to remain constant such as his – attending the same school. I am not – where the disruption may come, if such orders were made, is likely to be in response to [the father] and other members of his household’s response to such orders. In terms of a transition period, given the child has well established relationships with each parent, I don’t know that I would be suggesting a transition period is necessary.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
There is no practical difficulty and expense in this regard subject to the implementation of appropriate orders.
(f) The capacity of each of the child's parents, and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs;
The family reporter was of the view that both parties have appropriate capacity in this regard. Whilst the father made various complaints of the mother of little significance there was no recent complaint especially since the child has been spending extended time with the mother. Both parties have appropriate and adequate accommodation and are in settled employment
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
…
(h) If the child is an Aboriginal child or Torres Strait Islander child…;
…
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
A consideration of this factor is overshadowed by the father’s inability to see a meaningful place in the child’s life for the mother. The mother did at separation leave the young child with the father. Her reasons for doing so are plausible and understandable but so doing was inappropriate for her as the child’s primary carer at that time. Both parties are subject to criticism for their respective conduct. Hopefully appropriate orders will see both parents settle into roles where they can both demonstrate appropriate attitudes to the child and their parental responsibility.
(j) Any family violence involving the child or a member of the child's family;
There was coercive and abusive conduct perpetrated by the father on the mother. She alleges some incidents of violence. The child was in the household at the relevant times but of an age where there would be little if any recall of such events.
(k) If a family violence order applies:
…
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Parenting orders in relation to the subject child can only be made in the context of the present circumstances of the child as they are. The orders sought by the Independent Children’s Lawyer are orders that should preclude any further parenting application (perhaps save for overseas travel), build upon the child’s relationship with the mother and give the child a more settled environment free from adverse paternal influence while maintaining the child’s relationship with the father.
The orders to be made are those perceived by the court to be least likely to lead to the institution of further proceedings in relation to the child.
(m) Any other fact or circumstance that the court thinks is relevant;
…
The Presumption of Equal Shared Parental Responsibility
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 a child for the child’s parents to have equal shared parental responsibility. That presumption may be rebutted in circumstances set out above.
The Independent Children’s Lawyer seeks an order for equal shared parental responsibility, as does the mother. The father opposes such an order, seeking sole parental responsibility.
The family reporter expressed the view that leaving sole parental responsibility with one parent in this case would see that power used as a weapon against the other.
Communication between the parties has improved. The “major long term decisions” reserved for statutory parental responsibility are few. There is no issue as to the child’s education. He is in the public system and there was no other proposal before the court. No issue was raised as to religion, his health or name. Both parties live in close proximity with no plans to move elsewhere such that the child’s time with the other parent would be more difficult.
The presumption as to equal shared parental responsibility is not rebutted notwithstanding the mother’s allegations as to the father’s conduct.
As a consequence of the presumption applying, the Court is required to consider the provisions of section 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. For the reasons set out above equal time or substantial and significant time at this juncture is not in the best interests of the child.
Accordingly the court is not required to consider whether such arrangements would in all the circumstances be reasonably practicable
The court is well satisfied that it is appropriate and in the best interests of the child that parenting orders be made substantially in terms of those sought by the independent children’s lawyer.
Orders will be made accordingly.
The Parties’ Finances
The father is presently employed by R Company as a cleaner earning a salary of about $50,000 per annum. The father works an afternoon/evening shift commencing at about 2:30 pm in the afternoon and concluding at about 1:00am the following morning Monday to Friday. It takes him about half an hour to drive to and from work. The father suggests that his shift arrangements may change in 2015.
The father trading as “O Business” also holds a cleaning contract for a local establishment. He subcontracts the work and makes only a modest gross profit. He discloses no net profit in his tax return.
He still retains the two properties purchased by him in about 1997, they being the home at Suburb W, and his investment home unit at Suburb T. Both properties are in his name.
As to his financial evidence the father sought that a certificate issue under s 128 of the Evidence Act1995 (NSW) as his evidence may tend to prove the commission of an offence under the income tax laws of the Commonwealth of Australia. Yet it was the father’s contention that he made no profit from the cleaning contract and by reason of expenses relating to the investment unit no profit derived. Under the circumstances of his own assertion there were therefore no reasonable grounds for the objection and a certificate was accordingly refused and the husband was required to give the subject evidence.
He has filed his 2013 tax return but it was not produced. His 2012 tax return makes no reference to his investment unit at Suburb T or rental received. He was receiving $300 per week rent till only just before trial but asserts that the rent has reduced to $170 per week by reason of the state of the property. The investment property is unencumbered.
The mother after completing her tertiary studies is now employed full-time as a professional by S Company and earns a salary of about $75,000 per annum. Since obtaining employment the mother has been paying child support of about $500 per month through the child support agency to the father. The mother’s hours are flexible between 10:00 am and 4:00 pm. She travels to and from work by train.
At cohabitation, the father owned the properties at Suburb W and Suburb T. The value of the properties at that time is not known. The W property was encumbered by mortgage.
