NEEDHAM & CASSIDY
[2016] FCCA 1477
•13 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEEDHAM & CASSIDY | [2016] FCCA 1477 |
| Catchwords: FAMILY LAW – Property – orders made as to the division of the parties’ property. |
| Legislation: Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art International Covenant on Civil and Political Rights, (16 December 1966), 999 UNTS 171, art 12 |
| Cases cited: A & A: Relocation Approach (2000) FLC 93-035 Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232 AMS v AIF (1999) 199 CLR 160; (1999) FLC 92-852 B & B: Family Law Reform Act 1995 (1997) FLC 92-788 Cales & Cales (2010) FLC 93-459 Coco v R (1994) 179 CLR 427 Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118 Ember & Assadi [2013] FamCAFC 107 Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 Potter v Minahan (1908) 7 CLR 277 Sampson & Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365 Sargood Bros v Commonwealth (1910) 11 CLR 258 Zanda & Zanda (2014) 293 FLR 1;(2014) FLC 93-607 J.A. Theobold, Maxwell on the Interpretation of Statutes (Sweet & Maxwell, 4th ed, 1905), 122 |
| Applicant: | MS NEEDHAM |
| Respondent: | MR CASSIDY |
| File Number: | MLC 9817 of 2015 |
| Judgment of: | Judge Brewster |
| Hearing dates: | 9, 10 & 11 May 2016 |
| Date of Last Submission: | 14 June 2016 |
| Delivered at: | Canberra |
| Delivered on: | 13 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harris |
| Solicitors for the Applicant: | Moores |
| Counsel for the Respondent: | Ms McDonnell |
| Solicitors for the Respondent: | McDonnell Law |
ORDERS
That in these Orders the term “contact” means spending time with.
That all previous orders in relation to the children X born (omitted) 2013 and Y born (omitted) 2015 (“the children”) be discharged.
That the parties have equal shared parental responsibility in relation to the children.
That the children live with the mother.
That the children have contact with the father as follows:
(a)Until X commences school the mother is to take the children to (omitted) once every eight weeks. The father is to have contact with the children in this period from 10.00am on Friday to 4.00pm on Monday.
(b)On giving seven days notice the father may have contact with the children for periods of up to four days in Victoria. Again this will be from 10.00am on Friday until 4.00pm on Monday.
(c)When X commences school the mother will no longer be required to travel to (omitted) and the father is to have contact during school holidays as follows:
(i)During the first Christmas holiday period for two periods of seven days. One of these periods is to involve the mother taking the children to (omitted) and the other period is to involve the father travelling to (omitted). The father may choose the weeks involved but is to give the mother thirty days notice.
(ii)During the mid-year holidays for one half of those holidays, being the first half in even numbered years and the second half in odd numbered years.
(iii)For one half of the next and subsequent Christmas school holidays alternating between the first and the second half. If the father chooses to have the children over Christmas in the first of the Christmas holidays referred to in order 5(c)(i) above then he is to have the children in the second half of the holidays. Otherwise he is to have the children in the first half. Thereafter the time he spends with the children is to alternate between the first and second half in each year.
That the parties arrange for the father to have Skype or Facetime contact with the children two days a week. The mother may nominate those days and times.
That one half school holidays are to be calculated by dividing the number of days the child or children does not attend school by two. If this is an uneven number of days the father is to have the extra day.
That holiday contact is to commence at 1.00pm and end at 1.00pm. The changeovers are to be at McDonalds on the (omitted) in (omitted).
That where contact is in the second half of school holidays it will conclude two clear days before the children return to school. This is not intended to reduce the father’s time with the children.
That the mother is to authorise any school that the children may attend to provide to the father copies of school reports and other material commonly sent to parents and to provide (at his expense) school photographs. Nothing in this order purports to require the school to cooperate in this respect.
That the mother is to advise the father of any medical or health practitioners involved with the children and to authorise those people to provide the father with any information he may seek. Nothing in this order purports to require those people to cooperate in this respect.
That each party is to promptly notify the other of any significant medical issue arising whilst the children are in his or her care.
That the within 90 days the father pay the mother the sum of $107,500 (“the amount”).
That upon payment of the amount the mother transfer to the father her interest in the property known as Property U.
That the period of 90 days may be extended by the father if he proposes to raise the amount by selling his property at Property C, in which case it must be paid within a reasonable time. After the 90 days interest will be payable at the rate provided for in the Rules. The mother has liberty to have the matter relisted if she believes that a reasonable time has elapsed.
That if the father chooses not to pay the amount the parties are to take all steps necessary to sell the properties referred to above and to divide the net proceeds as follows:
(a)To the mother an amount of A = (B/2) + $14,175) where A is the amount to be paid to her and B is the net proceeds of the sales.
(b)To the father the balance.
That as against the other each party is entitled to the chattels in his or her possession and the choses in action in his or her name.
IT IS NOTED that publication of this judgment under the pseudonym Needham & Cassidy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9817 of 2015
| MS NEEDHAM |
Applicant
And
| MR CASSIDY |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves a dispute between the parties as to the arrangements that should apply with respect to their two children and as to property division. The children are X who was born (omitted) 2013 and is therefore 2 going on 3 and Y who was born on (omitted) 2015 and is therefore 15 months of age. The parties lived together from 2010 to 2015 and apparently were engaged (I assume this as an engagement ring was listed as an asset in the balance sheet) but never married. The property dispute therefore falls to be decided under Part VIIIAB of the Family Law Act1975 (“the Act”).
