Taraska & Taraska

Case [2021] FCCA 1746

FEDERAL CIRCUIT COURT OF AUSTRALIA

Taraska & Taraska [2021] FCCA 1746

File number(s): ADC 5671 of 2019
Judgment of: JUDGE BROWN
Date of judgment: 30 July 2021
Catchwords: FAMILY LAW – children – best interests of the child – residence and relocation – application to move child interstate – where mother proposes to move to Melbourne – where mother and father currently reside in City B – parenting orders – where mother has underlying mental health issues – property – property settlement – superannuation – splitting order – financial contributions – modest asset pool – contributions during the marriage – assessment of contributions – considerations of justice and equity  
Legislation:

Evidence Act 1995 (Cth), s 140

Family Law Act1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79 and 117

Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth)
Cases cited:

A v A: Relocation Approach [2000] FamCA 751

Adamson & Adamson (2014) FLC 93-622

AMS v AIF; AIF v AMS (1999) 199 CLR 160

B v B [2006] FamCA 1207

B v B: Family Law Reform Act 1995 (1997) FLC 92-755

Bevan & Bevan [2013] FamCAFC 116

Biltoft & Biltoft (1995) FLC 92-614

Brickley & Lidcombe [2012] FMCAfam 301

Bright v Bright (1995) FLC 92-570

C & S [1998] FamCA 66

Clauson & Clauson (1995) FLC 92-595

Elbers & Elbers [2019] FCCA 3748

Ferraro v Ferraro (1993) FLC 92-335

Fox v Percy (2003) 214 CLR 118

Fragomeli & Fragomeli (1993) FLC 92-393

Godfrey & Sanders (2007) 208 FLR 287

Goode & Goode [2006] FamCA 1346

H & W (1995) FLC 92-598

Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143

In the Marriage of DJM and JLM (1998) 23 Fam LR 396

In the Marriage of Kowaliw (1981) FLC 91-092

In the Marriage of Omacini (2005) 33 Fam LR 134

In the Marriage of Townsend (1994) 18 Fam LR 505

Jurchenko & Foster (2014) FLC 93-598

Keane & Keane (2021) 62 Fam LR 190

Lee Steere v Lee Steere (1985) FLC 91-626

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark [2009] FamCAFC 92

Morgan & Miles [2007] FamCA 1230

MRR v GR (2010) 240 CLR 461

Oswald & Karrington (2016) FLC 93-726

R & R: Children’s Wishes (2000) 25 FamLR 712

Russell & Russell & Anor [2009] FamCA 28

Sampson & Harnett (No 10) (2007) FLC 93-350

Stanford v Stanford (2012) 247 CLR 108

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Taylor & Barker (2007) FLC 93-345

Trevi & Trevi [2018] FamCAFC 173

U v U (2002) 211 CLR 238

Vernon & Buckley [2012] FMCAfam 638

Wardman & Hudson (1978) FLC 90-466

Waters & Jurek (1995) FLC 92-635

Watson & Ling [2013] FamCA 57

Wilburn & Wilburn [2019] FCCA 2131

Zahawi & Rayne [2016] FamCAFC 90

Other:

Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth)

Australian Oxford Dictionary
Number of paragraphs: 598
Date of last submission/s: 11 May 2021
Date of hearing: 16-17 February and 12 March 2021   
Place: Mount Gambier and…

Continue reading Taraska & Taraska

Sign in free to access the full text

Details
AGLC
Taraska & Taraska [2021] FCCA 1746
Case
[2021] FCCA 1746
Decision Date

CaseChat Overview and Summary

In the matter of *Taraska & Taraska*, heard by Brown J, the applicant father, Mr Taraska, and the respondent mother, Ms Taraska, sought orders concerning parenting arrangements for their child, X, and the finalisation of their financial relationship. The dispute involved the mother's application to relocate X from City B to Melbourne, and the father's opposition to this move, alongside various financial claims.

The court was required to determine the best interests of the child, X, in relation to parenting orders, specifically addressing the mother's relocation request and the practicalities of shared parental responsibility and time arrangements. Furthermore, the court had to consider the just and equitable distribution of the parties' matrimonial property, including superannuation interests and real estate.

