Murphy & Murphy
[2007] FamCA 795
•20 July 2007
FAMILY COURT OF AUSTRALIA
| MURPHY & MURPHY | [2007] FamCA 795 |
| FAMILY LAW - CHILDREN – Parenting law and policy- Child sexual allegations - Whether children face an unacceptable risk of abuse by the father or mother - Standard of proof – Importance of the parental relationship and maintaining contact – The best interest criteria – Displacement of presumption of equal shared parental responsibility - Circumstances in which parenting time properly restricted or denied – Aptness of long-term supervised contact in the circumstances- Relevance of child protection issues in family proceedings – Legal principles governing general approach to parenting disputes involving suspected or alleged child sexual abuse considered – Whether alleged child victims should give direct evidence and face cross-examination about complaints- Meaning and assessment of unacceptable risk – Admissibility of social and behavioural facts and other extrinsic information from non-legal sources- Consideration of appropriateness of post-order reviews of “final” parenting orders. This was an application by the father for equal shared parental responsibility and parenting time and by the mother for supervised contact on sexual abuse and related grounds. The parties were married in 2001 and separated in 2005. There were two children of the marriage, a girl, A, aged 5 ½ and the boy, T, aged 3 ½ at the date of trial. The mother also had two daughters from previous relationships, B aged 13 ½ and M aged 10, who lived with the parties during the marriage. After separation the mother and children remained in the family home on the Gold Coast. The father went to live with his mother in northern NSW. M and A made statements to the mother, police, departmental officers, M’s paternal grandmother and the maternal grandmother, which led to the belief that both girls may have been sexually abused by the father when they were three. The allegations were consistently denied by the father. At trial the mother relied on the children’s s 100A statements and inferences arising from the father’s alleged personality traits and some behaviours of the children. The father alleged concoction and probable adult influence. Psychiatric evidence did not support either case. Both children had a close and continuing relationship with the father which they wanted to maintain. Two family reporters and a psychiatrist recommended increased time with the father in the event of a no risk or negative finding on the abuse issue. Held: 1) The totality of the evidence was neither sufficient nor satisfactory enough to support definite positive or negative findings on the issue of past sexual abuse. 2) The possibility of past sexual abuse of M and/or A could not be dismissed as groundless and gave rise to an appreciable though relatively low risk of sex related harm to A on unsupervised time with the father. 3) No assessed risk in relation to T. 4) Child safety concerns and the mothers contact adverse attitude together with a combination of other related considerations meant it was not in the best interest of the children to make any final orders. 5) The best interests solution was a graduated re-introduction of unsupervised time with safeguards including a short period of supervised contact and post-order monitoring and review. 6) No orders re-allocating s 61C parental responsibility made due to high levels of mutual suspicion and conflict between the parents. FAMILY LAW - PROPERTY - Division of pool after marriage of approx. 6 years duration- s 79(4) and s 75(2) considerations involving disparity in initial contributions - Alleged emotional abuse, stressful domestic situation and disputed post-separation expenditure. Husband’s legal costs incurred in defence of criminal charges arising out of work related conduct allowed as reasonable post-separation outlay for career protection purposes. The husband’s greater initial financial contribution was found to have some unquantified ongoing significance despite weighty offsetting contribution by the wife over the length of the marriage. Loading to the wife under s 79(4)(c) or s 75 (2)(o) for impact on her homemaker and parenting role of emotional abuse by the husband. Further adjustment to the wife under subsections 75(2)(b), (d) ,(e) and (k) and to the husband under s 75(2)(o) in recognition of his financial support of non-biological children. Held: 60/40 split of total property pool in favour of the husband. |
| Parenting R v D [2003] QCA 151 Re W and W: Abuse Allegations; Expert Evidence (2001) FLC 93-085 Property Robb (1995) FLC 92-555 |
| APPLICANT: | Mr Murphy |
| RESPONDENT: | Ms Murphy |
| INDEPENDENT CHILDREN’S LAWYER: | Michelle Dooley |
| FILE NUMBER: | BRF | 293 | of | 2006 |
| DATE DELIVERED: | 20th July 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | Carmody J |
| HEARING DATE: | 29 January 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hackett |
| SOLICITOR FOR THE APPLICANT: | Evans & Company Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms McDiarmid |
| SOLICITOR FOR THE RESPONDENT: | Robbins Watson Solicitors |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Ms Spence |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Michelle Dooley |
IT IS NOTED IN CONNECTION WITH THESE REASONS that the judgment of the Honourable Justice Carmody delivered this day will for all publication and reporting purposes be referred to as Murphy & Murphy
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF 293 of 2006
| Mr Murphy |
Applicant
And
| Ms Murphy |
Respondent
REASONS FOR JUDGMENT
This is a combined financial and children’s issues case.
Dealing with the Pt VII matter first is both convenient and expedient because, among other things, it will ensure that all relevant adjustment factors can be taken into account in the s 79 exercise.
THE PARENTING ISSUES
This application is about which parent, a girl, A, 5 ½ and a boy, T, aged 3½ are to live with and how much time they are going to have with the other. They currently live with the mother and her 13½ and 10 year old daughters from previous relationships, B and M, on the Gold Coast.
The father lives with his mother on the Central Coast of NSW. He has not spent any significant time or communicated with A or T since the breakdown of the marriage in December 2005. He applies for the children to live with him on the grounds of alleged emotional abuse at the mother’s hands. Failing that, he proposes an equal shared parenting time order under which one or other of the parents would relocate to make the arrangement work. No orders are sought in relation to B and M.
The mother opposes any change to existing residential arrangements and contends that time with the father should only be allowed on the basis that it is strictly supervised at a contact centre because of asserted child sex abuse related risks.
Child sexual abuse allegations are among the hardest issues family court judges have to grapple with. The stakes are high on both sides. There are no easy answers. Judicial mistakes can do irreversible and permanent damage to families affected. The failure to correctly ascertain and attribute fault empowers perpetrators and re-victimises victims. Doubtless the final result will be seen by one or other or perhaps even both parents and the child as “exquisitely unfair” no matter how legally right it is.
Nonetheless, all parties must be given and feel that they have had a fair hearing. Whether they have or not depends on the extent to which they have been allowed to present their own case and been able to meet the challenge of the case against them. For its part the court must maintain its social relevance and moral authority by resolving these agonizingly difficult controversies in a predictable, principled, reasoned and coherent way by consistently applying the correct law to the facts as they are found to exist in each particular case, adequately explaining how and why it reached the decision it did and, most importantly, by making viable “best interest” orders based on nothing more or less than the best evidence available.
It goes without saying that in exercising their powers courts must dispense justice – not with it. It is plainly important that as well as meeting the ideal of individual justice, like cases should be treated alike. In the absence of legislative assistance this requires appellate level articulation of principles governing the courts general approach. Otherwise, the law would be “lawless science” and a “wilderness of single instances”…”.[1]
[1] Per Deane J in Mallett v Mallett (1984) 156 CLR 605 at 641 when referring to the need to develop non-binding guidelines forthe exercise of the s 79 (4) discretion.
First instance judges, especially those in this jurisdiction under pressure of heavy workloads, often prefer to direct themselves by reference to guidelines authoritatively laid down by the appellate courts rather than finding their own way through volumes of reported cases.[2] This is not only inevitable but desirable. Consistency, if not certainty, in the application of the relevant law depends on trial judges looking at what has been said and decided in prior cases when deciding what, if any, parenting order to make. However, the High Court of Australia last ‘cut through the thicket’ of the law of child sex abuse in a family law setting nearly two decades ago in M v M.[3] Since then the legislation has been substantially amended and an examination of the subsequent Full Court decisions reveal some practical problems are still being experienced by judges in the trial division.
[2] W & R [2006] FamCA 25.
[3] (1988) 166 CLR 69.
It is therefore timely and prudent to review and critically analyse (a) the relevant principles to be applied; (b) the general approach to be taken; and (c) the factors to be considered in the search for the “best interests solutions in parenting disputes involving suspected or alleged child sexual abuse. This is no easy task and takes considerable time and effort both to write and read. Hopefully, however, it will at least better explain the proper role and functions of the court as well as the forensic challenges and limitations it faces and how it tries to achieve better overall outcomes for children at risk.
It may also result in stronger and clearer guidelines being given by the Full Court so as to provide more practical assistance in this wide discretionary field so that disparity in outcomes is limited rather than encouraged.
Parenting law and policy
The court’s discretionary power in s 65D to make such parenting order “as it thinks proper” is now governed by the 2006 shared parenting reforms[4] which introduced a rebuttable presumption of ‘equal shared parental responsibility’ (a term of indeterminate and undefined statutory meaning) in s 61DA[5] but retained the mandatory obligation in s 60CA to regard the best interests of each child as the paramount consideration.[6]
[4] Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) effective from 1 July 2006.
[5] Strictly speaking, the paramountcy principle in 60CA governs the decision whether to make a particular parenting order or not, while 61DA(1) comes into play when a parenting order conferring parental responsibility pursuant to 64B(2)(c) is being made. Section 65AA retained the obligation in s60CA to regard the best interests of each child as the paramount consideration.
[6] See s 65AA.
The revised statutory objects in s 60B also must be paid proper attention. The interpretation and application of the paramountcy principle that promotes the objects of Pt VII is to be preferred to one that does not. Those objects are framed on the theory that parenting is an enduring legal as well as moral duty which remains binding on parents even though their own marriage or relationship has failed. It is not something that either of them can simply opt out of whenever they feel like it or, if, for example they re-partner or relocate. Co-operative parenting even (or especially) after separation or divorce is seen as being not only attainable and socially desirable but integral to the welfare and development of children who have a recognised right to be properly fathered and mothered until adulthood.
