Gavin & Garden - [2011] FamCA 190

FAMILY COURT OF AUSTRALIA

GAVIN & GARDEN

[2011] FamCA 190

FAMILY LAW - PRACTICE AND PROCEDURE - Application to vary or set aside consent orders pursuant to section 79A(1)(d) of the Family Law Act 1975 - Discussion as to what amounts to an ‘exceptional circumstance’ and ‘hardship’ - Application dismissed

Family Law Act 1975 (Cth)

Christian & McDonald (2008) FamCAFC 44
Garden & Gavin (No. 2), [2010] FamCAFC 125
Liu and Liu, (1984) FLC 91-572
Rohde and Rohde (1984) FLC 91-952
Sandrk and Sandrk, (1991) FLC92-260
Simpson and Hamlin (1984) FLC 91-576
Stanic and Stanic, [2007] FamCA 1492
Taylor and Taylor, (1979) 143 CLR 1
Whitford and Whitford (1979) FLC 90-612

APPLICANT:	Mr Gavin
RESPONDENT:	Ms Garden

FILE NUMBER:

BRC

14346

2007

DATE DELIVERED:

21 March 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Mushin J

HEARING DATE:

29 November 2010 – 2 December 2010 inclusive

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Summers of Counsel

SOLICITOR FOR THE RESPONDENT:

N/A

IT IS ORDERED THAT

The husband’s application seeking to vary or set aside the consent orders made on 5 May 2004 be and is hereby dismissed.
Any other application by either party be dismissed.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Gavin & Garden is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC13613/2007

Mr Gavin

Applicant

And

Ms Garden

Respondent

REASONS FOR JUDGMENT

introduction

The parties separated in August 2003. They issued competing applications for parenting orders and alteration of property interests. In May 2004 they consented to final orders (“the consent orders”) which brought all the proceedings to an end. The consent orders provided for the two children of their marriage to live in the primary care of the wife. They also provided for the wife to receive approximately 65% of the parties' assets with the husband to receive the balance.
Approximately 7 months after the consent orders were made, the children left the primary care of the wife and went to live in the primary care of the husband. From approximately 9 months after that change for a period of approximately 20 months, the children did not spend any time or communicate with their mother. Subsequently, formal orders were made providing for the children to live in the primary care of the husband and spend time with the wife.
The present application was made by the husband seeking the varying or setting aside of the consent orders insofar as they pertained to the competing applications for alteration of property interests and the making of new orders for alteration of property interests on the basis of the children's change of primary care. The wife seeks the dismissal of that application. These reasons for judgment and the consequential orders determine that issue.

The parties and their children

The husband was born in South Asia in 1949 and is presently aged 61 years. He is professionally qualified. He has not re-partnered.
The wife was born in Melanesia in 1966 and is presently aged 44 years. She is a scientist. She has not re-partnered.
The parties married in Melanesia in 1992, migrated to Australia shortly after their marriage and have lived in Brisbane since then.
The parties have two children by their marriage. They are -
· V who was born in November 1993 and is presently aged 17 years; and
· J who was born in June 1996 and is presently aged 14 years.

