Gane & Hogue

Case [2021] FedCFamC1F 139

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Gane & Hogue [2021] FedCFamC1F 139

File number(s): BRC 10600 of 2019
Judgment of: HOWARD J
Date of judgment: 18 October 2021
Catchwords:

FAMILY LAW – PARENTING – where the mother has been the primary carer of a 9 year old boy – where the child has spent sporadic time with the father during the last 18 months – where the child has become opposed to spending time with the father – capacity of the mother to facilitate a relationship between the child and the father – risk to the child remaining in the care of the mother – where the mother lacks the capacity to facilitate a relationship with the father – where the father has the capacity and means to care for the child and promote a relationship with the mother – change of primary residence – child to live with the father – moratorium of mother’s time.  

FAMILY LAW – PROPERTY – 14 year relationship – where the husband sought a separate pool in respect of his superannuation entitlement – where a one pool approach was preferred – contributions – where the husband’s earning capacity is significantly greater than the wife’s – future needs – justice and equity.    
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 65L, 70NBA
Cases cited:

Anson v Meek (2017) 57 Fam LR 23

Baghti & Baghti & Ors [2015] FamCAFC 71

Beckham v Desprez (2015) 55 Fam LR 310

Cox v Pedrana (2013) 48 Fam LR 651

Eagle & Scarlett(No.2) [2020] FamCAFC 29

Gorman & Huffman and Anor (2016) FamCAFC 174

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Moose & Moose (2008) FLC 93-375

Norbis v Norbis (1986) 161 CLR 513

Oberlin & Infeld [2021] FamCAFC 66

Rice v Asplund (1979) FLC 90-725

Stanford v Stanford (2012) 247 CLR 108

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Zaruba & Zaruba [2017] FamCAFC 91
Division: Division 1 First Instance
Number of paragraphs: 152
Date of last submission/s: 1 October 2021
Date of hearing: 28, 29, 30 September 2021 and 1 October 2021.
Place: Brisbane
Counsel for the Applicant: Mr George
Solicitor for the Applicant: Robyn McKenzie Solicitor
Counsel for the Respondent: Ms Chekirova
Solicitor for the Respondent: Sterling Law (Qld)
Counsel for the Independent Children's Lawyer: Ms Lyons
Solicitor for the Independent Children's Lawyer: Legal Aid Queensland

ORDERS

BRC 10600 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR GANE

Applicant
AND:

MS HOGUE

Respondent
AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

18 OCTOBER 2021

THE COURT ORDERS UNTIL FURTHER ORDER in relation to parenting:

1.That the child X born … 2012 (“the child”) live with the father.

2.That the father have sole parental responsibility in respect of the child.

3.That the mother shall forthwith engage with a counsellor to address the issues raised (in respect of the mother) in…

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Gane & Hogue [2021] FedCFamC1F 139
Case
[2021] FedCFamC1F 139
Decision Date

CaseChat Overview and Summary

In the case of Gane & Hogue, the primary legal issue before the Family Court of Australia was determining the appropriate living arrangements and contact for the child, X, following the separation of his parents. The dispute centred on the mother's cessation of the child's overnight time with the father and her imposition of conditions for limited daytime contact. The father sought to enforce the original parenting plan, which provided for the child to live primarily with the mother and spend five nights per fortnight with the father. The mother contested the father's claims, arguing that changes in circumstances warranted a revised parenting arrangement. The court was tasked with assessing the evidence and determining what parenting orders would best serve the child's welfare.

The Family Court considered the evidence presented by both parties and the recommendations of the Independent Children's Lawyer and Family Report. The court emphasised the importance of the child having a meaningful relationship with both parents, as mandated by Section 60CC(2)(a) of the relevant Act. The evidence indicated that the child's time with the father had been limited since the separation, and the mother had unilaterally altered the agreed parenting plan without justification. The court accepted the father's evidence regarding the mother's interference with his parenting time and her attempts to involve the child in their disputes. The court also noted the child's reluctance to spend time with his father and the emotionally charged nature of the transitions between parents.

The court concluded that the child should live with the father and have supervised contact with the mother at a contact centre. The decision was based on the child's best interests, considering the need for strong boundaries to manage the child's behaviour and reduce the stress associated with transitions between parents. The court acknowledged the child's perception of control over his time with the father and recognised that, as an eight-year-old, the child was not equipped to make such decisions. The orders aimed to provide stability and support for the child while maintaining a meaningful relationship with both parents.