A primary goal is to make both parents meet their parenting commitments and fulfil their responsibilities - preferably jointly - as well as enjoying the rewards of being a parent. Another purpose is to rebuild familial relationships damaged or destroyed by separation or divorce on stronger and firmer foundations. The Act expressly acknowledges as an assumed legislative or social fact[7] the benefit to most children of having a meaningful relationship with and full involvement of both parents, including regularly spending significant and substantial, if not equal, amounts of time with each of them as well as other people significant to their care, welfare and development such as grandparents and relatives.
[7] Mullane, G R, ‘Evidence of Social Science Research: Law, Practice and Options in the Family Court’, (1998) 72 ALJ 434.
While most children are deemed by s 60B(1)(a) to benefit from dual parental involvement it is the best interests of the particular child that counts rather than children in general. The new laws do not give either a child or parent any right of contact that is contrary to the child’s welfare and, regrettably, there are cases where substantial or significant or any unsupervised face to face time with a parent may do more overall harm than good. Subject to this, children are entitled by law to have a relationship with each of their parents just as they are, blemishes and all, and not necessarily with the one they want or someone else’s notion of a perfect or model parent.
The best interests criteria
The law does not have any fixed concept of what is in the best interests of any individual child. It does not assume, for instance, that there is only one way of bringing up children. The paramountcy principle is an adaptable one which moulds itself to the unique circumstances of every case.
The best interests of a child are ascertained for family law purposes by reference to the statutory objects in s 60B, the presumption in s 61DA and two tiers of mandatory criteria set out in s 60CC. There are two primary considerations contained in subs (2) and 13 additional factors in subs (3). These are consistent with the concept of equal shared parental responsibility in s 61DA and reiterate in slightly different language the sentiments expressed in the first two of the objects stated in s 60B.
The Attorney-General’s explanatory memorandum on the amending bill makes it clear that the intention of separating the best interests factors into two discrete categories is to elevate the importance of the primary considerations and accentuate the revised objects of Pt VII of the Act. This, supports the proposition that the “primary considerations” should be considered first when deciding where the best interests of a child lie.[8]
[8] Dickey, A, ‘Best interests of the child: Significance of “primary considerations” and “additional considerations”’, (2007) 81 Australian Law Journal 234.
In some cases “…the twin parenthood and safety goals may be mutually exclusive”.[9]
[9] Chisholm, R., ‘The Family Law Amendment (Shared Parental Responsibility) Bill 2006: Putting Children at Centre Stage, Paper delivered at the Contact and Relocation: Focusing on the Children Conference, Byron Bay, 1 May 2006 at 9-10.
An obvious example is when the child cannot be adequately protected by or from one or other of his or her parents or the protective jurisdiction has to be invoked because of a failure or abuse of parental power.
Thus, although notionally of equal rank s 60CC(2)(b) might countermand s 66CC(2)(a) where the risk of potential harm outweighs the perceived benefits of joint or shared parenting or contraindicates an ongoing relationship with both parents. That is, the benefit of a meaningful relationship gives way to the extent that there is a need to protect against abuse related harm or the risk of it. This is made clear in the explanatory memorandum– “the safety of the child is not intended to be subordinate to the child’s meaningful relationship with both parents”.[10]
[10] Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth), at [48].
In this connection the sentiments of Lord Eldon LC in Wellesley v Duke of Beaufort,[11] are no less apposite today than they were when first expressed nearly two hundred years ago:
It has always been the principle of this court, not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done.[12]
[11] (1827) 2 Rus s1 at 18.
[12] cf. Re K (2007) 1 FLR 420 at 424.
Section 60CC(2)(a) aspires to promote a “meaningful” not an “optimal”[13] or “ideal” relationship. What ‘meaningful’ is in any given situation depends very much on its own circumstances but reciprocal love and affection and mutual respect and concern are common features. Meaningfulness may be best measured by depth and the degree of intimacy. Ironically, an emotionally or developmentally undesirable or detrimental relationship (eg. what psychiatrists refer to as an enmeshed or anxious attachment) may nonetheless be “meaningful” in the relevant sense.
[13] Godfrey & Sanders [2007] FamCA 102 per Kay J at par 36.
As Bennett J said in G and C [14]:
… the court must evaluate the nature and quality of the relationship to establish whether there is any ‘benefit to the child’ in having or continuing a relationship and whether such relationship is or will be ‘meaningful’ in the relevant sense.
[14] [2006] Fam CA 994 at par 68.
Court orders can not, of course, conjure up meaningful relationships between parents and children. All they can do is create or maintain the circumstances that make meaningful relationships (or involvement) possible. [15]
[15] Parkinson, P, ‘Decision-making about the best interests of the child: the impact of the two tiers’, (2006) 20 Australian Journal of Family Law 179 at 184.
The diverse yet related additional (not secondary) considerations in s 60CC(3) include the child’s own views, the nature of his or her relationship with each parent and other relatives, especially grandparents, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent, the likely effect of changing the child’s circumstances including separation from those he or she has a relationship with, the impact of practical difficulties and expense on the child’s right to maintain personal relations and direct contact with both parents on a regular basis, the capacity of the parents and relevant others to provide for the emotional, intellectual and other needs of the child, the maturity, sex, lifestyle and background including culture and traditions of the child and parents, parental attitudes, family violence issues (if any), whether it would be preferable to make a parenting order least likely to lead to the institution of further child related proceedings and any other relevant fact or circumstance.
Sub-sections 60CC(4) and (4A) provide that in considering the attitude of a parent to the child and responsibilities of parenthood for the purposes of par 60CC(3)(c) and (i) the court must take into account the extent to which the parents have fulfilled, or failed to fulfil, their parental responsibilities in the past especially after separation or divorce. This includes the time spent with the child and level of participation in his or her life generally and, in particular, decision making about long term child related issues and the extent to which he or she has co-operated with the other and provided financial support for the child. In other words, the so called family friendly doctrine in s 60CC(4) makes a parent’s historical participation in the child’s family life in both emotional and financial respects a relevant best interests factor and directs the court to assess parental conduct after separation as well as during the relationship. Thus, records of laxity, laziness, underperformance, interference or obstruction in discharging the parental role and functions can (not must) legitimately affect the allocation of parental responsibility and calculation of parenting time. This is intended as an incentive to parents not to use the child as a pawn or bargaining chip in adult games, to encourage the income earned to meet child support responsibilities and for the interim resident parent to think twice about unilaterally suspending or impeding contact for non child related reasons.
Again, the best interests of the child is the ultimate determinant.
The presumption of “equal shared” parental responsibility
The court does not normally invade the sphere of parental obligation and responsibility without good reason. The law trusts parents to act in the best interests of their children. It also assumes, unless the contrary is shown, that they can do so jointly. However, parental co-operation and goodwill can be a casualty of separation or divorce and when parents can longer agree or even communicate with each other, the courts must step in to protect children from collateral damage.
The judicial quandary when this occurs is whether adult relationship breakdown makes any difference to the way future parental responsibility is to be discharged in the child’s best interests.
Should parental responsibility be governed by s 61C, shared either equally or unequally, or exercised solely by one parent wholly or in particular aspects under ss 64(2)(d) or (i)?
Section 61DA establishes a general rule for achieving the s 60B objects and for reaching a best interests solution to this problem in the majority of cases. It has the effect of converting the co-extensive parental responsibility parents have under s 61C into an equally shared or dual (not joint) responsibility[16] after separation or divorce.
[16] cf. s 60B(2)(c).
The note to s 61DA emphasises that the presumption provided for in the subsection relates solely to the allocation of parental responsibility for a child and does not provide for a presumption about the amount of time the child spends with each of the parents.
Thus, shared or so called equal co-parenting under the statute does not automatically mean that either residential care or parenting time, has to be distributed evenly.[17]
[17] Wilson, G, ‘The non-resident parental role for separated fathers: a review’, (2006) 20 Australian Journal of Law, Policy and the Family 286.
Shared parenting responsibility (whether equally under s 61DA or not) does, however, mean that decisions about major long term issues[18] be made jointly by parents in a consultative and collaborative way. This shared decision making function and responsibility in s 65DAC supports and reinforces the perceived advantages to children in having both parents participating co-operatively in all important aspects of their upbringing despite the potential for renewed conflict and increasing the risk of future litigation.
[18] This phrase is defined in s 4 of the Act.
An equal shared parental responsibility conclusion whether reached via the presumption or a best interests analysis also means that dividing parenting time equally between the parents has to be considered and if that is not viable or otherwise desirable than substantial and significant time would ordinarily be seen as elemental to building and maintaining meaningful relationships between children and their parents unless, of course, s 61DA(2) applies because of alleged or suspected violence or abuse. Neglect is not a specific disqualifier.[19] Nor, oddly, is chronic ongoing parental hostility.
[19] cf. s 60CC(2)(a).
Notably the focus of the exception is on a rather than the child and it looks back rather than forward in time to see what a parent or other household member has done in the past. It does not use that finding as a basis for anticipating or forecasting what might happen in the future. Thus, in the context of this case the presumption would not apply if there was reason to believe M or A had been abused even though the application for parenting orders relates to A and T not M.
It is not readily apparent what the phrase reasonable grounds to believe in s 61DA(2) is meant to convey. Does it contemplate, for instance, the presumption not applying where a judge finds that there are objective grounds for an impartial third party to reasonably conclude that a parent (or other prescribed person) has engaged in violence or abuse in the past without requiring that belief to be personally held, or does it require the judge to actually form a belief based on reasonable grounds that he or she is dealing with a violent or abusive household? Either way, it is the existence and reasonableness of the belief that is relevant here not whether a child has actually been abused.