Relevant facts

Following their separation, the parties filed competing applications seeking parenting orders and alteration of property interests. Those proceedings were listed for hearing before O'Reilly J. On 5 May 2004, during the trial before her Honour, the parties consented to orders which finalised all applications. The parties agreed that the children would live in the primary care of the wife and spend time with the husband on two nights per week in alternate weeks and three nights per week during the intervening weeks. They also agreed that the wife would pay the husband the sum of $15,000, in return for which he transferred all his right title and interest in the former matrimonial home at Suburb 1 in Brisbane to the wife with the usual indemnities.
The husband gave evidence with regard to the circumstances in which that settlement took place. He swore that O'Reilly J had given the parties an “instruction” that because the wife was retaining the primary care of the children, she should receive approximately 70% of the parties' net assets. I do not accept that evidence. It is clear from all the evidence that her Honour ventured a preliminary view to the parties, following which they resolved the competing applications for alteration of property interests. There is some small disagreement between the parties as to the percentage division of their net assets which resulted from the consent orders. Counsel for the wife asserted that it amounted to 65% of the assets to the wife and 35% to the husband. The husband asserted that it amounted to 67% of those assets to the wife and 33% to him. In the circumstances, the difference on that issue is of no consequence. Because the matter settled, her Honour was not required to deliver reasons for judgment and the consent orders do not include any indication as to the basis of the settlement.
On 4 December 2004, seven months after the making of the consent orders, the children left their mother's home and went to live in the primary care of their father. Their relationship with their mother was very poor at that time. However, they did spend some time with her.
The husband swore that on 1 September 2005 the children spent time with the wife. He alleged that the wife demanded that V sign a document confirming that he had lied to a psychologist about his mother having hit him. When V refused, the wife allegedly ejected him from the home and J followed. Thereafter, the wife did not spend any time with the children until 8 April 2007. I will refer to the competing factual allegations with regard to this matter below.
On 4 February 2005 the parenting orders contained in the consent orders were set aside and interim orders were made providing for the children to live with the husband, for the child V to spend time with the wife each alternate Thursday to Monday and for J to spend time with the wife each alternate Tuesday to Monday. On 22 August 2005 after a three-day hearing, further parenting orders were made providing for the children to live in the primary care of the husband and spend time with the wife for four days per fortnight. Further parenting orders were made on 28 June 2007 providing for the children to live with the husband and the child J to spend time with the wife on alternate weekends.
On 10 May 2006 the husband filed an application in this Court effectively seeking the varying or setting aside of the consent orders relating to the alteration of property interests. The wife filed a response opposing his application. Those applications, together with the entirety of the subsequent proceedings, have had a long and difficult history leading up to this trial. The husband succeeded in his application to have the consent orders varied or set aside by order made on 18 October 2007. Following that decision, his application was transferred to the Federal Magistrates Court for determination of the resultant applications for alteration of property interests. The wife did not appear at that hearing. Orders were made on the application on 18 September 2009. Following that determination, the wife ultimately appealed to the Full Court of this Court against both of those decisions. By orders made on 2 July 2010 she succeeded in that appeal in all respects, the previous orders setting aside the consent orders and making fresh orders for alteration of property interests being themselves set aside and the proceedings being remitted for rehearing. As a result, the consent orders, insofar as they determined the competing applications for alteration of property interests, were effectively reinstated. This trial together with these reasons for judgment constitute that rehearing and a determination of the competing applications.