In this judgment I will use the term “contact” instead of the term used in the Act “spend time with.” I will call the parties the father and the mother in relation to both the dispute as to the arrangements for the children and the property dispute.
Background
The applicant mother is aged 39 and the respondent father 32. They commenced to live together in late 2010. The mother was originally from a place known as (omitted) which is situated in the (omitted) area east of Melbourne. The father grew up in the (omitted) area. They lived in the (omitted) area during their relationship. In this judgment when I refer to (omitted), I mean the (omitted) area and not the town specifically. Reference will be made in this judgment to Property U. This is a place name in the (omitted) area where the parties purchased a house in which they lived during the relationship. They separated for about four months in late 2011 and separated for the final time in February 2015. X and Y are the only children of the relationship.
In April 2015 the mother and the children travelled from (omitted) to (omitted). I am satisfied that the father believed that they were only going for a short period of time and that this belief was based on what he had been told by the mother. I am satisfied that he would not have agreed to their permanently relocating. However the mother decided to remain in (omitted). I am unable to make a finding as to whether this was her intention before she left (omitted) or if she formed the intention after she had left. She took up residence at a property owned by her parents. Her parents are separated but live in separate residences on a rural block. The mother lives in the house occupied by her father.
Children’s matters
The parties’ applications
The mother proposes that the parties have equal shared parental responsibility for the children and that they live with her at (omitted). She proposed that in an eight week cycle she would travel to Property U each fifth weekend and on each second and eighth weekend the father could see the children in Victoria. At the conclusion of the hearing she indicated through her counsel that she now proposed contact in (omitted) each eight weeks. Once X commences school she proposes school holiday time. Her Minute of Orders Sought provide for communication by Facetime at least twice a week.
The father also seeks an order for equal shared parental responsibility. He seeks an order that the mother be required to return the children to the (omitted) area. He originally sought an order that thereafter they live with the parties on a week about arrangement. In her written submissions his lawyer indicated that he is now less wedded to that position and seeks that the court also consider an arrangement where the children would live mainly with the mother but spend time with him from Thursday to Monday each alternate week. In the event that the mother decided to remain in Victoria, he proposes that the children live with him. He proposes that the mother in those circumstances see the children in (omitted) on the first weekend of each month and on the third weekend of each month she could see them in (omitted). He also provides that she see them for half of the school holidays.
Discussion
Section 60CA of the Act provides that when making a decision in this matter I am to regard the children’s best interests as the paramount consideration. Section 60CC sets out a number of matters I am to consider when assessing what orders would be in their best interests. I shall discuss each part of section 60CC shortly. A backdrop to this exercise is found in section 60B which sets out the objects of the Act insofar as it addresses children’s matters. Of significance in this case is section 60B(1)(a) which states that one of the objects of the Act is to ensure that the best interests of children are met by their having a meaningful relationship with both their parents to the maximum extent consistent with their best interests.
I turn to section 60CC.
This section divides the considerations into primary considerations and additional considerations. The first of the primary considerations is the benefit to the children of having a meaningful relationship with each parent. I am satisfied that it would be very much in their best interests to have a meaningful relationship with each parent and indeed it would be in their best interests to have as close a relationship as possible with each parent. However as a result of the orders that I have made, their relationship with the father will be attenuated. This is most unfortunate. However in my opinion for reasons which I will explain this is the only realistic option.
The second primary consideration concerns protecting the children from violence, neglect and the like. I am satisfied that the children are at no risk of being exposed to violence or neglect in the care of either parent.
The additional considerations are set out in section 60CC(3) and I shall discuss each paragraph in that sub-section in turn.
Paragraph (a) requires me to consider any views expressed by the children and any factors (such as their maturity or level of understanding) that I think relevant to the weight I should give their views. For obvious reasons this is not a relevant consideration.
Paragraph (b) requires me to consider the nature of the relationship of the children with each of their parents and other persons including grandparents.
The court has the advantage of a Family Report prepared by Family Consultant Ms K dated 11 March 2016. Ms K observed the children with both parents and with their maternal grandmother. It appears from her Report that Ms K considered there is a good relationship between the children and both their parents and between the children and their maternal grandmother. There is no suggestion by either party that this is not the case. There was no evidence that the children have other than a good relationship with the rest of their extended family.
Paragraph (c) refers to the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children. In this case it is the extent to which the father has taken those opportunities that is relevant. I have no criticism of him in this respect.
Paragraph (ca) requires me to consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil, that parent’s obligations to maintain the children.
I shall discuss the issue of child support later in this judgment. There was some issue during the hearing of the matter as to whether the father’s position reflected poorly on him or not. I need not dilate on this. In the end I am satisfied that the father has fulfilled his responsibilities in relation to maintaining the children and I do not take this paragraph into account.
Paragraph (d) refers to the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents.
