SAVIANE & MARRIOTT
[2014] FamCA 882
•17 October 2014
FAMILY COURT OF AUSTRALIA
| SAVIANE & MARRIOTT | [2014] FamCA 882 |
FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Young child.
FAMILY LAW – PROPERTY – De facto relationship – Whether there should be an adjustment of property between de facto parties in a very short relationship and limited contribution – Application dismissed.
| Family Law Act 1975 (Cth) ss 60CC, 90M, 90(3) |
| C & B [2007] FMCAfam 539 Jurss & Jurss (1976) FLC 90-041 Jonah & White [2011] FamCA 221 |
Smyth & Pappas [2011] FamCA 434
Crowley & Pappas [2013] FamCA 783
Bevan & Bevan (2013) FLC 93-545
Chapman & Chapman [2014] FamCAFC 91
| APPLICANT: | Mr Saviane |
| RESPONDENT: | Ms Marriott | ||||
| FILE NUMBER: | SYF | 739 | of | 2013 | |
| DATE DELIVERED: | 17 October 2014 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 1, 2 & 3 September 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gould |
| SOLICITOR FOR THE APPLICANT: | Mr Forster of Forster Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Mackay |
| SOLICITOR FOR THE RESPONDENT: | Christopher Mackay Lawyers |
Parenting Orders
BY CONSENT
All previous parenting orders in relation to X Saviane born April 2012 (‘the child’) are discharged.
Mr Saviane (‘the father’) and Ms Marriott (‘the mother’) have equal shared parental responsibility for the child.
BY DETERMINATION
The child live with the mother except as is otherwise provided in these Orders or as agreed in writing between the parties.
The mother be and is permitted to enrol the child in the F School, with the child to commence at that school from August 2015.
The mother be and is permitted to remove the child from Australia to travel to France each year during the long French school vacation in or about July and August of each year (‘the summer break’), as follows:-
a.for a period of five (5) weeks over the summer break 2015. The mother is to arrange that trip and enable the child to spend time with father from 9.00 am on day one to 5.00pm day two, for two (2) days before she and the child depart for France and for three days commencing 9.00am the day after the child returns from France (namely day 1) until 5.00pm on day 3 (being three days and two nights).
b.for a period of six (6) weeks over the summer break 2016 and each year thereafter. The mother is to arrange that trip and enable the child to spend time with father from 9.00am on day one to 5.00pm on day two, for two (2) days before she and the child plan to depart for France.
c.The mother shall provide the father with details of the child’s proposed flights to and from France at least three (3) months prior to the child’s departure from Australia, for the summer break, together with details of where the child will be primarily staying during the summer break in France, a contact telephone number, Skype number and email address.
d.the mother shall facilitate communication between the child and the father by Skype (or the like) twice per week during the time that the child will be in France.
e.each of the parents shall sign all documents and do all things necessary to permit and enable the issue (and subsequent reissue) of an Australian passport for the child and in the event of any dispute as to who should hold the passport, the passport be held in safe custody by the mother’s solicitor and shall be released to her twenty eight (28) days before each of the proposed annual trips to France. Such passport to be returned to the mother’s solicitor within fourteen (14) days of her return from France in August of each year.
f.the mother’s application for an order that the father provide financial assistance to her in terms of the cost of the child’s airfare to and from France is dismissed.
The child shall spend time with the father during the F School school term as follows:-
(a)Until the child attains the age of four (4) years in April 2016:-
i.each alternate weekend from 9.00am Saturday until 5.00pm Sunday commencing the first weekend after the start of each school term; and
ii.each Wednesday from 3.00pm until 6.00pm; and
(b)After the child attains the age of four (4) and before he attains the age of five (5) years:-
i.each alternate weekend commencing after school Friday until 5.00pm Sunday, and
ii.each Wednesday from 3.00pm to 7.00pm; and
(c)After the child attains the age of five (5) years;
i.each alternate weekend commencing after school Friday and concluding at the commencement of school the following Monday, or Tuesday if the Monday is a pupil free day or a public holiday; and
ii.each alternate Wednesday from after school Wednesday to the commencement of school Thursday, such alternate Wednesday to commence the first Wednesday after the alternate weekend time.
As to the remainder of the F School school holidays the child will spend time with the father as follows:-
(a)during each of the three (3) one-week mid year holiday periods, up to the summer break 2015, each alternate weekend from 9.00am Saturday until 5.00pm Sunday, being a continuation of the school term time arrangements with the father;
(b)during each of the three (3) one-week holiday periods in the ten months following the summer break 2015 the child will spend:-
i.four (4) nights with the father from after school Friday until 10.00am the following Tuesday in the remainder of 2015 and subsequent odd numbered years; and
ii.six (6) nights with the father from 10.00am Tuesday morning until commencement of school the following Monday in 2016 and even numbered years afterwards.
(c)during the two week Easter school holiday period:-
i.from 2015 and each alternate year afterwards, the child is to spend the week containing the child’s birthday with the father as follows:-
i.i if the child’s birthday falls in the first week, then from after school on the last day of that term to 12 noon of the middle day of the Easter holiday period; and
i.ii if the child’s birthday falls in second week, from 12 noon on the middle day of the Easter holiday period until the commencement of school the following Monday (or Tuesday if the Monday is a pupil free day or a public holiday); and
i.iii if the child’s birthday falls on the middle day of the Easter holiday period, the child is to start time with the father at 5.00pm the day preceding the middle day and continue with until the commencement of school the following Monday (or Tuesday if the Monday is a pupil free day or a public holiday); and
ii.from 2016 and each alternate year afterwards, the child is to spend time with the father in the week not containing the child’s birthday and consequently:-
ii.i if the child’s birthday falls in the first week of the Easter school holiday period, then the child will live with or continue to live with the mother from after school on the last day of term to 12 noon of the middle day of the Easter holiday period; and spend time with the father the remainder of the Easter holiday period until the commencement of school the following Monday (or Tuesday if the Monday is a pupil free day or a public holiday); and
i.ii if the child’s birthday falls in second week of the Easter school holiday period, then the child will live with the mother, from 12 noon on the middle day of the Easter holiday period until the commencement of school the following Monday (or Tuesday if the Monday is a pupil free day or a public holiday) and as such the child shall spend time with the father from after school on the last day of school to 12 noon of the middle day of the holiday period.
i.iii if the child’s birthday falls on the middle day of the holiday period, the child is to start time with the mother at 5.00pm the day preceding the middle day and continue to live with her until the commencement of school and as such the child shall spend time with the father from after school on the last day of school to 12 noon on the day preceding the middle day of that Easter holiday period.
iii.to be clear it is intended that the child spend his birthdays with the father in 2015 and odd years afterwards and to live with his mother on his birthday in 2016 and even years afterwards.
(d)during the Christmas and New Year holiday periods:-
i.December 2014 and January 2015 the child is to spend:-
i.i five (5) days with the father from 3.00pm on 25 December 2014 ending at 5.00pm on 30 December 2014; and
i.ii five (5) days with the father from 9.00am commencing the second Saturday of January 2015 until 5.00pm the following Wednesday.
ii.for December 2015 and January 2016 the child is to spend:-
ii.i six (6) days with the father from 3.00pm on 25 December 2015 ending 5.00pm on 31 December 2015; and
ii.i six (6) days with the father from 9.00am commencing the second Saturday of January 2016 until 5.00pm the following Thursday.
iii.for December 2016 and January 2017 the child is to spend:-
iii.i seven (7) days with the father from 3.00pm on 25 December 2016 ending 5.00pm on 2 January 2017; and
iii.ii seven (7) days with the father from 9.00am commencing the second Saturday of January 2017 until 5.00pm the following Friday.
iv.for December 2017 and January 2018 and thereafter annually the child is to spend three (3) weeks with the father from 3.00pm on 25 December 2017 ending 3.00pm three weeks later.
If Mother’s Day falls on a day when the child is otherwise spending time with the father, then the time the child spends with the father shall cease at 9.00am on the Sunday of Mother’s Day.
If Father’s Day falls on a day when the child is not spending time with the father then the mother shall arrange for the child to be delivered to the father at 9.00am on the Sunday of Father’s Day and the father shall return the child to school the following Monday.
If during the non summer break holidays the child is spending more than five (5) consecutive days with a parent, that parent shall facilitate telephone calls by the child to the other parent at least every third day.
During school term the mother shall ensure that the child is available to receive telephone calls from the father at 6.00pm on Tuesdays, Thursdays or Saturdays or such other times as reasonably nominated by the parents given the circumstances and the activities to which the child is involved.
Each of the parties be restrained from threatening, abusing, assaulting, demeaning or verbally abusing the other party.
Each of the parties shall be restrained from abusing, demeaning and/or belittling the other party or members of the other party’s family in the presence or hearing of the child.
Changeover is to take place at:-
a.the Y Hotel car park;
b.from August 2015, (where the start or finish of times with the father are specified as being at the start or end of school), at the school; and
c.such other places as agreed in writing between the parties.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
THE COURT NOTES:
The mother’s application for relocation of the residence of the child from Australia to France was not pursued or argued by her in the hearing upon which the Orders are based. The mother did not pursue that application and withdrew it.