Brown J applied the principles of the *Family Law Act 1975* (Cth), with the paramount consideration being the best interests of the child. The court acknowledged the presumption of equal shared parental responsibility and the importance of a meaningful relationship with both parents, as well as the need to protect the child from harm. However, the court found that restraining the mother in City B, given her mental health concerns and negative associations with the location, would not be in X's best interests and was not reasonably practicable. The court also considered the financial provisions of Part VIII of the *Family Law Act 1975* (Cth), requiring that any property order be just and equitable.

The court ordered equal shared parental responsibility for X, with X to live with the mother. The mother's application to relocate X to Melbourne was granted. Specific time arrangements for X to spend with the father were detailed, including provisions for school terms and holidays, with handovers to occur at agreed locations. The court also made orders for the splitting of the father's superannuation, the distribution of proceeds from the sale of a property, and the allocation of motor vehicles and other assets. Each party was to retain their respective possessions not otherwise specified, and the husband was to indemnify the wife regarding a debt to his parents. No order was made as to costs.

Orders

Orders of the court

ADC 5671 of 2019

BETWEEN:

MR TARASKA

Applicant

AND:

MS TARASKA

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

30 JULY 2021

THE COURT ORDERS THAT:

In relation to all parenting applications:

1. The parties have equal shared parental responsibility for the child X born in 2011 (hereinafter referred to as ‘X’).

2. X live with the mother, Ms Taraska (hereinafter referred to as ‘the mother’ or ‘the wife’).

3. The application for the mother to relocate the residence of X from City B to Melbourne is granted.

4. X spend time with the father, Mr Taraska (hereinafter referred to as ‘the father’ or ‘the husband’) as agreed in writing between the parties and failing agreement:

(a) During school terms:

(i) In City B on the second and sixth weekend, with handovers to occur at City D McDonalds or such other location as may be agreed between the parties, during each school term as follows:

A. On the second weekend during the school term, time is to commence at 6:30 pm on Friday until 3:00 pm on Sunday;

B. On the sixth weekend during the school term, time is to commence at 6:30 pm on Friday until 3:00 pm on Sunday;

C. If the weekend immediately before or after the second or sixth weekend is a public holiday in Victoria or a non-school day on the Friday and/or the Monday then such time shall be substituted to the long weekend and time shall be extended to include the extra day(s);

(ii) In Melbourne on the fourth and eighth weekend, with handovers to take place at Suburb E McDonalds or such other location as may be agreed between the parties, during each school term as follows:

A. From the conclusion of school on Friday (or at such other time that may be nominated and agreed to between the parties in writing) until 6:00 pm on Sunday; and

B. Such time to take place at the home of the father’s sister or any other suitable location in Melbourne as may be nominated and agreed to in writing between the parties.

(iii) For such further and other periods of time as the parties may agree as communicated in writing by text message or email.

(b) During school holidays, with handovers to take place at City D McDonalds or such other location as may be agreed between the parties, which shall for the purpose of these orders commence at the conclusion of school on the last day of the school term and resume at the commencement of school on the first day of the following school term:

(i) For one half of each of the short school holidays at times to be agreed between the parties in writing, and in default of agreement, the father will spend time with X from 12:00 pm on the middle Sunday until 3:00pm on the final Sunday of the school holidays;

(ii) For one half of the long summer school holidays in each year at times to be agreed between the parties in writing and in default of agreement:

A. For the 2021/2022 school holidays – on a week about basis commencing at 12:00 pm on the day after the last day of the school term such that Christmas Day shall fall within a week where X is in the care of the mother;

B. For the 2022/2023 school holidays – on a week about basis commencing at 12:00 pm on the day after the last day of the school term such that Christmas Day shall fall within a week where X is in the care of the father;

C. From 2023/2024 – in each alternate year thereafter from 12:00pm on the middle Sunday of the long summer school holidays until 12:00 pm on the day prior to school resuming in Term 1; and

D. From 2024/2025 – in each alternate year thereafter from 12:00pm on the last day of the school term until 12:00 pm on the middle Sunday of the long summer school holidays.