The parties' proposals

The husband seeks the setting aside of the consent orders. If he is successful, it would then be necessary to re-determine the competing applications for alteration of property interests. The husband asserts that it would be just and equitable for the same or a similar result to be substituted as in the consent orders but in his favour rather than in that of the wife, thereby effectively providing orders which mirrored the consent orders.
The wife seeks the dismissal of the husband's application to vary or set aside the consent orders which would result in those orders remaining in full force and effect.

The relevant legislation

The relevant legislation is contained in subsection 79A(1) of the Family Law Act 1975 (“the Act”) and gives the Court the discretion to set aside final orders for alteration of property interests made pursuant to section 79 of the Act whether by consent or otherwise.
The subsection provides five grounds, any one of which may be established by an applicant in persuading the Court to exercise that discretion. At the outset and during this trial, the husband sought to rely on the first four of those five grounds, the last of which is clearly irrelevant to his application. During the trial, the husband and I discussed the first three of those grounds. In the discussions, I put to the husband my view that the first three grounds could not be established, even on the best view of his case. Having given consideration to my expressed views, the husband abandoned those grounds and relied only on the fourth ground.
The entire history of these proceedings clearly establishes that the husband's case has always relied on the fourth ground. Given its importance, I now quote it in full:
79A(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that -
…
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order …
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the orders so set aside.
The relevant part of subsection 79A(1AA) provides:
For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:
(a) the person is a parent of the child with whom the child lives … .
It is clear that at all relevant times, the husband has had caring responsibility for the children. No submission was made to the contrary.
The process which I must follow in determining these applications may be divided into three distinct steps. The first step has two parts to it. The first part is to determine whether a circumstance “of an exceptional nature relating to the care, welfare and development of …” the children of the marriage has occurred. If I answer that part in the negative, I must dismiss the husband's application. If I answer it in the affirmative, I must determine the second part which is whether there has been relevant hardship. If I determine that there has not been hardship in accordance with the meaning of that term in the legislation, I must dismiss the husband's application. If I determine that there has been hardship, I must move to a consideration of the second step.
The second step involves the exercise of the discretion referred to at the end of the subsection which is a determination of whether to vary or set aside the consent orders. Again, if I decide against the husband on that exercise, I must dismiss his application and if I decide in his favour, I must move to the third step.
The third step requires a re-determination of the original competing applications for alteration of property interests.
The husband made a number of submissions to the effect that the property orders by consent were “no longer just and equitable”, and that his application was to “recover” a just and equitable arrangement. In Christian & McDonald (2008) FamCAFC 44, the Full Court of this Court expressly rejected a desire to do equity between the parties as satisfying the ground in s 79A, holding (paragraph 45):
The legislation simply does not allow the Court to put the husband in the same position as the wife found herself, when seeking orders pursuant to s 79 at first instance. Then, the question of likely arrangements for the children was simply a relevant factor to be established on the balance of probabilities. But now, a final order having been made, by virtue of public policy and the terms of s 79A(1)(d), the husband must, in respect of a variation of the orders based on a change in arrangements for the children, establish both exceptional circumstances and hardship.

