Telfer & Telfer
[2022] FedCFamC1F 547
Federal Circuit and Family Court of Australia
(DIVISION 1)
Telfer & Telfer [2022] FedCFamC1F 547
File number(s): BRC 5098 of 2020 Judgment of: HOGAN J Date of judgment: 29 July 2022 Catchwords: FAMILY LAW – BINDING FINANCIAL AGREEMENT – Where the applicant seeks to set aside a financial agreement – Where the respondent seeks that the financial agreement be declared binding – Where the respondent was clear and unequivocal that a financial agreement which provided for both parties’ already acquired property to be kept separate was a necessary prerequisite for him and the applicant to enter into a de facto relationship – Where the parties entered into a financial agreement pursuant to s 90UB of the Family Law Act 1975 (Cth) prior to commencing cohabitation – Where the parties later entered into a financial agreement pursuant to s 90C of the Family Law Act 1975 (Cth) following their marriage – Where the applicant asserts that she was subjected to duress and undue influence by the respondent.
FAMILY LAW – PARENTING – Where the children are aged 15 years and 4 years – Where the applicant seeks more certainty in the time that the children are to spend with the respondent – Where the respondent’s work roster prevents him from being available to care for the children in a consistent regime – Where the parties have been unable to agree on the children’s schooling.
Legislation: Family Law Act 1975 (Cth) Cases cited: Australia and New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Beroni & Corelli (2021) FLC 94-004; [2021] FamCAFC 9
Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66
Cox & Pedrana (2013) FLC 93-537; [2013] FamCAFC 48
Gongsun & Paling (2020) FLC 93-987; [2020] FamCAFC 244
Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Division: First Instance Number of paragraphs: 202 Date of hearing: 10, 11, 12, 13 & 14 May 2021; 16 July 2021 Place: Brisbane Counsel for the Applicant: Mr Shoebridge Solicitor for the Applicant: Evans Brandon Family Lawyers Counsel for the Respondent: Mr Alexander Solicitor for the Respondent: Pullos Lawyers ORDERS
BRC 5098 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TELFER
Applicant
AND: MR TELFER
Respondent
order made by:
HOGAN J
DATE OF ORDER:
29 JULY 2022
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The children, Z, born in 2007, and X, born in 2018, shall live with the applicant.
3.
Other than in relation to the children’s education (both current and future), the parents shall have equal shared parental responsibility in relation to the major
long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)), relating to the children, including:
(a)the children’s religious and cultural upbringing; and
(b)the children’s health; and
(c)the children’s names; and
(d)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with, or live with, either parent.
4.The applicant shall have sole parental responsibility in relation to the children’s education (both current and future).
5.In the exercise of the applicant’s sole parental responsibility in relation to the children’s education (both current and future), she shall:
(a)inform the respondent in writing (via email) about decisions to be made, including any views she has and relevant information she has considered, twenty-one (21) days prior to making the decision, save in the case of an emergency and then such notice to be provided as soon as practical; and
(b)seek a response from the respondent in writing about the decision to be made; and
(c)the respondent shall have seven (7) days to respond to the applicant’s email correspondence; and
(d)the applicant shall consider the respondent’s response and keep in mind the best interests of the children as her paramount consideration; and
(e)the applicant shall inform the respondent in writing within seven (7) days as to the decision she has made.
6.Each parent has responsibility for daily decisions about the day to day care, welfare and development of the children whilst they are in his or her care.
7.The children shall spend time with the respondent as may be agreed by the parents in writing, but failing agreement, as follows:
(a)during the school term: for no less than ten (10) nights in each twenty-eight (28) day period of the respondent’s roster provided that:
(i)until X commences Grade 1:
A.no period of time that Z spends with the respondent is to exceed seven (7) continuous nights; and
B.no period of time that X spends with the respondent is to exceed three (3) continuous nights, with those nights that X spends with the respondent to coincide with those that Z spends with the respondent.
(ii)from when X commences Grade 1: no period of time that the children spend with the respondent is to exceed seven (7) continuous nights; and
(iii)in each twenty-eight (28) day roster period, the children shall spend at least two (2) weekends with the applicant; and
(iv)in the event that it is not possible to facilitate, in the twenty-eight (28) day roster period, both the children spending no less than ten (10) nights with the respondent and the children spending two (2) weekends with the applicant, then the children spending two (2) weekends with the applicant is to prevail; and
(b)during school holidays: for up to the entire school holiday period, provided that:
(i)the school holiday time coincides with the respondent being on leave from work and available personally to care for the children; and
(ii)no less than ten (10) weeks prior to the commencement of the school holiday period, the respondent provide the applicant with written notice of the time which he nominates that the children spend with him; and
(iii)the time nominated by the respondent does not fall within:
A.the first week of each school holiday period at the conclusion of Term 1, Term 2 and Term 3 each year (being from after school on Friday to 4.30 pm on the following Friday); and
B.the first two weeks of the school holiday period at the conclusion of Term 4 each year (being from after school on Friday to 4.30 pm on the second Friday).
8.In the event that the respondent fails to provide the applicant with the written notice referred to in Order 7(b)(ii), then the children shall spend time with him during school holidays in accordance with Order 7(a)(i), Order 7(a)(ii), but subject to the operation of Order 7(b)(iii).
9.For the purpose of implementing Order 7(a) and Order 8:
(a)
within twenty-four (24) hours of receipt of his roster for the next
twenty-eight (28) day period, the respondent shall provide the applicant with a copy of the same which clearly identifies the days and times on which he is available to care for the children; and
(b)within twenty-four (24) hours of receipt of the respondent’s roster, the applicant shall notify the respondent in writing of the days and times, during the available dates and times advised by the respondent, that she nominates for the children to spend time with the respondent and, in order to facilitate such time, the dates, times and venues on and from which the respondent is to collect and return the children to her care; and
(c)the respondent shall, within twenty-four (24) hours of receipt of the information provided to him by the applicant in accordance with order 8(b), confirm the arrangements for the children’s time with him during the upcoming roster period.
10.Notwithstanding the provisions of Order 7 and Order 8 above, the children will spend time with the parents for special occasions for the children as agreed between the parents in writing and otherwise as follows:
(a)in 2022, and each alternate year thereafter, from 11.00 am on Christmas Eve to 11.00 am on Christmas Day with the applicant and from 11.00 am on Christmas Day to 11.00 am on Boxing Day with the respondent; and
(b)in 2023, and each alternate year thereafter, from 11.00 am on Christmas Eve to 11.00 am on Christmas Day with the respondent and from 11.00 am on Christmas Day to 11.00 am on Boxing Day with the applicant; and
(c)in 2022, and each alternate year thereafter from 12.00 pm Easter Saturday to 12.00 pm Easter Sunday with the applicant; and
(d)in 2023, and each alternate year thereafter from 12.00 pm Easter Saturday to 12.00 pm on Easter Sunday with the respondent; and
(e)on the children’s birthdays, the children will spend time with the parent with whom they are not otherwise living:
(i)during school term time excluding weekends from after school until 6.00 pm; and
(ii)during school holidays and during weekends during school term time from 1.00 pm until 5.00 pm; and
(f)on each parent’s birthday, if not otherwise in the care of the parent whose birthday it is on the day, the children spend time with that parent:
(i)during school term time excluding weekends from after school until 6.00 pm; and
(ii)during school holidays and during weekends during school term time from 1.00 pm until 5.00 pm,
(g)for Father’s Day, if not otherwise in the care of the respondent, with the respondent from 9.00 am until 6.00 pm; and
(h)for Mother’s Day, if not otherwise in the care of the applicant, with the applicant from 9.00 am until 6.00 pm.
11.Unless, otherwise agreed between the parents in writing, in the event the respondent is working and is not able to spend time with and care for the children for part or for the entirety of any special occasion time provided for in Order 10 above, then the respondent shall provide to the applicant emailed notice of that as soon as possible in advance, in which case the children will remain with the applicant and applicant will facilitate a telephone call between the children to the respondent on the day of the special occasion time, with the respondent to call between 4.00 pm and 7.00 pm for that occasion and the applicant to do all acts and things necessary to make the children available to answer the call provided that if the call is not answered, the applicant shall return the call as soon as practicable and hand the relevant device to the children but not otherwise participate in the call.
12.Unless otherwise agreed in writing between the parents or otherwise provided for in these Orders, changeovers shall occur as follows:
(a)for the purpose of the children spending time with the respondent during school terms (other than on special occasions):
(i)the respondent shall collect the children from school/daycare at the commencement of their time with him on a school day; and
(ii)in the event that the children’s time with the respondent commences on a non-school day or either child does not attend school or daycare on a day that they are due to commence spending time with the respondent, then the respondent shall collect the child/children from the applicant’s residence; and
(iii)the respondent shall return the children to school/daycare at the conclusion of their time with him on a school day; and
(iv)in the event that the children’s time with the respondent concludes on a non-school day or either child does not attend school or daycare on a day that they are due to conclude spending time with the respondent, then the respondent shall return the child/children to the applicant’s residence at 4.30 pm that day; and
(v)in the event that the respondent’s work commitments prevent him from collecting the children at the commencement of time previously nominated by the respondent for the children to spend time with him and the respondent is unable to collect the children before 6.00 pm on the day on which the time was scheduled to commence, then the children’s time with the respondent shall commence on the following day as if the respondent had nominated the following day as the day on which the children’s time would commence; and
(b)for the purposes of the children spending time with the respondent during school holiday periods (other than on special occasions):
(i)all changeovers shall occur at 4.30 pm; and
(ii)the parent who is scheduled to commence spending time with the children or either of them shall collect the child/children from the other parent’s residence; and
(c)for the purposes of the children spending time with each parent on special occasions:
(i)at Easter and Christmas, the parent who is scheduled to commence spending time with the children shall collect the children from the other parent’s residence; and
(ii)for the purposes of the children spending time with each parent for the children’s birthdays, the parent with whom the children are not otherwise living with shall collect the children from school/daycare or the other parent’s residence (as the case may be) when the time commences and shall return the children to the other parent when the time concludes; and
(iii)for the purposes of the children spending time with each parent for the parents’ birthdays, the parent celebrating their birthday shall collect the children from school/daycare or the other parent’s residence (as the case may be) when the time commences and shall return the children to the other parent when the time concludes; and
(iv)on Father’s Day, the respondent shall collect the children from the applicant’s residence when their time with him commences and the applicant shall collect the children from the respondent’s residence when their time with him concludes; and
(v)on Mother’s Day, the applicant shall collect the children from the respondent’s residence when their time with her commences and the respondent shall collect the children from the applicant’s residence when their time with her concludes; and
(d)each parent shall be at liberty to have an adult known to the children and the other parent collect or deliver the children (or either of them) for the purposes of carrying out a changeover pursuant to these Orders, with nothing in these Orders requiring that each parent personally attend or carry out each changeover.