Suspicion and belief are different degrees of persuasion. Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam[20] “in its ordinary meaning is a state of conjecture or surmise, where proof is lacking: ‘I suspect but cannot prove’.” Belief, on the other hand, is “an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.”[21] Facts which may reasonably ground a suspicion might be quite insufficient to ground a reasonable belief but no positive finding of abuse or violence has to be made. Probability or likelihood is not required. The possibility of the abuse or violence complained of is sufficient.
[20] [1970] AC 942 at 948.
[21] George v Rockett [1990] 170 CLR 104 at 116
The presumption can also be rebutted [22] by evidence that satisfies the court that equal shared parental responsibility would not be in the child’s best interests. However, the Act does not identify on whom the burden rests nor specify the quantum of evidence needed to displace the presumption.
[22] s 61DA(4). Rose J recently considered the application of this subsection and meaning of the words “a reasonable person” in the definition of “family violence” in Nawaqaliva and Marshall (2006) FLC 93-296.
Professor Patrick Parkinson,[23] the outgoing chair of the government’s peak advisory body on family related matters, the Family Law Council, suggests that as well as violence and abuse there are four other situations in which equal (or any) parenting time or even a meaningful relationship with a parent may not be possible: when the child is oppositional; where the parent rejects (or neglects) the child or is emotionally unavailable (eg. due, for example to mental illness or alcoholism) and, finally, where there is entrenched or intractable parental conflict or communication breakdown.
[23] Parkinson, P, ‘Decision-making About the Best Interests of the Child: The Impact of the Two Tiers’, (2006) 20 Australian Journal of Family Law 179.
In these circumstances despite the presumptive effect of s 61DA parental responsibility might be shared unevenly at best or one parent might have to bear sole responsibility including long term decision making.
Parenting time
Co-parenting is a very different notion from shared or equal parenting time. The former is designed to replace sole parental responsibility for major child related decision making with dual parental involvement in bringing up children after separation. The latter is intended to increase the opportunity for children to develop more balanced and equally meaningful relationships with and have much the same level of active involvement of both parents.
The factors favouring one are not always the same as those affecting or deciding the other. Thus, s 61DA makes it plain that the operation of the presumption of equal shared parental responsibility does not affect the issue of or amount to a direction about the time the child spends with each parent. That is governed by s 65DAA.
Nonetheless, as already mentioned, a parenting order providing for equal shared parental responsibility does carry with it the judicial obligation in ss 65DAA(1) and (2) to consider ordering the children to spend equal or substantial and significant time with both parents.[24]
[24] It is uncertain which parent a child ‘lives with’ when he or she spends equal time with both under s 65DAA(1) or, conversely, whether a child who lives with both parents spends time with each or neither of them.
When used as a transitive verb the word “consider” means to actually think about or genuinely ponder over. It involves an active subjective cognitive process.[25]
[25] cf. Tickner v Chapman (1995) 57 FCR 452 at 462, 476 and 495.
The Full Court’s recent decision in Goode[26] construes the term as suggesting “… a consideration tending towards a result, or the need to consider positively the making of an order …”
[26] [2006] FamCA 1346.
However, as already noted, the effect of s 60CA is that the paramount consideration in deciding whether to actually go on to make a parenting order for a child to spend equal or substantial and significant time with each parent is in the best interests of the child. This is to ensure that the push for automatic 50/50 care does not put children in need of protection in harm’s way by forcing them to spend more time than safety allows with an unsafe parent.
The statutory notion of substantial and significant time in s 65DAA(3) self evidently envisages parents being co-extensively involved with as many aspects of their children’s lives as the circumstances permit. It includes routine week days as well as weekends and holidays as well as occasions of special significance to either the child or the parent such as sporting fixtures, birthdays, concerts, family weddings or christenings. For some children it may also include special religious or cultural events.
The concept of substantial and significant time is obviously intended to focus the court’s attention not only on how much time but also on the way that time is spent and whether it is conducive to the development or maintenance of the close and meaningful relationship between parent and child envisaged by s 60B and s 60CC(2)(a). The benefit to a child of spending time with each parent is not measured solely in hours or weeks. The emphasis is not merely on the quantity but also the quality of time that is spent with each parent. Both elements are important. Section 65DAA(4) gives the court flexibility in deciding what are important events for each individual child and his or her parents, and what substantial and significant time is in the context of the particular family unit.
However, the Court’s power to uphold children’s right to regular and direct contact with parents and to achieve the statutory objects of shared parental responsibility and meaningful involvement in their lives by, among other things, spending substantial and significant if not equal time with both of them, is confined and constrained by the “reasonable practicality” provisions of s 65DAA(5).
The relevant factors in determining the viability of an order that a child move regularly between two households for roughly equal and substantial periods of time are found in cases such as T & N.[27] They include the geographical proximity of the rival households, the parents’ ability to cope with logistics associated with shared care e.g. forgotten homework or uniforms, the parent’s historical and future capacity to communicate and resolve problems arising out of religious adherence, cultural identity, extra curricular activities, discipline, hygiene, diet and sleeping patterns and finally, the overall welfare of the child and his or her attitude to the workability or desirability of such an arrangement.
[27] (2001) FMCAfam 222.
If neither equal nor significant and substantial time is seen as being consistent with the child’s best interests, the amount of time he or she spends with each parent is determined in the usual way under the new s 60CC and with regard to any parenting plan under s 65DAB.
This requires the devising of a regime which most closely reflects the children’s right to and meets their need for regularly spending time with both parents. If that can’t be attained consistently with the children’s overall best interests then, where possible, orders must be made so as to maintain or establish an appropriate relationship with each of them.
The same applies where the presumption in s 61DA is displaced under s 61DA(2).
The best interests based solution for family courts struggling to find it, is the one that adequately meets the safety and overall welfare needs of the child. Where there is no evidence of abuse, violence, neglect, emotional stress, intractable parental conflict or strong resistance from the child, the presumption will ordinarily apply and trigger the operation of the joint decision-making provisions about major long term issues in s 65DAC and requires the court to consider, that is, tend towards making an equal shared or substantial and significant time order in favour of a non-resident.
Where, by contrast, one or other of the households is violent, abusive or otherwise toxic, neither the presumption nor the requirement for the parents to make joint long-term decisions will apply. The best interests based parenting orders will be arrived at via the more nuanced s 60CC exercise.
Time with a dangerous or deficient parent may have to be regulated by the court for the child’s own protection but only to the extent necessary to avert or manage perceived risks while at the same time supporting worthwhile parent-child relationships. This may involve reducing the amount or nominating the place of contact eg, limited day time only supervised at a contact centre or by a designated person.
However, where it is not possible for the objects of the legislation to be achieved and a meaningful relationship with both parents is not practicable consistently with the child’s safety or welfare, a no parenting time order might be unavoidable. This is reserved only for cases at the extreme end of the spectrum.
The importance of parenting time
To the overwhelming majority of parents, even the most inadequate of them, children are irreplaceable treasures. Conversely, a parent is not fully defined merely by past failures. To paraphrase the South African playwright John Kani, a parent is usually much more to a child than the worst thing he or she has ever done. In recognition of these familial tenets, the law places a high importance on the family relationship and maintenance of parental ties.[28] In U and U,[29] Hayne J accepted as ‘self evidently true’ that (except in some abusive situations) children benefit from developing and keeping up good relations with both parents. Their entitlement in this regard will be displaced only if the balance of the best interests considerations favour it after an independent welfare inquiry.
[28] Brown and Pederson [1992] FLC 92-271; B and B Re: Family Law Reform Act 1995 (1997) 21 FamLR 676.
[29] (2002) 211 CLR 238 at 285.
Under traditional contact (or as it is now called “parenting time”) principles affirmed in Brown and Pedersen,[30] access with a non-custodial parent should only be ordered where it benefits and promotes the welfare of the child in some way. As Nygh J observed in Cotton and Cotton,[31] the desirability of a child having a relationship with each of his or her parents operates only where there is a chance of a genuine relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. The quality of the time children and adults spend together is as important as the quantity.
[30] (1992) FLC 92-271 affirming Treyvaud J’s approach in A and A (1982) FLC 91-284 and subsequently followed in B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676 at 676.
[31] (1983) FLC 91-330 at 78,251.
However, these days parenting time is generally assumed to be more beneficial than detrimental and is rarely seen as wholly negative. There will usually be some practical advantage for the child in it. The modern starting point when contact is an issue is that children have a prima facie right to be cared for and have regular contact with both their parents.
In 2000, the President of the Family Division of the UK Court of Appeal sought the advice of two eminent child psychiatrists about the risks cost/benefits of contact with the non-residential parent in cases involving allegations of domestic violence but the principles apply equally to other forms of marital misconduct including sexual abuse.[32]
[32] Re L (Contact: Domestic Violence) [2000] 4 All ER 609 per President Dame Elizabeth Butler-Sloss .
The report[33] described the centrality of the child as all important and the promotion of his or her mental health as the key issue amid the tensions surrounding the adults in dispute. It explained that decisions about contact should be child-centred and related to the specific child in its present circumstances but acknowledged that the child’s needs will alter over different stages of development. The underlying purpose of the proposed contact they said must be overt and abundantly clear and have the potential for advantaging the child in some way.
[33] Sturge, C and Glaser, D, ‘Contact and Domestic Violence – The Expert’s Report’ [2000] Fam Law 615.
The court appointed experts identified the different functions of contact as including: the sharing of information and knowledge; giving a sense of origin and identity which is important as a part of self-esteem; maintaining meaningful and beneficial relationships (or forming and building up relationships which have the potential for benefiting the child); reparation of broken or problematic relationships; opportunities for reality testing for the child – children need to balance reality versus fantasy and idealisation versus denigration; facilitating the assessment of the quality of the relationship or contact (most relevant where a return to a particular parent is being considered) and severing relationships, for example, farewells.