Such relocation application was not determined on the merits.
The mother made it clear that she may agitate that issue in 2018 and that the father conceded that the Rule in Rice v Asplund would not apply in such an application made at or after 1 January 2018.
These parenting Orders in relation to the child are intended to give to the parents rights of custody for the purpose of the Hague Convention on the Civil Aspects of International Child Abduction, concluded 25 October 1986.
These parenting orders are intended to apply with regard to jurisdiction arising from The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded 19 October 1996 (the ‘Child Protection Convention’).
In terms of the Child Protection Convention the Court GIVES LEAVE to either party to apply, for a period of twelve (12) months from the date of these Orders, for any mechanical changes or additions to these orders to enable operation of the Orders pursuant to the Child Protection Convention.
Property Orders
The mother’s property application pursuant to Part VIIIAB of the Family Law Act having been considered on its merits is dismissed.
General Orders
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
All extant applications (except costs) are dismissed.
Any costs application be dealt with in accordance with the Family Law Rules 2004.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saviane & Marriott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 739 of 2013
| Mr Saviane |
Applicant
And
| Ms Marriott |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr Saviane (‘the father’) and Ms Marriott (‘the mother’) are involved in parenting proceedings regarding their son, X (‘the child’), born in April 2012 (‘the child’) and property proceedings under the provisions relating to parties to a de facto relationship pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (‘the Act’).
These proceedings were commenced in February 2013 by an application filed on behalf of the father in the Federal Circuit Court Sydney. After interim parenting orders were made in that Court the proceedings were transferred to the Family Court in April 2013. At that time the matter was considered complex as it seemed that the parenting dispute would involve a question of the international relocation of the residence of the child. However, that aspect of the proceedings was not pursued by the mother.
In this proceeding no Independent Children’s Lawyer had been appointed.
The child the subject of these proceedings is very young having just celebrated his second birthday in April 2014. His primary attachment figure is the mother. The father has been significantly involved in the child’s care since his birth and the child spent about eight days with the father in about December 2012.
As to parenting arrangements:-
a)The parties agree that there should be an order for equal shared parental responsibility and that the child should be able to travel to France on an annual basis (but disagree on the start time and time away). They also agree that the child should be with his mother on Mother’s Day and his father on Father’s Day.
b)The father wishes to spend more time with the child and then move quickly to an equal time parenting arrangement. The father is concerned about the child’s English language skills and wants the child to spend more time with him to address this perceived problem. In addition he opposes the mother enrolling the child in the F School. The father’s reasons for this are his concerns about the child’s English language skills and the age that the mother proposes the child commences school. The father proposes that the child attend an English speaking pre school, initially one day per week then two days in the year before the child commences full time school. The father wants the child enrolled in a Catholic Primary School and to that end wants permission to have the child baptised in that religion. The father opposes some other orders sought by the mother.
c)The mother sought orders that the child live with her and that the move not be to equal time, but rather significant and substantial time over a longer period. She also sought permission to enrol the child in F School from August 2015. This being a school where the mother works and the child’s elder sibling, Z, attends. Given that the mother is a French National, and that French is her ‘mother language’ she wants the child to be bilingual (in French and English) as are both she and Z. The mother opposed the child being christened in the Catholic Church and wants to leave that decision to the child when he is older. The mother seeks to take the child to France every year (over the six weeks of the French School summer break) to enable him to spend time with the French side of his family and be exposed to his French culture. The father does not oppose the travel but says the time the child is away from him ought to be limited and that the travel not be permitted for a few years. The mother sought a mutual order restraining each of the parties from abusing and/or harassing each other and if she is to participate in change overs it is to be a police station. There were also issues about Christmas mornings, special occasions, and the like.
THE ISSUES
The parenting issues are:-
(a)What time the child should spend with or live with the father and how increases in this time ought to be accelerated. All parties agree there should be acceleration. There is also the end point to which the parties disagree.
(b)When the child should be permitted to travel to France with his mother to spend time with his French maternal family, and the length of time he is permitted to spend there.
(c)Special occasions.
(d)Telephone communication.
(e)Whether an injunction ought to be put in place restraining each party from abusing, assaulting each other.
(f)Christmas Day.
(g)The child’s baptism.
(h)Whether the child should attend the F School (as suggested by the mother) or attend a Catholic or public primary school.
PROPERTY
In these proceedings the mother sought an order that there be a division of property made in her favour for $100,000 although this was reduced to $30,000 in final submissions.
In the father’s case outline he asserted that there was a pool of non-superannuation property of about $222,000 and superannuation of about $12,000. The property was primarily that of the father prior to cohabitation. There was an issue about whether the net debit value of the mother’s car ought to be included. Given the amount I have chosen to include it. There was also an issue about the amount of money spent or incurred by the father on his legal costs in these proceedings, of some $117,000. The mother has spent or incurred about $25,000 to $30,000 in legal costs.
Neither party sought superannuation splitting orders. There was no issue that the parties were in a marriage like relationship, although there was an issue as to whether it was five months followed by ten months, as asserted by the mother or ten months as asserted by the father. I accept the mother’s approach.
The substantive issue was whether, given the factual circumstances, an order ought to be made at all. There was no issue that the Court had jurisdiction and power to deal with the parties’ property but the father asserted that no order ought to be made in the circumstances of this case. For the reasons set out below I have accepted the father’s submissions and I have dismissed the mother’s application for division of property.
BACKGROUND
The father is aged 44 and is employed as a salesman earning about $80,000 per year ($15,000 of that sum is a car allowance). In addition he is paid superannuation contributions. The father’s health has been problematic although he has had some surgery arising from a cerebral aneurysm in 2000 and 2011. The evidence of Dr M, the father’s cerebrovascular neurosurgeon, is that apart from the loss of a sense of smell the father has no other neurological deficits. As such, I have treated the father as being in good health.
Apart from the child, the father has no other dependents. He works full time and he claims his starting and finishing hours are flexible, except on Wednesday afternoons.
The mother is aged 35. She is a French citizen and has a permanent residence visa for Australia. She a qualified teacher and is employed to teach at the F School. She is paid a salary of about $89,000 per year. In addition the mother has recently commenced working up to two hours per week tutoring and earns a further $60 per hour for this work. This income is not always consistent, given school holidays and the like. The mother says, and I accept, that this is the limit of her part time earning capacity, given her full time employment and the need for her to parent her two children.
The mother has the responsibility for the parenting of the child and her son of another relationship, Z (now aged nine). The child Z’s father has a daughter who is Z’s sister but who is not biologically related to the child or the mother. Z has little contact with his sister and his father. The contact he has is generally monthly or six weekly telephone calls.
The parties met in South America in September 2010 and they lived together for about five months, after which the father returned to Australia and the mother to France.
In the middle of 2011 the father needed further surgery in relation to his aneurysm and that operation was carried out in May 2003. The result of that operation was that the father’s health is now not an issue.
The mother visited the father in Australia for two weeks in July 2011. She spent time with the father and during this visit she fell pregnant with the child. After the mother returned to France and discovered she was pregnant she had discussions with the father. As a consequence the mother and Z moved to Australia and she commenced living with the father in a marriage like relationship from 1 September 2011.
The child was born in April 2012.
The parties separated in early July 2012, at which time the child was about three months old. The parties separated but remained living under the same roof until early August 2012.
At the time of the physical separation in August 2012 there was an altercation between the parties. As a consequence the father was charged by police with assault of the mother. The mother alleged that the father had spat on her and had dragged her out of the bedroom. Those proceedings were heard before Magistrate Pearce in October 2012 and the criminal charge of assault was dismissed. The mother’s application for an intervention order was likewise dismissed.
The mother has complained that the father has been verbally abusive of her. The father denies those allegations.
Various orders were made in relation to the time the child spends with the father over the subsequent period of almost two years, and the proceedings were then listed for hearing before this Court.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context surrounding that fact.
THE EVIDENCE
The father
The father provided written evidence through his:-
·trial affidavit filed 2 July 2014 (trial affidavit - parenting);
·affidavit filed 3 March 2014 (financial);
·affidavit filed 25 August 2014 (annexing updated material and annexing a transcript of the Local Court proceedings);
·affidavit of Professor M filed the 16 March 2014;
·affidavit of Mrs S filed 2 July 2014;
·affidavit of Mr S filed 2 July 2014;
·affidavit of Mr C filed 2 July 2014;
·financial statement filed 8 July 2014; and
·financial questionnaire of 23 July 2013.
In addition the father gave some limited evidence in chief and was cross-examined on behalf of the mother.
In cross-examination he prevaricated and obfuscated in relation to answers to some questions.
The father’s evidence about the changes to his employment, which made Wednesday afternoon less flexible than he had previously asserted, had a sense of implausibility or invention.
There was also an inherent implausibility with regard to the father’s explanation of how the mother’s computer was damaged. The father explained that he took the computer from the mother when she said she was going to buy tickets (presumably online) to France. I find that he was endeavouring to control the mother when took the computer from her. I do not accept that he was forced to drop the computer to the ground when the mother lunged at him. I find that the father removed the computer from the mother, prevented her from using it and that he damaged it by throwing it to the ground or out a window.
