Federal Circuit and Family Court of Australia
(DIVISION 1)
Reynolds & Stokes [2022] FedCFamC1F 901
File number(s): MLC 5473 of 2019 Judgment of: HARTNETT J Date of judgment: 17 November 2022 Catchwords: FAMILY LAW – BIAS – Apprehended – Where the husband alleges bias at hearing of further evidence after judgment reserved and subsequent leave granted to adduce further evidence – Where there was no proper basis to the application – Application for recusal dismissed.
FAMILY LAW – CHILDREN – Parental responsibility – Where each party seeks sole parental responsibility – Where there are allegations of family violence – Where the wife seeks for the children to live with her in Suburb H – Where the husband seeks for the children to live with him in Suburb F – Where the husband is involved in a child’s sporting team and seeks the children remain in their same school and sporting teams – Where the parties are unable to communicate effectively – Sole parental responsibility to the wife – Where permission for the wife to change the school of the children – Where the children live with the wife and spend substantial and significant time with the husband – Where a moratorium on the husband’s time with the children.
FAMILY LAW – PROPERTY – Division of property interests – Where the wife seeks a payment equivalent to 55% of non-superannuation assets – Where the husband seeks to retain the former matrimonial home – Where the husband proposes to refinance a mortgage under his name – Where both parties have contributed to the asset pool – Where both parties have worked throughout the relationship – Where contributions are equal – Where s 75(2) matters favour the wife – Where asset pool is small.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 68Q, 69ZW, 75, 79, 90SM, 102NA, 117
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) r 10.17
United Nations Convention on the Rights of the Child art 12(1)
Cases cited: Bell & Nahos [2016] FamCAFC 244
Bevan & Bevan (2013) FLC 93-545
Blinko & Blinko [2015] FamCAFC 146
Dickons & Dickons (2012) 50 Fam LR 244
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Mallet v Mallet (1984) 156 CLR 605
Mulvany v Lane (2009) FLC 93-404
Russell & Close [1993] FamCA 62
Division: Division 1 First Instance Number of paragraphs: 243 Date of hearing: 23-25 May 2022, 4-5 July 2022, 19 October 2022,
2 November 2022Place: Melbourne Counsel for the Applicant: Mr Robinson Solicitor for the Applicant (on 23-25 May; 4-5 July 2022): Beswick Foulkes Family Law The Applicant
(on 19 October 2022):Litigant in person Solicitor for the Applicant (on 2 November 2022): MMH Lawyers Counsel for the Respondent: Mr Carne Solicitor for the Respondent: Leslie Family Law Counsel for…
Continue reading Reynolds & Stokes
Sign in free to access the full text
- AGLC
- Reynolds & Stokes [2022] FedCFamC1F 901
- Case
- [2022] FedCFamC1F 901
- Decision Date
CaseChat Overview and Summary
The court found that the husband's application for recusal was without merit and found no evidence of bias. Regarding parental responsibility, the court concluded that the wife should have sole parental responsibility due to the husband's history of family violence and lack of insight into his impact on the mother and children. The court implemented a contact moratorium and a detailed schedule for the children's time with each parent, with a focus on minimising disruption to their education and wellbeing. The court also granted the wife permission to change the children's school, despite the husband's objections, based on the children's primary residence and the need for stability.
As for the property division, the court considered the contributions of both parties, their equal financial inputs, and the small size of the asset pool. Given the wife's favourability under section 75(2) matters, the court ordered the husband to make a payment to the wife and mandated the sale of the former matrimonial home if the payment was not made. The husband was permitted to retain sole occupancy of the property pending the sale, with responsibility for all associated costs and outgoings. The court also made specific orders regarding communication, travel, and the involvement of the wife's partner in the children's lives. Both parties were ordered to bear their own costs, and all other applications were dismissed.
Orders
Orders of the court
THE COURT ORDERS THAT:
Parenting
1.
All previous orders be discharged.
2.
The Respondent wife (“the wife”) have sole parental responsibility for the children X born 2011 (“X”) and Y born 2014 (“Y”).
3.
Notwithstanding Order 4 herein, the wife is permitted to engage the services of, without consultation with the Applicant husband (“the husband”), a counsellor or psychologist in her local geographical area, to assist the children in dealing with the parents separation and high conflict relationship since such separation.
4.
In exercising parental responsibility for the children, the wife shall:
(a) advise the husband via the communication app utilised by them in accordance with these orders, of any decision she intends to make;
(b) seek the husband’s written response and input in relation to such decision;
(c) consider any response received by the husband with regard to the best interests of the children (or either of them); and
(d) advise the husband as soon as reasonably practicable of her decision.
5.
The children live with the wife.
6.
For the period up until the day following the last day of school in December 2022 (“contact moratorium period”), the husband, his servants and/or agents be and are hereby restrained from spending time with or communicating with X and Y by any means, including mail, telephone, email, text message or social media.
7.