This paragraph raises what might be called the “status quo” issue. I am satisfied that the mother has been the primary carer of the children at all times and since April 2015 has been realistically the children’s only carer. To change this to a week about arrangement as proposed by the father, or a 10/4 arrangement put up as an alternative would in my opinion, be a most unsettling change particularly given the children’s ages. Whilst there is no hard and fast rule that a long established status quo should not be disturbed I would need to be given adequate reasons why it should occur. In this case there are no such reasons.
Paragraph (e) refers to the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
Plainly this is a most significant issue in this case. Without stops it is about eleven hours from (omitted) to (omitted). With young children however this is not possible and a time of perhaps fifteen hours would be more realistic. Unless there were two drivers this would be inadvisable. Plainly the difficulty and expense of travel will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis. This is most unfortunate but in my view in this case it is inevitable.
Paragraph (f) requires me to consider the capacity of each of the children’s parents to provide for the needs of the children including emotional and intellectual needs. I see no reason to believe that either parent is deficient in this respect.
Paragraph (g) refers to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of their parents and any other characteristics of the children that I think relevant. I need not take this paragraph into account.
Paragraph (h) refers to Aboriginal or Torres Strait Islander children and is not relevant.
Paragraph (i) refers to the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents.
It could be argued that the mother’s unilaterally relocating the residence of the children from (omitted) to (omitted) demonstrated an inappropriate attitude to the responsibilities of parenthood. It is most unfortunate that this has occurred but there are good reasons why the mother took the steps she did and even if she could be criticised it would make no difference to the end result in this case.
Paragraph (j) refers to family violence and paragraph (k) to family violence orders. I need not take these paragraphs into account.
Paragraph (l) requires me to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. I need not take this paragraph into account.
Paragraph (m) refers to any other fact or circumstance that I think relevant. Such facts or circumstances will emerge in the balance of this judgment.
I turn to the issue of parental responsibility. As I have indicated each parent seeks that there be an order for equal shared parental responsibility and I will so order. This requires me to consider section 65DAA(1) of the Act which provides that where an order is made for equal shared parental responsibility I must:
(a)Consider whether the children spending equal time with each of the parents would be in their best interests; and
(b)Consider whether the children spending equal time with each of the parents is reasonably practicable.
If I am satisfied that the answer to both these matters is affirmative I am to consider making an order for equal time. If I do not make an order for equal time I must consider an order for substantial and significant time with each of the parents. I need not explain what is meant by substantial and significant time except to observe that the 10/4 arrangement would be in this category. Again I must be satisfied that such an arrangement would be in the children’s best interests and reasonably practicable but if I am so satisfied I am to consider making an order that the children spend substantial and significant time with each of their parents.
I need not consider this section any further. Plainly given the orders I have made with the mother in (omitted) and the father in (omitted) equal time or a 10/4 arrangement is impractical, indeed is out of the question, even if it would otherwise be in the children’s best interests. The orders I have made will allow for substantial and significant time in a technical sense in that they will allow for time outside of weekends but they most certainly does not fit in with the spirit of the section.
I do not propose to make an order which would require the mother to relocate with the children to (omitted). I have reached this conclusion for three reasons. These are:
(a)I do not believe that the court has the power to make such a coercive order;
(b)Even if the court has that power it would only be in rare and exceptional circumstances that such an order would be made and this case does not involve such circumstances; and
(c)It would not be reasonably practicable for the mother and the children to live in (omitted).
I turn to the first of these matters.
It needs to be stated at the outset that my conclusion that the court has no power to make an order requiring a parent to relocate (or at least the power to order interstate relocation) is inconsistent with the conclusions of the majority of the judges in four decisions of the Full Court of the Family Court. Indeed only one judge doubted that the court had that power. Those decisions are Sampson & Hartnett (No 10) (2007) FLC 93-350, Zanda & Zanda (2014) FLC 93-607, Ember & Assadi [2013] FamCAFC 107 and Adamson & Adamson (2014) FLC 93-622, [2014] FamCAFC 232.[1]
[1] I am indebted to Ms M for drawing my attention to this issue. Ms M contacted my chambers to request a meeting with me. I was told that she was a law student and was writing an honours paper. I was told that it concerned relocation. I saw her on 4 May 2016. She explained that her paper addressed coercive relocation orders, that is orders requiring a parent to relocate. She questioned the power of the court to make such orders. I was aware of Sampson and Adamson but had not turned my mind to the issue of whether or not they were correctly decided. By coincidence the present case was listed before me the following week and our discussion caused me to consider the issue for the first time. Her input at our meeting was very valuable. At my request she later send me her paper after she had submitted it and it caused me to make some revisions to my draft judgment.
However the observations of the majority of the judges in the cases to which I have referred are obiter dicta. This is because in each case the court set aside orders requiring a parent to relocate. Moreover in Adamson counsel for the appellant did not argue that the court lacked the power to make a coercive relocation order and the court at paragraph 35 simply noted the fact that authority supported the trial judge’s conclusion that he had this power. In the other cases however detailed consideration was given to this issue. One does not refuse to follow reasoned dicta of the Full Court lightly or inadvisably. However I am firmly of the view that the reasoning in those cases was erroneous and that I have no power to make a coercive relocation order of the type sought by the father. In those circumstances I do not propose to follow those decisions.