Discussion

The first step
Circumstances of an exceptional nature

The legislation provides that any circumstance of an exceptional nature must relate to the care, welfare and development of at least one of the children of the marriage. The question of what constitutes such a circumstance has been the subject of judicial determination to which I now turn.
In Liu and Liu, (1984) FLC ¶91-572, Nygh J considered the wife's application to set aside previous orders for alteration of property interests on the basis that the husband was in arrears of maintenance. While his Honour determined the application under a different head of power in section 79A(1) of the Act, he commented on the nature of an exceptional circumstance in paragraph (d). He held (at p 79,624):
There is no doubt that the “exceptional circumstances”' need not by themselves relate to the original property order. An obvious example would be a serious chronic illness of a child which causes a need for remodelling of the house in which he or she lives which cannot be met out of increased maintenance but only out of an increased share of capital. In this case, however, the wife is seeking to enforce arrears of maintenance and may, in the light of the husband's refusal to pay maintenance in the past, have a basis for claiming lump sum maintenance for the future. However, she could make such claims without the need to re-open the original property proceedings.
There is no evidence in this matter to establish any such “serious chronic illness” or like matter which might create an exceptional circumstance in accordance with the legislation. No submission was made to the contrary. However, that is not the only exceptional circumstance which has been judicially determined or considered.
In Simpson and Hamlin (1984) FLC ¶91-576, a Full Court of this Court determined an appeal against orders which set aside consent orders for alteration of property interests under paragraph (d) in circumstances in which the husband, who had the sole care of the children, advised the wife that he could not care for them nine days after the making of the orders. The Court noted the trial judge's finding (at p 79,656) –
… that the delivery of the children to the wife by the husband so soon after the consent order had been made, amounted to “circumstances of an exceptional nature” affecting the welfare of the children in which the wife, who had their custody, would suffer hardship if the consent order was not set aside.
Their Honours held (at p 79,657):
So far as the first point is concerned, his Honour quite rightly, in our view, concluded that:
The occurrence of a change in the responsibility for the daily care and control of children of a marriage, after the making of a property order under sec. 79 of the Family Law Act could not be held of itself to be an unusual circumstance. The ordinary vicissitudes of life coupled with the difficulties that parties to a marriage often experience in the task of restructuring their lives following the dissolution of their marriage and the division of their assets, and their obligations to the support of each other and the support, care and control of their children, frequently creates situations in which it is desirable having regard to the children's welfare that such a change occurs.”
The question therefore was whether the change which occurred in this case was such as to “take it out of and beyond the ordinary circumstances in which such change might be reasonably expected to occur”. He saw that feature in the present case in “the fact that the change occurred unexpectedly and so quickly after the making of the property order”.
Shortly following the passage quoted in the previous paragraph, the Full Court held (p 79,658):
What amounts to “exceptional circumstances” is very much a question of fact and degree. With findings on such matters an appellate tribunal is reluctant to interfere. Whilst we might have had some hesitation ourselves as to whether or not in the light of the history of these parties and their admitted future intention, the change of custodial arrangements was so exceptional as to take it out of the normal vicissitudes of life, it was in our view a finding which his Honour was entitled to make on the evidence and which we cannot disturb.
In Sandrk and Sandrk, (1991) FLC ¶92-260, Gee J referred to Simpson and Hamlin (supra) in which the children changed residence from one party to the other very shortly after the making of the consent orders for alteration property interests. In Sandrk, the children changed residence solely at their own request and not as a result of any action by either party. His Honour made orders on 22 May 1989 for the children to live in the care of the wife. He found an exceptional circumstance in holding (p 78,750-1):
It was apparent as at 22 May 1989 that the boys were not seeing their father, that they were in the custody of their mother, and that this situation would continue. There was no suggestion, upon the evidence, that the situation would be otherwise. Yet, within a month of the orders being made, access recommenced. Within two months the boys were making noises. By August the boys were making noises about not wanting to go back to their mother, and by the middle of September 1989 they had voted with their feet, gone to their father, and had no contact with their mother since.
Such events were not within the contemplation of the parties. Such events were of an extraordinary nature. Such events were not contributed to, so far as can be judged on the evidence, in the sense of consciously creating that situation, by either party, least of all the husband who was the recipient of their care and control.
…
Further, the husband has not been a contributor to the situation of which he complains. The situation arose because the children voted of their own initiative and of their own feet, and therefore there is no discretionary consideration such as existed in Rohde and Rohde (1984) FLC ¶91-952 and to which I referred on page 79,770, which contributed as it did in that case to a refusal to exercise my discretion in favour of the husband in that case.
The authorities referred to above, and particularly the decision in Simpson and Hamlin, establish that an exceptional circumstance must go beyond “the normal vicissitudes of life”. As I have already found, the facts of this matter do not establish a circumstance such as was contemplated by Nygh J in Liu (supra). It also negates the husband's submission that the mere change constitutes an exceptional circumstance.