13.During the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent, their spouse and family and not question the children about the personal life of the other parent; and
(b)speak of the other parent and their family respectfully; and
(c)not denigrate or insult the other parent and their family by language or by demeanour in the presence of or in the hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent and their family in the hearing or presence of the children; and
(d)not speak of any parenting or financial issue the subject of dispute between the parents in the presence of or in the hearing of the children.
14.Each parent shall encourage and facilitate telephone, FaceTime, Skype or similar communication between the children and the other parent at any reasonable time whilst the children are in their care including as requested by the children.
15.When the children are communicating with the other parent, each parent shall ensure that the children are available to participate freely in the communication and return any missed calls within a reasonable time thereafter.
16.Each parent shall inform the other, prior to the occurrence of any medical or allied medical appointment for the children, excepting emergencies.
17.Each parent shall inform the other of any recommendation he or she has received concerning the children from any medical practitioner and for this purpose, unless in an emergency, the communications occur via email.
18.Each parent shall keep the other informed of the children’s doctors, health care and the treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and this Order shall serve as such authority.
19.Each parent shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by either of the children and authorise any treating medical practitioner to release medical information to the other parent.
20.Each parent shall keep the other parent informed at all times of their contact address, telephone number and email address.
21.Subject to the conditions imposed by the children’s daycare and or school(s), these Orders authorise both parents to attend functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
22.Each parent hereby authorises the school or child care provider (as the case may be) to communicate equally with both of them but, should the school or child care provided have a policy that this not occur, then the parent receiving any information pertaining to the children will forward it to the other as soon as practicable after receipt.
23.Except in an emergency in the event that either parent intends to travel with the children further than 100 kilometres from C Business when that parent is caring for the children then they will provide to the other party reasonable details of the travel prior to the travel occurring.
24.Neither parent shall be permitted to remove either child from school, or refrain from sending the child to school, on a school day for the purposes of taking the children (or either of them) away for the purposes of holiday travel (whether intrastate, interstate or overseas) without the other parent’s agreement in writing.
25.The parents shall each be at liberty to take the children outside the Commonwealth of Australia, subject to their compliance with the following requirements, unless otherwise agreed between the parents in writing:
(a)such overseas travel must take place during the time that the children shall be spending with the travelling parent in accordance with the time provided for in these Orders, with the respondent to ensure that any staff travel arrangements he may seek to rely upon do not cause the respondent to breach these Orders; and
(b)the parent who intends to take the children on the overseas travel shall provide the other parent with at least twenty-eight (28) days’ notice of the proposed travel; and
(c)at least fourteen (14) days prior to departure, the travelling parent shall supply the other parent with an accurate itinerary setting out:
(i)the dates of departure and return; and
(ii)flight details, dates and destinations; and
(iii)a contact telephone number and accommodation address at which the children can be contacted in each country or destination; and
(iv)copies of return tickets for the children.
26.For the purposes of Order 25 above and subject to Order 27 below, the parents shall each ensure that within seven (7) days of any request to do so, each parent shall do all acts and things and sign all documents as may be necessary so as to facilitate the travelling parent travelling overseas and returning to the Commonwealth of Australia with the children, including but not limited to signing Australian travel document applications and/or Australian travel document renewal/extension applications and any other necessary visa/other travel documentation for the children.
27.The parents shall do all acts and things and sign all documents necessary to ensure that the children maintain valid passports and any other Australian travel documents, with the respondent to meet the costs of renewing or applying for any such documents.
28.The applicant shall retain possession of the children’s Australian travel documents except as otherwise provided for in these Orders.
29.The applicant must make the children’s Australian travel documents available for the respondent to collect for the purposes of any overseas travel, provided that such travel complies with these Orders, at least seven (7) days prior to the departure date.
30.The respondent shall return the children’s Australian travel documents to the applicant within seven (7) days of completion of travel.
AND IT IS DECLARED THAT
31.The Financial Agreement into which the parties entered on 6 December 2018 is binding.
AND IT IS FURTHER ORDERED THAT
32.Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these orders.
33.All outstanding Applications are dismissed.
34.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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Telfer & Telfer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
These proceedings require the determination of the following issues:
(a)those parenting orders which are in the best interests of now 15 year old Z[1] and now four year old X;[2] and
(b)whether the financial agreement into which the applicant and respondent entered on 6 December 2018 (“the December 2018 financial agreement”) should be set aside pursuant to s 90K(1)(b)[3] and/or (e)[4] of the Family Law Act1975 (Cth) (“the Act”) and, if it is determined that it should be set aside, whether it is just and equitable that property adjustment orders are made and, if it is just and equitable that such orders be made, the terms of the same.
[1] Born […] 2007.
[2] Born […] 2018.
[3] On the grounds that it is void, voidable or unenforceable.
[4]On the grounds that, in respect of the making of the Agreement, the respondent engaged in conduct that was, in all the circumstances, unconscionable.
The applicant’s position is that the Court would be persuaded: to set the December 2018 financial agreement aside; that it is just and equitable to make orders altering the interests of the parties in property; that orders should be made such that she receive property valued at 45 per cent of the nett value of the property of the parties (with the respondent to be required to make a cash payment to her) and that she receive specific property.[5]
[5] As particularised in the Further Amended Initiating Application filed 7 April 2021.
The respondent’s primary position is that the Court should dismiss the application to set the December 2018 financial agreement aside and make a declaration that the December 2018 financial agreement is binding; however, if the Court sets the December 2018 financial agreement aside, the respondent’s position is that it would not be persuaded that it is just and equitable, in the circumstances surrounding the manner in which the parties managed their financial interactions during the existence of their relationship, to make any order adjusting their interests in property; in the event that the Court determines that it is just and equitable to make orders altering the interests of the parties in property, he contends that such orders should result in him receiving property valued at 85 per cent of the nett value of the property of the parties and the applicant receiving property valued at 15 per cent of the nett value of the property of the parties.[6] In particular, given his proposal about the property she would otherwise retain, he advanced that any adjustment in favour of the applicant occur via the making of a superannuation splitting order in such amount as would be necessary to see her receive property valued at 15 per cent of the nett value of the property.
[6] Further Amended Response filed 31 March 2021.
The financial aspect of the proceedings
Whilst a financial agreement which meets the requirements imposed by s 90G of the Act, as it is accepted the December 2018 financial agreement does, is binding in a manner that allows the parties to it to have personal autonomy in relation to their financial affairs, this does not mean that their choices are insulated from vitiating conduct.[7]
[7] Beroni & Corelli (2021) FLC 94-004 at [69].
Instead, an order setting the December 2018 financial agreement aside may be made if – and only if – the Court is satisfied, relevantly in this case, that the agreement is void, voidable or unenforceable or that, in respect of the making of the agreement, a party to it (here, the respondent) engaged in conduct that was, in all the circumstances, unconscionable.[8] Given this, in this case, the issues to be determined include whether, in entering into the December 2018 financial agreement, the applicant was subject to duress, undue influence or unconscionable conduct by the respondent.
[8] Family Law Act 1975 (Cth) ss 90K(1)(b) and (e); s 90KA.
In a broad sense, one of the questions for consideration is whether it would offend equity and good conscience to permit the December 2018 financial agreement to stand.[9]
[9] Bridgewater v Leahy (1998) 194 CLR 457 at [73].
Given that:
(a)conclusions about the existence of duress, undue influence and unconscionable conduct may be based on the same set of factual circumstances; and
(b)it has been said that proof of the interplay of a dominant and subordinate position in a personal relationship depends “in large part, on inferences drawn from other facts and on an assessment of the character of each of the parties”,[10]
it is necessary to give close consideration to the particular facts of the case, to scrutinise the exact relations between the applicant and respondent and to consider the mental capacities, processes and idiosyncrasies of each of them.
[10] Louth v Diprose (1992) 175 CLR 621 per Dawson, Gordon and McHugh JJ at 639–641.
In discharging this obligation, I have paid close attention to the evidence given by the parties in their affidavits and when cross-examined[11] (as well as, obviously, the evidence given by the witnesses called in their cases) and the contents of the documents in evidence before me. I have considered carefully the contents of the Case Outlines, written submissions and the oral submissions made by Counsel who appeared for each party and have been greatly assisted by the same in the determination of what I regard as a difficult and, in certain aspects, a
finely-balanced matter.
[11]Including by carefully rereading the transcript of the proceedings and having regard to the notes taken contemporaneously during the course of the trial.
Broad Overview of Relevant Matters
The applicant, who was born in 1986 and will be 36 years of age this year, lives in City E in Queensland and works in an administrative role at a business owned by the step-father (Mr F).
The respondent, who was born in 1975 and will be 47 years of age this year, lives in City H in Queensland and works as a transport professional with the same employer since 2003. Save for the period of time during which he was stood down as a result of the COVID-19 pandemic, he has always worked on a 28 day roster, during which period he is not required to work for between 11 and 13 days on average.
It appears that the respondent bought real property located at J Street, City K, New South Wales for $237,000 in about April 2005 (“the [J Street] property”). It also appears that, in about September that year, his parents gifted him a one-half interest in real property situated at L Street, City M, Tasmania (“the [City M] property”).
