Osborne and Fletcher

[2016] FamCA 880

FAMILY COURT OF AUSTRALIA

OSBORNE & FLETCHER [2016] FamCA 880

FAMILY LAW – PROPERTY – Interim Property Application – Whether the former matrimonial home should be sold – Where the father has defacto occupation of the former matrimonial home – Where the father makes no payments in regard to the property – Where the mother seeks an order for sale and investment of all net proceeds – Where the father seeks to retain the property on final hearing – Where discussion of general principles - Where inappropriate to order sale at present – Where appropriate that father pay mortgage and outgoings pending further order – Where appropriate that mother have leave to apply if default by the father.

FAMILY LAW – CHILDREN – Interim Parenting Orders – Time the child should spend with the father – Where both parties seek equal shared parental responsibility on an interim basis – Where agreed that child will live with mother – Where each party has made accusations of  abuse and inappropriate conduct against the other – Where there is no objective evidence as to those accusations – Where the accusations cannot be tested on an interim level – The best interests of the child – Where parties to engage in Child Responsive Program imminently – Where child of mature age – Where no objective evidence of the child’s wishes – Where appropriate to await Child Responsive Memorandum – Where matter adjourned part heard as to the child’s time with the father .

Bearup (1993) 16 Fam LR 797.
Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286
Harris & Harris (1993) FLC 92-378
McCall & Clark (2009) FLC 93-405
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348
Mazorski & Albright (2007) 37 Fam LR 518
MRR v GRR (2010) 240 CLR 461
Strahan & Strahan (2011) FLC 93-466

Family Law Act 1975 (Cth), ss 60, 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC3), 61DA, 61DA(2), 61DA(3), 61DA(4), 65DAA(6), 79, 79(4), 90SM, 90SM(4)

APPLICANT: Mr Osborne

RESPONDENT: Ms Fletcher

FILE NUMBER: PAC 2364 of 2015

DATE DELIVERED: 14 October 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 12 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Brien

SOLICITOR FOR THE APPLICANT: King Cain Solicitors

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: Campbell Paton & Taylor

Orders

PENDING FURTHER ORDER:

Parenting:

1. That the mother and father have equal shared parental responsibility for the child B (the child), born … 2004.

2. That the child live with the mother.

3. That otherwise these proceedings as they relate to the issue as to the child’s time with the father be adjourned part heard to a date to be fixed after release of the Child Responsive Memorandum.

Property:

1. That pending further order the father have sole use and occupation of the property at C Street, Suburb D, provided always:

   (a)that the mother shall be at liberty to attend on that property and enter upon that property on one occasion each calendar month from the date of these orders provided that she notify the father in writing, such writing to include SMS or email communication of her intention to attend at the property for the purposes of inspecting the condition and repair of that property on not less than 72 hours’ notice and in the event that such notice is given the father shall do all things necessary to facilitate the mother having entry to the property for the purposes of such inspection;

   (b)that it is a condition of the father’s occupation of the said property that he maintain the property in good order and condition and pay as they fall due and payable from 1 October 2016 principal and interest mortgage payments in the sum of $2,611 per month to the mortgagee  and pay council and water rates levied in respect to the property and all strata levies levied in respect of the property as and from 1 October 2016,

   (c)that in the event that the father fails to comply with his obligations as provided for in this order the mother shall have liberty to apply on short notice for orders that the father vacate the said property and that she be permitted to sell the said property.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Osborne & Fletcher has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: PAC 2364  of 2015

Mr Osborne

Applicant

And

Ms Fletcher

Respondent

REASONS FOR JUDGMENT  

The Litigation

1. The applicant father/de facto husband commenced proceedings for property adjustment as against the respondent mother/de facto wife by application filed on 21 May 2015.

2. In that application the father sought an order that he be paid $100 000 by way of property adjustment within 28 days of order and that the respondent mother transfer to him her interest in E Pty Ltd trading as the Business F.

3. In an Amended Initiating Application filed by the applicant father on 1 June 2016 he sought final parenting orders in relation to the child of the parties’ relationship, the child born in 2004. In summary he sought orders that provided for the parties to have equal shared parental responsibility for the child, for the child to live with the mother and that the child spend defined time with him. He also sought a raft of specific issues orders relating to parenting issues.