However, there is another line of authority as referred to in both Simpson and Hamlin (supra) and Sandrk (supra) from which the following further principles might be derived to establish an exceptional circumstance:
·    the children changing their care from respondent to the applicant in relatively short time after the making of the original orders;
·    such change not being in the contemplation of either party at the time of the making of the original orders; and
·    the applicant not being a contributor to the circumstances of the change.
In my consideration of the principles set out in the previous paragraph, I commence with respectfully adopting the concerns expressed by the Full Court in Simpson and Hamlin (at p 79,658 quoted above) as to whether that fact situation took the matter outside” the normal vicissitudes of life” so as to bring it within the discretion to vary or set aside the original orders. However, whether the discretion was properly exercised in that matter or not, the facts are materially distinguishable from this matter.
In Simpson and Hamlin the husband advised the wife of his intention to change the sole care of the children from himself to her nine days after the making of the consent orders. In this matter, the change took place seven months after the making of the consent orders. Further, the nature of the change in this matter was quite different. Between the consent orders and the children's change of primary care, they were spending five nights per fortnight in the husband's care. Unlike the change in Simpson and Hamlin (supra) and Sandrk (supra) which involved moving from the sole care of one party to the sole care of the other, the change in this matter was relatively modest. While in this matter the practical effect was for the children not to spend any time with the wife for nearly 2 years after September 2005, more recently they have been spending time with her. V ceased to live in the husband's home of his own volition in approximately June 2010 and went to live in the home of the family of a school friend as a result of an apparent falling out with his father. V had continued to live away from his father's home at the time of this trial and there did not appear to be any realistic prospect of his return. Further, also at the time of the trial J was spending three nights in each fortnight at her mother's home.
There is no evidence to suggest that at the time of the making of the consent orders a change of the children's primary care from the wife to the husband was in the contemplation of either party. However, my consideration of the third factor immediately below is relevant to that question.
There is conflicting evidence as to whether any overt action on the part of the husband contributed to the children's move to his primary care. The husband swore that he did not act in any such way and that the move was solely attributable to the breakdown of the children's relationship with their mother. He asserted that the breakdown had been brought about by the wife's physical, verbal and emotional violence towards the children.
However, the surrounding facts lead me to the view that it was not surprising that the children moved to his care. The husband deeply resented the wife's decision to separate from him and continues with that resentment to the present time. Part of his submissions in support of his reliance on other paragraphs of the subsection demonstrated that very clearly.
The wife swore that the husband's behaviour largely led to her decision not to see the children for a period of nearly 2 years following the change. She alleged that he would telephone the children when they were in her care and offer them activities which were more inviting than being with the wife. She effectively alleged that the husband contributed to undermining her relationship with the children.
The facts relating to the cause of the children's change of primary care were hotly disputed. They were not explored in any great detail during this trial. Those referred to in the previous paragraph seem to apply to the period following the change of the children's primary care and are therefore not strictly relevant to any causal connection. However, they confirm observations which I made of the parties with regard to issues of insight and perception.
I have previously referred to the husband's lack of insight and perception. There are two aspects of the evidence which have particularly led me to that finding. First, in 1998 the husband was hospitalised as an inpatient at a psychiatric institution for a period of 33 days because of his bipolar disorder. During this trial, in response to questions from me he referred to that time as having been difficult for him but had no perception of the difficulties which his mental health would have imposed on the wife who had to cope with his illness and the exclusive care of the children. Further, he could not concede that his illness might have provided any difficulty for the wife either before or after his hospitalisation. In that regard, the wife's evidence with regard to those difficulties before, during and after the hospitalisation, including a considerable period of time either side of it, is entirely credible and preferable to that of the husband.
The second aspect of the evidence concerns the husband's perception of at least a partial cause of the apparent breakdown in the relationship between the wife and the children. The husband swore that the children had informed him that the wife had, on one instance, threatened one or both of them with a knife. The husband accepted that the wife had behaved in that way.
The wife's evidence was that on one occasion she had been preparing the evening meal while one of the children was behaving inappropriately and unacceptably. She had been cutting up the food and had a knife in her hand when she turned around to discipline the child. While telling the child that the behaviour was unacceptable, she waved the knife around because it was still in her hand rather than by way of threatening the child.
My observation of the wife leads me to the conclusion that she was, and continues to be, extremely unlikely to behave in that manner towards either of the children. That is not to say that she has not acted inappropriately towards the children. The apparent breakdown of her relationship with the children is unlikely to have taken place if she had not acted inappropriately. However, I did not observe her to be a person who was likely to threaten her children with a knife, albeit that in retrospect it may have been preferable for her not to have continued to hold a knife during the incident.
The husband could not contemplate the possibility of the children relating these events to him in a manner which they perceived that he preferred to hear and that the wife had accordingly acted reasonably, despite the fact that in retrospect it would have been preferable not to have continued to hold the knife at that time.
The evidence referred to above, together with the entirety of the rest of the evidence of these proceedings, leads me to the finding that from the separation and through the events of the consent orders and the children's change of primary care, relations between the parties were extremely negative. In my view, that negativity stemmed at least as much from the husband as the wife.
Accordingly, while I have found that there was nothing overt in the husband's actions to bring about the change in the children's care, in retrospect the change was not surprising. To that extent, I find that arising out of the husband's actions and particularly his negativity towards the wife which I find at least by way of inference he would have made clear to the children, he made some contribution to the events of December 2004 when the children changed from the primary care of the wife to that of the husband.
I find that even if the fact situation in Simpson and Hamlin (supra) might, in some circumstances, create an exceptional circumstance within the meaning of the legislation, the facts of this matter do not take it outside of the “normal vicissitudes of life”. In the particular circumstances of this matter, there has been considerable fluidity in the children's living arrangements. My experience suggests that that is by no means unusual for children of the ages of these children and living in circumstances of such high parental conflict.
Therefore, I find that the husband has not established an exceptional circumstance in accordance with the meaning of that term in the legislation.