It was noted that where there is an absence of a bond between the child and the parent with whom he or she does not live, the age and developmental level of the child needs to be taken into account, because an adolescent child seeking a clear and separate identity may have a greater interest in a little known biological parent than a younger sibling. Care also needs to be taken to ensure that the introduction of contact does not undermine the “main” placement, for example, an adolescent child looking for a greater level of independence might start expressing a wish to live with the non-resident parent as an act of defiance towards the resident parent and his or her controls. Other considerations may also come into play, such as other emotional investments of the child, for example, in a step-parent, and what the new relationship might add to the child’s life and well-being.
However, lack of attachment is not in itself a sufficient reason against at least trying to build a new relationship. There is a wealth of evidence about the adverse effects on a child of long term parental separation. For this reason the court will bend over backwards to establish or preserve a relationship with even the most deficient of parents provided effective protective measures can be put in place to prevent any relevant risks of harm.
That said, there is no empirical evidence for the positive benefits of contact per se. What matters for children is the value of the familial relationship which contact supports.[34] The strength of the current bias in favour of maximising parental contact should not be allowed to overshadow or downplay reasonable and genuine welfare concerns.
[34] Family Justice Council (UK) Report for the President of the Family Division on Consent Orders in Domestic Violence Cases, January 2007 at p 6.
Professor Parkinson identifies a number of reasons why a child may in fact not benefit from a close relationship with both parents even in the absence of violence or abuse.[35] The court may conclude that there is not any advantage to the child due to, for example, his or her having strongly resistant views or because the relationship has irretrievably broken down or the parent may be unable to offer a meaningful relationship because of mental illness or other disability.
[35] Patrick Parkinson, ‘Decision-making about the best interests of the child: the impact of the two tiers’, (2006) 20 Australian Journal of Family Law 179 at 185.
Reinstating direct contact and trying to create a relationship that might be of little value may be contrary to a child’s overall welfare where, for example, it is clear that the risk of disturbance to the child or hostility between the parents is so very great that a meaningful direct personal interaction is not feasible. This is consistent with the objects if no order was necessary to ensure that children have adequate and proper parenting.
Another situation may be where a non-resident parent has failed to fulfil his obligations as a parent by continually cancelling contact visits on short notice or by not turning up to collect the child.
Thus, the quest to fulfil a child’s long-term interest in not losing contact with his or her non-resident parent must not result in insufficient attention being given to the child’s short to medium term well-being and contentment, including living in as happy and contented an environment as possible.[36]
[36] Perry, A and Rainey B, ‘Supervised, Supported and Indirect Contact orders: Research Findings’, (2007) 21(1) International Journal of Law, Policy and the Family, 21 at 39.
Denying or limiting parenting time
The Court has the widest discretion to make whatever parenting orders are appropriate in the best interests of the child.
However, it is increasingly uncommon these days for a potentially meaningful relationship or involvement with a parent and his or her child to be terminated by court order. Putting an end to a worthwhile parental relationship is usually a “course of last resort”.[37] A combined reading of the objects stated in pars 60B(1)(a), (c) and (d), the underlying principles in ss 60B(2)(a) and (b) and primary consideration (a) in s 60CC(2) suggests exceptional circumstances are usually required.[38]
[37] Re: W [2004] Fam CA 768
[38] cf. B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676 at 745.
The importance placed by the law on maintaining personal relations and regular contact between a child and both parents imposes on the court an obligation to consider all possible forms of contact, both direct and indirect, including supervised time and electronic or written communication (telephone calls, emails, letters, birthday greetings, school reports or annual photographs etc) either as a supplement or substitute for actual time spent with a non-resident parent.
It would not ordinarily be in the interests of a child to spend unsupervised time with a parent who posed an unacceptable risk of neglect, abuse, violence or other harm.[39] When the risks associated with an unsupervised contact order cannot be minimised by the imposition of appropriate conditions or safeguards such as, for example, undertakings by the father to modify his past behaviours, a long-term supervised or no contact order may be called for.
[39] N v N (1988) 166 CLR 69 at 78.
Communication limited to indirect contact or correspondence is seen by many judges as a useful stop gap measure in such cases. As Perry and Rainey pointed out: [40]
[It is] a means of opening the door to contact in a situation where there is seen to be a good reason not to order direct contact immediately but to keep the door open when there is no practical prospect of re-establishing direct contact for the time being. The sorts of cases in which such contact was seen as appropriate were extreme cases where, for example, the non resident parent might be mentally ill or where the non-resident parent has behaved in such a way that the children are strenuously opposed to contact or where he or she is in prison for violent offences.
[40] Perry, A and Rainey, B, ‘Supervised , Supported and Indirect Contact Orders: research Findings’, (2007) 21 International Journal of Law, Policy and the Family 21 at 37.
In other cases the best interests of the child might be served by restricting the contact of one parent and severing the joint parental relationship altogether where there is intractable or unremitting parental discord.
Reducing parenting time is a sensitive and difficult issue. It should not be done lightly or on slight evidence. A parent’s feelings of loss coupled with perceived injustice if the evidence or justification is less than substantial are real and understandable human emotions that the law needs to recognise and deal with.[41]
[41] K and B (1994) FLC 92-478.
In contact contests the Family Court intervenes in the parent-child relationship only on convincing evidence that the child is likely to be at future risk of harm. Though often important, the substantiation or rejection of the specific allegation often has more to do with the interests of the adults than the child and is not always essential in assessing risks and needs.
When in doubt the court should resolve the issue in favour of the outcome which best ensures the protection and overall welfare of the child.
According to Nicholson CJ in M [42] and Kay J in K and B,[43] the mere existence of a possible threat to a child is insufficient justification to disrupt a relationship between parent and child.
[42] (1998) FLC 91-957 at 76,927.
[43] (1994) FLC 92-478.
Arguably, the failure to negate a disputed allegation of abuse or a judge’s unwillingness to reject abuse allegations as groundless[44] is also an insufficient basis for denying the child a relationship with its parent because such an allegation is almost impossible to disprove affirmatively. In Kay J’s view it:
“…is grossly unjust to both the child and the non-custodial parent to remove any contact between them on a test that is ‘there is most probably nothing in it but I might be wrong’.” [45]
[44] Napier and Hepburn [2006] Fam CA 994.
[45] C and J (1996) FLC ¶92−697 per Kay J at 83,351.
The consequences of denying contact between the abusive parent, usually the father, and the child may well be as serious as the risk of harm from abuse.
Thus, in D’Agostino[46] a father who was convicted of sexually interfering with his 11 year old daughter was not denied contact either with her or her two younger sisters but was allowed contact on condition that all three children were together at the same time and another adult was also present.[47]
[46] (1976) 30 FLR 509.
[47] cf. L [1989] 2 Fam LR (UK) 16 and B (1988) FLC 91-948.
Marital or criminal misconduct itself does not create an automatic or absolute bar to contact. There is no presumption or a priori rule that even gross misbehaviour such as child sexual abuse or family violence disqualifies the offending parent or puts up an insurmountable barrier in the way of having contact with a child victim. While domestic violence is always unacceptable and never justified or excusable, not all men with anger management problems or those who have unlawfully beaten their wives (or vice versa) are dangerous to their children. But some certainly are.[48] Violence in the home is one highly relevant and influential factor in the difficult balancing exercise. It is not decisive. Nor is either proven child abuse or neglect.
[48] Moloney, L, Smyth, B, et al, Australian Institute of Family Studies Report No.15, Allegations Of Family Violence And Child Abuse In Family Law (2007).
In V and R[49] the Full Court identified the real issue in a parenting case in which abuse (or violence) is alleged as whether or not the benefits of contact outweigh any apparent detriment to the children. The starting point in answering that question is the proposition (still enshrined in s60B(1)) that unless the welfare of the child otherwise dictates, he or she is entitled to have proper parental relationships. The next step is to determine what form that relationship should take and whether the circumstances of the case contain the necessary elements to justify limiting that relationship or even terminating it either permanently or temporarily.
[49] [2004] FamCA 1081 as cited in (2005) FLC 93-201.
Emotional distress or disturbance to the child is a common ground for refusing contact. In Rossi [50] Fogarty J said:
… in the interests of the child, access ought not to be compelled where it would be attended by circumstances of real stress and pressure to the children.
[50] (1980) FLC 90-839.
Lichfield [51] is an example. There contact was denied because the nine year old daughter of the applicant father regarded him as an ‘evil person’ who should be shunned and was put under considerable stress and anxiety at the thought of having to see him. However, distress and agitation should not have a disproportionate relevance. Some children can overcome initial resistance to contact or anxieties about seeing an unknown parent if able to see him or her in a safe situation in which they are in control or assisted by a trained person. It is imperative, therefore, for the court to consider the long term benefit to the children of contact rather than focussing solely on the short term difficulties associated with it.
[51] (1987) FLC 91-840.
Another reason for decreasing or regulating parenting time may be the genuine belief of the custodial parent, and perhaps also the child, that abuse has occurred even if it cannot be legally proved. Whether or not it is reasonable or justified, such a belief may, as in B & B,[52] make parenting time damaging to the child. The harmful psychological consequences of a fearful child having unsupervised contact with a person who has or may have or is believed by the other parent and/or the child to have abused the child also need to be brought into the balance in determining what parenting order will best advance the best interests of the child.
[52] (1981) FLC 91-957 at 76,924.
On the other hand there is little purpose in perpetuating unreasonable or false beliefs just to appease a parent or child.
In S and P [53] the Full Court found it appropriate for the trial Judge to have acted on the wife’s attitudes and concerns in considering whether or not ‘access’ would be to the ultimate benefit of the child. Continued contact even under supervision may mean that the mother cannot cope in two ways. First she may not be able to force the children to attend contact and secondly, may not be able to appropriately deal with their emotions or even her own as contact continued and that this may affect her parenting ability.