Orders

Orders of the court

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Background

Background to the litigation

Before delving further into the evidence, it is as well to note the following principles:-(a)The Court is not required to refer to every piece of evidence and the Court is not required to make findings in relation to all of the facts that have been put in issue by the parties. The Court is only required to determine “those facts that are necessary for the determination of the issues between the parties”: Baghti & Baghti & Ors [2015] FamCAFC 71 at paragraph 63; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at paragraph 62; (b)The Court is not required to decide every matter that is raised by a party during argument and the Court is not required to traverse every argument advanced by the losing party: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 per Mahoney JA at page 385-386; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at paragraph 62; and Eagle & Scarlett(No.2) [2020] FamCAFC 291 at paragraph 103; and(c)There is no requirement that the sections of Part VII of the Act be considered in any particular order: Cox v Pedrana (2013) 48 Fam LR 651 from paragraphs 29 to 31; Beckham v Desprez (2015) 55 Fam LR 310 at paragraph 31. The first stated primary consideration (Section 60CC(2)(a)) relates to the benefit of the child having a meaningful relationship with both of the child's parents. The child’s time with the father has been limited since the time of separation. The parties agreed on a parenting plan following separation. By that plan, the child was to live primarily with the mother and spend 5 nights per fortnight with the father. The plan was followed from 7 February 2019 until approximately 20 August 2019. This is the father's evidence. I accept his evidence. During this period, the child also lived for six weeks with the father during April and May 2019. The mother stopped the child’s time with the father on 24 August 2019. The father then filed proceedings. An Order was made by the Federal Circuit Court of Australia (as it was then known) on 29 October 2019. It is important to have close regard to the evidence of the parties in relation to what occurred in August 2019. In his trial affidavit (filed 30 August 2021) the father states as follows:-“60. I was concerned for the welfare of Ms Hogue and X and I rang back and sent text messages that I would call 000. I called 000 and requested an ambulance be sent to Ms Hogue 's residence . I drove there. Ms Hogue swore at me for calling the ambulance and said she had passed out due to anxiety .61 . On 11 August 2019 at about 7.30pm Ms Hogue came to my home without asking and disrupted X's bedtime routine by knocking on the door and demanding X be allowed to sit in her car. As X had seen her at the door I let him sit with Ms Hogue and asked her to make it for five minutes. Ms Hogue kept him in her car for over twenty minutes.62. On numerous other occasions since separation Ms Hogue has demanded to come and see X at my home. I repeatedly asked her to let him have his time with me uninterrupted.63 . On 18 August 2019 Ms Hogue sent me the following text message: “As of Monday 19/8 im no longer interested in following the parenting plan that we have in place. Propose a different plan that is covering and addressing our current issues.”64. On 24 August 2019 Ms Hogue refused to allow X to spend overnight time with me when he was to stay with me under the parenting plan. X told me “mum said I can't stay with you because you won’t answer her questions.” From 24 August to 5 October Ms Hogue allowed X to spend limited time with me on weekends during the day only if I met her conditions. No overnight time was allowed.65. On 27 August I received a further text: “X will be based in this house until court decides otherwise”.66 . I did not wish to expose X to conflict and decided not to try and take him from school or after school care.67. On 5 September 2019 I filed an Initiating Application in the Federal Circuit Court seeking parenting orders.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Importantly, the Senior Registrar’s orders contained a failsafe order for the father’s time with the child – wherein the child was to be assisted by a Family Consultant (now known as Court Child Experts) of the Child Dispute Services of the Court should the child refuse to attend the first block of time ordered to occur on 2 January 2021. The child did not attend time with the father on 2 January 2021. As such, the child attended upon the Family Consultant on 13 January 2021. Despite the child’s reluctance, he was again able to transition to the father’s care with the assistance of the Family Consultant and spent time with the father until 27 January 2021. A Memorandum was prepared by the Family Consultant (Ms CC) on 13 January 2021. I note what Ms CC said in her Memorandum under the heading “Future Directions”:- “The exchange of X between his parents remains an emotionally charged event for X and for his parents. Ms Hogue reports she is encouraging X to attend time with his father, however X believes that he is in control of the decision making. X presents as a child who requires strong boundaries to assist him in managing his behaviour. X is currently very aligned with his mother he is likely to respond in an agitated manner to any ambivalence that she has towards him spending time with his father. Whilst X reports he wants to be the decision maker, as an eight year old boy he does not have the emotional resources or the maturity to take on this burden. The exchanges between the parents will continue to be stressful for X whilst he is of the belief that he is responsible for making a positive decision to spend time with his father. The stress is likely to be magnified if he is moving directly between his parents rather than from a neutral setting such as the school.” The movement of the child between the parents in accordance with the Court’s orders without the assistance of the professionals in the Child Dispute Services of the Court itself continued to be an issue. It still remains one of the central issues in this matter. Ms CC highlighted that the child seemed to be under the impression that it was he who dictated the time he spends with his father. Ms CC noted that X (an eight-year old boy) was not equipped to take on the burden of deciding whether he should be seeing his father or not. The situation has been altogether unsatisfactory for this child. The father did not spend time with the child after returning him to school on 27 January 2021 in accordance with the Senior Registrar’s orders until 3 September 2021 (but for attendance at some counselling). The matter came before me for a Trial Management Hearing on 30 April 2021 and 1 June 2021. Directions were made for this matter to be listed for a final hearing. The matter was initially due to commence for a final hearing on 20 September 2021, however due to listing changes within the Court – the matter commenced for a five day final hearing on 28 September 2021. The matter was recently before me on 3 September 2021 upon on the Application of the Independent Children’s Lawyer filed 1 September 2021. The most recent Family Report in this matter (prepared by Ms Q) was released to the Independent Children’s Lawyer on 30 August 2021 and made recommendations (in broad terms) that the child live with the father, that the father hold sole parental responsibility and that the child spend time with the mother supervised at a contact centre. The Independent Children’s Lawyer held concerns as to the potential impact and risk to the child should the Family Report be released to the parties.