The father proposed that there be equal time with the child when he commences school in the year of his fifth birthday. The father’s evidence in this area seemed more about his ‘rights’ rather than the interests of the child. He had difficulty seriously acknowledging the relationship between the child and Z.
The father was cross-examined in relation to his mother and father’s health. He prevaricated in respect of his father who had been in hospital for some two months.
I was concerned about the veracity of his evidence in relation to ‘fitting in’ with the mother as to parenting arrangements. He said he would endeavour to harmonise the holidays to fit in with the mother to ensure that the child went to a public school. Yet when the mother made arrangements for the child to spend time with him over the recent school holidays, he implicitly criticised her (through his counsel’s cross-examination) for leaving the child with him to enable the mother to ‘party’ (given the terms used in cross examination). He similarly criticised the mother for going to a short work course overseas and not leaving the child with him or letting him know of her travel. The father does not consent to the child attending the same school as that is attended by his brother Z and at which the child’s mother works. He opposes the child attending the F School which will lead the child to being bilingual. He opposes the mother taking the child to visit his extended maternal family in France for some years. The father’s evidence that he tries to fit in or implicitly that he is co-operative, is plainly wrong.
The father gave little weight to the benefit of the child being at school with his mother in those early years and asserted that it would be better for the child to be with a nanny or others rather than at the school where the mother works. This evidence of the father, like that about his inflexibility in work hours on a Wednesday afternoon, had a sense invention to support his position.
I am concerned that the father is endeavouring to limit the child’s contact with the French side of his family.
The father’s responses, when questioned by the solicitor for the mother, with respect to the language spoken in the paternal grandparents’ home, was glib and unconvincing.
When asked why the child could not go to France with the mother until after his fifth birthday, the father’s answer was again unconvincing. His explanation included his view that the child would have no memory of such visits. Yet he claims, and I accept, that the child would miss him. That does not sit in harmony with his evidence as to the child’s family in France.
There was significant conflict between the parties around the time the father was taken into custody by the police in August 2012 in relation to the assault charge and I am satisfied, that the father, in discussions with Mr C, left the payment of the rent to the mother in circumstances where, whilst she had been offered a job, her employment had not at that time commenced. I am satisfied that this was controlling behaviour by the father relating to that time, arising in the heat of the breakdown of the parties’ relationship. I accept that the father subsequently provided assistance to the mother to enable her to find her own accommodation.
The father was cross-examined in relation to his threats to the mother’s immigration status following the failure of their relationship. The mother gave one version of events and the father gave another. On balance, I prefer the evidence of the mother given my comments about the general reliability of the parties’ respective evidence.
The father was cross-examined in relation to the comments made by him set out at paragraphs 101 and 102 of the mother’s affidavit.[1] He denied making the remarks and speaking other than appropriately to the mother. Yet a little later in his cross-examination he was asked about the mother seeking further funds from him and he made what could only be described as a ‘snide’ remark about the mother’s ability to budget. It was a telling comment.
[1] Mother’s consolidating affidavit filed 13 August 2014.
The father asserted that the child is delayed in the development of his English language skills but adduced no objective evidence to that end. It was simply the father’s view and those of some members of his family.
Counsel for the father said that the father gave evidence of being insightful and was not caught out and that I should prefer his evidence to that of the mother. I do not accept that assessment. The father has shown a lack of empathy with the mother in terms of the situation in which she finds herself.
The father was critical of the mother for travelling overseas for work and in circumstances where there was significant conflict between the parties. He instructed his counsel to use the term ‘party’ when the mother asked the father to assist over the recent school holiday period. On one hand the father complained that the child was not available to him when the mother was going away and later complained that the mother only used him to care for the child when she wanted to attend social functions. His complaints seem to be used to further his case rather than meet the needs of the child.
The father was not an impressive witness and hearing his evidence and observing his demeanour I find that his evidence was at times unreliable.
The mother
The mother gave evidence in terms of her consolidating affidavit filed 13 August 2014, financial statement filed 7 May 2014 and her financial questionnaire filed 15 July 2013. The mothers had limited funds and in the context of this case a relatively modest legal budget; as such I make no criticism of her in terms of that affidavit. These three documents were deposed by the mother as correct and were read into evidence, subject to weight.
The mother updated her financial information to say that she was now earning about $89,000 per year and in addition to this was receiving child support of either $134 per week or $150 per week for the child from the father, support for Z from his father of $53 per week and a Government benefit of $130 per week. The mother said that she was undertaking about two hours casual teaching a week and earning about $120 for that work. The work is not available every week.
In cross-examination the mother was criticised for failing to disclose those earnings earlier. It was put to her that she did not disclose working the extra hours until she gave evidence on the first day of hearing. The mother identified that she had informed the Family Consultant of the additional work which was set out in the May 2014 report[2]. The mother was correct in that respect.
[2] At paragraph 16 of the Family Report top of page 11.
The mother was cross-examined as to why she should not take in extra work. Given that the mother works full time and has the care of two children and is already doing some additional work to meet the costs of the litigation and had expressed to the Family Consultant her concerns about the time she is spending with the child, her reluctance, in the circumstances, is understandable.
The mother was cross-examined in relation to making the child available to the father over the recent summer holiday break for the mother’s school. As I indicated earlier in these reasons, I was concerned about the father’s approach in that regard as he seeks more time but was not afraid to implicitly criticise the mother for leaving the child with him so that she could attend social activities. It reflects badly on the father’s attitude to parenting.
The mother agrees that the time the father spends with the child should be increased. It is the rate of that increase which is of concern to the mother.
The mother gave evidence in her affidavit both as to the impact of participating in these proceedings and the impact of being away from France had upon her. This is set out in various paragraphs in her affidavits including, but not limited to paragraph 106. I accept that evidence of the mother. The impact upon the mother was confirmed by the evidence of the Family Consultant, which I accept.
During the second day of the trial the mother had been the subject of intense cross-examination in respect of her fears of the father and in respect of the father’s alleged violence. At one stage the mother became extraordinarily distressed and her desire to go back to France was palpable. I accept this was real.
I accept the mother’s evidence as to the percentage of French language and English language in the F School in which she teaches.
I raised with counsel for the father, in respect of his criticism of the mother’s evidence, whether I should have some regard to the circumstances that she was speaking in a language other than French. Counsel for the father submitted that I ought not to do so. However, given my observations of the mother and observing her demeanour in the witness box I am satisfied that the mother did, from time to time, struggle with the nuisances and subtleties of the English language although, she clearly understood that language and endeavoured to answer frankly where she could.
The father submitted that the mother’s evidence ought to be impeached as a result of her approaching the father to assist her to move shortly after the alleged acts of violence. I do not adopt that submission. The mother was living in Australia and had only been here for a relatively short period of time. Whether Mr C meant it or not it became clear to the mother that he wanted to be paid his rent, irrespective of the mother’s financial circumstances. The mother in fact paid the rent and then made arrangements to move elsewhere. She was criticised for asking the father to assist her in attending at the real estate agent’s office and moving herself and the children to that new address. Given the circumstances that the mother was in, I do not adopt that criticism. Sometimes circumstances are such that unhappy or unpalatable steps need to be taken.
I find that the mother endeavoured to be frank in her evidence and that her evidence was generally reliable, albeit from her subjective point of view.
The Family Consultant
Ms R is a family consultant (‘the Family Consultant’) and she prepared two reports being; the memorandum of August 2013 and the family report of May 2012. Both of those reports were read into evidence. Each of the legal parties’ legal representatives cross-examined the Family Consultant. No issue was taken as to her qualifications.
I generally accept her evidence. I also accept her opinion that the build up of time that the child spends with the father, including overnight time, should be adopted in a cautious way given the profound distress of the mother and the impact this would have on her ability to parent the children.
The Family Consultant said that the child has a good relationship with the father although the child was primarily attached to the mother. I accept that evidence although I am not convinced that significant time away from the father would unduly impact upon the child’s relationship with him, particularly if it was on an annual basis rather than a regular basis.
The Family Consultant was cross-examined in relation to the child’s language. The Family Consultant has no significant expertise in that regard although she says that her understanding is that in children bilingual language develops later. There is no expert evidence that the child’s language is in any way slow and I accept the evidence of the Family Consultant that given Z’s good English it is likely that the child will follow in that language development.
The father said that he had taught Z to speak English in the five months he spent in South America. I find that the evidence of the father as to the skills that he allegedly imparted was unreliable but that the ability of Z to move from primarily French speaking to being bilingual is perhaps indicative of that course which the child is likely to follow.
The Family Consultant gave evidence that she would prefer changeovers to occur other than at the police station although understood those circumstances given the mother’s expressions of ‘extreme fear’ of the father.
The Family Consultant gave evidence that two or three weeks would be the maximum time that the child should be away from the father and I have dealt with that elsewhere. Given the circumstances and the mother’s need for connection with France, I am satisfied that on balance, in this case, that the child being away for a period of five weeks for the first visit would be appropriate provided there was time between the father and the child prior to and at the end of those visits and communication via Skype during the time the child was away.
I generally accept the evidence of the Family Consultant.