The parties meet and start to date
When the applicant and respondent met and started dating in either May or August 2006,[12] the applicant was 19 years of age, studying and working in retail. She had limited savings, approximately $2,500 in superannuation and owned Motor Vehicle 1. The respondent was 30 years of age and working as a transport professional. He had career aspirations, some savings and owned Motor Vehicle 2, an Omega watch, the J Street property and had the interest in the City M property referred to above.
[12] A difference which it is unnecessary to resolve in the circumstances of this case.
It is clear that the applicant fell pregnant with the parties’ first child (Z) relatively early in their relationship: it seems more likely than not that she told the respondent she was pregnant during a dinner at her parents’ home to celebrate her 20th birthday (which was in 2006).
The respondent’s evidence when cross-examined included that, when he learned the applicant was pregnant, he was unsure about whether, first, she had sought to “trap” him by deliberately falling pregnant (given that, on his account, they had only been dating for a number of weeks before she fell pregnant) and, secondly, about whether he was even the father of the baby. I accept the respondent was truthful in giving this evidence – particularly as I also accept that, not long after the child was born, he took steps (without the applicant’s knowledge) to have Z’s paternity tested. I think it highly likely that feelings of mistrust, which I accept the respondent likely had vis-à-vis the applicant when he learned she was pregnant, fuelled what I suspect was his pre-existing determination to protect the property he had by then acquired (which I accept he clearly and unequivocally regarded as “his” property) from any possible claim by any other person.
The parties break-up and Z is born
The respondent said that the parties ended their relationship in late 2006, but travelled together to Tasmania in late 2006/early 2007 to spend time there with members of his extended family. The applicant said, in essence, that, whilst they had not broken up at this time, the respondent’s father’s ill-health (he was diagnosed with cancer in about late 2006) meant that, from about late 2006, the respondent spent more time in Tasmania (and, in essence, lived there at various times to assist with his father’s care) such that their time together ceased.
Whatever the cause, I think it much more likely than not that the parties’ relationship ceased after the respondent learned that the applicant was pregnant. Further, whilst they were not necessarily initially as one in relation to the timing of the same, the respondent agreed that he told the applicant in March 2007 that he no longer wished to have the baby and spoke with her about the possibility of her terminating her pregnancy.
Whilst I am not necessarily persuaded that the respondent “instructed” the applicant to terminate her pregnancy (as opposed to telling her of his position about it), it is clear that, if he did, she ignored such “instruction” and Z was born in 2007.
What happened after Z was born?
I accept that, after Z was born, the applicant asked the respondent to sign his birth certificate. I also accept that the respondent’s response to that request was to advise the applicant, in correspondence received 5 July 2007, that, amongst other things, he did not intend to be a father to Z. He also said, in essence, that he was “walking away” because he was worried about Z being raised by separated parents, that she should contact him only if Z needed medical assistance or support from him and that he would endeavour to make financial provision for him in his own way in time.
Despite the contents of the 5 July 2007 correspondence, the respondent’s evidence included that he and his mother first met Z in the next month. Further, the applicant’s evidence included that she and the respondent met on various occasions between June 2007 and December 2007 so that the respondent could see Z.
I accept as more likely than not that, in the period from Z’s birth until December 2007, the applicant continued to ask the respondent to sign the child’s birth certificate. On her account, the respondent told her that he could not afford to pay child support until he was promoted; on his account, he delayed because he did not want to sign the birth certificate until he had ensured, via paternity testing, that Z was his biological child. In any event, I accept that the respondent continued to refuse the applicant’s requests that he sign Z’s birth certificate until December 2007 when, having been promoted and having received the results of the surreptitiously undertaken paternity testing mentioned above, he was satisfied that he was Z’s biological father. I accept that, having signed Z’s birth certificate, the respondent subsequently paid child support, as assessed, to the applicant.
As I understood it, the applicant’s evidence included the assertion that, whilst the respondent paid child support for Z to her, he did not participate in the child’s care, including after they moved to live in an apartment in about April 2008. In contrast, the respondent’s evidence included that he continued to spend time with Z (which involved overnight time in June 2008 before it increased to two consecutive nights) and that, at some stage in late 2008, he and the applicant attended family dispute resolution at O Service in what turned out to be an unsuccessful attempt to reach an agreement about Z’s parenting arrangements. To the extent that it is necessary to do so, I record that I think it much more likely than not that, having satisfied himself that he was Z’s biological father, the respondent sought to be fully involved in the child’s life. I accept generally that the parents subsequently attended further family dispute resolution with Ms D in early 2009 and that, following this, continued to engage with her at various times on an ad hoc basis until about 2019 to help them discuss and develop parenting matters and arrangements.
It seems that the applicant and Z returned to stay with the maternal grandparents in about April 2009. I accept that, in April/May 2009, the applicant purchased real property located at Q Street, City R, Queensland (“the [City R] property”) for $380,000. I accept that, to assist her in this acquisition, Mr F loaned her $379,177.10, which he advanced until she obtained a home loan from a commercial lender and which was the subject of a loan agreement between them. It seems that, after the applicant and her brother carried out some renovations to the City R property, she and Z moved to live in it in about June 2009.
Whilst the applicant said that she and the respondent started to date again in around June 2009, the respondent’s evidence was that they discussed reconciling their relationship in early 2010.
Before addressing this difference, I record my acceptance that, in about August 2009, the applicant gave Mr F a mortgage against the title of the City R property in order to provide him with security for the funds he had loaned her for its purchase. I also accept that, at some stage in 2010, she borrowed an amount that represented 80 per cent of the value of the City R property value from the ANZ bank and used these funds to repay Mr F all but $80,000 of the $379,177.10 he had loaned to her; I accept that, in furtherance of these transactions, Mr F discharged the mortgage he held over the title of the City R property (so that the bank’s mortgage could be registered first on the title) and subsequently took a second mortgage to secure the outstanding $80,000 which the applicant continued to owe him.
The parties discuss reconciliation – a financial agreement is mentioned; the parties
break-up because of a difference in opinion about a financial agreementThe respondent’s evidence included that, in early 2010, he and the applicant discussed reconciling their relationship and he told her that he wanted them to sign a financial agreement to protect their assets. Given the applicant’s evidence to the effect that the respondent took her to look at real property at City H (which he subsequently acquired in about February 2010), it seems highly likely that the parties resumed some sort of relationship in around early 2010. Given what I consider to be the respondent’s unrelenting focus on protecting “his” property from any claim by anyone with whom he was entertaining forming a relationship, I think it highly likely that he did not hesitate to tell the applicant that he wanted them to sign a financial agreement to protect the assets that each of them owned from a claim by the other.
I note the applicant’s evidence included that, despite him taking her to look at a property at City H and asking her if she liked it, the respondent purchased it in only his name using funds only he borrowed. Given the history of the parties’ relationship up to February 2010, such decision does not seem to me to be indicative of anything more than the respondent continuing – as I consider he had previously – to demonstrate a clear demarcation between whatever affections were then between he and the applicant and his financial matters.
It seems that, on 25 February 2010, the respondent signed a contract, with a price of $559,000, for the purchase of the property located at S Street, City H (“the City H property”) and borrowed $575,000 from Y Bank to complete the purchase; his evidence, which I accept in this respect, included that the bank advanced him $554,487.30 on 14 April 2010 to enable him to complete the purchase of this property and that a further $20,512.70 of the funds he had borrowed was paid into a bank account in his name.
The respondent did not accept the applicant’s contention that she and Z started to live with him on 14 April 2010. He did not accept her contention that he did not raise the issue of a financial agreement with her until after she and Z had moved to live with him. His account was that, whilst the applicant started to move her belongings (and Z’s) into his home gradually over time, he had spoken with her about them negotiating and signing a financial agreement to protect the property each owned before she moved to live with him – he said that, before she moved to live with him, the applicant agreed that she would sign such an agreement but then, once she and Z had moved in, told him that she would not do so.
Given my assessment of the respondent as a person fixated on ensuring that the property he had acquired through his own efforts individually and/or as a consequence of the beneficence of his family was not going to be left to be the subject of a claim by the person with whom he was in a relationship, I think it much more likely than not that:
(a)the concept of them entering into a financial agreement was discussed on several occasions when they looked at real estate up and down the coast before he bought the City H property; and
(b)he raised the idea of them entering into a financial agreement with the applicant before she had completed moving, with Z, to live with him.
I think it much more likely than not that, as he said, the respondent told the applicant at the time (that is, from early 2010) that he needed a financial agreement to protect his separate assets, which he had created by himself and with his family. I accept the respondent was truthful when he said, in essence, that he had always felt that he needed to protect “his” assets (no matter who he was in a relationship with) and that he had always placed a very high priority on protecting such assets because he genuinely believed it was fair to do so. I think it much more likely than not that the respondent was completely transparent with the applicant in telling her that, from his perspective, there would be no future in their relationship if they did not fulfil his requirement that the two of them negotiate a financial agreement and enter into one. I am easily satisfied that, whatever the words used, the respondent was clear in telling the applicant that he required her to sign a financial agreement in order for them to live together.
I also accept that, on 21 April 2010, the respondent instructed T Lawyers to prepare a financial agreement.
I think it highly likely that, as was suggested, the applicant did not actually think that, once she and Z were living with him, the respondent would follow through with his requirement for them to enter into a financial agreement. I accept the respondent’s evidence to the effect that, after some time, the applicant told him that she would not negotiate or sign a financial agreement because, from her perspective, this meant he did not love her and also that her mother had not had to sign a financial agreement when she entered into her relationship with Mr F, who she asserted had more money and assets than the respondent did. I think it much more likely than not that the respondent told the applicant that that they were not a de facto couple unless they signed a financial agreement; given this, I think it is also highly likely that the respondent told the applicant that she should stay on the Centrelink single parenting payment (I infer, because this would establish that they were not in a de facto relationship) or sign a financial agreement or she would have to move out of the property. I accept that the applicant told the respondent that she was not going to meet his requirement of signing a financial agreement.