[53] (1990) FLC 92-159.
In F[54] the Full Court recognised that in some cases the inability of the resident parent to support a contact regime is a factor to be taken into account and in that circumstance it is relevant to consider whether the residence parent has a genuine and firmly held sometimes unrelenting belief that contact will involve risk of harm to the children and to what extent, if any, the ordering of contact in such circumstances may affect the ability of resident parent to adequately parent the children.
[54] (2005) FLC 93-277 AT 79,744-747.
However, it would be wrong to draw a conclusion that an anxious mother might be so overborne as to be unable to function adequately in her capacity as a principal care-giver[55] without expert evidence as to the manner in which she may be affected if contact continued.
[55] Russell v Close (Appeal SA45 of 1992, unreported judgment delivered 25 June 1993), S and P (1990) FLC 92-159.
When abuse has been established there are many other factors to consider, in particular, therapeutic issues for the child who may need a significant amount of time away from the perpetrator in order to heal. Supervised contact, at least for a time, can provide a solution in equivocal cases of alleged abuse.
Still, supervised time is onerous and inconvenient. It carries with it implications of dangerousness and suggestions of risk against the supervised parent. It can also be costly for parents and demanding on children both physically and emotionally to have to have visits at a contact centre every week or so. Supervision should, therefore, only be ordered where it is really needed, likely to be effective and beneficial to the child. Otherwise it is not only unfair on both parent and child but could be counter-productive or, worse still, positively harmful.
It was recently made clear in Re C and J,[56] that supervision orders are “… not to be used routinely and by way of compromise in cases…”. [57]
[56] (1996) FLC 92-697.
[57] (1996) FLC 92-697 cf Marriage of Bieganski (1993) FLC 92-357; Koutalis and Bartlett (1994) FLC 92-478.
In that case the mother opposed unsupervised contact partly for the reason that continuing parental hostility would diminish the value of contact and place too much stress on the children.
The trial judge expressed the view that supervised access was never an appropriate measure in relation to final access orders and it is probably better to make a no-contact order if supervision was necessary.
On appeal Fogarty and May JJ considered this position too extreme and unduly restrictive of the parenting order discretion which should not be circumscribed by absolute rules excluding available possibilities without giving them due consideration. Their Honours emphasised that parenting time orders need to be crafted to meet the particular circumstances of the case and recognised it may be unavoidable in a particular case to make supervision orders for a limited period of time which provide for a graduated process and the potential to review depending upon developments. Supervised (or supported) contact through the paternal grandparents was held to be desirable in that case to allay the fears and providing comfort to the mother, protection to the father against further allegations and lessening the conflict at handover times.
However, Perry and Rainey[58] identify significant problems that can be associated with self managed or assisted contact orders. Relying on family or friends can be a potentially longer term solution which is likely to afford the opportunity for enjoying a more realistic and relaxed parenting time between a parent and a child[59] but may not involve appropriate levels of monitoring and reporting. If the purpose of such supervision is protection of a child, it is questionable as to what extent a grandparent or friend will be in a position to offer that protection, especially if they don’t believe the allegation. There is also the danger in partisanship. A contact parent’s relative is likely to be loyal to him or her and may be unlikely to believe that there is any real threat to the child and more likely to believe that supervision is not really necessary. A friend or relative of the resident parent, on the other hand, may seek to undermine the relationship between the contact parent and the child by interpreting the necessity to provide supervision in such a way that it makes the whole contact experience extremely hard for the contact parent.
[58] Perry, A and Rainey B, ‘Supervised, Supported and Indirect Contact orders: Research Findings’, (2007) 21(1) International Journal of Law, Policy and the Family, 21 at 37.
[59] W and W (2005) FLC 93-325 at par 15.
On the other hand, it may be better to have supervised time under final orders than none at all.[60] It might be the only available means of maintaining direct personal relationships with both parents and to achieve the s 60B objects without exposing a child to relevant risks of harm[61] or overcoming practical obstacles having more to do with the parent’s inability to make contact work without assistance and less to do with the child’s welfare. It can also be an extremely useful short-term measure enabling anxious resident parents and a child to be reassured while, at the same time, offering non-resident parents a chance to prove themselves.
[60] C and J (1996) FLC 92-629 per Kay J at 83,351-352.
[61] Fitzpatrick (2005) FLC ¶93-227 per May J.
In 1988 the Family Law Council [62] suggested a list of possible reasons why supervision might be ordered:
- the court is satisfied that abuse has occurred but because of the relationship between the child and the abusive parent is such that continued contact ought to be allowed in circumstances that will prevent a repeat of the abuse;
- whether or not the court is satisfied about abuse there has been such disruption to the relationship that supervision is necessary to assist its re-establishment;
- the custodial parent who made and believes the allegation despite a court’s finding to the contrary needs some appeasement and reassurance that the child is not being sent to further abuse while on access;
- supervision may provide the opportunity for a relationship to continue or resume after a period of suspension if the child wishes it and if that is seen as beneficial for the child;
- the court should retain its discretion to order supervised access as a compromise when it considers there to be no ongoing risk;
- supervised time can provide a means for reconciling differences which would not be possible if there was no contact at all.
[62] Family Law Council of Australia, Report on Child Sexual Abuse (1988) pp.63-64
A risk of relevant future harm is, of course, not the only factor to be balanced when deciding whether to limit or cease parenting time. There are other considerations of equal significance. The Hon John Fogarty[63] identifies some of these as: the views of the child, the previous contact history, practical difficulties such as distance and transport, the nature of the relationship between the two families, whether difficulties will be anticipated on handover occasions or with supervision.
[63] Fogarty J, “Unacceptable Risk- A Return to Basics” (2006) 20(3) Australian Journal of Family Law 249.
Likewise, Patrick Parkinson suggests that when deciding whether supervised contact should be ordered on the basis of s 60CC(2)(b) concerns, account needs to be taken of the following considerations:
- the child’s age and protective capacities including avoiding and reporting inappropriate behaviour by adults;
- the need to address the fact that the child believes that something happened to him or her;
- the need to avoid stress that would maintain or increase the child’s emotional state;
- the need to maintain and expand the relationship between the child and his or her parent;
- the distances between the households and practicable considerations and expense in facilitating regular direct contact;
- the need to protect the mother from anxiety;
- the need to build on the mother’s confidence that unsupervised contact carries with it no unacceptable risk of sexual or other abuse;
- parental conflict;
- the absence of a loved parent especially in the context of the inclusion of a new adult in the household.[64]
[64] Parkinson, P, ‘Child Abuse Allegations in the Family Court’, (1990) 4 Australian Journal of Family Law 60.
The power to make orders for supervised or supported contact thus forms an important part of the legal response to problematic contact disputes. Removal of the option of supervised access either places the child at risk of no protection at all while on unsupervised access or suffering the loss of a meaningful but risky relationship with a valued parent. There is, however, an ongoing debate about the utility of supervised contact and when it ceases to be in the child’s best interests especially as a long term arrangement.[65]
[65] Baker, E, ‘Assessing and Managing Allegations of Child Sexual Abuse: An Australian perspective’, (1997) 33 Family and Conciliation Courts Review 29; Bieginski (1993) 16 FamLR 353; K v B (1994) FLC 92-478; Re: C & J (1996) FLC 92-697. See also W and W (2005) FLC ¶93-235.
In Bieganski[66] (a case of proven abuse) the Full Court said at 368:
A trial judge who has made a finding that an unacceptable risk of abuse exists, or that sexual abuse did occur, should look to the level of trauma, in the widest sense, that has been occasioned to the child or children or may be occasioned in the future, to determine to whether supervised access is appropriate. If there is an unacceptable risk to the child or the children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent than an order for supervised access is not appropriate because of the court’s obligation to protect children from such harm.
In circumstances where abuse has occurred or where there is an unacceptable risk of the abuse access should be suspended until such time as the access parent can show that there is no longer an unacceptable risk in access re-commencing. In some cases this will involve an acknowledgement by the access parent that the abuse has occurred, together with evidence of appropriate treatment. In most cases, other family members must have the opportunity to resolve the effects of the trauma to the children and the children have the opportunity to recover from the effects of any such abuse.
Without that ‘time-out’ and counselling the children’s feelings of distress and fear may well be re-stimulated by contact with the access parent despite the alleged assurance of safety provided by a supervisor. Supervised access may then be capable of being ordered for the time limited purpose of re-establishing a relationship between the access parent and the children. Supervised access is not appropriate as a long-term measure.
Suspension of access for a period may be important for the custodial parent as well as the children. It is not unreasonable for the court to take into account when assessing whether an unacceptable risk exists the need of a custodial parent to be assured of the children’s protection.
[66] (1993) 16 Fam LR 353.
Subsequent Full Courts have indicated that the views expressed in Bieganski about long-term supervision, do not command universal support and have been regarded from time to time as being too rigid.[67]
[67] cf. Re C and J (1996) FLC 92-697 per Fogarty and May JJ at 83,341.
In W and W[68] a different Full Court comprehensively reviewed the appropriateness of long term supervised contact as a risk management strategy in unacceptable risk cases. There, a supervision order was made in respect of a five-year-old child with the proviso that after she turned eight (in three years time), the wife obtain an expert report as to whether a review of the order was still warranted.
[68] (2005) FLC 93-325
The court appreciated that the decisions in these difficult cases have the potential for long term consequences for a child and therefore require careful consideration but did not think it was appropriate or practical to set guidelines as to when supervised contact could or should be ordered or whether such contact should be in a professionally run contact centre or supervised by private arrangement.