Professor M
Professor M is a professor of neurosurgery. He filed an affidavit on the 26 March 2014 in respect of the father’s health. In that affidavit he provided evidence that the father had repairs to cerebral aneurysms in 2011 and apart from a loss of smell the father has recovered completely with limited possibility of reoccurrence. That evidence was read in unchallenged.
Mrs S
Mrs S is the child’s paternal grandmother who is aged 71 and she lives with her husband (aged 74) in Suburb U. Mrs S provided evidence in an affidavit filed 2 July 2014 in support of the father. She has a good relationship with the child. She gave evidence of that relationship.
Her evidence was more of a ‘cheer squad’ variety. I accept her evidence but it must be seen in the context of her partisan support of the father.
Mr S
Mr S is the brother of the father who provided evidence contained in his affidavit filed 2 July 2014. He was cross-examined in relation to the time the child spent with the father. His evidence was relatively unchallenged.
Mr C
Mr C provided evidence in accordance with his affidavit filed 2 July 2014. Mr C was the landlord of the apartment in which the mother and father resided until about August 2012.
Mr C is a friend of the father and has been for many years. Mr C has offered the father accommodation (albeit on a paid basis) over many years. Initially in his evidence Mr C endeavoured to put some distance between he and the father in terms of their friendship. That endeavour did not succeed as the evidence was that the father and Mr C are very close. Such was their friendship that the father, at one stage, considered him as a godparent (Mr C had no recollection of being asked to do so) and he was the first person the father telephoned when he was arrested in about early August 2012.
Mr C lived in a flat in the same townhouse complex where the father, the mother and the children resided.
In many areas Mr C’s evidence was of a cheer squad variety. He may have spent a few days a week at the home of the parties up until the birth of the child, but from that time he was there less frequently.
Mr C gave evidence in the proceedings at in the Local Court on 22 November 2012. He said that he had never observed the father being difficult with Z nor did he observe the father being forceful, physical of Z or any indication that the child was afraid of him.
After the father had been arrested by police Mr C said in oral evidence that the mother contacted him. He said in his evidence to the Magistrate of the Local Court[3] where he said he spoke to the mother and pressed for the rent, he then asserted both in the Local Court and in his affidavit that the mother said to him in the context of the rent:-[4]
You know I can’t afford it. I don’t have the money. I can’t pay $350.00.
[3] Transcript of Proceedings dated 22 November 2012 page 40.
[4] Ibid at page 41.
He replied:-[5]
… $350.00 isn’t enough. It is $700.00.
[5] Ibid.
He then said that the mother said to him:-[6]
Look what if I told the police that the story was made up. Then what would happen.
[6] Ibid.
Mr C then said:-[7]
What do you mean? If you like, you mean ‘the father’ was living in the apartment? [The mother] said ‘yes I said well if [the father] is living there he will pay the rent.
[7] Ibid.
The mother’s evidence was that no such conversation took place.
I am troubled by this evidence by Mr C particularly given his demeanour, the way he answered questions and the inherent unlikelihood that such a statement would be made, and the inconsistency with that statement having regard to the allegation made by the mother in her email to the father at 7.38 on 13 August 2012.[8]
[8] Exhibit ‘M1’.
The mother in fact paid the rent to Mr C. Mr C struggled to concede that he had had discussions with the father in relation to the rent, which clearly he had.
I prefer the evidence of the mother and I have serious concerns about the reliability of the evidence of Mr C. He is protective of the father and prevaricated in his answers to a number of questions, such as the discussions with the father and the demand for rent. As a consequence I am not satisfied that such an assertion was made by the mother.
THE LAW
There was no issue that the Court had both the jurisdiction and power to make parenting orders pursuant to the provisions of the Family Law Act 1975 (Cth) (‘the Act’). These proceedings were commenced after the 2012 amendments commenced on 7 June 2012 and as a consequence the amendments to the definition of “family violence” in s 4(1) of the Act, and to ss 60B and 60CC that took effect on that date apply.
When determining parenting orders the approach is governed by Part VII of the Act. The objects of Part VII of the Act and the principles underlying them are set out in s 60B.
Subject to the presumption of equal parenting under s 61DA and any parenting plans (there are none in this case) a court exercising jurisdiction under that Act may make such parenting order as it considered appropriate.
The child’s best interests are the paramount consideration in deciding what parenting orders should be made, and in determining those interests the Court must consider the factors set out in s 60CC of the Act, which in turn provides primary and other considerations, namely:-
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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(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).
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.
If a court makes an order for equal shared parental responsibility, it must first consider children spending equal time with each parent, and if such an order is not to be made, then the Court must consider the children spending substantial and significant time with each parent. In addition the Court must consider whether such an arrangement would be in the children's best interests and then consider whether such an arrangement is reasonably practicable. If the Court is satisfied of those matters, the Court must then consider making such an order (s 65DAA(1)(c) and (2)(e), and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
There is no issue in this case that the child will benefit in having a meaningful relationship with both parents as he has done so to date and will continue to do so in the future. It is how this is best managed given the conflict, the different cultures and backgrounds of the parents and the age and maturity of the child.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
Neither of the parties sought orders preventing the child from seeing the other parent other than in an unsupervised way. Given that I accept the evidence of the mother, I am satisfied that there was a level of family violence at the time of the relationship breakdown. That behaviour has diminished over the years since separation.
I accept there is evidence of some form of physical interaction between the parties which was observed by Z, where he reported to the Family Consultant:-[9]
He [[Z]] said that he does not like [the father] and described hiding under a table the last time he saw [the father] because he was “really mean” to him and to his mother. [Z] described [the father] grabbing him and pushing him against the wall when he spoke in French at the dinner table and throwing his toys out the window if he played with them in the bath. He said that he also saw him throw his mother’s laptop out the window and [the father] throw his mother’s ring and earrings on the floor and step on them.
[9] At paragraph 22 of the Family Report dated 6 May 2014.
I accept the evidence of the mother which is, to some degree, supported by Z. The father asserted that he had a good relationship with the child Z. The mother gave evidence that that relationship was difficult and that the father was demanding of Z. It is clear that Z does not have a close relationship with the father. The Family Consultant noted in her report that he does not like the father and described hiding under the table last time he saw the father because he was ‘really mean’. Z also said that the father grabbed him, pushed him against the wall when he spoke in French and was otherwise not warm and loving to him.[10]
[10] Ibid.
The Family Consultant was cross-examined in relation to this evidence and said there was no evidence that Z had been coached in that regard. I have given this evidence some weight.
On balance, I prefer the mother’s version of those events to that of the father.
An example of this was the evidence of the damage to the mother’s computer, with the removal of it from the mother and the smashing of it by the father. Even on the father’s evidence it was an act of violence by him towards the mother in removing the computer from her.
I am satisfied that the father broke the mother’s computer as part of the unfortunate interaction between the parties at the time that their relationship broke down. I have read the transcript of the evidence before the Local Court Magistrate, however, the evidence before me was more complete and enabled me to make the findings on the civil burden as between these parties.
I am satisfied that since August 2012 the father has from time to time been verbally abusive to the mother. I am satisfied that she is afraid of the father, and that fear was observed by the Family Consultant. The mother has taken steps to avoid the father and has arranged for the au pair to do most of the changeovers involving the child.
The mother has made allegations of family violence which have been established and I reject the father’s denial of that family violence.
The mother has alleged the operation on the father’s aneurysm may have affected his behaviour however, there is no objective evidence upon which to base that contention.
Section 60CC(3)(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child is about two and a half years old and is too young to express any meaningful views.
Section 60CC(3)(b) the nature of the relationship of the children with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The mother is the primary attachment figure for the child. The child is only about two and a half years old. He has been in the mother’s primary care since separation. The father has been engaged in the child’s upbringing and has seen the child on a regular basis since separation. Nothing in these orders will prevent or preclude that from continuing.
The child has a good and close relationship with the father although not at the same level as that of the mother. The child has a very close relationship with his sibling Z, who is a key figure in the child’s life.[11]
[11] Ibid at paragraph 37.
On the evidence before me, the child has a good relationship with his maternal and paternal broader families. The child is fortunate in that he will be exposed to various cultures including that of his mother and that of his father.
I accept that the child appears happy and comfortable in the care of each parent and has established firm relationships them. This is to the credit of the mother.
The child has a close and loving relationship with Z. In part this sibling relationship has been a factor in the decision that the child spends Christmas Eve and Christmas morning in the care of the mother. It has also been a factor in the determination that the child travel to France each year including 2015 for a period of five weeks.
Section 60CC(3)(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;
The child has been primarily cared for by the mother. The father has been regularly involved in the care of the child since his birth. There has been ongoing acrimony about the level of time each parent spends with the child, to which I have referred elsewhere in these reasons.
Section 60CC(3)(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;
The mother is the primary financial provider for the child, including child care when the mother works.
The father provides for the child when he is in his care, and the father has fulfilled his child support responsibilities. The father financially facilitated the move by the mother, Z and the child from the Northern Beaches to their present accommodation in Sydney’s Eastern suburbs.