Ratio Decidendi

Legal Principle Established

The first stated primary consideration (Section 60CC(2)(a)) relates to the benefit of the child having a meaningful relationship with both of the child's parents. The child’s time with the father has been limited since the time of separation. The parties agreed on a parenting plan following separation. By that plan, the child was to live primarily with the mother and spend 5 nights per fortnight with the father. The plan was followed from 7 February 2019 until approximately 20 August 2019. This is the father's evidence. I accept his evidence. During this period, the child also lived for six weeks with the father during April and May 2019. The mother stopped the child’s time with the father on 24 August 2019. The father then filed proceedings. An Order was made by the Federal Circuit Court of Australia (as it was then known) on 29 October 2019. It is important to have close regard to the evidence of the parties in relation to what occurred in August 2019. In his trial affidavit (filed 30 August 2021) the father states as follows:-“60. I was concerned for the welfare of Ms Hogue and X and I rang back and sent text messages that I would call 000. I called 000 and requested an ambulance be sent to Ms Hogue 's residence . I drove there. Ms Hogue swore at me for calling the ambulance and said she had passed out due to anxiety .61 . On 11 August 2019 at about 7.30pm Ms Hogue came to my home without asking and disrupted X's bedtime routine by knocking on the door and demanding X be allowed to sit in her car. As X had seen her at the door I let him sit with Ms Hogue and asked her to make it for five minutes. Ms Hogue kept him in her car for over twenty minutes.62. On numerous other occasions since separation Ms Hogue has demanded to come and see X at my home. I repeatedly asked her to let him have his time with me uninterrupted.63 . On 18 August 2019 Ms Hogue sent me the following text message: “As of Monday 19/8 im no longer interested in following the parenting plan that we have in place. Propose a different plan that is covering and addressing our current issues.”64. On 24 August 2019 Ms Hogue refused to allow X to spend overnight time with me when he was to stay with me under the parenting plan. X told me “mum said I can't stay with you because you won’t answer her questions.” From 24 August to 5 October Ms Hogue allowed X to spend limited time with me on weekends during the day only if I met her conditions. No overnight time was allowed.65. On 27 August I received a further text: “X will be based in this house until court decides otherwise”.66 . I did not wish to expose X to conflict and decided not to try and take him from school or after school care.67. On 5 September 2019 I filed an Initiating Application in the Federal Circuit Court seeking parenting orders.” I accept this evidence from the father. The interim orders made on 29 October 2019 were in fact made by the Court – with the consent of the parties. The consent orders (at least in relation to the living arrangements) reflected the parenting plan to the extent that the child was to live primarily with the mother and spend five nights per fortnight with the father.