During the contact moratorium period:
(a) in the event X and/or Y contact or communicate with the husband, the husband shall not respond to such contact or communication and shall report such contact or communication to the wife via email within 24 hours of him receiving it;
(b) in the event X and/or Y attend upon the husband at his home or any other location save as explicitly outlined in these Orders, the husband shall report same to the wife and shall do all things necessary to facilitate X and/or Y’s return to the wife;
(c) the husband shall be at liberty to contact the children’s school in a manner approved by the school but not to include the husband’s personal attendance at the school to obtain updates in relation to their progress, and the husband shall be at liberty to provide a copy of these parenting orders to the children’s school as authority for same;
(d) the husband shall otherwise be restrained from contacting or personally attending upon X and Y’s school.
8.
Upon the expiration of the contact moratorium period, Orders 6 and 7 herein be discharged and X and Y spend time with the husband as follows:
(a) during school term, each alternate weekend from the conclusion of school on Friday (or 3:30pm) until the commencement of school (or 9:00am) on Tuesday;
(b) for one week of each school term holiday period, commencing on the first Saturday after term ends at 9:00am and concluding at 5 pm on the middle Saturday;
(c) during each long summer holiday period:
(i) commencing on the first Saturday after term ends at 9:00am, until 9:00am on the following Saturday; and
(ii) from 9:00am on 2 January until 9:00am on 16 January; and
(d) as otherwise agreed between the parties in writing.
9.
Irrespective of any other Order herein, the children spend time with their parents as follows:
(a) with the husband for Christmas:
(i) in even numbered years from 12:00 noon on 23 December until 12:00 noon on 25 December;
(ii) in odd numbered years from 12:00 noon on 25 December until 12:00 noon on 27 December;
(b) with the wife for Christmas:
(i) in even numbered years from 12:00 noon on 25 December until 12:00 noon on 27 December;
(ii) in odd numbered years from 12:00 noon on 23 December until 12:00 noon on 25 December;
(c) on X and Y’s birthdays, with the parent they are not otherwise spending time with:
(i) if a school day, from 3:30pm until 6:30pm; and
(ii) if a non-school day, from 10:00am until 3:00pm.
The COURT ORDERS, BY CONSENT, THat:
10.
Irrespective of any other Order herein, the children spend time with their parents:
(a) with the wife on Mother’s Day weekend from conclusion of school on Friday until commencement of school on Monday; and
(b) with the husband on Father’s Day weekend from the conclusion of school on Friday until the commencement of school Monday.
11.
Each of the parties facilitate the children, or either of them, communicating with the other parent at reasonable times and for reasonable durations by telephone or other electronics means as requested by the children, save for in the contact moratorium period.
12.
Changeovers not occurring at the children’s school/s, shall occur at the McDonald’s Restaurant in Suburb B unless otherwise agreed by the parents in writing.
THE COURT FURTHER ORDERS THAT:
13.
The parties shall forthwith do all things necessary to cause X and Y to be enrolled to commence at C School at the commencement of the first school term in 2023.
14.
In the event the husband refuses to comply with the previous Order, the wife shall have liberty to enrol X and Y in C School without the husband’s signature, and the wife shall be at liberty to provide the school with a copy of these orders as authority for same.
THE COURT FURTHER ORDERS, BY CONSENT, THAT:
15.
The parents shall communicate with one another via the AppClose mobile parenting application or such other application as agreed in writing, such communication to be only in relation to parenting and care arrangements for the children.
16.
Each parent shall keep the other informed at all times of their residential address, telephone number and email address, and advise any change thereto within 48 hours of such change.
17.
Each party shall advise the other of any serious illness or injury suffered by the children, or either of them, whilst in their care as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
18.
Notwithstanding Order 2, the parents be, and are hereby, authorised to communicate with any medical or allied practitioner upon whom the children, or either of them, attend to obtain information regarding the children, or either of them.
19.
Notwithstanding Order 2, the parents be, and are hereby, authorised to be enrolled on any school communication application (such as Compass) and receive at their expense all school reports, school photograph order forms and newsletters.
20.
The parents by themselves, their servants and/or agents be and are hereby restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other, or their family; and
(b) discussing these, or any other, proceedings between the parents
to or in the presence or hearing of the children, or either of them and/or from permitting any other person to do so.
21.
The parents by themselves, their servants and/or their agents be and are hereby restrained by injunction from requesting the children, or either of them, to relay message/s to the other parent.
22.
The parents be, and are hereby, restrained by injunction from posting any posts on any form of social media which denigrate, criticises or belittles the other parent or their family.
23.
The Independent Children’s Lawyer be requested to explain the terms of these orders to the children, and thereafter their appointment be discharged.
the Court Further orders that:
24.
In the event they have not already done so, the parties within three months hereof each attend and complete a Post Separation Parenting Course and provide a certificate of completion ( and if one has already been completed, than that certificate of completion) to the other parent and the ICL as soon as practicable.
25.
The husband attend and complete a Men’s Behavioural Change Program within 4 months of this date and provide a certificate of attendance and completion to the solicitor for the wife within 21 days of such completion.