At this point I will I set out the text of the various sections of the Act relied upon by the judges comprising those Full Courts as providing heads of power to make coercive relocation orders. Those sections are section 65D (and by extension section 64B), section 68B and section 114(3). There has been a divergence of opinion amongst the various judges in these cases as to which of these sections gives the court the power to make such orders.
Section 65D(1) provides that in proceedings for parenting orders “… the court may … make such parenting orders as it thinks proper.” Section 64B(2) sets out the matters that are encompassed by a parenting order. It reads as follows:
A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h) the process to be used for resolving disputes about the terms or operation of the order;
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
It is to be noted that no reference is made to an order determining where a person must live. If the power to make such an order exists it must be found in paragraph (i) above.
Section 68B is as follows:
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
It is to be noted that there is no express provision in this section for the making on an order directing where a person must live.
Section 114(3) provides as follows:
A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
It should be noted that this section is expressed in very general terms.
In Sampson the plurality, Bryant CJ and Warnick J, discussed the possible sources of power to make such an order. At paragraph 35 they concluded that the power could not be found in section 64B of the Act. They then turned their attention to section 68B. At paragraph 38 they said that “s 68B is unlikely to be a source of power to directly restrain the freedom of movement of a parent.”
The plurality then turned their attention (at paragraphs 39 and 40) to section 114(3). They concluded that this section provided a source of power to make a coercive relocation order.
The third member of the court, Kay J at paragraph 121 said as follows:
Whilst we have not been directly asked to determine the issue of the power of the court to make an order requiring a parent to move from a well established place of residence to a different location so as to place the children in closer proximity to the other parent, I have severe doubts that there is power to make such an order or, if the power exists, it would not be exercised other than in the most exceptional circumstances.
Kay J then discussed a number of cases decided by courts other than Australian courts which supported his reservations as to Australian courts having the power to make such an order.
A differently constituted Full Court (Bryant CJ, Ainslie-Wallace and Ryan JJ) in Zanda endorsed the conclusion of the plurality in Sampson that section 114(3) gave the court the power to make coercive relocation orders.
A differently constituted court again in Ember doubted that section 114(3) provided a source of power and said at paragraph 60 that “… it may well be more appropriate to invoke s 65D and s 68B than s 114(3).”[2]
[2] In Zanda the Full Court said as follows:
I turn first to section 114(3).
A question might arise as to the status of section 114(3) when the court is dealing with children’s matters involving parties who are not and were never married. I shall briefly discuss why I have reservations as to this.
When the Family Law Act was enacted in 1975 the only constitutional foundation for it was found in section 51(xxii) of the Australian Constitution. This gave the Commonwealth Parliament power to make laws for “divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants.” Thus the Family Law Act at that stage dealt only with disputes between couples who are or were married, or who had been through a ceremony of marriage which did not constitute a valid marriage. Later the Commonwealth Parliament acquired the power to legislate with respect to children’s issues concerning persons who were not and never had been married. This was by virtue of the reference of those powers by the States where the Family Court of Australia operated pursuant to section 51(xxxvii) of the Constitution.
Section 39(1)(a) of the 1975 Act gave the Family Court jurisdiction in relation to “matrimonial causes”. The term “matrimonial cause” was defined in section 4(1) of the Act. It included proceedings with respect to –
(i)The maintenance of one of the party’s to a marriage;
(ii)The property of the parties to a marriage or of either of them; or
(iii)The custody, guardianship or maintenance of, or access to, a child of the marriage.
The term “matrimonial cause” by virtue of paragraph (e) of section 4(1) extended to “proceedings for an order or injunction in circumstances arising out of a marital relationship.”
At this stage the only provision for injunctions was found in section 114 and could only apply in cases involving people who are or were married.
The definition of matrimonial cause was later amended by omitting any reference to “the custody, guardianship or maintenance of, or access to, a child of the marriage” and significant amendments were made to the Act, particularly to Part VII. Amongst these was the addition into Part VII of sections 64B, 65D and 68B. I have set out the terms of these. Another section, section 69B was also added. This section reads:
(1) Proceedings that may be instituted under this Part (that is Part VII) must not … be instituted otherwise than under this Part.
Whilst it could be argued that the Full Courts in Sampson and Zanda, when they called in aid section 114(3) (which is in Part XIV), did not infringe section 69B(1) in that the proceedings were instituted under Part VII it does not seem to me to be congruent with the intention of that section.
Thus far it seems to me that everything is pointing to the conclusion that section 114(3) does not apply to children’s matters and more clearly so to children’s matters where the parties were never married. However in the end I do not need to reach a firm conclusion as to the issues I have raised. There are, in my opinion, other and clearer reasons for concluding that section 114(3) does not give me the power to make a coercive relocation order of the type sought by the father.
In my opinion the power of the court to make injunctions in relation to children’s matters must be found in Part VII of the Act. It would be unusual if sections in one Part of the Act explicitly setting out the types of orders and injunctions that the court can make with respect to children’s matters could be expanded by reference to a general injunctive power found in another Part of the Act which does not specifically relate to children’s matters. Especially so if it concerns coercive relocation orders. In my opinion Part VII, in effect, covers the field insofar as injunctions in children’s matters are concerned. An analogy could be made to the rules of statutory interpretation known as expressio unius est exclusio alterius and generalia specialibus. I need not discuss these.