Hardship

Despite my finding that the husband has not established an exceptional circumstance in accordance with the legislation, it is appropriate for me to complete the second part of what I have described as the first step of determining whether the husband has established a ground for his application by considering what, if any, hardship has been established.
Prior to the amendment of the legislation in 1983 by the addition of paragraph (d) to section 79A(1) as a ground for varying or setting aside an order made under section 79 of the Act, there was significant appellate consideration of the policy requirement that a final order made under that last mentioned section should bring an end to litigation between the parties as far as may be practicable. In that regard, in Taylor and Taylor, (1979) 143 CLR 1, 14, Mason J (as he then was) held:
14. What s. 79A (1) does is to give the court a discretion to set aside an order when it has been obtained by false evidence. In such a case the court will be extremely reluctant to exercise its discretion in favour of setting aside the order unless something more appears than that false evidence has been given and has procured the making of the order. The importance of bringing an end to litigation and the evil of allowing cases to be retried on the same evidence are powerful deterrents against setting aside a judgment whenever it appears that it has been obtained by false evidence without more. Where, however, more appears, as, for example, that the judgment was obtained ex parte without the benefit of the evidence to be given by one of the parties, then the court will the more readily exercise its discretion in favour of setting aside the judgment. Then the setting aside of the judgment will not result in a retrial on the same evidence but in a trial on the evidence given by both parties.
In Simpson and Hamlin (supra), the Full Court referred to the quotation in the previous paragraph and held (p 79,659):
This passage relates of course to the original version of sec. 79A(1) under which the grounds for setting aside an order were severely restricted. The amendments in 1983 certainly extended the range of situations in which orders could be set aside or varied. However, it did not alter the nature of sec. 79 orders as orders which cannot normally be altered. This conclusion is fortified by the operation of sec. 81 of the Act.
The importance of bringing an end to litigation remains an important consideration and the remarks of Mason J. remain applicable to para. (d) mutatis mutandis. To paraphrase his Honour's remarks: it is not sufficient that it appears that circumstances have arisen of an exceptional nature resulting in hardship to the applicant, the Court must consider in the exercise of its discretion whether that hardship is of such a serious nature and results in such inequity that it can only be rectified by the extreme step of setting aside or varying an existing order of the Court. We leave aside the question of whether special considerations apply to consent orders. (emphasis added)
I have previously referred to the wife's appeal to the Full Court which resulted in this rehearing. The reasons for judgment of the Full Court are reported as Garden & Gavin (No. 2), [2010] FamCAFC 125. Relevantly to the question of hardship, the Court held (para. 46):
46. It is clear that three elements must be satisfied before an order can be made setting aside property orders pursuant to s 79A(1)(d). First, there must be circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child. Secondly, it must be demonstrated that the applicant (not the child) will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution of the order. Thirdly, what might be described as a further discretionary element, that is, the court may vary the order if it considers appropriate and make another order under s 79 in substitution for the order so set aside. (emphasis added)
Their Honours' discussion quoted in the previous paragraph was preceded and followed by references to Simpson and Hamlin (supra). In particular, at paragraph 56 of the reasons for judgment the Court quoted Simpson and Hamlin at page 79,659 which I have quoted above and added emphasis. The reason for adding that emphasis together with the emphasis in the quotation in the previous paragraph is to respectfully raise the possibility of an alternative interpretation of that part of section 79A(1)(d) relating to the issue of hardship.
At paragraph 46 of the reasons for judgment of the Full Court in this matter, their Honours excluded the element of hardship in so far as it might relate to a child and considered it only in the context of hardship to the applicant. With great respect, it appears to me that an interpretation of that provision as relating to either or both of the applicant or the child is open. In my view, the drafting of the provision is unclear.
The lack of clarity referred to in the previous paragraph appears to me to stem from the word “or” in the phrase “the child or,”. In my view, the essential question is whether the consequence of that drafting is to exclude any hardship to a child in the event that the applicant is a person with “caring responsibility” in accordance with the definition of that term in the legislation. In my view, both interpretations are open.