(iii) For such further and other periods of time as the parties may agree as communicated in writing by text message or email.

5. Each party be responsible for the cost of their own, or their agent’s travel to collect/deliver X at handovers.

6. In any year where it is necessary, the parties are to swap weekends to ensure that X spends the Father’s Day weekend with the father, and the Mother’s Day weekend with the mother.

7. Should the father be visiting Melbourne at any time and upon giving the mother reasonable written notice in advance of him doing so, the father to spend time with X at such times and at such places to be agreed between the parties in writing.

8. Should either party wish to travel with X during any period that she resides in the mother or father’s care from outside his or her (as the case may be) “home state” that party shall give the other party at least four (4) weeks written notice thereof, including as to applicable details for flights, accommodation and contact details.

4. The parties each facilitate communication by telephone, email, text message, Skype or FaceTime between the child and her other parent and/or grandparent(s) at any reasonable time that is agreed between the parties as may be requested by the child, the other parent or grandparent(s). In default of agreement, X is to communicate by Skype or FaceTime on each Wednesday and Sunday at 4:30 pm local time for X, with the party whom X is not being cared for at the time to initiate the Skype or FaceTime call.

5. X be enrolled to attend at a Primary School during 2021 in Melbourne to be agreed between the parties after the mother and X relocate to Melbourne for the entirety of her primary education unless the parties agree in writing otherwise and the parties do all such things and sign all such forms necessary to enrol X in such Primary School to be agreed between them in writing.

6. The mother and father do all things reasonable to ensure that the other is kept informed in a timely manner of any issues relating to the wellbeing, health, education and care of X whilst in the care of the respective party.

7. The mother and father inform the other forthwith by telephone call to the other’s mobile telephone in the event of any accident, serious injury or serious illness suffered by X and of all and any medical or other treatment received by X. In the event the other party does not answer the call then the informing party shall notify the other party by text message.

8. Both parties be at liberty to attend X’s sporting and extra-curricular activities and all school functions routinely attended by parents in respect of the child, obtain copies of the child’s school reports and school photographs and any other school related information in respect of the child.

In full and final settlement of all applications for the settlement of matrimonial property:

9. Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth) there be a splitting order, in the sum of THIRTY SIX THOUSAND SIX HUNDRED AND NINE DOLLARS AND EIGHTY TWO CENTS ($36,609.82), made in the wife’s favour of the funds currently standing in the husband’s superannuation fund, with the husband to bear the costs associated with such superannuation split.

10. The trustee of the husband’s superannuation fund is to do all things necessary to give effect to order (10) hereof and within twenty eight (28) days of the making of this order to rollover the sum to be split in the wife’s favour to the superannuation fund nominated by the wife.

11. That out of the proceeds of settlement for the sale of C Street, City B SA (hereinafter referred to as ‘the C Street, City B property’), the wife receives the sum of EIGHTY FIVE THOUSAND SIX HUNDRED AND FORTY DOLLARS AND TWENTY NINE CENTS ($85,640.29).

12. That out of the proceeds for the settlement of the C Street, City B property, the husband receives the sum of TWENTY FIVE THOUSAND FIVE HUNDRED AND EIGHTY EIGHT DOLLARS AND SIXTY NINE CENTS ($25,588.69).

13. That within twenty eight (28) days of the date of this order the wife surrender to the husband the Motor Vehicle 1 currently in her possession with the husband to be at liberty to sell the vehicle and retain any and all of the proceeds of sale for his sole use and benefit and absolutely free from any further claim or demand of the wife.

14. Including but without limiting the effect hereof, the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife:

(a) the furniture and furnishings in his possession, power and control;

(b) any motor vehicle in his possession;

(c) all savings, shares and investments in his name;

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in his name subject to order (10) hereof;

(e) his personal effects; and

(f) any other real and/or personal property and/or financial resources of the husband or in the husband’s name and/or possession not otherwise specified herein.