I turn to sections 65D and 64B. As I have indicated there is nothing in these sections which specifically gives to the court the power to make a coercive relocation order. If the power is to be found here it must be in paragraph (i) of section 64B(2).
I turn then to section 68B. That section is not expressed in general terms but lists a number of types of injunctions that may be imposed. Nowhere does it specifically refer to a power to order a person having the care of a child or children to live in a particular area.
Turning to the present case the specific question is do I have the power to order the mother to relocate from one State, Victoria, to another, New South Wales? Or put another way should the sections to which I have referred be construed as conferring that power notwithstanding that there is no specific reference to this in any of those sections?
There are two reasons why I have concluded that the answer to the question I have posited above is no.
First section 92 of the Australian Constitution provides that trade, commerce and intercourse between the States shall be absolutely free. Subject to certain limitations the Parliament has the power to enact legislation which restricts a person’s constitutional freedom of movement. See AMS v AIF (1999) 199 CLR 160; (1999) FLC 92-852. It is not necessary to discuss those limitations. Suffice to say that in my opinion the Parliament has the power to enact legislation which would deny a parent having the care of a child the right to live in the State of his or her choosing. However there is an assumption when construing legislation that it was not intended to remove a citizen’s rights. This was stated in Australia as long ago as 1908 when O’Connor J in Potter v Minahan (1908) 7 CLR 277 at [304] quoted with approval a passage from the 4th edition of Maxwell on the Interpretation of Statutes where at page 122 the editor JA Theobold said that “[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness … .” His Honour returned to the theme in Sargood Bros v Commonwealth (1910) 11 CLR 258 where at 279 he said “It is a well recognized rule in the interpretation of Statutes that an Act will never be construed as taking away an existing right unless its language is reasonably capable of no other construction.” O’Connor J’s approval of the passage from Maxwell has been endorsed by subsequent Justices of the High Court. See for example Coco v R (1994) 179 CLR 427 per Mason CJ, Brennan, Gaudron and McHugh JJ at 437.
Secondly the United Nations Universal Declaration of Human Rights (“the Declaration”) states in Article 13(1) that “[e]veryone has the right to freedom of movement and residence within the borders of each state.” Australia has ratified this treaty. Another treaty to which Australia is a party is the United Nations International Covenant on Civil and Political Rights (“the Covenant”). Article 12 reads as follows:
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with other rights recognised in the present Covenant.
There is an assumption when construing statutes that prima facie they do not abrogate rights which are embodied in international treaties to which Australia is a party. In Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118 at [125] Kirby A-CJ said with reference to the Declaration:
Although [its] provisions are not, as such, part of Australian municipal law, they reflect fundamental principles of the law of civilised countries … . To the extent that they state applicable principles of international law, they are available to assist in the construction of ambiguous Federal legislation. It will be presumed that such legislation is written against the background of an acceptance of such fundamental principles.
As pointed out by Kirby A-CJ, and unlike the position in the United States of America, a treaty to which Australia is a party does not form part of the domestic law unless it is incorporated in legislation and the Parliament may pass legislation inconsistent with such a treaty. But if such a course is adopted it must, in my opinion, be made clear by express provision or necessary implication. Otherwise it will be assumed that the Parliament did not intend to remove rights referred to in the treaty.
The intersection of international treaties with the Family Law Act was considered by the Full Court of the Family Court in B & B: Family Law Reform Act 1995 (1997) FLC 92-788. That decision involved relocation. It was, I believe, intended by the judges involved, Nicholson CJ, Fogarty and Lindenmayer JJ to constitute a “general theory” of relocation. In its judgment the Full Court considered the impact of international treaties on the Family Law Act and in particular the United Nations Convention on the Rights of the Child as well as the Covenant. In relation to the impact on these conventions on the Family Law Act the court referred to the judgment of Gummow J in Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529. At page 84,224 of the Full Court’s decision they quoted Gummow J where he said:
Where a convention has been ratified by Australia, but has not been the subject of any legislative incorporation into domestic law, its terms may be resorted to in order to help resolve an ambiguity in domestic legislation or subornative legislation.
At page 84,226 the Full Court said as follows:
… we consider, with respect, that Gummow J may has been too restrictive in his third category in concluding that the terms of the convention may only be resorted to for the purposes of resolving ambiguity in domestic primary or subornative legislation. We think that such conventions may also be resorted to in order to fill lucunae in such legislation …
In the present case I am not concerned with ambiguities in the legislation. How a treaty that is not part of Australian domestic law can legitimately be used to fill a lacuna in legislation is unclear to me. It seems as if one would be using a treaty to amend an Act by adding to it. But if there is a lacuna in this case neither the Declaration nor the Covenant can be used to fill it by giving the court the power to make a coercive relocation order. They pull in an opposite direction.
Further the Full Court did not consider the power of the Family Court to make coercive relocation orders having regard to international treaties but rather whether Australia’s ratification of such treaty should influence the exercise of a trial judge’s discretion as to whether or not to permit a relocation.