Whether the discussions which resulted in the end of this tranche of the parties’ relationship happened in about June 2010 (as the respondent suggested) or early August 2010 (as the applicant suggested) seems to me to matter little; the situation is, I think, the same in relation to whether the respondent told the applicant (after she told him that she was not comfortable with either signing a financial agreement or continuing to claim the single parenting payment) that she and Z had to move out or that, as part of her telling him that she was not going to sign a financial agreement, the applicant also told the respondent that she was leaving their relationship because his requirement that she sign a financial agreement was not negotiable.
However it ultimately came to be, the applicant and Z again moved to stay with the applicant’s mother and Mr F (before then moving to live in rented premises) and the reality for both parties as at about mid-2010 was, I consider, that both knew that:
(a)the respondent’s perspective and position was that:
(i)a signed financial agreement was needed because he wanted to protect the property he then owned from any potential claim the applicant might have in relation to it if their relationship became a “de facto relationship”; and
(ii)a signed financial agreement was needed because it would not be “fair” for the applicant to have a claim against assets he had accumulated through either his own efforts (or the efforts of his parents or a combination of the two) prior to them living together; and
(iii)a signed financial agreement was a non-negotiable prerequisite to him living with the applicant; and
(iv)for her to be able to be in a relationship with him, the applicant had to sign a financial agreement; whereas
(b)the applicant’s perspective and position was that:
(i)such agreement was an anathema; and
(ii)such agreement indicated to her that the respondent did not love her enough – and, I suspect, trust her enough – to be in a relationship with her without one; and
(iii)she was not prepared to accede to the respondent’s prerequisite that a financial agreement accompany their cohabitation.
I accept that the respondent’s position in 2010 – and after that – was that the applicant would never be named on the title to the City H property because he was the person who had borrowed the money for its purchase and he was the person who was making the loan repayments. I accept that the respondent was truthful when he said, during his
cross-examination, that the position would have been the same if he and the applicant had lived in the City R property – namely, that he would never have been named on its title.
What happened after mid-2010?
It seems that, in early 2011, the respondent established the Telfer Trust (“the Trust”) and the Telfer Super Fund (“the Super Fund”).[13] Further, in April 2011: the respondent’s mother loaned him $62,000 to assist him in his purchase of real property located at U Street, City V, USA (“the [City V] property”); the respondent rolled $103,500 from his superannuation account with Superannuation Fund 1 into the Super Fund; the Trust and the Super Fund purchased[14] the City V property in equal shares for USD$205,000.
[13] Established on 5 March 2011 by Trust Deed.
[14] On 29 April 2011.
The parties restart a relationship – a financial agreement is proposed
I think it more likely than not that the parties attended family dispute resolution in about August 2011 to discuss the respondent’s plan to take Z on holiday to Country W; I accept that both parents in fact travelled to Country W and that they reconciled their relationship at this time.
On balance, I accept the respondent’s account that, when the parties met in August 2011, the applicant told him she wanted to rekindle their relationship and wanted a relationship with him, that she was prepared to negotiate a financial agreement and that she had made a mistake in refusing his earlier request that she sign such agreement.
I think it much more likely than not that, at this time, the applicant knew that the respondent maintained his position about the necessity for them to have a financial agreement to protect the assets each of them owned from any potential claim by the other; I think it much more likely than not that the respondent again told the applicant (as he had in 2010) that he required them to enter into a financial agreement before their relationship could move forward and that she knew that, for him, having a financial agreement designed to protect the assets each of them owned from a claim by the other was a non-negotiable prerequisite to them rekindling a relationship and having a family together. I think it much more likely than not that the applicant was well aware that, in order for the respondent to progress their relationship, he required them to have a financial agreement in place to protect their separately owned assets and that he would not progress their relationship if she was not prepared to sign such an agreement. I think it much more likely than not that she knew that, if she and the respondent did not enter into a financial agreement, he would not maintain a relationship with her of the nature that she sought they have.
Precursors to the parties signing a financial agreement in March 2012
The applicant’s evidence included that she and the respondent started living together from August/September 2011 onwards. I accept that they spent their time in Country W together. I accept it is highly likely that, following their return to Australia, the applicant started to move some of her belongings into the respondent’s property and that, before they signed the financial agreement on 19 March 2012 (the March 2012 financial agreement), she had been spending nights staying over at the property. I accept the respondent’s evidence to the effect that, whilst he and the applicant were spending nights together at his property before they signed the March 2012 financial agreement, he did not consider them to be living together until that agreement was signed.
On balance, I am not persuaded that the parties started “living together” until after they signed the March 2012 financial agreement. I have arrived at this conclusion because I accept the respondent’s evidence to the effect that, because of his previous experience in 2010, he was very particular about ensuring that the applicant did not move to live with him in the property until an agreement was signed and I think it highly unlikely that, after what had happened in 2010, he would have agreed to her moving to live with him until she signed a financial agreement. I am strengthened in this conclusion by the applicant’s 6 February 2012 email to AB Lawyers which includes her assertion that “we have not yet lived together in a de facto relationship; we intend to on completion of the agreement”.
I accept that the respondent engaged T Lawyers in November 2011 to prepare a financial agreement. That he did so clearly establishes, to me at least, that his position about the requirement of the parties executing a financial agreement before their relationship moved into a “living together” phase remained as resolute as I consider it had been in 2010.
I also accept that, after obtaining recommendations from Ms D, the applicant subsequently engaged AB Lawyers to provide advice about the financial agreement.
The applicant’s evidence included that they recommenced their relationship in about August/September 2011 and started to live together from this time on – first in the City H property and then, from November/December 2011 in a property next door to it which the respondent rented for that purpose. As noted earlier, I am not persuaded that the parties started to live together until after the March 2012 financial agreement was signed.
The applicant’s evidence included that, in March 2012, the respondent asked her to enter into a financial agreement (as he had done in 2010). I reject any implicit suggestion or inference that it was only then that the respondent again raised the issue of them entering into a financial agreement. I think it is much more likely than not that, from when they resumed their relationship in about August/September 2011, there were discussions between the parties about the issue of them entering into a financial agreement. I also think it much more likely than not that, during such discussions, the respondent told the applicant that, if she wanted to be with him and live in his house, she needed to sign the agreement, that the signing of it was not up for negotiation and that, once an agreement was signed, it would be “put to bed” and not spoken about. I consider that it is much more likely than not the respondent made it abundantly clear to the applicant that the continuation of their relationship was conditional on her signing a financial agreement and that, whatever else it dealt with, the terms of the same would be such as to ensure that the property that each had accumulated by the time the agreement was signed would be protected from any claim by the other.
I think it much more likely than not that the respondent was clear and unequivocal with the applicant in telling her that, for him, a financial agreement was a necessary prerequisite for the two of them to enter into a de facto relationship. I think it much more likely than not that, as he had likely done in 2010, the respondent approached his communication with the applicant about the issue of them entering into a financial agreement in a direct and resolved manner.
I accept the applicant’s evidence to the effect that the respondent told her that he refused to be in a de facto relationship with her without them having a financial agreement. Consequently, I think it much more likely than not that, by no later than late 2011/early 2012, the applicant was left in no doubt whatsoever that the respondent would not be a party to a de facto relationship with her if the two of them did not enter into a financial agreement whereby the property each owned at the time was protected from any future claim either might have.
I accept that the applicant then believed that the respondent meant what he said about their relationship ending if she did not sign a financial agreement. I consider she was accurate in her assessment. I consider it much more likely than not that the applicant appreciated that a requirement of her “being able to be”[15] in a relationship with the respondent included that she had to execute a financial agreement.
[15] As the respondent put it during his cross-examination.
I accept that, from about August/September 2011, the applicant wanted the relationship with the respondent to work and to continue – as she said, she had already experienced not being in relationship with the respondent. She said she felt that, if she did not sign the agreement, she would lose someone she loved and Z would lose his father; she said she felt pressured to sign the agreement.
Whilst the applicant may well have felt the pressure she said she did in relation to the respondent’s requirement that she sign a financial agreement before their relationship continued to develop again, the law does not impose a remedy in circumstances where one party to an agreement feels any pressure at all: what clearly is required is that whatever pressure is felt is the consequence of undue influence by the other party. I note that the word “undue” may be taken as meaning, in essence, “at a level that is more than necessary, acceptable or reasonable; something that is inappropriate because it is excessive or disproportionate”.
I am unpersuaded that, by maintaining his long-standing and sincerely-held view, as manifested by his unequivocal position (which was well-known to the applicant, even then) that, for him, having a financial agreement was a non-negotiable prerequisite to forming an ongoing “living together” type of relationship with any person (including the applicant), the respondent acted unreasonably or disproportionately. He was, I consider, doing nothing more than continuing to insist on an action (that is, the parties entering into a financial agreement) that he genuinely thought was appropriate and “fair” and which he had raised with the applicant a number of years earlier. It having been raised by the respondent again (entirely consistently with his approach in 2010), the applicant had to determine whether the “price” the respondent continued to seek for them to have a relationship was one which she was prepared to pay.
I accept that factors such as not wanting to be a single parent to a young child, not wanting not to have a relationship with the respondent, feeling like she would “lose” the respondent and even feeling that Z would “lose” his father (which is, I consider, an inaccurate representation of a situation where it was clear that, irrespective of the parental relationship, Z would spend time with the respondent into the future and thereby have an opportunity to have a relationship with him[16]) may well have influenced the applicant in the decision she reached about whether she was prepared, in March 2012, to accede to the respondent’s requirement for them to have a financial agreement if they were to resume a relationship. However, I am unpersuaded that, in deciding to sign the March 2012 financial agreement, the applicant’s will was overborne or that she had been placed, by the respondent’s actions, in a situation where she really had no choice or agency – her choice, it seems to me, was whether, given his insistence that they sign a financial agreement, the respondent was the person with whom she wanted to resume a relationship and, I consider, she remained free to make this decision. It seems to me to be much more likely than not that the applicant weighed the positives and negatives of entering again into a relationship with the respondent and determined that the “pluses” of a relationship with him outweighed the “minus” of meeting his requirement that they enter into a financial agreement.