During cohabitation the mother worked part time and her income was applied to household outgoings and expenses. From April 2009 to October 2009 she unlawfully obtained Centrelink benefits and earned part time income. Monies accumulated from these sources in the mother’s account (Exh R) and were periodically applied to household expenses and lump sum transfers to the father’s account. It is to be inferred that he used the funds to meet mortgage and other outgoings.
Thereafter the mother’s income accumulated in her account with payments for various household expenses and with ongoing transfers to the father’s account of lump sums until separation in June 2010.
The father was out of work for about six months in 2009, otherwise he was gainfully employed.
The mother undertook the majority of domestic tasks for the household that included the father’s older sons.
In July 2014 the mother purchased a two bedroom home unit at Suburb Y for $497,500 with a mortgage of $389,000 and the balance by way of loan of $57,018 from her parents and the balance her post separation savings. The unit provides for the child his own room.
The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan& Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott and Danton [2014] FamCAFC 203.
The process ordinarily involves a staged process.
The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
In particular, such a circumstance arises where both parties seek property adjusting orders but are unable to agree as to same. Here both parties seek different orders as to the division of their property and it is conceded by counsel for both parties that it is appropriate for the court to make orders altering their present property interests. It is appropriate to do so.
Once the s 79(2) issue is resolved the Court then considers the contributions made by the parties as defined in s 79(4)(a) to (c).
The Court must then consider s 79(4)(d) to (g) 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 (s 79(4)(e)).
The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
The Present Asset Pool
The parties agreed as to the present property pool for adjustment purposes.
Otherwise there was agreement that the mothers property acquired after separation would be regarded as a financial resource under s75 (2) of the Act.
The agreed pool is:
Assets:
Husband W Property $930,000
Husband T Property $375,000
Husband Credit Union Account $ 12,000
Husband Superannuation $ 22,178
Husband Mercedes car $ 20,000
Husband Falcon car $ 1,000
Husband Contents $ 4,000
Wife Bank accounts $ 18,697
Wife Superannuation $ 29,523
$1,412,398
Liabilities:
Husband Home loan $312,000
$1,100,398
Contributions:
The Full Court in Dickons & Dickons [2012] FamCAFC 154 said:
23.We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
24.There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25.Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “…giving over-zealous attention to the ascertainment of the parties’ contributions…” (Norbis v Norbis (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
It is clear that in relation to the property pool as agreed between the parties that contributions must overwhelmingly favour the father.
The mother brought virtually nothing into the relationship. At the commencement of the relationship as acknowledged by the mother, the father had his present real estate properties, furniture and furnishings, some accumulating superannuation and a motor vehicle.
The value of the father’s real estate properties of the time of cohabitation is not known nor is the amount outstanding on mortgage at that time.
During the short period of cohabitation, the mother worked as a casual sales assistant at Store X and Store K and as an intern at S Company and in the husband’s cleaning business. Her earned funds were deposited to her credit union account and it is commendably clear that funds in that account were applied for the purposes of the relationship.
The mother and father by virtue of a scheme initiated by the father procured the payment of Centrelink benefits to the mother for a period of some six or seven months whilst the father was unemployed. The receipt of these funds should not be regarded as a contribution by either of them but the father has retained the benefit of the funds transferred to him from the mother’s account.
Otherwise during the period of cohabitation the mother was substantially the primary carer of the parties’ young child and provided the bulk of homemaker and parenting duties within the home in particular in relation to the father’s older two children.
Following separation the child remained in the primary care of the father for reasons examined above.
The father continued to meet mortgage payments and outgoings in relation to the real estate properties owned by him without contribution by the mother.
By July 2014 the mother had saved significant funds to facilitate the purchase by her of her property at Suburb Y.
Otherwise as at the date of trial, she had some savings in her bank accounts. The inference from the evidence is that most, if not all, of the wife’s superannuation and savings at the time of trial accrued post separation. Those items represent about 5 per cent of the asset pool set out above.
The mother’s overall contribution based entitlement thus is assessed at 10 per cent.
Section 75(2)
There is a significant age disparity between the parties. The father thus has less years remaining in the workforce. Neither party asserts any significant health issues.
The income, property and financial resources of the parties have been set out and referred to above. Other than the assets within the matrimonial pool the mother has her own post-separation acquired real estate property with modest equity. The father will retain a comfortable home at Suburb W together with the unencumbered investment property at Suburb T. There is a reasonable expectancy that following renovations to the T property the T unit will be rented and provide a reasonable rental return to the father. He also has modest gross supplementary income from his cleaning contract with the local establishment.
Parenting orders provide that the mother will have the ongoing primary care of the child of the relationship. The child is presently aged six and is in the very early years of formal schooling. The father will have time with the child as defined by the court’s orders.
Both parties have financial obligations for the support of themselves and the child when in their respective care. Neither party has any obligation to support any other person.