I add that in B & B the court was not considering a coercive relocation order.
To summarise, in my opinion if the Parliament intended the Family Law Act to give to the court the power to make orders inconsistent with section 92 of the Australian Constitution, Article 13(1) of the Declaration and Article 12 of the Covenant in that it intended to give the court the power to restrict a person’s freedom of movement from one State to another, or to deny to a person the right to live in the State of his or her choosing, it should have expressly said so or it must be necessarily and clearly implied in the Act. It did not expressly say so. In my view it is not necessarily or clearly implied.
In some cases it has been suggested that there is a difference between an order which directly requires a parent to relocate and an order which does not do this but has the same practical effect. Thus it is sometimes said that an order that “the mother relocate the residence of the children to X” does not directly require her to relocate. In Ember the Full Court was dealing with an order by the trial judge that “[t]he mother ensures that the children’s permanent residence is in Sydney or (omitted), New South Wales”. In considering the wording of these orders the Full Court observed that there was no order specifically requiring the mother to relocate. It noted that “plainly they (the orders) were made in the context of where the children should live not the parents”. The Full Court went on “… these orders would not be workable if the mother did not move, but it is readily apparent they do not direct her to move.” The Full Court thus found that the order was not an exercise of coercive power.
I do not agree with the conclusion of the Full Court in this respect. I do not propose to dilate on this issue. If it looks like a duck, swims like a duck and quacks like a duck then it is a duck. If the practical reality of the order is to require a parent to relocate it is a coercive order. Any attempt to disguise this smacks of casuistic sophistry. We are, or should be, long past the age when the law was more concerned with form than substance. I refer here to things such as the medieval Forms of Action and pre Judicature Act pleadings.
Even if I am wrong about this and I have the power to make a coercive order of the type sought by the father the authorities indicate that it would only be in a rare or exceptional case that such an order should be made.
In Ember one of the grounds of appeal was that the trial judge “failed to provide adequate reasons identifying the exceptional circumstances which required the parent to live with the children in Sydney or (omitted) NSW.” In that case the mother had been required by the court to relocate from Melbourne to New South Wales. In relation to the ground that I have just referred to at paragraph 50 the Full Court said as follows:
This is a challenge that is misconceived. Contrary to the assertion contained in this Ground there is no requirement in the legislation or that can be gleaned from the authorities that to succeed in an application that entails relocation, and in particular to require a party to move with the children, “exceptional circumstances” need to be established.
In my opinion the statement that the ground was “misconceived” and that the proposition advanced in it “cannot be gleaned from the authorities” is not justified. In Sampson Kay J referred to the necessity for exceptional circumstances to be shown and whilst the plurality in that case did not use that phrase, they said that “ … the proper exercise of such a power is likely to be rare… .” If there is any meaningful difference between “rare” and “exceptional” it is not apparent to me. In Cales & Cales (2010) FLC 93-459 a differently constituted Full Court at paragraph 89 referred to Sampson and agreed that a coercive relocation order “is one which will be rarely and sparingly made …..” In Adamson (which postdates Ember) at paragraph 53 the court said that:
In our judgment the central findings which we have identified thus far [that is the findings of the trial judge] do not sit conformably with the conclusion that rare or exceptional circumstances existed in this case such as to justify a legitimate exercise of discretion to make the coercive order. …
It seems to me that the statement I have quoted from Ember was, in a sense, made per incuriam and can be ignored. I say “in a sense” because the judgment of the Full Court was not technically per incuriam as the judges referred to, and were therefore aware of, both Sampson and Cales but they obviously overlooked the passages to which I have referred. In any event the preponderance of judicial authority supports the “rare or exceptional” test. In my view this case does not involve rare or exceptional circumstances.
As I have indicated I am also not satisfied that requiring the mother to relocate to (omitted) would be reasonably practicable. She is not in paid employment and presently is able to live rent free. The father suggested that she could occupy the Property U property but I do not believe that this is a realistic option in the longer term. The property is subject to a mortgage and the instalments on this are $400 a week. The father’s proposal is that the Property U property be transferred to him and if he is able to raise the funds this is what I have ordered. If he is not able to acquire the mother’s interest in the property then it will have to be sold. In this respect I note that the plurality in Sampson said at paragraph 75 that in order to make a coercive relocation order the court must be satisfied that the “… practicalities of life equally or sufficiently exist in the place to which a party is required to move.”
In this case I am faced with four options. The first is to make orders which would require the mother to move to (omitted) and for the children to live with the parties on a week about arrangement. As can be seen I have firmly rejected that proposal. The next is to make orders which would have the mother as the primary parent but provide for the father to see them regularly. The father suggests a 10/4 arrangement. I have rejected this. An order implementing either of these proposals would require the mother to relocate to (omitted). As can be seen I do not believe I have the power to make such an order or that it is reasonably practicable. The third is to make orders based on the mother’s continuing to live in Victoria. The fourth is to make orders that the children live with the father in (omitted).
In my view it is clear that the last of these options would not be in the best interests of the children. In fact I believe it would be very much inimical to those best interests. This is not a criticism of the father but since April 2015 the mother has been, in reality, the only carer for the children. It needs to be recalled that when she moved to Victoria Y was only one month old.