4. On 21 June 2016 the father filed an Application in a Case seeking interim parenting orders in relation to the child of the relationship with those interim orders substantially reflecting the orders sought by him on a final basis in his amended application.

5. The Application in a Case was amended by an Amended Application in a Case filed on 9 September 2016 with the father seeking the previously sought interim parenting orders and a further order that the mother be restrained from changing the child’s residence from the G Town area without his written consent or court order. The father also sought an interim injunction restraining the mother from disposing of or otherwise dealing with the property at Suburb D without his written consent or court order.

6. By way of a Further Amended Initiating Application filed on 9 September 2016 the father sought orders that provided for him to pay to the mother $275 000 and upon payment of that sum the mother transfer to him her interest in the real estate property at C Street, Suburb D New South Wales and that upon such transfer the father refinance the existing mortgage debt secured over that property and that the respondent mother transfer to him her interest in E Pty Ltd trading as the Business F.

7. In the Further Amended Application the applicant father sought no parenting orders in relation to the child of the relationship.

8. The mother filed a Response to the father’s Initiating Application on 10 July 2015. That Response was limited to property issues only and sought orders that provided for repayment by the father of a debt to third parties of $22 000, that the father transfer to the mother his interest in E Pty Ltd trading as the Business F and that the mother transfer to the father motor vehicles and a game fishing boat.

9. On 13 July 2016 the mother filed a Response to the father’s Application in a Case seeking interim orders as to parenting and property. The mother sought interim parenting orders in summary that provided for the parties to have equal shared parental responsibility for the child, that the child live with the mother and that the child spend defined time with the father together with certain specific issue parenting orders. The mother also sought interim property orders seeking a sale of the Suburb D property with the net proceeds of sale to be invested pending final determination and that pending sale the father pay all outgoings including mortgage payments in relation to the property.

10. On 9 September 2016 the mother filed an Amended Response to the father’s Application in a Case seeking substantially the same parenting orders but that the child’s time with the father be subject to the child’s wishes and that a family report be ordered. Otherwise the mother sought an amended order as to the sale of the Suburb D property seeking a specific sale to named third parties at a price of $1.1 million.

11. Proceedings were initially commenced in the Federal Circuit Court in this Registry but were transferred to this Court by order on 10 July 2015.

12. Outstanding issues as to disclosure and valuation appeared to have unnecessarily delayed the proper conduct of these proceedings to the extent that this interim hearing on 12 September 2016 was the first occasion on which the proceedings had come before a judge of this Court.

Documents relied on

1. The father relied upon the following documents at interim hearing:

   a)his financial statement filed on 9 September 2016,

   b)his affidavits filed on 21 May 2015, 21 June 2016 and 9 September 2016.

2. The mother relied upon:

   a)her financial statement filed on 10 July 2015,

   b)her affidavit filed 12 September 2016.

Context

1. The mother is presently aged 53 and the father 57.

2. The parties resided together in a de facto relationship from late November 2002 until August 2013.

3. The subject child B is the only child of that relationship. She lives with the mother and attends school in G Town. The child is now almost 12 years of age. The child’s relationship with the father post final separation has been limited and overshadowed by parental conflict.

4. The father has four children from his prior marriage. His two sons lived with the parties in the Suburb D property from early 2003 until 2006.

Property history

1. In 1996 the mother purchased a home unit property at H Street, I Town for $160 000. The purchase price comprised a mortgage advance of $110 000 and an advance from her parents of $50 000. The father asserts that he made some contribution towards the mortgage payments on the I Town home unit and contributed some joint savings during their early relationship and by the time cohabitation commenced. He adduced no objective evidence in support of such assertions. He further asserts that he undertook renovations to the property.

2. In 2002 the mother purchased the home unit property at C Street, Suburb D for $630 000. The purchase price comprised a collateral mortgage borrowing of $670 000 secured by the mother against her I Town property and the Suburb D property. It was the mother’s expectation that the I Town property would sell prior to the completion of the purchase of the Suburb D property. That did not happen.

3. The I Town property did not sell until June 2004. It was sold for $350 000 with the net proceeds of sale of $228 706 paid by the mother to reduce her mortgage debt on the Suburb D property. The mother did not repay her parents.