[16]Noting that the parents rekindled their relationship in 2011 after participating in alternative dispute resolution to address the respondent’s wish to take [Z] to [Country Z] with him for a holiday.
This conclusion would not be different even if, as the applicant asserted, she had told the respondent that she felt conflicted about entering into the March 2012 financial agreement and/or that she thought he was using the agreement as a form of control. In the circumstances of this case, I am not persuaded that, by maintaining his insistence in late 2011/early 2012 that the parties’ entering into a financial agreement was a prerequisite of them having a “living together/de facto” relationship, the respondent was seeking to control the applicant. I think it much more likely than not that his need to protect “his” property (by ensuring that there was a financial agreement in place) meant that, in one sense, he was indifferent to a contrary view. I also suspect that, for him, the idea of using the agreement as a mechanism by which he could control the applicant did not arise because he saw the issue in black and white – either the applicant would sign an agreement or they would not have a relationship and the choice (from his perspective) was hers.
Further, I am unpersuaded that by:
(a)maintaining his long-standing and sincerely-held view that him entering into a de facto relationship with anyone (including the applicant) was conditional upon the other person being prepared to sign a financial agreement intended to ensure that the property each owned was protected from a claim by the other; and
(b)acting upon that view by informing the applicant of it during their discussions between August/September 2011 and March 2012 (and, in essence, “holding the line” about the issue he had previously raised with the applicant in 2010),
the respondent acted unconscionably. His position did not change; he was upfront about it and clear in saying that, for him, entering into a financial agreement was a non-negotiable prerequisite to the existence of “living together/de facto” style of relationship; he did not purport to hold any views about the issue other than the views he freely expressed to the effect that it was not “fair” for any party to a relationship to have a claim on property acquired by another party before the relationship started; he was quite prepared (as he had shown in 2010) to act consistently with those views; he did not allow the applicant to think that the position he had expressed in 2010 about the necessity for there to be a financial agreement between them had changed; he did not seek to mislead the applicant into thinking that his views about financial agreements had changed – his position in late 2011/early 2012 was as it had been in 2010.
The March 2012 financial agreement
The parties signed the March 2012 financial agreement[17] on 19 March 2012. The agreement provided, in essence, that the parties would remain solely entitled to their separate property and solely responsible for their separate liabilities; any property that was jointly acquired would be acquired as tenants in common in shares proportionate to each party’s contribution to its acquisition and the expenses and outgoings of the jointly acquired property would be paid proportionately; any liability that was jointly acquired would be acquired in their joint names and if they rented premises, they would share equally in meeting rent, utilities and day-to-day living expenses. The agreement also provided that paying living expenses together or a party paying living expenses on behalf of the other or making direct or indirect financial or
non-financial contributions to the separate property of the other would not create an entitlement to that separate property or an enforceable debt. Further, the agreement provided that, following separation, if the applicant requested, the respondent would pay spousal maintenance to her in the sum of $1,600 per month for six months.
[17]Said to have been made pursuant to s 90UB of the Act, entitled “Financial Agreements before de facto relationship”.
According to the contents of the schedules to the March 2012 financial agreement (which outline the separate property of each party but do not include the $80,000 the applicant said she owed Mr F at the time)[18] the applicant had, at that time, property with a nett value of about $39,500 whilst the respondent had property with a nett value of about $429,034: that is, he owned property which represented about 92% of the total value of their property if combined, whilst the applicant owned property which represented about 8% of the total value of their property if combined. They owned no property jointly.
[18] and using the USD conversion rate at that time as provided by the respondent in his trial affidavit.
I note the applicant’s evidence to the effect that, whilst the March 2012 financial agreement accurately recorded her ownership of Motor Vehicle 3 (subject to finance), a diamond ring and that she had an entitlement to superannuation with Superannuation Fund 2, it failed to record that she then owed $80,000 to Mr F (being the balance of the funds he had advanced her to assist her in the purchase of the City R property). She explained that, in order to facilitate her refinancing her borrowings with the Y Bank at some time in 2012, Mr F removed the mortgage he had over the title to the City R property and, despite her continuing to owe him the sum of $80,000, did not subsequently bother reregistering a mortgage on the title of the City R property.
On the basis of my acceptance that the applicant owed $80,000 to Mr F when the March 2012 financial agreement was signed (as I accept she continues to do), her financial position at that time was a negative: that is, her liabilities exceeded the value of her assets by about $40,500.
What happened after the March 2012 financial agreement was signed?
Each party gave detailed evidence about their recollections and perceptions of events after they signed the March 2012 financial agreement and started to live together. Neither party struck me as being deliberately dishonest or untruthful; each seemed to me, generally-speaking, to be giving an honest recounting of their perceptions and perspectives of past events. I have accepted aspects of the evidence given by each. That their evidence differs in so many respects seems to me to highlight the difficulty inherent in attempting (in a case such as this which requires the assessment, in a cumulative sense, of a disparate conglomeration of interactions which happened between the parties between 2010 and December 2018) to ascertain, in the course of determining proceedings in which the parties’ interests are now diametrically opposed:
(a)whether what each asserts as having happened actually happened as asserted; or
(b)whether matters which were unobjectionable, tolerable or accepted as part of the totality of being in a relationship with each other when they happened are now, viewed in retrospect through the prism of self-interest, seen as demonstrative of impermissible influence, pressure and control and as manifestations of conduct which was unconscionable.
Acquiescence by a party in a relationship to a position or point of view taken or expressed at the time by the other party to the relationship (an occurrence which, it seems to me, occurs about some issues and to some degree in all relationships at some stage) can so easily, upon subsequent reflection, coalesce to persuade the person who had been entirely willing to yield to the stance adopted by the other that, in fact, they had no choice but to yield; a party’s willingness to accord a partner some sense of relative “expertise” in a particular sphere of their shared lives (for example, the management of finances; decisions about acquiring possessions; the organisation of social interactions; the determination of holiday plans and locations) can transform, upon reflection, to the view that the “expert” partner imposed their views and left the other no choice but to go along; a party’s willingness to adopt the suggestions proffered by their partner can so easily establish a pattern of interactions by which the party providing the suggestions assumes the need for them and that they will be adopted, whilst the party who originally sought the suggestions continues to do so by force of what is, in one sense, no more than habit: neither “forces” the other to continue in this pattern of interaction; both may, at times, find it onerous; and yet, neither can stop it happening until the pattern finally becomes, for one of them, untenable – after which it is seen, in hindsight, as a manifestation of an
over-arching influence that rendered the party seeking the input and suggestions powerless in the face of the force of the same; discussion about business matters, during which one party expresses their views forcefully, can easily be seen, in hindsight, as dictatorial; comments during the existence of a relationship by a party who considers themselves to have greater experience and expertise about a particular issue can easily, upon reflection, be seen as undermining the confidence of the other.
I accept the respondent’s evidence, given when he was cross-examined, to the effect that it was very important to him personally that the applicant have an income of her own, that his position during the relationship was that he expected her to earn an income so that she could contribute to household expenditures and that he made her aware of these views. Given this, I accept that, when the applicant established two businesses in 2013, the respondent supported her in these ventures, although I am not persuaded that he encouraged her to start her own business so that he could have more control over her. I accept that the applicant initially operated her business from the parties’ shared home, including when it grew to the point where she engaged a number of staff to assist her in it. I think it much more likely than not that, from the time of the business’ inception, the applicant and respondent had many discussions about it and matters associated with its operation. I think it much more likely than not that the respondent proffered multiple suggestions to the applicant about how she could operate her business, including about issues such as having her staff complete timesheets, her acquisition and use of specific software, her engagement with bookkeeping and accountancy services, how she might manage difficult clients and, later, how she should approach seeking to terminate a commercial lease when the loss of a significant client caused the business to suffer financial hardship.
I accept that the parties and Z travelled to and lived in the United States of America (“USA”) between about mid-2013 and early 2014; I accept that, during this time, they initially travelled around for about three months before staying at the City V property which then underwent some renovations (funded without direct financial contribution from the applicant) during their stay; I accept that, during this period of time, the applicant continued to work in her business remotely, whilst the respondent took advantage of being on leave. At this stage, it is, I think, necessary only to record that the parties differed significantly in their respective accounts of the contributions each made to the renovations to the City V property and to the various tasks associated with them living there.
To the extent that it is necessary to do so, I record that I think it unlikely that the discussion between the parties about travelling to the USA to spend time at the City V property during the respondent’s leave occurred only in mid 2013 because it seems highly unlikely to me that he would have been able to take such leave without having been required to apply for it the previous year; it seems much more likely than not that, as the respondent said, he and the applicant discussed his plan to take his leave in late 2012.
However, I also think it quite likely that the respondent’s approach to travelling to City V to spend time there during his leave was, simply, that this was what he was going to do. His position, it seems to me, was that either the applicant and Z would accompany him or, if they did not, he would not be paying for them to continue to live in Queensland: so much is, I consider, established by his actions in terminating the lease for the rental property (located next door to the City H property) in which he, the applicant and Z had been living before they left Australia to travel to the USA.
The parties differed in their account about whether the respondent had an affair whilst they were living in the USA: the applicant said that he did, whilst the respondent said that he had not had a sexual relationship with the woman, although he accepted that they had argued about her. It is, I consider, unnecessary to resolve this issue. What is clear is that, in December 2013, the respondent asked the applicant to marry him and the applicant accepted his proposal. To the extent that it is necessary to record it, it seemed to me that he was not really challenged about his evidence to the effect that he had planned to ask the applicant to marry him before they travelled to the USA and that, in furtherance of his plan, he had designed her engagement ring and had it made using rings which had previously been family heirlooms.