Parenting orders are intended to put an end to the litigation once and for all and when made after a full evidenced based enquiry they should stand and be complied with by parents unless and until there is a change of such significance that justifies re-opening parenting issues in line with the decision in Rice and Asplund.[69] It requires materially changed circumstances apart from the passage of time or a change in the law to be demonstrated, before the court will embark on a fresh investigation of what parenting orders would be in a child’s best interests.
[69] (1979) FLC 90-725.
However, family law parenting orders are never really final. People and circumstances change. Many relationships develop and deepen; some deteriorate. Risks reduce and what might not have been once possible may be at a future time. As the approach in C and J shows, supervision can enable assessment of the developing relationship between parent and child. With subsequent reporting back to the court it can be a useful diagnostic tool in cases in which there was real doubt about whether contact ought to go ahead at all, or if and when unsupervised parenting time should be re-introduced. In these cases the supervision order is neither final nor interim. The rule in Rice and Asplund does not seem apt where provisional “final” orders are made in the hope or expectation that more liberal including unsupervised time in the reasonably foreseeable future but on a yet to be ascertained date.
Thus, a practice has developed within the court of making ‘wait and see’ orders either by adjourning an otherwise completed hearing to a specific date for trialling purposes or the consideration of a progress report by a family consultant under s 62G(2). Under ss 64B(2)(g) and (h) a parenting order may also deal with the steps to be taken before an application to vary an order to take account of changing needs or circumstances of the child or the parties and the process to be used for resolving disputes about the terms or operation of a parenting order. A s65L order or other review mechanism might also be useful where there is reason to think that the parties need assistance with compliance or where a determination needs to be made about whether an anxious mother with provisional residence was able to come to grips with the rejection of child sexual abuse allegations against the husband and was now able to genuinely encourage the father-daughter relationship.[70]
[70] See for example Kay J in R and B (1996) FLC 92-658.
Post-orders follow-up provides a satisfactory way of ensuring compliance with such a condition without the need for the other party to take contravention action.
The court can also make a parenting order in favour of a parent or person conditional on the attendance of a post-separation parenting program[71] or some other form of counselling or therapy.
[71] s 65LA
In V and R[72] the Full Court set aside a no contact order on the basis of a conclusion that the probability that the accused father had done anything sexual was remote but accepted that the mother who was the mainstay in the boys’ lives was not ready for a situation where the children should have an open and unrestricted relationship with their father and needed to have some re-assurance that they would be able to look after themselves in the father’s care.
[72] [2004] FamCa 1081.
The pre-existing regime of supervised contact at a contact centre was reimposed and an order made that at the conclusion of 12 months the parties attend a nominated counsellor to see how the children and parties were coping with contact and report back the desirability of extending contact on a non-supervised basis. Each party was given liberty to apply for such further orders as to contact as they may be advised after the release of that report.
In Hills and Kirkman[73] final orders for supervised contact were made to appease a concerned mother even though the risk of child sex related harm during unsupervised time was assessed as slight or very low.
[73] [2001] FamCA 687.
The Full Court held that the best interests of the child in that case would have been better promoted by providing a internal mechanism for monitoring and review to see if the mother could absorb the risk findings and eventually accept a relaxation of the supervision requirement.
To avoid being caught by the unintended operation of the Rice and Asplund rule[74] the Full Court ordered a twelve month period of supervision by a court counsellor on a reportable basis and expressly reserved liberty to apply to vary the orders as a expedient way of returning the matter to court without having to show a change in circumstances. This approach puts store in the healing power of time but retains the supervisory role of the court for a limited period just in case. Orders can (and perhaps should) be made in these terms by the court on its own initiative if necessary, where the workability or stability of final orders is uncertain and the best interests of the child called for a review of an unfolding relationship.
[74] Which requires the proof of a material change in circumstances as a precondition to varying final parenting orders.
The “final” nature of the orders however means that any application to vary under the liberty to apply provision still has to be filed in Form 1 but the threshold Rice and Asplund test does not have to be satisfied.[75]
[75] cf W and W (2001) FamCA 216.
In a variation on the Hills and Kirkman type order May J ordered the mother in Gallop and Burgess[76] to have day only ‘vigilant’ supervised contact and requested the child representative to arrange a psychologist’s report after five months and then set out a schedule increasing levels of unsupervised overnight and block holiday contact in the event of a “favourable” expert report.
[76] Unreported B6611/1998 15 December 2000.
This formula arguably leaves too much to the discretion of the psychologist and does not have any mechanism for resolving any dispute between the parties as to whether a report is “favourable” or not.
Whether or not to make final or tentative orders in a parenting case is, of course, governed by the paramountcy principle and within the wide discretion of the trial judge.
The Family Court and child protection issues
Strictly speaking protecting children on an ongoing basis and enforcing the laws against child sex crimes is a state not federal government responsibility. However, child safety remains an important object of family law and a primary best interests consideration. Once an abuse allegation has been raised it is impossible to ignore it. Its resolution can have serious consequences for both accuser and accused. The proof or risk of child abuse is not only relevant to the allocation of parental responsibility but also affects the question of whether time and communication should be allowed, either supervised or not, but also influences, both directly and indirectly, the calculation of the amount of that time and the conditions under which it is to occur.
It follows then that when, as here, there is a family dispute between parents about whether a child has been, or is at risk of being, abused or harmed a normal task of a judge considering whether and what parenting order to make is to investigate and - where possible and appropriate - either substantiate or reject the claim. That is, the validity and credibility of the complaint often (but not always) has to be determined.
When deciding defended contact applications involving abusive situations a court has to deal with:
… the facts of a specific case in which the degree [of abuse or violence] and the seriousness of the impact on the child and on the resident parent have to be taken into account. In cases of proved [abuse or violence], the court has the task of weighing in the balance the seriousness [of the abuse or violence], the risks involved and impact on the child against the positive factors (if any) of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of the need for change and to make genuine efforts to do so, were likely to be an important consideration
…the court should give particular consideration to the likely risk of harm to the child, whether physical or emotional, if contact was granted or refused. The court should ensure, as far as it can, that any risk of harm to the child was minimised and that the safety of the child and the residential parent was secured before, during and after such contact. [77]
[77]Re L (a child) (Contact: Domestic Violence) [2000] 4 All ER 609 per Dame Elizabeth Butler-Sloss P.at 617-619.
Formerly s 68F(g),[78] which was inserted by the Family Law Reform Act 1995 (Cth) No.167 commencing June 1996 and is now superseded by the 2006 amendments, required the court to have regard to inter alia “the need to protect the child from physical or psychological harm caused, or that may be caused, by abuse, ill-treatment, violence and other behaviour”. Currently both ss 60B(1)(b) and 60CC(2)(d) refer to the need to protect children from physical or psychological harm from being subjected to or exposed to abuse,[79] neglect or family violence.[80]
[78] This statutory guideline was not available for judicial consideration when M v M (1988) 166 CLR 69 was decided.
[79] The term ‘child abuse’ in this context means an unlawful physical assault including the misuse of unequal power in a relationship to involve a child in a sexual activity or treat him or her as a sexual object (s4 Family Law Act 1975 (Cth)). The definition covers a wide range of behaviour – from penetration in its various ways to words, gestures and indecent conduct, some of which are apparently passive but which carry sexual overtones.[79] The definition of “abuse” in s.4 focuses on the nature rather than the level or likelihood of relevant harm and does not assist in quantifying the degree of relevant future harm. See Fogarty J, ‘Unacceptable Risk – A Return to Basics’, (2006) 20(3) Australian Journal of Family Law 249. See also Parkinson, P “Child Sexual Abuse allegations in the Family Court, (1990) 4(1) Australian Journal of Family Law 60 at 65.
[80] ‘Family violence’ is actual threatened conduct towards a family member that gives rise to (an objectively) reasonable fear or apprehension about that person’s personal wellbeing or safety. Family violence is also mentioned in s 43(ca) and in s 60CC(2)(j) and (k).
By contrast the presumption in s 61DA is concerned solely with past (neither current nor future) events.
Curiously then, the risk of future harm is no longer explicitly mentioned in the legislation and no distinction is drawn between actual and potential harm.
Although the question “did it happen or not?” invariably has to be asked and answered,[81] the necessity to make a backwards looking probability finding whether alleged or suspected sexual abuse has in fact occurred can tend to distract attention from the primary and forwards looking issue of what order is required to meet the best interest needs and to protect the welfare of the child.
[81] Re L (a child) (Contact: Domestic Violence) [2000] 2 All ER 609.
For this reason as explained by the High Court of Australia in M v M:[82]
“… it is a mistake to think the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would if it were trying the party for a criminal offence. …” .
[82][1988] 166 CLR 69 at 76.
In that case the trial judge could not exclude the possibility that the father had sexually abused his daughter and went on to find that there was an appreciable risk that the child would be exposed to sexual abuse if he were awarded custody or access on the basis of voluntary disclosures of sexual abuse by the child to the mother, a clinical psychologist and police officer.
A majority of the Full Court of the Family Court endorsed the trial result on the basis that:
"If a trial judge considers upon the balance of probabilities that the welfare of the child may be endangered or there is a risk that a child may be physically, sexually or emotionally harmed, if access were to occur, then a trial judge may, in our view, suspend access.”[83]
[83] (1988) FLC 91-958 at 76,935.
The High Court unanimously upheld this approach confirming that there was no duty to make a positive finding one way or the other on that issue but rather to make an order that would best promote and protect the safety and overall welfare of the child which includes the need for a filial relationship with both parents.
The court dismissed the argument that the rejection of an allegation of past sexual abuse necessarily meant that there is no risk of future harm and emphasised the need for trial judges to not only determine (if they can and really need to) the validity of allegations of past abuse but also consider, as a separate question, whether or not there is a risk of future abuse and to assess the magnitude of that risk.[84]
[84] (1988) 166 CLR 69.