The point was not argued before me. I have been unable to find any authority which discusses the issue, including the reasons for judgment of the Full Court in this matter. The reasons for judgment in Simpson and Hamlin (supra) assume that the hardship only relates to the applicant as demonstrated by the words which I have emphasised in the quote above and which were also quoted by the Full Court in this matter. Accordingly, arising out of my expressed concerns with regard to the application of the concept of hardship, it is appropriate for me to consider hardship as it might impact on both the applicant husband and/or the children or either of them.
The initial question is what may be considered to be hardship in accordance with the legislation. No submission was made to me on that issue. There has been some judicial consideration of that question as well as the meaning of “hardship” in at least one other section of the Act. I turn to a consideration of those authorities.
I have previously referred to the husband's assertion that the consent orders in this matter were made on the basis that the wife would have the primary care of the children and that should, on the allegedly expressed view of O'Reilly J, be reflected in a particular result. Referring to that question, the Full Court in the appeal in this matter, held:
51.Then in dealing with the hardship question their Honours referred to the trial judge’s finding (p.79,658):
… that the wife would suffer hardship if the order was not changed was based on his assumption that the property order was made ‘upon terms that clearly reflected the respondent's responsibility for the children’s care both in the past and so far as could be foreseen by the parties in the future’.
52.As in this case there was an argument about the original division contained in the consent order and the extent to which it reflected the arrangements for the children.
53.In Simpson and Hamlin, their Honours said (p.79,658):
We cannot see any basis for his Honour’s assumption that the consent order clearly reflects the husband’s responsibility for the children. In the first place, it was a consent order and there is no recital or other indication of what motivated the parties in their agreement. Nor is there any basis for the assertion of the wife implicitly accepted by his Honour that there was a one-third division of the equity in her favour.
54.We find ourselves in the same position in this case. Also important to the decision in this case, the Full Court in Simpson and Hamlin identified what was described as a further error of the trial judge “when he said that once the conditions of para. (d) were established, the order should be set aside unless other factors appeared”. (p.79,658)
I respectfully adopt their Honours' statement.
In Stanic and Stanic, [2007] FamCA 1492, Stevenson J found an exceptional circumstance in a matter in which four children moved from living with the wife to living with the husband arising out of the wife's mental illness. Her Honour considered the issue of hardship in the following terms:
37.The contention as to “hardship” was that most, if not all, of the presently available net assets of the parties will be vested in the wife if the orders of 13 November 2003 stand. The husband’s capacity to provide proper accommodation and day-to-day financial support for the children will be seriously compromised due to a lack of capital and the fact that he has no income other than social security benefits. He maintained that his responsibility to care for the children has resulted in the closure of his business and an increase in his level of debt.
…
56.The husband has an ongoing responsibility to provide accommodation and financial support for S, V and P. There is no real prospect at all that he will receive child support from the wife. Since the children went to live with their father, her employment has been limited to a casual job between November 2006 and April 2007. She worked at a business known as “[N Company]” for two days per week initially and then also on Saturdays. Her income now consists solely of social security benefits.
57.The husband also relies on social security benefits. It may be that he could make greater efforts to find suitable paid employment but the reality is that the care of the children falls entirely to him. They spend only three Saturdays and one overnight period per month with their mother.
58.Having regard to these matters, I am satisfied and I find that exceptional circumstances have arisen in relation to the children, since the making of the November 2003 orders, which will result in hardship for both the husband and the children if those orders are not set aside or varied. The stark reality is that the parent with whom the children spend very limited time will be left with practically the whole of the presently available assets, whereas the parent with almost sole responsibility for their care will have no capital base and, at best, relief from present debts.
Section 44 of the Act provides a statutory limitation on bringing certain proceedings for alteration property interests and maintenance. It includes a provision by which the Court may grant leave to bring proceedings out of time, one consideration of which is hardship. In Whitford and Whitford (1979) FLC ¶90-612, the Full Court held that the meaning of “hardship” was -
… akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment. (p 78,140)
…
In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in sub-s 44(4) the word should have its usual, though not necessarily its most stringent, connotations. (p 78,145)