It seems accepted that the applicant told the respondent, reasonably soon after the family returned to Australia in early 2014, that she wanted to have a second child. On the applicant’s evidence, his response was to tell her, in essence, that he would not agree to them having a second child until she was earning $100,000. The respondent denied this assertion; he denied telling the applicant that she needed to increase her personal income before he would even consider having another child with her or that, before they would have a second child, she needed to increase her income to at least $100,000 and that this was not negotiable; he denied being concerned about the financial impact of having another child; he denied not wanting his income to be further eroded by having another family member and he said that the applicant had not been earning $100,000 when they planned and conceived X.
I note that the applicant’s evidence included that, despite her efforts in her business, she never earned $100,000: despite this, the parties did have a second child together. The fact that they subsequently did and that X was born in 2018 does not, though, necessarily establish that, at least initially, the respondent did not press the applicant to earn a not-insubstantial income before they embarked on having another child together.
I accept that the applicant emailed Ms D on 8 December 2015 in the following terms:
Hello [Ms D],
I hope that this finds you well- I am hoping to talk to someone (or yourself) about what I am dealing with in terms of what was discussed with you in your office last year with [Mr Telfer].
I am having a hard time 12 months down the track with feelings towards [Mr Telfer’s] requirements of earning $100K+ before I am able to have a child.
It is having a ripple effect on my life and my feelings towards my business, so I think it would help to sit down with someone and talk through it.
I am not sure whether or not you might have the time, or if you could refer me to someone you might recommend?
Thank you [Ms D], I really appreciate your time and response.
I accept Ms D’s response later that evening included telling the applicant that Ms AA would be a good person for her to talk to independently and that she did not think that the respondent would be willing to meet with her again.
I accept the respondent’s evidence that he did not know that the applicant emailed Ms D on 8 December 2015 – either at all or in the terms that she did. I accept that he did not know that Ms D’s response included a recommendation that the applicant attend on Ms AA. He said that he did not recall there being discussion between himself and the applicant in Ms D’s company about his asserted requirement that she had to earn $100,000 before she was able to have a second child.
As already noted, I think it much more likely than not that, during the course of their relationship, the applicant and the respondent discussed aspects of the applicant’s business; I think it highly likely that these discussions included how the business was tracking financially, how staff employed in it were going, what the applicant was doing in her management and operation of it and what other things could be done to aid its development. However, on balance, I am not persuaded that it is more likely than not that the respondent took on what was really a managerial role in the applicant’s business. Again, it seems to me that the scope for difference in perspective looms large – what was regarded by parties at the time as one providing the other with support and assistance in that person’s business (including in various practical ways) can so easily be seen, in retrospect, as that person acting in a managerial way; supporting the person operating the business by reviewing and discussing financial matters associated with its operation can so easily be regarded, later, as attempting to control the person in their operation of the business.
The respondent’s account was, in essence, that he helped the applicant out when he was asked to, which he said was fairly regularly and maybe once per week or once per fortnight; he said that, when the applicant asked him for help with the business and, in particular, to look at ways to make it more efficient, he asked her if she was keeping timesheets and, when she told him that she was not, he located some software that she could use so that she could keep accurate records. He agreed he attended on the applicant’s bookkeeper in late 2017 and said that he had done so, in essence, at the applicant’s invitation and in response to her request that he help her to understand the software that was being used. He said that, if the applicant asked him for help, he gave it, but he denied that he had more or less taken over the decision-making in her business by September 2017.
The respondent denied the suggestions that he had, in essence, involved himself in the applicant’s business without her permission and had taken over her management and operation of it; he denied having discussions with staff about the contents of their timesheets or sitting them down on multiple occasions if he felt they were not doing the right thing or talking to them if he perceived that they were not correctly filling out or completing their timesheets to his standards. None of the staff employed by the applicant in the business (which, by the end of 2016 numbered three, all of whom worked from the City H property where the family lived) were witnesses in her case.
It seems more likely than not that, after the parties started living together and the applicant started her business, the income each received from their respective labours was first paid to each of them respectively before they each contributed, as agreed, to a joint account which was used to meet some of the household expenses, including health insurance premium payments. Whilst there may well have been some financial aspects of the respondent’s affairs that he did not discuss with the applicant, I think it more likely than not that, as he said, he included her in various emails containing information about his life insurance and TPD insurance so that she would know that she would be “taken care of” financially if he died.
I think it more likely than not that, after there was a prospect, in about late 2015, of the applicant’s brother (Mr AC) and the applicant becoming co-owners of real property, the respondent spoke with the applicant about the issue of financial agreements generally and how to protect the property from possible future claims by Mr AC’s partner. I think it much more likely than not that the applicant was reticent to raise the issue of a financial agreement with her brother; given his focus on financial agreements and his views about the necessity for people to use them to protect property they owned from potential claims by subsequent partners, it seems to me to be much more likely than not that it was the respondent who pressed the applicant to suggest to Mr AC that he should get a financial agreement with his partner to protect him if they broke up.
The respondent’s evidence included that, in late 2015, the applicant, Mr AC and Mr F considered developing the City R property – he said that he and the applicant discussed: financial agreements generally; entering into a new financial agreement in anticipation of their marriage; and how to protect the City R property from Mr AC’s partner in the future. The applicant did not agree with the suggestion that, in May 2016, she and the respondent spoke about entering into a new financial agreement after their marriage – her account was that the respondent had been pushing her to suggest to Mr AC that he get a financial agreement with his partner to protect him if they broke up.
The parties marry in early 2017 – what happens next?
When the applicant and respondent married in early 2017, the March 2012 financial agreement ceased to be binding.[19]
[19] Family Law Act 1975 (Cth) s 90UJ(3).
I accept that, after the parties married, the applicant continued to raise her desire to have another child; I note that the respondent’s evidence included that, whilst he raised concerns about the impact on her business of them having another child, the applicant was insistent and, consequently, they started trying for a second baby straight away; the applicant’s evidence included that the respondent continued to insist that they not have a second child until she was earning $100,000 per year in her business. Even if this was the case, the reality is that, despite not earning her $100,000 in her business, the applicant learned she was pregnant in mid 2017.
I accept that a number of other significant matters happened during 2017. For example, in April 2017, the applicant leased some commercial office space (by way of a three year lease and the provision of personal guarantees) and, thereafter, she and her three staff worked in her business from those premises; renovations to the City H property, which had been ongoing for some time, were completed in about mid-2017 and the respondent subsequently refinanced the borrowings associated with it;[20] in about November 2017, the applicant was told that, because her pregnancy was considered high-risk, she should try and relax; in what was clearly a case of unfortunate timing, the applicant had difficulty with a major client in late 2017 and the business ultimately lost that person’s business, which had the consequence that she had to make two members of staff redundant and resulted in her thinking that she should try and break the lease. I think it more likely than not that the respondent assisted the applicant to deal with matters arising from the difficulties with the business’ major client; I certainly accept that these difficulties were very stressful for the applicant and caused her to feel very stressed about the existence of the business lease into which she had entered only earlier that year; I accept that the applicant decided that she wanted to try to break the lease and return to operating her business from the City H property. I am unpersuaded that the respondent opposed this idea because of an asserted concern that it would somehow contribute to the applicant having a potential claim against the City H property – as he said, she was already living in that property with him and Z.
[20] By borrowing $670,000 and applying the funds in the manner particularised in his trial affidavit.
It is clear that, in mid-January 2018, the respondent took Z with him to the USA for a holiday. It is also clear that this trip was of six weeks’ duration. The parties are, again, at odds about the circumstances surrounding the trip: the applicant’s account is, in essence, that the respondent took Z with him despite her wish that he not do so and that the respondent not be away from her for six weeks because of the stage of her pregnancy, whereas the respondent’s account includes that he and Z travelled with the applicant’s blessing as she thought it would be good for them to spend some time together before the baby was born and that, whilst they ended up being away for six weeks, their trip was originally planned to be for only three weeks but was extended because Z developed an ear infection and could not return home to Australia as originally planned.
How can it be thought, in the circumstances of this case, that, in actioning his clearly expressed and inviolable views about the necessity to protect property he had worked to acquire or had received from his family from a claim by the applicant, the respondent was acting unconscionably toward her? She was, it seems to me, free at all times to determine that, for her, the existence of a financial agreement was an anathema and an impediment to the continuation of their marriage – in the same way that the respondent determined, in 2010 and 2012, that the absence of a financial agreement was an impediment to the continuation of their relationship or its development into a de facto relationship or a marriage.
When each party is fully aware of the position of the other in relation to this issue – as I consider each of these parties to have been at all times since 2010 – is it unconscionable for one of them to act consistently with their clearly expressed and known views?
Whilst others may disagree, I am not persuaded that it is.
For the reasons outlined above I am not persuaded that the December 2018 financial agreement is vitiated by the respondent’s unconscionable conduct toward the applicant at the time she entered into it.
The parenting aspect of the proceedings
The parenting orders sought by the applicant at the commencement of the trial were as set out in the Amended Initiating Application filed 7 April 2021 and Case Outline filed 7 May 2021. They included that she be accorded sole parental responsibility for the major long-term issues relating to the children,[38] that the children live with her and spend time with the respondent on set days during the school term and in block time during school holidays, as nominated by him in advance each January. In the event that the respondent’s roster did not permit him to care for the children on the set days, he would be required to notify her.
[38]With an accompanying obligation to consult with the respondent about decisions, other than in emergency situations.
The parenting orders sought by the respondent at the commencement of the trial were as set out in in his Further Amended Response filed 31 March 2021 and Case Outline filed 7 May 2021. They included that he and the applicant have equal shared parental responsibility for the major long-term issues relating to the children, that the children live with the applicant and spend time with him on the days he nominated after receiving his roster for the next 28 day period. He proposed the children spend up to 186 nights per year with him, by way of them spending up to 18 nights in each 28 day roster period in his care (starting immediately for Z and, insofar as X is concerned, commencing with up to 11 nights in each 28 day roster period, in three night blocks, until, by January 2023, X would be spending the same time with the respondent as Z). The respondent’s proposal also provided for the applicant to nominate one weekend in each school term that the children would spend time with her and provided her the ability to request that the children spend certain dates with her. As to school holidays, the respondent sought that the children spend up to nine weeks of the school holiday periods each year with him at his nomination, subject to specific weeks being reserved for the children to spend time with the applicant.[39] He sought to be able to remove the children from school for nominated weeks each year so that they could holiday with him.