This is not to suggest that there is in fact a distinct two step approach which must be invariably followed in which the court considers as a preliminary or threshold question the validity of the allegation before considering the separate issue of unacceptable risk. [85] Rather, abuse related harm can be conveniently and is regularly taken into account as part and parcel of the risk assessment which itself is an integral component of the s 60CC best interests exercise.
[85] Owens and Owens [1999] FamCA 1357.
However, the High Court did not say in M v M that it was never appropriate for this court to consider whether an allegation of sexual abuse has been made out. On the contrary it acknowledged that an affirmative conclusion would
“… in all but the most extraordinary cases … have a decisive impact on the order to be made because it would not ordinarily be in the interests of a child to spend time or have communication, at least unsupervised, with a parent who posed an unacceptable risk of abuse or other harm.”[86]
[86] N v N (1988) 166 CLR 69 at 78.
Nor did the High Court suggest that where a confident finding that sexual abuse did not occur can be made, it would be wrong to do so. On the contrary it is implicit in what was said that where it is possible to conscientiously do so, a trial judge would be wrong not to make a definitive finding that an allegation was false and the alleged abuse did not occur because such a finding “ … must go a long way towards negating the existence of an unacceptable risk of such abuse occurring in the future”.[87]
[87] cf. Owens v Owens [1999] FamCA 1357 at par 63.
I am satisfied from all that I have heard and seen that the husband was financially possessive. He clearly made decisions in both areas without reference to her. It is noteworthy in this context that he was able to loan a friend $22,000 interest free to help him purchase a car (Exhibit 29 and S15 account) but has not met his family’s ongoing financial needs.
The wife alleges that the husband hit, pushed, denigrated, criticised and verbally abused her in front of the children regularly during the marriage during heated and physical domestic arguments. Her evidence on these aspects is set out in a schedule to her written submissions and is to an extent by various hearsay statements of M, A and particularly B, to the police and Child Safety Department officers.
The schedule focuses on the period 2-5 December 2005. Otherwise reference to violence is generalised “attacks” and physical and verbal “abuse” and “on many many occasions” and “threats” to stab, shoot and run her over. M talks about fire smacks and talks about being slapped on the face a lot and always sitting and hurting the wife added that but the last time was “ages ago”.
Exhibit 34 and Exhibit 43 tend to support the mother’s affidavit in-chief evidence at par 22, 39, 40-64. So too do Exhibits 20 and 31. B’s interview with the NSW police on the 22 January 2007 especially at question 91-144 and M’s at Q362 are concerning but I am loathe to give them full weight because of their timing and hearsay nature.
The police tape of the ‘000’ call by B (see Exhibit 30) is consistent with a deteriorating domestic situation beyond mere volatility.
However, having regard to the considerations mentioned in s 140(2) of the Evidence Act 1995 (Cth), I am not satisfied that the alleged assaults or verbal abuse during the marriage have been proven to the standard required. In any event only allegations that are particularised enough to support a forensic investigation into whether or not a positive finding of domestic violence can be made on the balance of probabilities are those in the lead up to the final separation which the majority in Kennon specifically excluded from the scope of the principles they enunciated. Hence the wife’s non-reliance on them.
Nonetheless, I am persuaded that because of the husband’s overall conduct within the marriage the wife’s homemaker contribution was made under more arduous and stressful conditions than it should or would have otherwise been. I find that the husband’s controlling personality and his work troubles made him a difficult man to live with. I find that he was more easily provoked and was unusually tough on the kids. It is clear that the pressure of the departmental internal investigation and its fallout was hard felt by the family. The husband had an extra-marital affair while was wife was heavily pregnant with T. There were two periods of temporary separation, 2003 and 2004, in which she was the sole parent with little or no financial or emotional support from the husband. The husband left for the Gold Coast in June 2005 leaving the wife to care for the family alone for another three months before they were reunited.
Dr K’s report based on consultation with the husband in May 2005 refers to an admission by the husband to marked irritability and short temperedness and a concession that the ‘marriage is up the shit because of me – we virtually fight everyday – even physical fights …’. He is also recorded as having said that while he tried to help the wife with the kids in the morning he spent most of his time watching television. Dr K diagnosed the husband with a major depressive disorder and alcohol dependence. The husband rejected the assessment and refused to accept any treatment during the marriage for either condition.
The husband disputes the admissibility of Dr K’s evidence and urges me to ignore it altogether because the report was not tendered and Dr K did not testify in person. The husband was cross-examined on relevant parts of the report which I find provides apparently reliable information about the context and climate in which the wife’s domestic contribution was made.
The psychological and emotional impact on the wife (which I readily infer) as distinct from any moral culpability attributable to the husband’s infidelity and abusive behaviours cannot be disregarded when assessing the quality of the contribution made by the wife as homemaker and parent.[347]
[347] Wilson J in Mallett v Mallett (1984) 52 ALR 193 at 218-219.
The relevant conduct was serious enough and went on long enough during the marriage to have a discernible adverse impact on the wife’s efforts to justify special credit or additions to the percentage entitlement of s 79(4)(c) contribution or be taken into account under s 75(2)(o) even where there is no ongoing need aspect. It is no answer to say that the hardship caused was brought about by the husband’s depression, work related stress from which the wife benefited because the “effect” in a no fault jurisdiction is more important than the cause. The fact that it wasn’t intentional doesn’t mean the impact hurts any less but just as much as if they were deliberate.
Post-Separation contributions
The wife now lives back on the Gold Coast while the husband lives with his mother on the Central Coast of NSW. The husband continues to meet the mortgage and hire purchase commitments of the parties.
The P unit has been rented out since December 2005. The wife has had to independently house herself in NSW and again at the Gold Coast without access to family savings ($40,000) at separation. Since December 2006 the husband has been in receipt of a hardship payment based on four dependants and a wife to support but there is no evidence of the wife receiving any financial support from the husband’s wages from December 2005 – September 2006 or from the relief payment since September 2006.
I accept that the wife has lived in extremely difficult circumstances since separation. The children have made sexual abuse disclosures and been interviewed by departmental officers, counsellors and repeatedly by police. In February the wife’s care exploded. As a result she re-located to NSW with the assistance and protection of the police. She has had to support the family on government benefits.
The husband has also had a rough time in the last couple of years having to defend himself on a number of fronts in criminal courts and against child sex abuse allegations here. He has had no contact or telephone communication with the children save for two short periods of court ordered contact. He blames the wife for this and says that she should not get any adjustment for sole parenting post-separation as a result.
The parties assessed contribution to the date of trial expressed as a percentage of the net pool
The contribution assessment has to be an appropriate amount which would result in financial justice between the parties taking into the account all the facts relevant to the particular case.[348]
[348] Beck No.2 (1983) FLC 91-318 at 78,166-167.
I accept the wife’s argument that the husband’s initial asset contribution is less significant now than it was. It is diminished not so much by the lapse of time but because of the extra non-financial effort the marriage demanded of the wife. The appropriate weight to accord to his initial contribution according to the wife is between 5-10% viz. $20,000-$40,000 in line with suggested authorities such as Pierce[349] and Money.[350] I do not think it is necessary to find or specify a particular percentage. What matters is that the final outcome reflects that both his initial and her subsequent overall contribution are given appropriate value and weight.
[349] (1998) FLC 92-844.
[350] (1994) FLC 92-485.
Giving birth and raising two small children in the setting of a short and stressful marriage with limited assistance from the husband justify wealth transfer more than any other feature of the wife’s case.
The “more arduous” homemaker contribution is not as weighty as it might otherwise have been because little or no evidence was led by the wife to enable me to assess the degree of difficulty involved and there is no suggestion of any ongoing economic consequence or financial need arising from the circumstances of the marriage.
Nevertheless, in my opinion, because of the nature, relative significance and circumstances in which it was made, the wife's overall contribution to the non-superannuation assets here was considerably greater than those in GBT and BJT (7.5 per cent over 6 years, no children, the wife had re-partnered and had professional qualifications), Money (25 per cent over 11 years and with two children), Hunt and Zuryn (32.5 per cent in 11 years, with two children)and Pierce (25 per cent over 10 years with two children).
For the purposes of assessing the relative values of the parties' respective contributions pursuant to pars (a), (b) and (c) of s 79(4), I am reasonably satisfied, on the whole of the evidence, taking into account what counsel for each of the parties has put forward on their behalf, and giving due weight to the disparity of assets brought into the marriage by both parties, and based on a finding of equality in relation to the other contributions during the marriage, the length of the marriage itself, and the parties' post-separation contributions, particularly by the wife, in relation to the two children of the marriage, that the wife's contribution to the current value of the net non superannuation assets should be assessed at 40 per cent. This translates into $248,847:$175,909 or, put another way sees the husband get the first $72,938 or about 20%.
This, in my view, adequately reflects the husband’s very substantial and unmatched initial capital contribution and the use made of it and its ongoing significance over the course of the marriage, as well as his considerable income contribution over that time. It is also intended to recognise and reward the wife’s indirect contribution to the appreciated value of the family assets, in addition to reflecting her significant homemaker contribution during the marriage and the primary care-giving role she played in relation to the two children of the marriage on an ongoing basis even after the marriage failed.
The superannuation fund is $182,000. Some of that has been added post- separation and a substantial amount already existed at cohabitation but there is uncertainty as to how much. The total accrual period is just over 16 years. The marriage did not quite last 6 years which is roughly 1/3 of the accumulated value. However, giving the wife about $33,000 or 18% of the total as the husband submits does not give her any credit for the ongoing contributions she made between 2000-2005. The 40% or $72,800 she contends for, however, appears to be overly generous. I will allow 25% or $45,500.
This gives the wife non superannuation assets to the value of $165,898 and $145,665 in retirement funds which together amount to $211,564 or 35% of the total pool.