Section 60CC(3)(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;
The father submitted that the child is likely to adversely suffer from being separated from his father during the mother’s visits to France with the child during the summer break. The father asserted that he has had substantial care of the child during the early part of his life. The evidence of the mother is that she was pressed and agreed to the father spending eight nights with the child in 2012 when the child was less than twelve months old. I do not regard that single event as creating substantial time, and I am concerned that the mother was intimidated into this arrangement by reason of her believe that her visa status may be at risk.
The child’s primary attachment is that to the mother and he has a significant attachment to his brother, Z and to the father.
It is important that the child maintain his relationship with his brother as well as with his father and mother.
In terms of the child’s time away to visit relatives in France, whilst I have some concerns about the extent of that time, I am satisfied that it can be ameliorated by reason of the father spending time with the child before he leaves, time with the child after he returns (at least in 2015) and by way of Skype and the like.
A shorter period of time would involve significant travel which I am satisfied would have a negative impact upon the child and the mother.
Section 60CC(3)(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;
There is no general practical difficulty and expense in respect of the child spending time with and communicating with his parents as the parties live close to each other. There is a difficulty in terms of the mother’s fears of the father at changeovers. The mother seeks such changeovers occur at a police station and I have dealt with this in more detail later in these reasons.
Section 60CC(3)(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;
The mother has a demonstrated capacity to care for both children. The evidence of the Family Consultant was that Z has grown up with very good English and is an ‘articulate, outgoing and polite young boy’.[12]
[12] At paragraph 22 of the Family Report dated 6 May 2014.
The father was concerned about the development of the child’s language skills. The Family Consultant (albeit with limited information) expressed the view that children who are bilingual develop English skills later. In this case Z has developed very good English speaking skills.
There was evidence by the father, his mother and his brother that the child’s English speaking, in their view, was delayed. There was no expert evidence to support that assertion and given the outcome with Z and that the child is living in an English speaking country, I accept that the child is likely to develop good English language skills. The father also complained that if the child was attending a foreign language school he would have a limited grasp of English. Given the evidence of the Family Consultant and the mother and having examined the records of the F School I am not satisfied that that is likely.
The father complained that the mother’s long term proposal is to relocate to France with the child and says that this view adversely reflects on the mother’s insights into the child. The mother is entitled to have a view that it is better for her and the children to live in France, given her background and that of her eldest son. That she has deferred this debate and decision for four years is to her credit.
However, if the parties are unable or unwilling to agree then that will be a matter determined by a court in 2018 or beyond, depending on what the circumstances of the parties and the child are at that time.
Section 60CC(3)(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;
The father asserts in his case outline document that this is not relevant, and I disagree with him. It is relevant. The mother is from France and her family are French. The mother’s parents travel to Australia at least annually to spend time with their daughter and grandchildren. The first language of the mother and Z is French.
This child is likely to be brought up bilingual, particularly if he attends the school which the mother proposes that he attend. The mother speaks fluently in French and English as does the child’s elder brother Z.
The child has the benefit of living in an English speaking community and the father will no doubt ensure that the child speaks English when in his care. In addition, the child will have the benefit of the Arabic speaking culture of his paternal family.
It is important to the mother that the child has a bridge between his French culture and background and his English culture and background. Given the mother’s culture and nationality that desire is entirely appropriate and there is no reason why it should not occur.
Section 60CC(3)(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;
This is not a relevant factor.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The father submitted that he has been diligent in seeking time with the child. The father asserted the mother has not been co-operative leaving him to make applications to the Court. The father has a determination to achieve equal time. In his ‘diligence’ he has not reflected upon the impact of the breakup upon the mother and the impact of his ever increasing demands for time on the child.
The orders that the father seeks are well outside what was recommended by the Family Consultant. I do not regard that as focusing on the needs of the child but more about focusing on his desires for a particular outcome.
The father does not have a good relationship with Z despite the father’s evidence to the contrary. The evidence of the Family Consultant was that Z has expressed some strong negative views about the father and in circumstances where, according to the Family Consultant, those views were unlikely to have been coached.
I have discussed elsewhere the complaint by the father about being given further time with the child in the recent school holidays so that the mother could engage in social activities, combined with his criticisms of the mother travelling overseas earlier in 2014 and not informing him. Apparently the child and his brother were left in the care of the mother’s parents in Australia and the mother was away for about nine or ten days.
Given the mother’s expressed fear of the father, the evidence of which I accept, it is understandable as to why she did not inform the father that she was going away as this could have led to further litigation, the emotional and financial cost of which would have been significant in the circumstances of the mother.
Section 60CC(3)(j) any family violence involving the child or a member of the child's family;
I have discussed this factor elsewhere and I have taken it into account in making this determination.
Section 60CC(3)(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;
I have considered the findings of the Magistrate in the Local Court in terms of the proceedings against the father being dismissed, which I have alluded to elsewhere.
There are no family violence orders. The father says that the mother’s credit was impugned. There was some minor criticism, but unknown criticism, in the material before the Magistrate of the Local Court although the Magistrate also determined that the mother was likely to be honest.
I do not accept the father’s submission that the veracity of the mother’s evidence was in any way seriously impugned.
I do accept that there was a level of situational violence at the time the parties physically separated. I am satisfied that there has been some low level verbal abuse used by the father to the mother since that time albeit in the light of these proceedings that abuse is likely to have been ameliorated.
Section 60CC(3)(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;
It is likely, if the mother’s mind does not change, that there will be a need for a further hearing in relation to a relocation of the child to France in four or five years’ time. Given the age of this child it is likely that the parties will need to reassess the parenting arrangements when the child turns six or seven, and that will depend on the circumstances of the child and the parents at that time.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.
I have considered the following in terms of this factor and, where relevant, the other factors.
DISCUSSION AND CONCLUSION
Residence
There is no issue that the child should continue to live primarily with the mother; as such a residence order has been made to that effect.
Parental Responsibility
The parties agree that there should be an order for equal shared parental responsibility. The father and mother communicate via email and sometimes by telephone. Given the conflict between the parents I have some concerns about this proposed order. The father’s submission was that their communication was improving. I do not accept that submission. The mother communicates because she has to but struggles in her relationship and in her communication with the father, given her fearful views of him.
However, given that the Order is aspirational and that the parties are moving slowly towards better communication. I will make that order.
Equal time and significant and substantial time
I am then obliged to consider equal time. I have done so in the light of the evidence before me and in particular the evidence of the mother and the Family Consultant. Given the age of the child, the continuing conflict and the factors to which I have alluded to earlier I am not satisfied that it is in the best interest of the child at this time, or for the foreseeable future, for such an equal time order to be made.
I accept the evidence of the Family Consultant that overnight time should be put in place slowly. I intend that overnight time not increase until the child attains the age of four years in April 2016.
From that time, I will make orders enabling the child to spend time with the father over the weekends during school term two nights per fortnight and the following year three nights a fortnight. Thereafter alternate weekends will operate from afterschool Friday until commencement of school Monday (or Tuesday if the Monday is a pupil free day or public holiday) on alternate weekends during school term.
The weekend time will enable the child to interact with his paternal family and the father.
The weekend time will cease over school holiday periods from August 2015 onwards, given the school holiday orders.
In terms of the existing time on Wednesdays, the evidence of the mother is that the child normally goes to sleep at 7.30 pm or 8.00 pm. The father is unable to have the child earlier on a Wednesday afternoon, notwithstanding that he had previously indicated that his working hours on that day were flexible. Given this circumstance in the light of the evidence, findings and relevant factors (including the age of the child), the order I will make will be for the child to spend time with the father during French school term each Wednesday from 3.00 pm until 6.00 pm until the child leaves for France in June/July 2015. That structure will ensure that the child has frequent time with the father.
After the child commences school in August 2015, such Wednesday time will continue but increase to 7.00 pm when the child attains the age of four in April 2016. After the child attains the age of five years the Wednesday time will change to significant and substantial time in that the child will spend each alternate Wednesday with the father being the Wednesday after the alternate weekend time. By that time the concerns of the Family Consultant, with regard to the child being away for the father for twelve days, would have been addressed.
The structure of the school holiday periods for state schools in New South Wales is relatively clear, it involves a four or five week break over the Christmas period followed by four ten week terms with a two week break in the middle with an occasional Easter separated from the first school holiday period.
In terms of the F School (which given this decision is the school at which the child will be attending and at where the mother works) the holiday period is different from the Australian school approach. The holiday schedule was set out by the mother in her affidavit.[13] The essence of the holiday period is a break of about six weeks for the European summer through July and August each year followed by a one week break at the beginning of October, and another one week break in mid November. There is a break of approximately four weeks in the Christmas/New year period followed by one week in March and two weeks in April.
[13] Paragraph 114 and annexure ‘A’.
Given that structure and given the facts, findings as between these parties, and having determined that the child ought to attend the F School, I am proposing to divide the holidays along the lines of that set out in the F School schedule of holidays.
In relation to the F School’s long summer break (July and August), the mother seeks orders to enable her to take the child to France for six weeks commencing July 2015. The evidence of the Family Consultant is that this would be a long time for the child to be away from the father. When pressed she said that three weeks may be manageable.