Both parties have very modest superannuation entitlements. However the father has significantly less expectant years in the workforce by reason of the age disparity of the parties. The mother can be expected to accumulate significant superannuation as she continues in the full-time workforce.
Neither party is cohabiting with any other person. The father has remarried but the circumstances of his new wife and the child of that marriage remain uncertain as to whether they will come to Australia. Should they do so, he will have an obligation to provide support for them into the future.
The property orders proposed on a contribution basis would see the wife retain her own home unit, her savings at present, her superannuation and receive a modest cash payment of about $50,000 from the husband.
The husband will have a liability for child support as assessed by the child support agency from time to time as did the wife for a period post-separation subject to an arrangement otherwise between the parties.
Neither party contended there was any other relevant fact or circumstances or any other relevant factor that the court should have regard to under section 75(2).
Having regard to the matters considered above it is appropriate that there be a further adjustment in addition to the wife’s contribution based entitlement in favour of the mother by reason of the relevant section 75(2) factors of 10 per cent.
The orders proposed have no effect on the earning capacity of either party.
Overall
Overall the mother is thus entitled to an adjustment of 20 per cent in relation to the pool as agreed above.
The calculation of her cash entitlement is as follows:
20 per cent of the net pool: $220,079
Less mother’s retained assets: $ 48,220
Balance payable: $171,859
The father will thus retain his present assets intact, subject to an extended mortgage on the security of his real estate properties to meet the payment to the wife.
In all circumstances the proposed orders are appropriate and just and equitable.
Orders will be made accordingly.
Independent Children’s Lawyer’s Costs:
At the conclusion of the trial the Independent Children’s Lawyer made an application that the parties pay equally the Independent Children’s Lawyer’s costs. The Independent Children’s Lawyer’s costs have been itemised in the total sum of $13,246 (Exh EE).
Of that sum the parties have each paid $1,650, leaving a balance payable of $9,946. If paid equally that would be the sum of $4,973 each.
The mother was agreeable with the orders sought by the Independent Children’s Lawyer. The father would not consent to such orders but conceded that he was a man of some substance in relation to income and assets.
As said by Austin J in Gahen & Gahen (No. 2) [2013] FamCA 936
Lest it not otherwise be obvious, the Independent Children's Lawyer is not a party to the proceedings and so the primary rule enunciated in section 117(1) of the Act, that each party to the proceedings shall ordinarily bear his or her own costs, does not bind the Independent Children's Lawyer.
The Court undoubtedly has power to make the costs order proposed by the Independent Children's Lawyer, because section 117(3) clearly envisages it.
The application made by the Independent Children's Lawyer against the mother is for the payment of the sum of $2,725, being one half of the Independent Children's Lawyer’s costs of the proceedings, less the contribution already made by the mother to her share of those costs. The mathematical calculation is the mother’s half share (being $4,375), less her initial contribution (of $1,650), leaving a residual amount of $2,725.
The Court is mandated by section 117(5) of the Act to disregard the funding of the Independent Children's Lawyer by a legal aid scheme. A question arises as to the actual meaning of the legislative intent for the Court to disregard the legal aid funding of the Independent Children's Lawyer, because that terminology is susceptible to ambiguity. It could conceivably mean either:
(a) The Independent Children's Lawyer should be presumed to be unfunded, so as to generally incline the Court to order the parties’ contribution to the Independent Children's Lawyer’s costs; or
(b) The Court should not be swayed by either the presumed ampleness or scarcity of the Independent Children's Lawyer’s legal aid funding when determining whether to order the parties’ contribution to the Independent Children’s Lawyer’s costs.
Justice Watts explained why the former is the preferred connotation, since the purposes of the legislative amendment was to protect the public purse (see De Roma & De Roma (2013) FamCA 566 at [2]- [3], [39]-[52], and [54]). Such an approach is consistent with prior authorities (see PJ & NW (2005) FamCA 162 at [66], and LAC & TRF & LKL(2005) FamCA 158 at [61]- [63]).
In such circumstances I proceed to consider the costs application in the knowledge of the legislative intent that I should protect the public purse, where possible. Of course, the application for costs is still determined in the context of the statutory criteria prescribed by section 117(2A) of the Act.
The statutory criteria provided for in section 117 (2A) are:
(a) The financial circumstances of each of the parties to the proceedings;
(b) Whether any party has legal aid and the terms of any grant of aid;
(c) The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) Such other matters as the Court considers relevant.
It is readily apparent that the significantly relevant circumstance in this matter is the financial circumstances of the parties. Having regard to the concession by counsel for the father as to his income and asset position and having regard to the fact there were no further submissions on his behalf made in opposition to the order sought by the Independent Children’s Lawyer is appropriate in all the circumstances that the parties pay equally the costs as sought by the Independent Children’s Lawyer.
An order will be made accordingly.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 November 2014.
Legal Associate:
Date: 25 November 2014
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Jurisdiction
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Procedural Fairness
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