Step 3: Adjustment
I think there should be a upward adjustment of 20% of the non-superannuation property or $82,949 in favour of the wife, bringing her total assets only figure to $248,847 (60%) and $45,665 (25%) in superannuation which in overall terms is $294,512 or 49% of the combined pools for s 75(2) relevant factors including the husband’s likely return to his police career, his age, needs and current living arrangements as a single man compared with the mothers limited capacity and availability for gainful employment, her likely greater future parenting obligations, the size of the pool, the length of the marriage and likely future growth of the base amount of the husband’s superannuation.
The complementary role and function of pars 75(2)(b) and (k) as adjustment factors is authoritatively dealt by Fogarty J in Waters and Jurek[351]:
"The rationale for that usually lies in the circumstance that the difference in income earning capacities is significant and/or has arisen directly or indirectly as a consequence of the marriage and the roles that the parties played during it.
. . . On separation, the partnership (marriage), and the division of roles and responsibilities which it produced come to an end. Individually, the parties are left largely in the personal situations that the marriage has assigned them. However, the world outside the marriage does not recognise some of the activities that within the marriage used to be regarded as valuable contributions. Homemaker contributions, for example, are no longer financially equal to those of the breadwinner. Post-separation, the party who had assumed the less financially rewarding responsibility of the marriage is in an immediate disadvantage. Yet that party often cannot simply turn to more financially rewarding activities. Often, opportunities to do so are no longer open or if they are time is required before they can be accessed and acted upon.
When the marriage ends especially where the marriage has been a long one (emphasis added) one can separate the parties as individuals from the people they became in the context of the marriage relationship, and the allocation of duties, roles and responsibilities which it entailed. In some cases, an adjustment is called for because it would be unjust for the roles and activities of the party, which were recognised until separation, and which largely determined or influenced the personal development of that party and the arrangements between the parties, to suddenly count for little, while those of the other party, which were of equal significance during the marriage, to now have a far greater financial impact outside the home - in circumstances where it was a joint decision of the parties that that be the way in which they would conduct their affairs, and where that decision was made in the expectation of the relationship continuing.
An order under s 79 would be unjust and inequitable in its operation if it failed to address the manner in which the value of the parties' roles, adopted in the course of, and for the purposes, of the marriage, can be altered by the fact of separation. Those roles can be instantaneously converted into liabilities. The equality of the parties' positions is terminated.
This court values differing kinds of contributions of parties equally while the marriage subsists. It would be inconsistent with the equality which that position recognises not to take into account the transformation which the termination of the relationship results in, at least in terms of the capacity for present and future income generation. This is a matter which is independent of the 'needs' of the parties. In some cases it will coincide with the presence of needs, but it does not rely on that presence. It rests on the broader base, one which I think it well characterised as 'just and equitable'". (Emphasis added).
[351] (1995) 20 FamLR 190 at 199-200; (1995) FLC 92-635.
There is no rule of law or discretionary principle requiring some causal connection between economic discrepancies and the marriage relationship to activate s 75(2)(b)[352] but it is clear that the provision either alone or in combination with other relevant adjustment matters is not intended as a source of social engineering or a back door method for sympathetic judges to even up the parties financial positions. Nevertheless, the obligations of the parties to a marital relationship lasting for "a not insignificant period" of five years or more do not end with the failure of the marriage.[353] In Clauson, [354] the parties cohabited for 10 years and the wife retained care of four children after separation. She had worked during the marriage but was unemployed at the time of trial. The assets were worth $1.5 million and the husband had a substantial income. The trial judge assessed the wife's contribution at 25 per cent and made a further adjustment of 15 per cent under s 75(2).
[352] cf. s 75(2)(k) ; Guest J in Farmer and Bramley(2000) FLC 93-060 at 87,981 and Kay J in the same case at 87,950, as well as the comments of the Full Court in Dickson(1999) FLC 92-843.
[353] See Kennon at 84,303.
[354] (1995) FLC 92-595.
In allowing the wife's appeal, the Full Court held that an adjustment of 15 per cent fell below the legitimate exercise of discretion. Their Honours said:[355]
The relevant factors are quite striking in this case. In particular, they relate to the enormous disparity in the income and earning capacities coupled with the circumstance that the wife is the custodian of four children aged between three and eight . . . It has long been recognised that in most cases the most valuable 'asset' which a party can take out of the marriage is a substantial reliable income earning capacity . . . There is, we think, at times a tendency to assess s 75(2) factors in percentage terms without considering its real impact, and we think there is a legitimacy in the views expressed in more recent times that the court has tended to operate in this area within artificially delineated boundaries. . .That is, it appears almost to be inevitable that the s 75(2) factors will be assessed in a range between 10 per cent and 20 per cent. A number of cases will justify an assessment outside those parameters but in any event it is the real impact in money terms which is ultimately the critical issue. (Emphasis added).
[355] (1995) FLC 92-595 at 81,910-11
In Causero[356] the Full Court of the Family Court explained that in so far as earning capacity of a party is a s 75(2) factor, it is a concept comprised of two aspects: (a) capabilities and/or qualifications and (b) the availability or opportunity to exercise those capacities in the workforce for reward.
[356] (2006) FLC 93-299.
It was also accepted as “notorious” in Mitchell [357] that there is a significant gap between theory and reality for employment. In my view given the length of time the wife has been out of the labour market and the absence of evidence as to her skills and qualifications and current employability as well as her ongoing parenting responsibilities for four children aged between 13 and 2, as well as her age, it is open to me to conclude that whatever capacity she has for earning income cannot be realistically be exercised on a full-time basis.
[357] (1995) FLC 92-601.
The husband has an capacity that he is or could be fully exercising. He is more financially secure than the wife whose future income potential is uncertain and whose ability to exercise what earning capacity is unclear but I readily infer is substantially lower than his.
Admittedly, the wife is in a stronger position than the husband on the assessed division based on contribution. This can justify an adjustment in favour of the husband where for example the wife can invest the difference and earn interest income but here the wife has to re-house four children with what money is left over after she has paid her lawyers. While the husband is left with a secure well paid career to continue with, the wife is left to single-handedly care for a young family with little financial support from other sources in relation to B and M, and with no real chance of being able to earn wages to support A and T. She will be reliant on child support and government benefits.
Though outstanding legal costs are not generally treated as a liability in property proceedings they are clearly relevant enough to the current financial commitments and resources of each of the parties and to the overall justice of the case to be taken into account at this stage.[358] Neither party complied with Rule 19.04(3)(a) but the wife’s unpaid billed legal costs to date approximately amount to $254,212 with a further $15,000 in unbilled costs owing. The husband is in a similar position.
[358] Lee Steere (1985) FLC 91-626 at 80,076.
The husband’s history of failing to fully meet his financial obligations to the family is also relevant. However, it should not be over estimated. Like many non-resident fathers accused by family members of sexual abuse in the aftermath of marital separation it was no doubt difficult for him to separate his financial obligation from his emotional needs. Indeed the way he conducted his case clearly showed that he linked non-payment of child support since the end of 2005, to the abuse allegations and denial of contact. Nonetheless I note that he did not meet his child support obligations during the temporary periods of separation either.
The Full Courts decision in Robb[359] is authority for the proposition that for the purposes of s 79(4)(c) contributions “the family” does not include a parties children from a previous marriage but assisting a former spouse to discharge legal child support obligations is a legitimate s 75(2)(o) factor.
[359] (1995) FLC 92-555.
There is no evidence of precisely how much the husband contributed financially to the support of the older two girls. The wife continued to receive government benefits for them throughout the marriage and clearly ran the household on a tight budget but there is no denying that the husband helped the wife to maintain B and M in a meaningful and measurable way.
I have moderated the allowance for the wife’s future parenting and childcare obligations in this case because of the uncertainty about how much parenting time the father will ultimately have over the longer term.
Final parenting orders have been made with a planned review in twelve months time. It may be that in the future the parental differences can be reconciled and the father’s relationship with the children re-built. If this happens then he is likely to increase the amount of time he spends with them considerably and thus relieve the mother of the financial and emotional burden she would otherwise have to bear. I have done the best I can to make due allowance for this contingency.
The only other option was to defer or adjourn the property proceedings pending the making of final parenting orders but having regard to the size of the pool the period of tie that has elapsed since separation and, most importantly, the parties (especially the wife’s) need for a clean break and to get on with her separate life including re-housing etc. I have decided against that course.
It seems to be likely that whatever relationship the father and the two children of the marriage end up having it will take time to establish and that trying to be a predictive as I can without pre-judging the issue the mother will remain the primary if not sole parent into the foreseeable future.
Both parties agree that the P unit and T property have to be sold and the proceeds divided after deducting costs and commissions. Each should keep the cars, household effects and bank funds they currently hold and share the husband’s superannuation entitlements.
To give effect this conclusion and to finalise the party’s financial relationship on just and equitable terms the division I propose is as follows:
HUSBAND WIFE Motor vehicle $25,000.00 Motor vehicle $44,500.00 Household effects $10,000.00 Household effects $6000.00 Funds in Bank $600.00 Funds in bank $200.00 T proceeds $130,298 T proceeds $198,148 Sub-Total $165,898 Sub-Total $248,848 Superannuation $136,247 Superannuation $45,416 TOTAL $304,168 TOTAL $292,240
However, I intend to direct the parties to file proposed terms of orders reflecting my judgment by close of business on 27th July 2007. Agreed terms can be forwarded electronically and will be made in Chambers. Otherwise the matter will be listed for the making of formal s 79 orders on a date to be advised.
I certify that the preceding seven hundred and eighty five (784) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carmody
Associate:
Date: 20th July 2007
[220] [1996]1 All ER 1at 22.
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