I accept her evidence, although, this needs to be seen in the context that the mother is the primary carer of this child, that the mother is significantly stressed and upset and has a deep desire to spend time with her family in France. In addition, Z travels to France each summer holiday and he and the child are close. I have considered the evidence of the stress on the mother referred to by the Family Consultant and as observed by me during the course of the trial. Given those circumstances, I intend to permit the mother to take the child to France in 2015 for five weeks and thereafter for six weeks over the northern summer break.
I am conscious that this will mean that the child will be away from the father for five weeks over that summer break. In 2015 I propose to put in place orders which provide for the child to spend time with the father three days with after the trip and two days before the trip. I will also put it place orders which provide for regular Skype communication between the child and the father while the child is in France.
From 2016 onward I intend to make orders that entitle the mother to take the child to France with her for a period of six weeks during the summer break. The father will have the child for the first two days of the holiday period and the last two days before the child goes to school. There will be regular communication between the father and child with Skype in the meantime. Those arrangements will continue after that date.
As to the three one week breaks (October, November and March in each year) I intend to make orders that these are times spent with the father and increasing to most of those breaks in 2016 and onwards.
As to Christmas holiday time this is to be two five day periods this coming Christmas, two six day periods the following year, two seven day periods the next and three weeks straight from December 2017 onwards. This will accord with the general recommendations of the Family Consultant. The end result is that the child will spend more than half of the Christmas holiday period with the father, given his annual trips to France in the northern summer break.
The remaining holiday is Easter and it also is the period around child’s birthday. This holiday is structured to be week about from 2015 onwards.
The mother also sought an order that the child attend and be educated at the F School where she works. It is also the school where the child’s sibling Z is a student.
The father has a number of objections to this school. His evidence is that they fall into two categories. The first was that he is concerned that the child’s ability to speak English has been delayed as a consequence of the child being taught French and speaking French in the mother’s household.[14] The second was that he is concerned that the child was starting school too early (the mother seeks orders that the child commence school at the beginning of term in August 2015).
[14] I have discussed the child’s English language development elsewhere in these reasons.
The mother gave evidence that the percentage of language taught to the child in the first year at the School is 75 per cent French and 25 per cent English and thereafter in the pre-school at equal time French equal time English.
The child lives in the household with the mother and his French speaking brother Z. I accept the evidence of the mother, and to a certain extent this was supported by the evidence of the father, that Z speaks English well and did not speak English particularly well prior to coming to Australia and being in contact with the father.
The child will be living primarily in Australia, at least for the next four, five or six years and I am satisfied that his English language skills will develop, particularly given the evidence of the mother as to the education at the F School and the history of the child’s elder brother’s language skills.
The child is exposed to different languages and is likely to end up being bilingual. This is to his overall advantage and benefit, particularly as the child has extended family in both France and Australia. The child is also exposed to Arabic speaking in the paternal household.
There is no expert evidence that the child’s English language is delayed and there is no evidence that the child is other than thriving in the current environment.
The advantage of the child attending school with his mother and brother are clear in terms of shared holidays, his mother being available at the school and of course the support of his brother Z at school.
The father said he was concerned about the child attending school full time from aged three and a half. This is to be seen in the context of the child attending pre-school at the school in which his mother is a teacher. The father works full time and has difficulties in taking time off work on a regular basis, such as the difficulties he has on Wednesday afternoons.
The child would otherwise be in the care of a nanny or attending pre-school. The father deposes he would prefer a build up for the child in a pre-school other than the French School absent his mother.
Given the evidence of the mother and the evidence of the school I have no concerns about the child settling into the school, and settling into the arrangement given the close proximity of the mother and his brother. Accordingly, I will be making that order.
This will enable the child not only to have a good and close understanding of his father’s English language and Arabic background but also to have a close connection with his French culture given the limitations on visits by him to France on an annual basis.
The parties submitted the School file. I also accept the evidence of the mother in terms of paragraphs 108 through to 118 of her evidence set out in her trial affidavit filed the 13 August 2014. That is whilst the child is young the program in the School for him from August 2015 is bilingual and age appropriate. I also accept that the child will be going to and from school with his mother and brother and would have his mother nearby should issues arise.
The mother would incur significant further costs if the child attended a different school from his brother having regard to the need for childcare during the different school holiday period.
I also accept that it is important, giving the relationship between the child and his brother, that their close and loving relationship should be enabled to continue.
For the child to attend an English only school would mean that the involvement of French language would be limited to that at home. The mother is able to meet the costs of the child’s school fees although it is open for her to make application for any change of assessment with the Child Support Agency she considers or is advised is appropriate.
I am not concerned about overseas travel by this child with the mother for a number of reasons. The first is that the father consents to the child going overseas when the child is over five. His explanation as to why that delay should take place was unconvincing and in many ways he prevaricated in relation to that evidence. There is no reason why the child cannot travel to France to spend time with his maternal family.
In addition France is a party to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded 19 October 1996 (the ‘Child Protection Convention’) and that as the child is resident in Australia and orders will have been made, those orders are likely to be enforceable in France. In keeping with discussions I had with the parties’ legal representatives during the hearing I have made notations as to rights of custody and given leave to enable the parties to apply for mechanical orders in the context of the Child Protection Convention.
The father seeks an order that he be permitted to have the child christened into the Catholic faith. The mother opposes that order.
The mother was christened a Catholic and her family were all christened in the Catholic Church. The mother’s evidence was that she abandoned her beliefs in Catholicism some time ago. Her elder son Z was baptised as a Catholic, although the mother’s evidence was that this arose in circumstances where he had been attending school in South America which was a Protestant School and where the child expressed a desire to know more about religious background and it was done in the context of that request.
The mother’s view was that if the child wished to be baptised at some later date it was a matter for him. The father’s desire to have the child baptised seems to be in support of his desire to have the child attend a Catholic school. The evidence of the father is that he was christened a Catholic and his parents are Catholic, however, the father rarely attends Church.
The parties would be unable to agree on god parents (particularly since one of the god parents initially nominated by the father gave evidence against the mother in the Local Court) and I confirm the comments I have made earlier that I will not make orders in this respect, although I considered doing so.
There are some areas where the court does not need to make orders and this falls into that area. As the then Federal Magistrate Altobelli said in C & B [2007] FMCAfam 539:-
113.This is a difficult issue. I do not have enough evidence to make a decision. I would in any event be reluctant to make an order in terms of that sought by the mother. I doubt it can be enforced. Even if it were contravened it would be almost impossible to fashion an appropriate sanction. There are some matters of parental responsibility that are simply best left to parents to decide. This is one of those issues where, on the facts of this case, law should not intervene. The mother who is Jewish, and the father who is Catholic, might consider for themselves the words of an eminent Mormon family law scholar:
Some advocates of children’s rights manifest the lingering hubris of the belief in the infinite and invincible capacity of the law to do good. They see law as a secular Messiah, a cure all for every social ill, a big yellow social bulldozer that can shove away the old problems and build new temples of goodness. But rights and relationships are very different things. It is troubling to try to define relationships between parent and child in terms that suggest separation, individualism, boundaries, legalism, lawyers, courts, lawsuits, and forced compliance.[15]
114.Perhaps it is not just advocates of children’s rights who need to reconsider the view that law somehow has the answer to all the issues that might arise in relation to children. Perhaps many parents who have conflicts about their children also need to recognise the limits of family law.
[15] Lynn D Wardle “The Use and Abuse of Rights Rhetoric: The Constitutional Rights of Children”, Loyola University Law Journal vol 27 p332.
In Jurss and Jurss (1976) FLC 90-041 Demack J observed:-[16]
… As both parents placed little value in the regular observance of religious practices, it seems to me that I should not make any requirements about educating the children in any particular faith.
[16] Page 75,185.
I am not satisfied, in the circumstances of the child and these parties, that it is in the best interests of this child to make such an order, particularly given that the child will not at this stage be attending a Catholic school.
During the course of the first day of the hearing the mother sought a permanent injunction restraining the father from assaulting or abusing her. The effect of this was to pursue the apprehended violence proceedings which had been charged by the Magistrate at the Local Court in October 2012.[17]
[17] Annexure to affidavit of the father filed 25 August 2014.
The Magistrate determined at that time that the allegation of the father assaulting the mother was not established beyond reasonable doubt. He also dismissed the mother’s application for an apprehended violence order. The Magistrate determined that into the future he was not satisfied, on balance, that the father presented a risk to the mother.
The mother claimed that since that time the father had been verbally abusive to her.[18] The mother gave evidence of verbal abuse by the father to her and the father denied that abuse.
[18] Mother’s trial affidavit – paragraphs 101 and 102.
The father was cross-examined in relation to an incident where he removed a computer purchased by the mother to allegedly prevent her from booking air tickets. The father said he held the computer away from the mother, and it dropped and was damaged. I do not believe him.
I am satisfied that the father was endeavouring to render the computer inoperative and succeeded in doing so. This was controlling behaviour, but it was many years ago and occurred in the context of the parties’ relationship breakdown.
The mother seeks an order that changeover occurs at a police station, this because she says she has fears of the father. Given the evidence and my findings those fears are, to some extent, justified. The father seeks orders that the changeovers occur at the Y Hotel car park or someplace less confronting than a police station.