In my view, the concept of hardship should be considered on a similar basis to that of an exceptional circumstance. While not to be read stringently, it incorporates the concept of being more than “the normal vicissitudes of life”.
In support of his assertion that both he and the children had suffered hardship, the husband made the following submissions which I summarise:
·    The children living in more cramped accommodation than is available in the former matrimonial home;
·    The husband’s increased expenditure on the children, providing accommodation in proximity to their schools and all other expenses. He submits that the child support paid by the wife is insufficient in this regard.
·    The husband’s expenditure on legal fees for the hearings held in 2004 by way of unsecured bank loans. He further submits that these loans, which now total $170,000 according to his evidence during the trial, impact his ability to provide for the children and for his own desires such as further study. The husband has entered a Part 10 Agreement. He has provided very little information with regard to his obligations pursuant to that agreement. It was entered into in July 2010 and he pays the sum of $450 per week to the Administrator. There is no other detail.
I now turn to a consideration of those submissions.
In preparation of these proceedings a single expert witness was engaged to value the former matrimonial home at Suburb 1 in Brisbane. The witness inspected the property and reported that it -
… included three bedrooms, three bathrooms (including ensuite), kitchen, combined meals and family room, lounge room, laundry, double lock-up garage and small upper level deck.
The property was valued in the sum of $575,000.
By contrast, since the children moved to live with the husband in December 2004, the standard of their accommodation has been inferior to that of the former matrimonial home in which they had lived with both parties prior to their separation and with the wife between the separation and their move. At the time of the consent orders, the husband was living in a rented unit at Suburb 1 with an area of approximately 140 square metres. It was a gated, air-conditioned apartment complex consisting of two bedrooms and an office together with two bathrooms. When the children came to live with the husband, he converted the office into a third bedroom. The unit had a small courtyard and two “bath sized” pools. The husband was paying weekly rental of $280 and was earning between $3500 and $4000 per month after income tax. The rental had increased to $350 by the time he vacated that unit in December 2008.
In December 2008 the husband moved with the children to another unit at Suburb 2 in Brisbane. He swore that the move was brought about by the fact that “both the children were going to school close by”. V had commenced schooling at C school and J was about to commence at the same school. The husband swore that the Suburb 2 unit was “about two thirds smaller” than the previous unit at Suburb 1. It consisted of three bedrooms over two levels and had two bathrooms and a powder room. It was not gated and there was no security. In response to cross examination as to why he had moved to that unit the husband swore:
All other houses were too expensive, I was worried, we were one week away from the moving day.
The husband swore that his income was approximately the same as it had been prior to the move to the Suburb 2 unit.
In mid-December 2009 the husband and the children moved from Suburb 2 to a unit at Suburb 3 in Brisbane on a six-month lease with rental of $405 per week. The husband swore that they had been asked to leave the Suburb 2 unit arising out of an unsatisfactory inspection by the agent. The husband swore that at the time of that inspection the unit had been “in the usual total chaos”. When asked if he intended to stay at the Suburb 3 property he replied:
I can't afford to move unless I have to.
I accept that the accommodation in which the husband has housed the children since December 2004 has been of an inferior standard to the former matrimonial home in which the wife has lived since the parties' separation. In accordance with my discussion of the concept of hardship above, the fact that the accommodation has been inferior does not, of itself, constitute hardship. It is a matter of degree. In my view, in the circumstances the husband has not established hardship in that respect. While the facilities of the former matrimonial home were, and remain superior to the husband's accommodation, there is no evidence to suggest any real detriment to either the husband or any of the children to an extent contemplated by the definition of “hardship” which I have found to be appropriate.
Turning to the second aspect of the husband's claim of hardship, I accept that as a direct consequence of the children's move to live with him on a full-time basis he has had greater financial responsibilities than prior to that move. At all relevant times the husband's income has been at least approximately double that of the wife. He has received child support from the wife in accordance with her liability as fixed by the Child Support Agency but he has undoubtedly had very significantly greater financial responsibilities for the children's well-being.
While the evidence does not enable me to make a clear and detailed finding, I infer that the husband's liability for financially maintaining the children from all sources including child support from the wife has been at least no greater than the wife's financial liability when the children lived with her, including child support paid to her by the husband. While the husband has had liability for rental, the wife was required to pay the principal and interest on the mortgage on the former matrimonial home while the children lived with her. She has continued to meet those liabilities up to the present time. The wife had a significantly lower income than the husband who paid her child support, again in accordance with the liability fixed by the Child Support Agency.
The above analysis demonstrates that neither the husband nor the wife has lived at other than a reasonably basic standard of living since their separation. I infer that that standard of living was at least similar to the standard of living prior to the parties' separation. Evidence is not necessary to establish the proposition that upon relationship breakdown and separation, more resources are needed to maintain the family, and particularly the children, as when the husband, the wife and the children lived as an intact family. The evidence establishes that upon their separation both the husband and the wife have found it difficult to provide for themselves and their children at different times. It cannot be said that one of them has found it more difficult than the other. It is true that the wife has maintained the former matrimonial home and the husband has lived in rented premises but that of itself does not establish hardship as required by the legislation.
Moving to the husband's third submission, he entered into the Deed of Arrangement in July 2010. That is a relatively recent occurrence and is in respect of borrowings which originated from the time of the initial proceedings between the parties giving rise to the consent orders and the subsequent parenting orders. There has been a substantial time between the initial borrowing of those monies and the entry into the Deed of Arrangement. Further, while not quantified, the wife also appears to have had significant legal costs of those proceedings. The husband alleged that the wife had increased the mortgage on the former matrimonial home in order to borrow funds for her legal fees. In those circumstances, in my view the husband has not established a causal link between the two. To the extent that he may have suffered hardship arising out of the costs of litigation, the wife appears to have suffered similar hardship. While the wife's hardship is not relevant to the husband's application in a strict sense, it demonstrates that his hardship is not beyond the “normal vicissitudes of life”. Further, it cannot be said that the Deed of Arrangement may be attributed to the children having moved to live with him.

Conclusion

I conclude that the husband has not established an exceptional circumstance in accordance with the legislation. Further, I conclude in accordance with the requirement of hardship in the legislation that he has not made out a case in that regard either. Accordingly, I will dismiss his application.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate:

Date: 21 March 2011