15. Including but without limiting the effect hereof, the wife shall retain for her sole use and benefit absolutely free from any further claim or demand of the husband:

(a) the furniture and furnishings in her possession, power and control;

(b) any motor vehicle in her possession, subject to order (13) hereof;

(c) all savings, shares and investments in her name;

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in her name;

(e) her personal effects.

(f) any other real and/or personal property and/or financial resources of the wife or in the wife’s name and/or possession not otherwise specified herein.

16. The husband is ordered to indemnify the wife with respect to any liability of the husband either personally or jointly with the wife in respect of any debt asserted to be owed to the husband’s parents.

17. There be no order as to costs.

18. All outstanding applications are dismissed and the proceedings are finalised.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

These reasons for judgment are directed towards resolving these difficult controversies regarding future arrangements for X’s care, and ending the parties’ financial relationship with one another. Pursuant to the relevant legislation under Part VIII of the Family Law Act, the Court must not make any property order unless persuaded that it is just and equitable to do so. As previously indicated, the lodestone, so far as orders in respect of X are concerned, is the service of her best interests.Background The husband was born in 1983. He has a Country F background but has lived his entire life in City B, in the South East region of South Australia. The father’s parents, Mr and Mrs Taraska senior married in Town J when they were in their early twenties, in 1974, and continue to live in the district. Neither the husband, nor his parents have any desire or plan to move away from the South East. The parties themselves met in City B in 2007. The wife had moved to the town in 2005. She had come with her mother, Ms K and her brother Mr L. Ms K had been offered the store franchise at the City B branch of Company M. At the time, the wife was around 28 years of age, having been born in 1979. Mr L left City B, for Melbourne, in 2013. Ms K left in 2014 to pursue tertiary studies in health care at N University. As such, the wife no longer has any close family or, on her case, friends living permanently in City B. Ms Taraska has a long standing history of compromised mental health and is of the view that her remaining in the town will be deleterious for her level of psychological functioning. In this context, she has been consulting a clinical psychologist, Dr O, since early 2020. Dr O is based in Melbourne. Dr O has diagnosed Ms Taraska with Post-traumatic Stress Disorder (‘PTSD’) and Generalised Anxiety Disorder. Ms Taraska concedes that she had a difficult childhood and her psychological issues are longstanding. Dr O was a witness in the case and her evidence is central to its disposition, in the wife’s submission. It is also the wife’s case that her relationship with Mr Taraska was one characterised by aspects of coercion and control which exacerbated her condition through re-traumatising her. This has resulted in her developing negative connotations of City B, which is unlikely to change in the future. Mr Taraska fervently denies that he ever behaved in an inappropriate manner towards Ms Taraska, certainly not in a way which would fall within the definition of family violence pursuant to s 4AB of the Family Law Act. Rather, it is his position that the mother’s mental health issues render it all the more essential that both she and X remain living in City B. This is so he can ensure that X is kept safe from any dramatic deterioration in the mother’s condition and that he can intervene if an emergency arises, to assume X’s care. In his affidavit material, Mr Taraska has described the wife as suffering from ‘significant mental health issues and being quite often paranoid.’[3][3] See husband’s affidavit filed 23 July 2020 at [27].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In this context, although X’s best interests are the paramount consideration for the Court, they are not the only consideration. Ms Taraska’s interests, and indeed those of her mother, are inextricably bound up with what is best for X. In my view, it is clear that Ms Taraska will be a better parent for X if she is able to live in an environment in which she feels happy and supported. The evidence indicates that this location is not City B.CONCLUSIONS In purely theoretical terms, I accept that it would be in X’s best interests, given the application of the presumption of equal shared parental responsibility, for the child to live in an equal time regime, particularly as there are no issues of family violence or abuse arising in the case. However such an outcome could only be achieved by the complete abrogation of Ms Taraska’s constitutional right to freedom of movement. Given the structure of the applicable legislation and the decision of the Full Court in Taylor & Barker,[86] the Court is required to give earnest consideration to – firstly, an equal time arrangement; and secondly, a substantial and significant time regime for the care of the child.[86] See Taylor & Barker (2007) FLC 93-345. However, as the High Court has established in MRR & GR,[87] both these regimes depend on a positive answer to two equally important questions – firstly, are these arrangements in the best interests of the child; and secondly, are they objectively feasible to implement, in all the circumstances of the case.[87] MRR & GR (2010) 240 CLR 461, 466-8 [13], [15] and [19] (French CJ, Gummow, Hayne, Kiefel and Bell JJ). In the words of the High Court itself, in determining the answer to the second limb, the Court is directed to consider the ‘reality of the situation of the parents and child’.[88] One limb is not more important than the other. In purely theoretical terms, given the structure of the Family Law Act and what follows from the application of the presumption, the best outcome for X is one in which her equally devoted parents share responsibility for her, and X sees both her father and mother regularly in an unforced environment.[88] Ibid 467 [15]. However, in practical terms, this option would come at a price which would entail some potential blow back for X. It would be open only if Ms Taraska is restrained, possibly indefinitely in City B, resulting in her unhappiness and the probable deterioration of her mental health. Inevitably, she would be rendered bitterly disposed towards Mr Taraska whom she would regard as her gaoler. This would not be helpful to any form of effective cooperative parenting evolving between them. After a great deal of heartache, I have come to the conclusion that is it not reasonably practicable to restrain Ms Taraska in this way. Necessarily, she would be increasingly resentful at such an outcome, and her resulting dissatisfaction is likely to have adverse implications for X. In my view, effective parenting is not usually posited on the restraint of one of the parents concerned. A handcuff, even a softly padded one, remains a handcuff. In this case, Ms Taraska is not likely to adjust and adapt to being restrained in a place which has only unhappy connotations for her. She would fret and ruminate with significant implications for the welfare of X.