The Family Consultant was concerned about the inevitable negative impact on the child in terms of his relationship with the father if a police station was used for changeovers.
The mother sought mutual injunctions, restraining each from assaulting, abusing or demeaning the other, to impose an obligation on both parents to behave vis a vis each other. Given that I will make that order there will no longer be a need for changeovers to occur at the police station. Give the various factors which I have earlier referred to and the relevant findings of fact, I am satisfied that the combination of the injunctions and changeover at a less confronting place meets the best interest of the child.
The mother expresses fear of the father and I accept her evidence. That was apparent in a number of areas, firstly her desire to have the changeover for the child at a police station (which is concerning in terms of the child) and the concerns she expressed when cross-examined about going overseas for work training (in early 2014) and her concerns about letting the father know that she was going overseas.
Given that evidence and those findings I am satisfied that there should be the order that she seeks, that is a mutual order that no party assault, abuse, belittle or demean the other. I intend to make that order.
The father sought orders that the child spend alternate Christmas Days with him.
The child has lived primarily in the household of his mother and his brother. There is significant conflict between the parties which has been ongoing since separation and there is mutual distrust of each party for the other.
Given the circumstances of the conflict and the difficulties at changeover I am satisfied there ought to be only one changeover at Christmas. Further, given that the father’s household will be predominantly an adult household on Christmas Day I am satisfied, in all of the circumstances and given the comments made elsewhere in these reasons, that the child should spend Christmas afternoon and evening with the father with the commencement of an extended period of time which will increase over the years to provide for significant and substantial time.
The father and mother agree that the child should be in contact with the other party on regular occasions. Accordingly, I have made orders for regular telephone and/or Skype communication when the child is overseas and regular communication during the week.
However, I do not believe this will need to be fixed, it will need to be adjusted from time to time as the child’s activities change as the years progress.
The mother initially was seeking to relocate to France. Sensibly, given the age and maturity of the child, the mother has not pursued this application but has outlined that she will do so sometime around 2018. Given her background and history the Court can understand why she would want to relocate without making any comment as to whether it ought to be permitted or not permitted.
The fact that she has not pursued that application for relocation at this stage ought not prevent her or inhibit her from commencing an application for relocation of the residence of the child, in or about 2018, notwithstanding these proceedings. That aspect has not been heard on its merits and it will enable the child to develop and form a relationship with the father.
The Court does not intend to adjourn that part of the proceedings but simply note that it was not determined on its merits and it is open for the mother to make application again in or around 2018 given the sensible and pragmatic decision she took in 2014.
If the child goes to the F School he is likely to be bilingual. The evidence of the Family Consultant is that this is a positive step and that language often improves after a period of time.
I am not convinced that the child’s English language is delayed as is asserted by the father and his family. I am satisfied that if the child attends the F School the child will speak English fluently (as does his brother Z) and that the child will be well able to cope with school. In terms of starting school at three and half, from evidence provided by the mother and the evidence of the approach adopted by the School I am satisfied that it is, in all of the circumstances, appropriate for the age and maturity of the child.
Both parents work full time. The alternative is that the child is left for one or two days a week in child care and the remainder of the time in some other form of care. Attending the school at which his mother teaches and which his brother is present, and in circumstances where they will no doubt go to school together and go home from school together, I see that in all of the circumstances as a better option giving regard to the needs of this child.
I raised with the parties and their legal representatives an approach in relation to Mother’s Day and Father’s Day in that the child would be returned to the mother at 9.00 am or 10.00 am on Mother’s Day morning and remain with the mother from that time.
In terms of Father’s Day, the child would go to the father on Father’s Day and from 2015 (by which time the child will be at school) the child would then be returned by the father to school on the following Monday.
As to the child’s birthday, it is likely that his birthday will fall in the April school holiday period at the F School. The order I will make will provide that the child will spend the week of his birthday with the mother in 2015 and with his father in 2016 and odd years thereafter. I have adopted this course because of the high level of conflict and the impact upon the mother, in particular the impact upon her ability to parent.
I have consciously made a determination that the child not sees his parents on their birthday if it does not happen to fall within that time. Celebrations surrounding those events can be flexible.
The parties are agreeable that eventually the child will travel to France with the mother. I raised with the legal representatives of the parties the Child Protection Convention.
By consent the parties asked me to make a notation (albeit their notation related to the abduction convention) and I gave them leave to apply, for a period of twelve months from the date of the orders, to make mechanical changes to the orders so that they could be registered in France pursuant to the Child Protection Convention. Given the parties acquiescence in that respect I have made that notation and given leave for a period of twelve months.
The parties agree that there should be an order for equal shared parental responsibility for the children. Given the evidence of the parties and in particular the evidence of the Family Consultant, I am satisfied that such an order should be made.
Observing the demeanour of mother giving evidence and having read the family report, I am satisfied that the mother has a deep desire to eventually return to France. Sensibly and in a child focused way the mother has deferred that decision until around 2018 to 2020. Counsel for the father criticised the mother in relation to her approach in leaving this issue outstanding. I reject that criticism. The mother did not pursue her application for relocation and in essence withdrew it. It has not been heard on the merits.
Submissions were made on behalf of the father that the so called rule in Rice v Asplund[19] should not apply in relation to an application for relocation. I accept that submission on behalf of the father and I will make a notation on behalf of the father in these reasons.
[19] (1979) FLC 90-725.
The mother should be entitled to consideration of such an application at that time and ought not to be prevented from doing so given the approach that she has adopted in these proceedings.
The mother sought an order that the father contribute to the cost of the child travelling to and from France every year. The father has had significantly greater resources which he applied to these proceedings and has spent at least $100,000 on legal costs. However, the father’s income is slightly less than that of the mother and he pays child support for the child. The mother is in receipt of an income of about $89,000 per year plus child support, some assistance for her elder child and she is able to do some additional work in terms of teaching French. The mother says, and I accept, that she does not wish to spend significant time in this additional work, given her responsibilities to care for the two children in her household.
No evidence was adduced as to the costs of the airfares and the basis upon which that money order could be made was not established.
It will be a matter for the mother, should she desire to do so, to apply for change of assessment if her circumstances are such that would enable a change of assessment in those circumstances. I do not propose to make this order.
PROPERTY
The mother seeks an order that the father pay $30,000 to her in relation to the question of property.
Were the parties in a de facto relationship and if so for what period? For the Court to have jurisdiction it is necessary for the applicant to establish that a de facto relationship existed within the meaning contained in the Act. The jurisdiction to hear de facto property proceedings in the Family Court is set out in s 31(1)(a)(aa) of the Act which provides:-
Original jurisdiction of Family Court
31(1) Jurisdiction is conferred on the Family Court with respect to:
(a)matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act; and
(aa)matters arising under this Act in respect of which de facto financial causes are instituted under this Act; and …
Section 39A of the Act provides jurisdiction for de facto financial proceedings to be instituted in the Family Court.
Section 4 of the Act, relevantly, defines a de facto cause. To establish jurisdiction the applicant must satisfy the Court that a de facto relationship existed. Section 4AA (1) of the Act provides:-
(1) A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5)For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
In Jonah & White [2011] FamCA 221 Murphy J considered authorities in the State jurisdiction about what constitutes a de facto relationship before he considered Part VIIIAB of the Act and said at paragraphs:-
59. In that respect it seems to me also instructive that the Commonwealth legislature did not provide for relief of that type in circumstances where two people were parties to, for example, a “domestic relationship”, or, as in New South Wales, a “close personal relationship” but, rather, only where parties were in a “de facto relationship” as defined.
60.In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
His Honour concluded:-
66. The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.
In Smyth & Pappas [2011] FamCA 434 Cronin J referred to Jonah & White (supra) and to Barry & Dalrymple [2010] FamCA 1271 and said that two people could live very individual lives as a couple.
In the unreported decision of Crowley & Pappas [2013] FamCA 783, Tree J observed in relation to s 4AA of the Act:-
10.Those provisions, or their state counterparts, have been the subject of considerable judicial discussion, principally in an attempt to more precisely analyse what will comprise “a couple”. Much of that analysis seems to have its genesis in the difficulty in satisfactorily distilling the essence of such a common, everyday concept. From those decisions the following propositions may be stated:
(a)whether a de facto relationship exists or not is a question of fact, not a matter of discretion;
(b)a de facto relationship does not need to be akin to a marriage although the nature of the association involved in a marriage relationship may be instructive;
(c)the parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time;
(d)there need not be full time living together;
(e)the relationship may be unhappy, but still subsisting;
(f)sexual or other exclusivity is not necessary;
(g)the gist of the inquiry is the degree to which parties have merged their lives into one. That connotes financial, emotional and physical interdependence.
In terms s 4AA(1)(a) & (b) of the Act, I find and accept that neither the applicant father nor the respondent mother were legally married to each other and that they are not related by family.
Having regard to all the circumstances of their relationship as is outlined in the following evidence I find; that the parties met in South America where the mother, a French national, was employed as a teacher and was living there with the child Z. The father was travelling through South America and the parties lived together for about five months until February 2011. The father and mother agreed that the mother and Z should come to Australia to live with the father.