26.
Both parties do all things necessary to apply for and maintain current passports for X and Y, including by renewing the children’s passports upon their expiry at the equal expense of the parties, and the passports shall be ordinarily held by the wife.
27.
In the event the husband does not comply with the preceding Order, the wife shall be authorised and permitted to apply for and receive an Australian passport for the children X born 2011 (“X”) and Y born 2014 (“Y”) without first obtaining the written consent of the husband.
28.
The parties be permitted to travel internationally and domestically with X and Y during X and Y’s Court-Ordered time with them, on the following basis ONLY:
(a) for international travel of up to 14 consecutive nights, upon the giving of 70 days’ written notice to the non-travelling parent, including:
(i) proof of the purchase of all airfares;
(ii) a detailed itinerary of the proposed travel dates, destinations and contact details for all stages of the travel; and
(iii) confirmation that the non-travelling parent may contact X and Y electronically no less than once every four days of travel;
(b) for domestic travel, upon the giving of 28 days’ written notice to the non-travelling parent, including:
(i) proof of the purchase of all airfares, if any;
(ii) a detailed itinerary of the proposed travel dates, destinations and contact details for all stages of the travel; and
(iii) confirmation that the non-travelling parent may contact X and Y electronically no less than once every four days of travel.
29.
The wife forthwith be permitted to bring the children into contact and have communication with her partner Mr D unreservedly and Mr D be permitted to live with the children.
30.
Pursuant to s 68Q of the Family Law Act 1975 (Cth), to the extent to which Order 29 is inconsistent with any Intervention Order made in proceedings N11788696, and/or any other current Intervention Order obtained by the husband, Order 29 shall prevail.
31.
Both parties and the wife’s partner Mr D shall be at liberty to provide a copy of these orders and reasons for judgment to:
(a) the Magistrates’ Court of Victoria;
(b) Victoria Police; and
(c) the Department of Fairness, Families and Housing.
32.
The husband is not permitted to assist the children in any of their sporting endeavours and nor is he to be involved in their training in respect of those sporting endeavours for those periods the children are in the wife’s care.
33.
The parents be at liberty to post on social media images of themselves and/or the children, or either of them on private settings, where such images are not available to the public.
Property
34.
Within 60 days of the date of these orders, the husband make payment to the wife in the sum of $123,640 (“the payment”).
35.
In the event the husband fails to make the payment to the wife in accordance with the previous order, then within 14 days of such default the husband shall do all things and sign all documents necessary to effect a sale of the property at E Street, Suburb F in the State of Victoria (“the FMH”), and the following shall apply:
(a) the property shall be listed for sale with such real estate agent as agreed between the parties and failing agreement within 14 days, by an agent nominated by the president of the Real Estate Institute of Victoria at the request of the parties or either of them;
(b) the sale price and mode of sale to be agreed between the parties and failing agreement, as nominated by the real estate agent;
(c) the Husband is to co-operate with the real estate agent in relation to the sale of the property, including by making the keys available, allowing inspections at all times reasonably requested and ensuring the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(d) the proceeds of sale of the property be distributed as follows:
(i) firstly, to pay the costs and commissions of the sale;
(ii) secondly, to discharge any mortgage and any other bank loan secured over the property;
(iii) thirdly, to pay any amount outstanding to the wife from the payment to be made to her by the husband in accordance with these orders together with any and all legal costs incurred by the wife in respect of the sale and interest on the payment or any part of the payment outstanding to be calculated in accordance with rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
(iv) fourthly, the balance remaining to the husband.
36.
Pending the sale of the property:
(a) the husband shall retain sole right to occupy the property and during such occupation the husband shall be responsible for all past, present and future mortgage payments, rates and outgoings on the property as they fall due up to and including the settlement date;
(b) the parties hold their respective interest in the property upon trust pursuant to these Orders; and
(c) neither party shall encumber the property without the consent in writing of the other party and/or of any mortgagee.
37.
Unless otherwise specified in these orders:
(a) each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b) insurance policies remain the sole property of the owner/beneficiary named therein; and
(c) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
38.
Within 21 days of her receipt of the payment as provided for in Order 34 herein the wife comply with Order 5 of the consent orders made 18 November 2019, and Order 10 of the Orders made 13 August 2021.
39.
Each party shall bear their own costs.
40.
There is liberty to apply with respect to the operation of these orders in the event of a sale of the FMH.
41.
Otherwise, all extant applications are dismissed and the matter removed from the list.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The High Court also considered the issue of bias in Johnson v Johnson (2000) 201 CLR 488. There the High Court dealt with and ultimately dismissed an appeal against a decision of the Full Court of this Court, which in turn dismissed an appeal against a refusal by a judge of the Family Court of Western Australia to disqualify himself. The High Court said at 492-494:11…It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.12 That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision". The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".13 Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case". Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.14 There was argument in this Court, prompted by Anderson J's explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation. (footnotes excluded)Consideration