I have therefore made orders which will permit the mother to remain in Victoria. As I have indicated her original proposal would have her take the children to (omitted) each fifth week.
During the hearing I expressed some reservations about this. A long trip of fifteen hours or so would be punishing on the children and I was concerned that they would regard visiting their father as a chore. Presumably in response to my concerns the mother changed her position and her counsel advised me at the conclusion of the case that she now proposed to travel to (omitted) every eight weeks. I think that is a better option and I have ordered accordingly. I have not made any orders regulating the time the father can spend with the children in Victoria. The reality is that he would only be able to visit occasionally. I have provided that if he gives seven days’ notice he may see the children for periods of up to four days.
As I indicated at the hearing I would not normally make an order for overnight time with a child of Y’s age. However, as I also indicated, we have to frame orders having regard to the exigencies involved. It is to the benefit of the children to see their father as often as possible for as long as possible. On the other hand removing a child of Y’s age from the mother for four days as I have ordered is far from ideal. But there is no ideal outcome in this case. The orders I have made reflect this.
Property
As I have indicated this aspect of the case falls to be decided under Part VIIIAB of the Family Law Act as the parties were never married. I am satisfied that they lived in a de facto relationship within the meaning of that Part and that the court has jurisdiction to entertain the application.
The parties’ applications
The mother who is the applicant seeks an order that the father pay her the sum of $135,000 and that she transfer to him her interest in the jointly owned property at Property U. She also seeks orders as to chattels. She proposes that the father retain a business he runs known as (omitted) and (omitted). She does not seek any superannuation split.
The father seeks orders basically in the same terms as the mother except that he would have the amount of the payment as $65,000. He likewise does not seek a superannuation split. He proposes that each party keep the chattels in his or her possession.
Discussion
I will approach this case using a four stage process. I shall first make findings as to the pool of property. I will then consider contributions made by or on behalf of each party. These comprise initial contributions, contributions made during the relationship and post separation contributions. I shall then consider such matters referred to in section 90SF(3) of the Act as may be relevant. The final stage involves synthesising the matters involved in the second and third stages to determine what orders would, in my opinion, be just and equitable.
The father is the sole owner of a property situated at Property C. He acquired this property before the parties commenced their relationship. There is no basis for imputing to the mother any beneficial interest in this property. The parties also are the joint owners of a house at Property U. The orders that each seeks involve my making an alteration in their interests in their property interests. I have the power to make such an order under section 90SM(1) of the Act. However section 90SM(3) provides that I must not make an order altering the property interests of parties unless I am satisfied that it is just and equitable to do so. In this case given the parties’ respective contributions and the matters under section 90SF(3), I am satisfied that it is just and equitable to make an order under section 90SM(1).
The pool
I find that the pool is as follows:
(a)The parties are joint owners of the property at Property U. It is valued at $432,000 and is subject to a mortgage of $385,726. This gives an equity of $46,274.
(b)The father owns a property at Property C. It is valued at $450,000 and is subject to a mortgage of $310,000. This results in an equity of $140,000.
(c)The father has a Toyota Landcruiser and Nissan Navara motor vehicle. The Landcruiser is valued at $60,000 and the Navara at $20,000. However the Landcruiser has a debt attached to it of just over $29,000 so the equity is about $31,000.
(d)The mother has a horse float valued at $12,500. This is subject to a loan of $5,800 giving a net of $6,700. She has saddles and tack valued at $3,000 and three horses valued at a total of $3,000.
(e)The father has tools valued at $12,500, a tractor valued at $7,000, a quad bike valued at $4,000, two motorbikes valued at a total of $4,500 and a boat valued at $5,000.
The total equity value of these assets is $282,974.
Apart from the mortgages and the Landcruiser and horse float debts to which I have referred, the father has a (omitted) Bank Equity loan referrable to his business of $42,000.
I do not propose to deduct the business loan from the pool. The father will continue to operate the business and time will tell if that debt ever becomes a reality. That is whether he will have to “put his hand in his pocket” to discharge it. Whilst the business has not been attributed to it, any value it is a financial resource for the father.
The net pool is therefore $282,974. The mother has chattels to a net value of $12,700 and the father chattels to a net value of $84,000.
The father has superannuation valued at $136,712 and the mother at $70,262.
Contributions
As I have indicated at the date the parties commenced their relationship the father owned the property in (omitted). The mother has made no realistic contributions to this property. It has been rented out at all times and the rental has been sufficient to meet the instalments on an interest only loan taken out to acquire it. There have been other expenses in relation to this property such as insurance, rates and maintenance but this aspect of the case does not justify my making any contribution based adjustment to the interest of the father in this property in favour of the mother.
The father also owned a Landcruiser motor vehicle. This was later written off in an accident and an amount of $57,852 (which also included tools in the vehicle) was received by the father post separation and has been spent. In those circumstances I do not treat this as an initial contribution. I add that the disposition of the insurance proceeds was made much of by counsel for the mother. I do not regard it as significant. To paraphrase Job 1:21 the father gave and the father hath taken away.
The mother owned some chattels and a car which was subject to a loan from her parents. I do not take these into account. This is a “broad brush” exercise.