[39] Those being the first week of the end of Term 1, 2 and 3 holidays and the first two weeks of the end of Term 4 holidays.
Both parents modified their proposals during the course of the trial. According to the written submissions filed on behalf of the respondent on 18 June 2021, his position became that he sought that, upon receipt of his roster for the next 28 day period, he mark up the days on which he is available to spend time with the children and send the same to the applicant, who would then nominate the days (from those marked up by the respondent) that the children are to spend with him. He sought that the children spend up to 16 days in each roster period with him in blocks of up to seven nights at a time (on an increasing basis for X). If it was not possible for the children to spend 16 days in a roster period with him, he proposed that they spend the maximum number of nights with him in any roster period that they could. He maintained, in essence, that the children’s best interests would be met by them spending time with him whenever he was not working and available to them. He also maintained that it was in the children’s best interests for him to be able to remove them from school to spend holidays with him on the provisos outlined in his proposed orders.[40]
[40]See: the orders proposed in the submissions filed on behalf of the respondent on 18 June 2021, at clauses 12 to 15 in particular.
The applicant’s position also changed – at least in relation to her proposal for the children’s time with the respondent.[41] The written submissions filed on her behalf on 14 July 2021[42] outlined her proposal that the children live with her and spend up to 10 days per 28 day roster period with the respondent; that the respondent mark on his roster those days when he is available to have the children spend time with him and, from those, she select the days that the children spend with him;[43] the written submissions also included her proposal for the children’s time with each parent during school holidays, being that they spend time with her during the first week of each of the holidays at the end of Terms 1, 2 and 3 and the first two weeks of the December/January school holidays (as the respondent had proposed) and otherwise spend up to the entirety of the balance of the holidays with the respondent, provided that he is not working and provides her with no less than 10 weeks’ notice; she proposed that, if the respondent did not provide her with such notice, the children spend time with him as they would during the school terms, provided that the number of nights during each roster period was reduced in proportion to the number of nights of the children’s holiday time with her in the same period.
[41] Her position that she ought be accorded sole parental responsibility did not change.
[42]Which amended, in certain respects, the orders particularised in her Case Outline filed 7 May 2021.
[43] This proposal was also subject to the caveat that [Z] spend no more than seven consecutive days with the respondent, [X] spend no more than three consecutive days with the respondent prior to him starting Grade 1 and the children spending at least two weekends per roster period with the applicant.
Brief summary of the relevant legislative provisions and applicable principles
In these proceedings, being proceedings for a parenting order[44] in relation to the children, I may, subject to s 61DA[45] and s 65DAB[46] and Division 6 of Part VII of the Act, make such parenting order as I think proper.[47] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[48] In deciding whether to make a parenting order, I must regard each child’s best interests as the paramount consideration.[49] Further, when making a parenting order, the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them[50] must be applied unless it is, by virtue of the matters prescribed in s 61DA(2) of the Act, rendered inapplicable or (it if it applies) is rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them.[51] If the parenting order ultimately made does not provide that the parents have equal shared parental responsibility for the children, then the power to make parenting orders pursuant to s 65D of the Act is “at large”, albeit subject always to the children’s best interests being the paramount consideration.[52]
[44] Family Law Act 1975 (Cth) s 64B.
[45] Presumption of equal shared parental responsibility.
[46] Parenting plans.
[47] Family Law Act 1975 (Cth) s 65D.
[48] Family Law Act 1975 (Cth) s 60B.
[49] Family Law Act 1975 (Cth) s 60CA and s 65AA.
[50] Family Law Act 1975 (Cth) s 61DA.
[51] Family Law Act 1975 (Cth) s 61DA(4).
[52] Cox & Pedrana (2013) FLC 93-537 at [19]; Family Law Act 1975 (Cth) s 60CA and s 65AA.
The matters to which regard must be had in determining those parenting orders which are in each child’s best interests are found in s 60CC of the Act. The requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[53] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in the children’s best interests. I have considered all of the relevant considerations in arriving at my conclusion about those orders which are in each child’s best interests.
[53]See Banks & Banks (2015) 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).
I accept that, in his January 2021 report,[54] Mr G[55] noted that neither parent had any particular concerns about the other’s parenting of the children. He said the applicant’s concerns were about giving the children stability and routine in their parenting regime, whereas the respondent’s concerns were about ensuring that he was not marginalised from the children because of the impacts of his work roster.
[54]prepared after conducting observations on 25 November 2020, interviews with the parents and [Z] on 25 November 2020 and further interviews with the parents on 21 and 22 December 2020.
[55] A social worker in private practice.
Whilst the applicant raised at the trial that she had some concerns about how the respondent approaches his parenting of Z as this child moves through his teenage years, it seems to me that these concerns really amounted to them having differences in parenting approaches and style: I accept, as the applicant did, that the respondent is, in some sense at least, a stricter parent than she is. I think it highly likely that he approaches parental decisions (about matters such as consequences for behaviours) in a more rigid fashion than the applicant does; I think it highly likely that the applicant’s parenting style and approach to her parenting of the children is more relaxed than the way in which the respondent approaches his parenting of them. Whilst trite, it is, I think, pertinent to comment that it is highly likely that each parent’s future relationship with each of their children will reflect how each decides to approach the various parenting issues that will, no doubt, arise as their children move toward adulthood.
Even taking their differences in parenting style and approach into account, it seems to me that, given the parents’ respective overall views of each other’s parenting, the need to discuss specifically many of the statutory considerations falls away. It is, I think, sufficient simply to record my conclusions that:
(a)these parents agree that their children will benefit from the opportunity to continue to have and develop meaningful relationships with each of them into the future;[56] and
(b)both parents have been involved in their children’s parenting when their respective work-arrangements have permitted them to be so involved and both seek the opportunity to continue to be so involved into the future; and
(c)both children have developed relationships with each of their parents and want to continue to spend time with, and develop their relationships with, each of their parents; and
(d)the nature of the children’s relationships with the respondent into the future is highly unlikely to be significantly adversely affected if they are unable to spend every day and/or night he is not working with him: that is, the quality of their relationships is, I consider, unlikely to be significantly adversely affected by a diminution in the quantity of time the children spend with him; and
(e)both children will continue to have the opportunity to continue to have and develop meaningful relationships with the respondent irrespective of whether the time they are able to spend with him occurs on every day that he is not away for work or occurs for no more than 16 days/nights in every 28 day roster or for no more than 10 days/nights per 28 day roster – particularly given that such time (whatever its quantity) will be supplemented by the time they will have the opportunity to spend with him during the school holiday periods if he is not working.
[56] Family Law Act 1975 (Cth) s 60CC(2)(a); see also, McCall & Clark (2009) FLC 93-405.
In addition, I consider that the children will benefit from being able to know with greater certainty what their parenting arrangements will be during any period of time – to the extent that spending less time with the respondent than they have previously is necessary to ensure that they are afforded as much consistency, routine and stability as is possible (taking the 28 day roster by which the respondent works into account), then I have placed more weight on attempting to ensure they have as much consistency, routine and stability as is possible than on ensuring they spend time with the respondent on every day he is not working. I have done this because, as I have said, I am completely confident that the children will continue to be able to have meaningful relationships with the respondent even if the time they spend with him is diminished as a consequence of the reality of his roster arrangements having now to be managed, practically, across two separate households rather than one.
Allocation of parental responsibility
I accept that the applicant and respondent have previously had interim parenting orders for equal shared parental responsibility for major long-term decisions relating to the children. I accept that, when the respondent was stood down from work because of the COVID-19 pandemic, they agreed that the children should live in an equal-time parenting regime.
Given that the applicant was legally represented when she previously agreed to interim orders which provided for the parents to have equal shared parental responsibility for major long-term decisions relating to the children, I am a little sceptical about her explanation that she had done so because she felt then that there was no other way.
In any event, the applicant’s position changed in March 2021 such that she sought an order for sole parental responsibility, despite the history of agreement about interim orders according the parents equal shared parental responsibility. Her evidence included that she had done this because her subsequent lived experiences of the interim parenting arrangements, the conflict she felt existed between herself and the respondent and the nature and style of his past communications with her was such that she was now fearful of making any decisions with him.
It is I think, pertinent to note that, whilst an order for equal shared parental responsibility requires parents to make decisions (about the major long-term issues in relation to their children) jointly[57] and to consult each other in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about it,[58] the Act does not prescribe the manner by which parents must discharge these obligations – they are not, for example, required to engage in face-to-face, in-person discussions and may, obviously, use whatever means of communication they prefer to enable them to fulfil the obligations that the Act casts upon them.
[57] Family Law Act 1975 (Cth) s 65DAC(2).
[58] Family Law Act 1975 (Cth) s 65DAC(3).
I accept that, as at November 2020, the applicant’s position and evidence included that she and the respondent could communicate effectively and make joint decisions for the children. I accept that, when she was asked to particularise what had happened since November 2020 to cause her to seek an order for sole parental responsibility, she said that she had written and read a lot of material and felt that she had come “a long way”: she was now at a point where she knew she could not negotiate with “this man”, whereas “back then” she had been “a shell” who could not speak up. She also said, in essence, that one of the things that had made her reflect about having equal shared parental responsibility with the respondent was that he wanted X to attend AH School (which is at the other end of the Gold Coast to where she lives): she said she knew from her past communications with the respondent that he did not negotiate and would not have any other alternative position to this. She said that thinking she was going to have to make a decision about where X attended school with “someone that won’t budge or negotiate” caused her a lot of stress. She also felt, in essence, that the respondent simply ignored her assessment of the impact of the post-separation parenting regime on the children.