On a preliminary visit the mother became pregnant and on 1 September 2011 the parties commenced living together in a marriage like relationship. This continued until July 2012 During that later period of time the parties had an intimate relationship, shared the same home and the child of the parties was born. In addition to those periods of common residence the mother and the child were financial dependent upon the father. The parties had by September 2011 committed themselves to a shared life. They had the care and support of Z from at least 1 September 2011 and the child from April 2012. Their relationship was public. I am satisfied that the parties lived together in a de facto relationship for those two periods of time. I find that the father and mother were living together on a genuine domestic basis for each of those periods.
Whilst the de facto relationship did not subsist, on the mother’s case for two years or more, the birth of the child empowers the Court to make orders pursuant to s 90SB(b) of the Act.
Having found that the parties lived in a de facto relationship (within the meaning defined in s4AA of the Act) it is not in issue that that de facto relationship has broken down. The Family Court therefore has jurisdiction and power to make orders in relation to the property of the parties.
The law regarding the treatment of property has been clarified following the High Court decision in Stanford v Stanford.[20] Prior to that decision the preferred approach was the four step process as reflected by the Full Court in cases such as Hickey v Hickey and the Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.
[20] [2012] HCA 52, (2012) 293 ALR 70.
Following Stanford v Stanford (supra) the approach is that a Court must firstly be satisfied that before making any order it is “just and equitable”[21] to do so. Then consider what orders, if any, should be made having regard to s 79(4) of the Act or as in this case s 90SM(4).
[21] Section 79(2).
This approach was later adopted in Bevan & Bevan,[22] where Bryant CJ and Thackray J noted that the Stanford v Stanford (supra) decision:-
… serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so. [23]
[22] (2013) FLC 93-545.
[23] Ibid at para 65.
In Chapman v Chapman[24] the Full Court considered the independence of ss 79(2) and 79(4) and confirmed that Bevan v Bevan correctly stated the law in relation to the Courts consideration of s 79(2), whether the making of an order is just and equitable. At paragraph 19 of their joint reasons Strickland and Murphy JJ said:-
Section 79 demands a consideration, separately, of all of its requirements without conflation.
[24] [2014] FamCAFC 91.
However, their Honours disagreed with any intention of plurality in Bevan v Bevan (supra), in that the Court must consider the matters in s 79(4) when addressing s 79(2) of the Act in terms of what order is to be made. To clarify, Bryant CJ said in a separate judgment:-
Whatever differences may exist as to the meaning of [84] and [85] of Bevan, I am in agreement with Strickland and Murphy JJ that it is not a requirement to take account of the matters in s 79(4) when considering the question of whether it is just and equitable to make any order under s 79(2). But as long as they are seen as separate and not conflated, the factors in s 79(4) have the potential to inform the decision under s 79(2) …
Accordingly, in this case pursuant to Part VIIIAB of the Act, and having established jurisdiction, the approach I will adopt, when determining a division of property, is:-
a)Identify, in the context of ordinary legal principles, the existing legal and equitable interest of the parties in the property;
b)Consider whether in the circumstances of the parties it is appropriate and just and equitable for any order to be made having regard to s 90SM of the Act; and
c)To consider and take into account any contributions and other matters, as are relevant, having regard to the provisions of s 90SM(4) of the Act and make such order as is appropriate. It is the function of the court to consider those relevant factors in the context of what is appropriate in all of the circumstances, provided always that it is just and equitable to do so.
Identify, in the context of ordinary legal principles, the existing legal and equitable interest of the parties in the property
The parties are agreed as to much of the property, that is:-
Mother’s Westpac … account
$6,300
Mother’s household contents
$2,000
Mother’s motor vehicle
$21,000
Father’s Westpac saver account
$186,882
Father’s Westpac choice account
$450
Household contents of father
$2,000
Father’s motor vehicle
$11,000
Father’s finance on motor vehicle
$19,281
Father’s Westpac visa
$160
Loan from father’s mother and brother – determined
0
Mother’s car loan
(-$27,000)
Total
$222,073
Superannuation
Father’s BT super
$67,309
Mother’s NGS super
$12,000
Total
$79,309
There were some issues about the property. The first was whether the loans from the paternal grandmother and the child’s paternal uncle ought to be included. There was some discussion about whether they are statue barred or not. However the evidence of the maternal grandmother was as follows:-[25]
When [the father] was buying his unit in [Suburb L], he said to [my husband] and me, ‘I am going to be short $15,000.00 for the unit. Could you give me a hand’. I spoke with [my husband] and then said ‘your father and I will give you $15,000.00, you don’t have to repay it until a time when you have the spare money’. [The father] has not paid any of that money.
[25] At paragraph 28 of the affidavit of Mrs S filed 2 July 2014.
It is not a loan repayable on demand. It is an advance which his repayable by the father, when and if he decides to do so, it is entirely voluntary and I do not regard it and will not treat it as a loan.
The father had a serious illness in 2000 which required surgery. His brother, Mr S, advanced to him $21,700. The evidence of Mr S was:-[26]
… I then had a conversation with [the father] in which I said ‘I can organise for Professor [M] to perform your surgery and he can start straight away. It will cost about $23,000.00’. [The father] said ‘I don’t have the money’. I said ‘I can pay you’. ‘You can consider it a loan and pay me back when you have the money’. The cost of the operation, hospital and other expenses was $21,700.00. To date [the father] has not paid any of the $21,700.00.
[26] At paragraph 28 of the affidavit of Mr S filed 2 July 2014.
This again was an advance which was repayable by the father when he chose to do so. It is not a loan and I will not treat it as such.
I was asked to treat the mother’s car and loan as equal. I have not done so. The mother has a liability in respect of the car and gave evidence in relation to that. I accept her evidence as to the car and the liability.
SUPERANNUATION
Each of the parties has superannuation. The mother’s superannuation is now about $12,000 however she wants to pay, at present, about $850 per month to maintain her superannuation benefits from France.
It is clear that the father in particular had accumulated his superannuation over many years and the mother has accumulated significant superannuation since she commenced work in Australia in about August/September 2012.
Neither party seeks a splitting order in relation to superannuation.
Consider whether in the circumstances of the parties it is appropriate and just and equitable for any order to be made having regard to s 90SM of the Act
Given the factual circumstances of these parties and the findings made by me, it is open for this Court to make an order for adjustment of property pursuant to s 90SM of the Act. There was a relationship to which the provisions of the Act apply, that relationship has ended and the parties are unlikely to reconcile. There is property (both superannuation and non-superannuation) available for consideration of orders altering the interests of the parties in such property, according to law.
What is left is to consider and take into account are contributions and other matters, as are relevant, having regard to the provisions of s 90SM(4) of the Act and make such order, if any, as is appropriate.
It is the function of the Court to consider those relevant factors in the context of what is appropriate in all of the circumstances, provided always that it is just and equitable to do so.
CONTRIBUTIONS
It is not in issue that the parties were in a de facto relationship within the meaning prescribed under the Act.
The parties lived together in South America for a period of about five months. The parties recommenced cohabitation in a marriage like relationship from 1 September 2011 and separated in July 2012. I accept the evidence that at the commencement of cohabitation in both South America and in Australia the father had overwhelming property in the form of real estate, superannuation and other assets.
I accept the evidence of the mother that she came to Australia with upwards of $15,000. During the course of the relationship the mother was financially supported by the father although she received some assistance from her own savings and from her family.
During that time it is clear that the father also financially supported the child Z. At the time of separation the father provided financial support to the mother to the extent of at least $5,000 to enable her to re-house herself. He has paid child support for the child since that time.
Having regard to the contributions before and during the periods of relationship I am satisfied that each contributed at least equally in terms of home making and parenting and if anything the aggregate of the father’s financial/non-financial contribution was slightly greater than that of the mother.
SECTION 90SF(3) MATTERS
The father is in good health and is able to support himself. The mother is aged 35 and is in full time employment and earns an income greater than the father.
The father pays child support in accordance with his child support assessment and there is no evidence that he has been in arrears of child support or that he has made payments otherwise than in accordance with any assessment.
The mother is highly qualified and is able to continue her employment, particularly given the parenting orders that have been made.
Each of the parties have incurred debts in relation to these legal proceedings, the father having disposed or incurred expenses to the extent of about $117,000, the mother to about $27,000 or $28,000.
The mother seeks an order for $30,000. She provided little evidence as to the detail of the contributions and other factors. This makes the task of assessment somewhat more difficult. Given the relative contributions, the future needs, the financial resources of the parties before and after the periods of the relationship commenced.
In summary, there was minimal contribution over the periods and in between and subsequent to those periods of time. Further, such contributions as were made by the mother were in the context of the father providing accommodation, financial support and other support for her and for the child.
The other factors are not such as would in the circumstances warrant an adjustment.
Having considered and taken into account the relative contributions and other factors and having regard to the provisions of s 90SM(4) of the Act within the whole of the context of s 94SM, I am not satisfied that it is appropriate to make orders altering property interests as to do so would not be just and equitable.
As such regard to application for orders to adjust interests in property it is to be dismissed.
I certify that the preceding two hundred and fifty six (256) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 17 October 2014.
Associate:
Date: 17 October 2014
0
8
1