4. The I Town property had remained tenanted until its sale.

5. At the commencement of the parties’ cohabitation the father moved into the mother’s Suburb D property. The mother asserts that they shared living expenses but that she attended to payment of the mortgage and other property outgoings.

6. In 2004 the child was born. The mother took a year on maternity leave to care for the new baby.

7. In January 2005 the mother refinanced her mortgage on the Suburb D property with the Bendigo Bank, discharging the then outstanding mortgage balance of about $441 000 and securing a line of credit facility of $500 000 over the property. The father had card access to the line of credit facility and the mother asserts that until September 2012 when the facility was refinanced the father had withdrawn significant funds from that facility for his personal expenses.

8. In April 2012 the parties relocated with the child the child to G Town, New South Wales. The parties lived in a property out of town that was rented by the mother.

9. The Suburb D property was rented for a period but in 2013 and 2014 it was occupied by the husband’s son Mr J who paid no rent.

10. The mother asserts that the father has made no contribution to the mortgage payments or outgoings in respect to the Suburb D property since 2012.

The Business F, G Town

1. In December 2012 the parties incorporated E Pty Ltd to act as trustee of the Osborne – Fletcher Family Trust. Through the trust the parties acquired the leasehold of the Business F for a purchase price of $375 000 plus stock of about $130 000, a total of about $505 000 plus costs of and incidental to the purchase.

2. The mother’s parents advanced to the mother $215 000 with an additional borrowing secured against the Suburb D property of $315 000.  The funds advanced by the mother’s parents were characterised as a gift to the mother to assist with obtaining mortgage finance for the purchase of the leasehold.

3. The mother’s parents advanced by way of loan to the parties an additional $30 000 on 4 June 2012.

4. The settlement of the purchase of the business was completed in September 2012 with the subject lease expiring on 23 July 2019. Other funds totalling $60 000 were advanced by the husband’s brother and the husband’s son to assist with completion of the purchase and these loans were repaid in full by February 2013.

5. The mother asserts that she undertook significant administrative and other duties in the day-to-day conduct of the business and that the husband’s contribution was mostly limited to working part time for about six hours on Mondays and Tuesdays only. The father asserts his contribution was much greater.

Separation

1. In March 2013 the party separated but they reconciled in July 2013. In August 2013 the parties finally separated.

2. The father continued to work in the business from time to time.

3. The parties’ relationship after January 2015 deteriorated and there have been incidents involving the police and apprehended violence orders for the protection of the mother.

4. The mother asserts that on 18 June 2015 $10 000 in cash was taken from the business safe. The theft was reported by the mother to the police. The father has not attended at the business premises since July 2015.

5. The father drew wages of $1000 per week from the business plus a sum for rent until September 2015. In September 2015 the licence for the business was transferred to the mother. She now conducts the business that remunerates her for her efforts.

6. The mother complains that the father over the period since the business was acquired has withdrawn from the trust significant sums in cash and non-business transactions for his private use. No doubt that assertion will be investigated at final hearing.

7. The mother asserts that the father has retained and/or disposed of significant items of personalty post separation including cars, motorbikes and a game fishing boat. No doubt such assertion will be tested at final hearing.

8. The mother asserts there are significant outstanding debts including the $50 000 to the Australian taxation office, outstanding trade creditors of over $280 000, outstanding strata levies in relation to the Suburb D property of $10 000 that has been met by the mother from borrowings from her parents and outstanding school fees of nearly $3000 for the child.

9. The mother asserts that the father has paid no child support in respect of the child since separation nor has he contributed to mortgage payments or any outgoings in relation to the Suburb D property.

10. The father asserts that he resides at the Suburb D property but says that he also works part-time some five hours drive from Suburb D.

11. The mother has received a private offer to purchase the Suburb D property for $1.1 million. Her enquiries as to the approximate market value of the property reveal an estimated value of about $975 000 in its current condition and about $100 000 more if certain maintenance work was undertaken to improve the property.

12. The mother informed the father through his solicitors of her proposed sale of the property and in response the father registered a caveat against the title to the property.