Ratio Decidendi

Legal Principle Established

Some minor disputes arise in respect of the value of a motor vehicle, which the wife asserts is not driveable. The parties agree that their modest superannuation totalling $149,857.00 should be equalised.LEGAL CONSIDERATIONSThe legislative pathway in children’s cases Part VII of the Family Law Act deals with orders relating to children. Before making any particular parenting order, the Court must have regard the best interests of any child concerned as the paramount consideration.[18][18] Family Law Act1975 (Cth) s 60CA. The matters which the Court must take into account, in deciding how a child’s best interests are to be served, are set out in the Family Law Act at s 60CC. Section 60CC creates two categories of considerations which apply to the Court’s determination of how a child’s interests will be best served in proceedings before it. They are designated as primary considerations and additional considerations. There are two primary considerations, which are set out in s 60CC(2)(a) and (b), namely: (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. Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of the decisions of the Family Court, as ‘twin pillars’, the importance of which depends on the circumstances of the case concerned.[19] [19] See Keane & Keane (2021) 62 Fam LR 190, 206 [69] (Alstergren CJ, McClelland DCJ and Benjamin J); Mazorski & Albright (2007) 37 Fam LR 518, 519 [3] (Brown J); Elbers & Elbers [2019] FCCA 3748 at [80] (Neville J); However, as a result of the insertion of s 60CC(2A) into the Family Law Act, the Court is now directed, in applying the primary considerations, to give greater weight to s 60CC(2)(b), which is the primary consideration relating to ‘the need to protect children from physical or psychological harm, from being subjected to or exposed to neglect, abuse or family violence’. Family violence is defined by s 4AB(1) of the Family Law Act. It means:violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. The legislature has provided a list of examples of behaviour which may constitute family violence in s 4AB(2) of the Family Law Act. Some of these examples are:·an assault;·a sexual assault or other sexually abusive behaviour;·stalking;·repeated derogatory taunts; ·intentionally damaging or destroying property; and·the withholding of financial support. Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. Although Ms Taraska reported to Ms W that she had been subject to coercive and controlling family violence during the parties’ marriage, this is no longer a strong theme in her case. Rather it is her case that she felt, at times, disparaged and unsupported by her husband, whom she perceived was, at times, mean in respect of the financial aspects of their relationship.