During the relationship the father’s contribution was mainly as a breadwinner and the mother’s mainly as a homemaker and a parent. I see no reason to treat the contributions of one as being either more or less significant than the contributions of the other.
Post separation the father has paid the instalments on the mortgage on the Property U property but he has also had the benefit of occupying that property so I do not propose to take this into account as a post separation contribution.
Post separation the mother has had the care of the parties’ two children. For a time the father paid no child support under an arrangement between the parties whereby the mother had the use of one of the parties’ motor vehicles. The father later reclaimed this vehicle and has since been paying child support. However for reasons that are not entirely clear, the mother only claimed child support for one child and the father’s child support is currently $147 a month. I am told that this is to be rectified but I do not know what the new figure will be.
It is apparent that post separation contributions favour the mother. In fairness however it must be said that the situation whereby the mother has effectively been the sole carer of the children is not of the father’s choosing.
Section 90SF(3) matters
As a result of my orders the mother will be the primary carer of the two children. The children are very young and they will be her responsibility for many years. It is unclear how much child support will be paid for them but given the father’s present income for the time being at any rate I expect it to be comparatively modest.
The father is a qualified (occupation omitted) with experience working on (omitted). He previously worked in (omitted) in the (omitted) area but he gave up this employment because he found it uncongenial and set up his own business as a (business omitted). He presently earns about $500 week from this. He hopes and expects however that in time the business will grow and become profitable.
The mother has qualifications (omitted) and she indeed worked in the (omitted) in this field. She has not worked since the birth of the children. Given the ages of the children her capacity to obtain full time employment in the short term at any rate is very limited. Her father is a well-regarded (occupation omitted) and the mother completed most of a course to qualify as a (occupation omitted). However she understands that the pay for this sort of work is only about $20 an hour. I assess the father’s income earning capacity as being greater than that of the mother. I also take into account that I imagine he could if he wished give up his business and work again in the (occupation omitted). He earned about $140,000 per annum on this work as did the mother when she worked in the (occupation omitted). There are no (employer omitted) in the immediate area of (omitted).
I take account of the fact that the mother’s decision to relocate will mean that the father will incur costs in having contact with the children.
I take into account the fact that the father has the financial resource of the Property C property.
I note the discrepancy in the parties’ superannuation. However this is not a substantial factor in this case. It will be many years before either party can access his or her superannuation and it is not possible to predict what the financial position of either party will be at that time.
I add that in factoring in section 90SF(3) matters a relevant consideration is that the relationship was not a long one and leaving aside the mother’s continuing care of the children, the impact of these matters is affected by this.
It is plain that section 90SF(3) factors substantially favour the mother. We are not dealing with a large pool. Under these circumstances it is necessary to look at the dollar value of any adjustment in favour of the mother under section 90SF(3).
Conclusion
The pool totals $282,974. The chattels in the possession of the father total (net) $84,000 and those in the possession of the mother total (net) $12,700. The total equity in the two properties is $186,274.
Whilst I do not disregard the discrepancy in the values of the chattels each party has in his or her possession, I feel it would be an error to simply lump chattels and real estate together when considering the pool. Real estate values rise or fall according to the market. Normally over the long term the rises exceed the falls and real estate tends to, at least, keep pace with inflation. Apart from antiques and some red wines, chattels, including horses, will inevitably decline in value as they get older.
Contributions very much favour the father. The largest single asset in the pool is the Property C property he owned prior to the relationship. Section 90SF(3) factors very much favour the mother. In particular she will be the primary carer of two young children. There is no “right” answer to this case. A division of property under the Family Law Act is not an accounting exercise. Rather it is a holistic exercise which is incapable of precise explanation or justification. All that I can do is indicate the matters I take into account and impose my subjective solution.
In my opinion an equal division of the equity in the real property is appropriate. This would give the mother $93,137. To this I add an amount, which I concede is somewhat arbitrary, or at least subjective, of $15,000. This is to recognise the discrepancy in the value of the chattels each party has retained. This totals $108,137. There is an agreement that the mother will have deducted from the monies payable to her the sum of $825 representing half the costs of valuations of the real estate. This results in a figure of $107,312 which I round up to $107,500.
The father indicated at the hearing that he might sell his Property C property to pay the mother. I have provided for this.
I do not propose to divide the parties’ chattels. I have ordered that each party retain the chattels presently in his or her possession.
I have not made a superannuation split. Neither party sought such a split but I would have declined to make one even if it were sought. This was not a long relationship. It will be many years before either becomes entitled to access his or her superannuation. It is impossible to forecast what each party’s position will be at that time. In my opinion the hurdle of section 90SM(3) has not been cleared. Thus each will keep his or her superannuation.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Brewster
Date: 13 July 2016
135. Thus, the source of power to make the injunction restraining the father from leaving Australia was s114(3) not s68B as his Honour seemed to find.
136. Lest it be thought that we make this point in pettifogging way, it is, in our view seminal to the proper exercise of judicial discretion to understand not only the source of the power to make the order but the ambit of it.
I respectfully agree but observe that the different views that have now emerged amongst the judges of the Full Court make this a difficult task for judges at first instance.
[3] See also Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.
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