13. The mother asserts that she is not in a financial position to meet ongoing mortgage payments and outgoings in relation to the Suburb D property without contribution from the father and that otherwise she is meeting payments in respect to the business loan relating to the purchase of the business leasehold from our own efforts in managing that business.

14. The father for his part asserts a weekly income of $418 in his employment and that also provides to him accommodation and board when he is working there and pays for his motor vehicle repayments being $236 per week.  The father from his financial statement discloses fixed weekly expenses of $182 per week with his “other expenditure” unquantified and to be advised.

15. The husband’s financial statement discloses debts of $71 000 to the Australian taxation office, $80 000 in credit card debts, $55 000 owing to Toyota Finance and $127 000 owing to other third parties. The father asserts a belief that the ANZ Bank will fund his acquisition of the Suburb D property from the mother and the acquisition of the mother’s interest in the trust that owns and operates the business. There is not a scintilla of objective evidence to support such a belief that is not supported by his present financial circumstances.

16. The Suburb D property is presently subject to a secured mortgage debt of $472 000 approximately being a domestic debt relating to the acquisition of the property as refinanced and a further secured mortgage debt balance of about $185 000 being finance for the purchase of the business.

17. Council rates and strata levies for the property are about $174 per week.

18. The father contends that he will meet the mortgage payments on Suburb D of $2611 per month.

19. The father has no demonstrable capacity to meet those payments and/or the periodic outgoings totalling $174 per week that would in all total $776 per week.

20. Yet it is not contended on his behalf that should he be permitted to remain in the mother’s Suburb D property if it was not sold he would meet the mortgage payments as they fell due and payable. It is appropriate that he also pay the outgoings that relate to his occupation of the property if he remains in occupation.

Interim Property Orders

1. In submission it was contended on behalf of the father that pending further order he would meet mortgage payments in regard to the Suburb D property, as it was his proposal to acquire the mother’s interest on final property settlement. His financial capacity in this regard is a matter of conjecture.

2. The mother sought an order for sale but no preliminary distribution to either party thus rendering a sale at this stage of little utility if outgoings were paid in the interim.

3. The principles as to applications for interim property provision are well settled, (Strahan & Strahan (2011) FLC 93-466) and require a two-step process. Such considerations apply equally to this de facto relationship.

4. Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.

5. In Strahan (supra), the Full Court said:

   132. In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1) (h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

1. Secondly, the Court is to have regard to relevant matters in s 79 of the Family Law Act 1975 (Cth) (“the Act”) or in this matter s 90SM of the Act.

2. It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so.

3. The father properly contended that caution need be exercised in respect to the interim realisation of assets: Bearup (1993) 16 Fam LR 797.

4. It is important to have regard to an overall caution. In Harris & Harris (1993) FLC 92-378, the Full Court said (at 79929-79930):

   As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.

5. In Strahan (supra), the Full Court said at [132]:

   … regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

6. It is now well settled that in property cases the Court must identify the existing legal and equitable interests of the parties in the property pool, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.  Such a consideration should not be guided by an assumption that the parties’ rights to, or interests in, property are, or should be, different from those that then exist. The question is whether those rights and interests should be altered.

7. There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4) or s 90SM(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact.

8. In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by father and mother will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements, such as the accumulation of assets or financial resources by one for the benefit of both, have been brought to an end with the relationship.

9. Both parties in this matter, in any event, seek that the Court makes adjustive orders on a final basis, as the current common ownership of assets cannot continue. Importantly, the father seeks to acquire the Suburb D property from the mother. His final capacity to do so is as yet untested.

10. In the circumstances of this matter for the reasons given it is not appropriate to order a sale but instead to impose on the father the obligation to meet domestic mortgage payments and outgoings on the Suburb D property. Should he default the mother may make application on short notice for an order that he vacate and that the property be sold.

Interim Parenting

1. In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 the Full Court, discussed the difficulties associated with making findings on contested evidence as follows:

   120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   …

   122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   Later, at paragraph [100] their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

2. In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter [2011] FamCAFC 82 in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.

3. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

4. The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode (2006) FLC 93-286. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed those principles.

5. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

   (1)  The objects of this Part are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children; and

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

2. Section 60CC then outlines the primary (subs (2)) and additional (subs (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

3. Section 61DA of the Act provides that, when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

4. If the presumption in s 61DA is to apply, and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may, but is not required to, consider equal or substantial and significant time [s 65DAA (6)].

5. Both parents seek an order for equal shared parental responsibility as to the child pending further order. There is no reason why the presumption should not apply when the best interest considerations discussed below are considered.

6. Neither party seeks an equal time arrangement by reason presumably of the practical difficulties of such an arrangement nor would such an arrangement as discussed below be in the child’s best interests.

7. Similarly, an arrangement that implemented a “substantial and significant time” with each parent is also not sought by either parent.

8. The child’s time with the father is to be as determined by reason of the best interest considerations as discussed.

Best Interests of the Child

The Primary Considerations: s 60CC(2)

1. Section 60CC(2) and (2A) sets out the following.

   Primary considerations

   (2)The primary considerations are:

   a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   (2A)  In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).

1. In Mazorski & Albright[2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC ¶93-405 the Full Court at 118 accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

3. The mother has been the child’s primary carer. The child is now nearly 12 years of age. The child has remained in the mother’s primary care since final separation. There is no issue that the child will remain in the mother’s primary care: such an arrangement to continue the child’s meaningful relationship with the mother is strongly indicated.

4. The parties make allegations one against the other as to inappropriate conduct and behaviour.

5. Yet the mother proposes alternate weekend time for the child with the father, school holiday time and other special occasions subject only to the rider that such time be subject to the child’s wishes. To allow the child to determine such time arrangements at her age is fraught with difficulties in the context of the parties conflictual relationship and could threaten any meaningful relationship between the father and child.

   The Additional Considerations: s 60CC(3)

6. Section 60CC(3) sets out the additional considerations:

   (3) Additional considerations are:

   a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   b)the nature of the relationship of the child with:

   (i)each of the child’s parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long‑term issues in relation to the child; and

   (ii)to spend time with the child; and

   (iii)to communicate with the child;

   ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

   d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   f)the capacity of:

   (i)each of the child’s parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   j)any family violence involving the child or a member of the child’s family;

   k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

   (i)the nature of the order;

   (ii)the circumstances in which the order was made;

   (iii)any evidence admitted in proceedings for the order;

   (iv)any findings made by the court in, or in proceedings for, the order;

   (v)any other relevant matter;

   l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   m)any other fact or circumstance that the court thinks is relevant.

7. There is no objective evidence available as to the child’s wishes.

8. The mother asserts that the child is reluctant to go with the father. The parties were invited to await the outcome of the Child Responsive Program interviews that were imminent, but the matter was pressed for determination notwithstanding that it is a reasonable inference that the child’s wishes and her views as to both of the parents would be before the Court on an objective basis from the resultant Child Responsive Memorandum.

9. The father it is to be inferred has an established relationship with the child that has been interrupted by the separation. It is also to be inferred that it is important for the child to have a relationship with him.

10. The parties have been separated for a short period and their engagement in past and ongoing decisions about the child will be tested at final hearing.

11. The mother is the primary financial provider for the child. There is no evidence as to the father providing any financial support post-separation for the child although the mother now controls the parties’ business enterprise.

12. There is no practical difficulty in implementing the mother’s proposals for the child to have time with the father, although the parties now reside a significant distance apart.

13. Neither party asserts any relevant parenting incapacity. The mother, subject to the child’s wishes, seeks that the child spend time including overnight time and holidays with the father.

14. There are allegations one against the other of violence, abuse and conflict. The father was convicted of malicious damage to property following an incident at the business in February 2015 and later convicted of an assault on the mother on the same day. An interim apprehended violence order was made for the protection of the mother in February 2015 and that order was made final on the 10 September 2015 for a period of five months. A further interim AVO order was made on 17 February 2016 for the protection of the mother. That application awaits final hearing. 

15. Overall, a consideration of the child’s best interest is indicative of the present primary care arrangements with the mother continuing as agreed by both parents.

16. As to the child’s time with the father it is appropriate to defer consideration of such until the Child Responsive Program Memorandum is available for consideration in a few weeks’ time. Short further submissions as to the father’s time with the child will then be invited.

17. Orders will be made accordingly.

I certify that the preceding ninety nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 October 2016.

Associate: 

Date:  13 October 2016