Whilst the applicant also accepted that she had not, at the time, asked the respondent to discuss the issue of where X would attend school and said, when asked whether there were examples of decisions for long-term “things” that she and the respondent had not been able to make, “not that I can think of on the top of my head, no”, I think it highly likely that the respondent has been dismissive of her reports of her experiences of the impact on the children of the changes to their living arrangements since the parental separation. Given his approach to Z’s attendance at his current school, his opposition to X attending the same school and what I regard as his determined insistence on X attending a school that more suits him in terms of its location than the applicant, I think it highly unlikely that these parents will be able to reach a joint decision about where X goes to school.
Given that the children will live primarily with the applicant and, consequently, she will primarily bear the practical impost of decisions about where they go to school and noting that the respondent did not seek any order that Z be removed from his current school (which I accept was chosen primarily by the applicant), I consider that the children’s best interests will be met by according the applicant sole parental responsibility for decisions about their education. In that way, the Court can be sure that the children’s educational needs will not be stymied by parental disagreement.
Despite my conclusion about how it is in the children’s best interests for decisions about their education to be made, I remain optimistic – especially given the applicant’s evidence about there not being any other major long-term issues about which they have been unable to agree and that, despite the difficulties that both parents have had to deal with after the parental separation, they had been able to communicate about the children – that they will, in the future, be able to make decisions jointly about all of the children’s major long-term issues, other than those which relate to their education.
To the extent that being required to do so may cause the applicant stress, anxiety and/or frustration because, from her perspective, the respondent is likely to continue to discount any opinions or thoughts she may proffer about the children and their progress, I think it more likely than not that, as she has previously (for example, when she attended on Ms AE from October 2019 onwards), the applicant will seek professional support.
Living and time orders: what orders are in the children’s best interests?
I accept that the applicant wants to ensure that the children do not miss significant periods of time with the respondent; I accept that she acknowledges that their best interests will not be met by there being a drastic reduction in the time they can spend with him. I also accept that, if it was necessary for her to do so, she would, subject to her primary concerns about stability and routine and them having sufficient weekend and holiday time with her, adjust her own routine to ensure that the children were able to spend significant time with the respondent. I accept that she was genuine and child-focused in her desire to try to minimise the number of changeovers the children are required to experience during the respondent’s 28 day roster. I note and accept her evidence to the effect that she had no difficulty with the respondent asking for the children’s time with him to commence a day after he finished working. I also note that, if the respondent made this sensible and entirely reasonable request at times when he was available to have the children spend time with him for say, 12 nights in a 28 day roster period, it is likely that, for that roster period, the children’s time with him would occur – on his proposal – for 11 nights (which is only one night more than what would occur if the applicant’s proposal was adopted).
I accept the thrust of the applicant’s evidence to the effect that, whilst her employment in the business operated by her mother and Mr F has afforded her security and significant flexibility and allowed her to, in essence, work around the children’s needs and care arrangements, such flexibility depends upon them continuing to extend the same to her and requires that she remain working for them – in an occupation that differs from what she did prior to the parental separation. I also accept, though, that it is highly likely that whatever employment the applicant takes up in the future will afford her greater flexibility than the 28 day roster to which the respondent is subject.
I accept that, save for the period impacted by the onset of the COVID-19 pandemic, the respondent has worked to a 28 day roster throughout the children’s lives. The minimum number of days on which he has to work in each 28 day roster is 11, the maximum is 18. I consider that it is more likely than not that the respondent is likely to be available to spend time with the children for between 11 and 13 nights, on average,[59] in any 28 day roster period.
[59]A dangerous term because it so obviously depends on the periods of time taken into account to arrive at the same.
Given the parties’ agreement about how and when the respondent will provide the applicant with a copy of his roster, it seems to me that it is necessary only to note that it is more likely than not that she will only ever receive no more than seven days’ notice of the respondent’s availability (or unavailability) to spend time with the children in the first week of each roster period. I consider that, if the applicant is required, by order (as opposed to by her decision that the same is something that is in either of the children’s best interests), to make the children available to spend time with the respondent during this period, it will be very difficult for her to ensure that the children have a sense of routine and a feeling of stability and control.
Nominating the number of days in each roster period as sought by the applicant would, it seems to me, provide her with greater flexibility in nominating those days when the children will spend time with the respondent – it seems to me that orders in the terms she sought in this respect would be more likely to enable her to avoid having to arrange, at very short notice, for the children to spend time with the respondent in the first week of his roster than would be the case if orders allocating the number of days per roster period were made in the terms sought by the respondent.
I accept the thrust of the applicant’s evidence to the effect that, whilst neither child expressed any concern about the respondent’s roster when they were interviewed by Mr G, it is highly likely that this was because, at that time, the respondent was not the subject of the roster (in the sense of him being away from his home for work). I also accept that, whilst Mr G’s report included a recommendation that the children have the opportunity to spend up to 186 days/nights per year in the respondent’s care, he did not recommend that they spend exactly that amount of time.
I note that the applicant advanced that, when compared to the orders sought by the respondent, the parenting orders she sought were in the children’s best interests because the same: provided more stability for her and the children; provided better routine and consistency for the children; would better support Z to continue to develop relationships with his friends; better supported the children in their school attendance; better enabled both children to maintain meaningful relationships with the respondent, even if their time with him was disrupted because of his roster; would better enable her to regain control over her life so as to be the best parent she can be for the children – rather than meaning that she would have to continue to have her life and work dictated by the respondent’s work roster. I generally accept these contentions.
I accept that, prior to the parental separation, the children lived in a household where the respondent’s presence or absence was dictated by the terms of his 28 day roster. However, I consider it significantly different for them to be required to cope with the same when living in two separate households: it seems to me that, during the existence of the parental cohabitation, the children’s lives continued unabated irrespective of whether the respondent was present in the home or away working – he was the person who came and went whilst they continued on in their stable, consistent routine of activities. I think it more likely than not that, if the children are required to continue to live in a parenting regime as proposed by the respondent, they will be required to come and go more frequently than would be required if orders were made in terms sought by the applicant; theirs will be the lives which are disrupted; increased uncertainty and greater unpredictability for them will be the cost of ensuring that their interactions with the respondent occur as they did prior to the parental separation.
Whilst a parenting regime in terms sought by the respondent would enable the children to continue to spend the same amount of time with him as they did prior to the parental separation, it will come at a cost of disruption, uncertainty (in the lead-up until the provision of the next roster) and unpredictability – costs that the children (and not the respondent) and, to a significant extent, the applicant will be required to bear: from the respondent’s perspective, nothing will change; from the children’s perspective they will be unable to make plans into the future with any degree of certainty because they will know that such plans – particularly for the first week of the respondent’s roster – cannot be confidently made until the applicant receives (no more than a week prior to its commencement) the respondent’s roster for the upcoming 28 day period; they will be the ones required to move between households including (particularly in the first week of any 28 day rostered period) with relatively little notice about what their upcoming living arrangements will be – in contrast to the situation which occurred during the parental cohabitation, where the respondent was the person who came and went and, from the children’s perspectives, the household routines continued largely unabated.
Given that I am easily persuaded that these children will be able to maintain and develop meaningful relationships with the respondent if they live in a parenting regime governed by terms proposed by the applicant, I am simply unpersuaded that their best interests are met by requiring them to cope with the disruption inherent in the respondent’s proposal simply to ensure that they spend exactly the same amount of time with him now and into the future as they spent prior to the parental separation. It seems to me that the respondent has, perhaps, focused too much upon the quantity of time the children will be able to spend with him and too little upon the quality of the same.
The orders advanced by the applicant will enable the respondent to spend as much time with the children as is consistent with what I consider to be the greater need for them to have predictability in their routines; once provided with his roster showing the nights on which he is available in the upcoming 28 day roster period, she will be empowered to select 10 nights from those as being the nights when the children will spend with him. Should the children want to spend more time than that with the respondent when he is available during a roster period, the applicant will, of course, be able to determine whether, given the arrangements she has made for her household, such time can be accommodated.
In this respect I accept that the applicant would likely encourage both of the children to spend whatever time they may, at varying times during their development as children, tell her that they would like to spend with the respondent (provided, of course, that it does not interfere with pre-existing events or decisions that she has already made about their activities). I am not remotely persuaded that this mother would act to prevent the children from spending time with the respondent if they made her aware of a desire to spend time with him and she could reasonably accommodate the same.
I am easily persuaded that the children will be able to continue to have, and continue to develop, meaningful relationships with the respondent if they are afforded the opportunity to spend time with him generally in accordance with orders in the terms suggested on behalf of the applicant; I consider it more important for them to have the benefit of a greater degree of predictability about their care arrangements than to ensure that they are able to spend every available day with the respondent. To the extent that something must give way, I consider that it is more important to accord the children predictability of routine than quantity of time with the respondent – because I am confident that they will continue in their strong relationships with the respondent even if the quantity of time they spend with him decreases.
I am not persuaded that the respondent’s proposal for the children to be able regularly to miss school in order to spend holiday time with him (was proposed by clauses 12 to 15 of the orders included in the written submissions filed on his behalf on 18 June 2012) is something that is in their best interests. Whilst I accept that, historically, the parents have permitted this to occur, I note the applicant’s concern about the potential impact upon the children’s educational progress (particularly Z’s given his age).
Even taking into account the respondent’s evidence that he would ensure that the children complete whatever schoolwork may be provided for them, in the absence of parental agreement about the issue of the children failing to attend school, I consider that the children’s best interests will be better met by them attending at school and receiving their education in a manner consistent with that provided to their classmates rather than participating with the respondent in the annual holiday he proposes – even if it is accompanied by a requirement that they complete schoolwork.
In arriving at this decision I have also taken into account that it is possible for the respondent to bid for his holidays to occur during the children’s school holiday periods – although I also note and accept that he may well not be permitted to take leave during school holiday periods. I am confident that it is much more likely than not that the respondent will, in the future, do all that he can to try to ensure that he is able to take at least some of his holidays during at least one of the four school holiday periods that occur in any year. The orders made will ensure that, even if he cannot obtain leave during the children’s school holidays, they will still be able to spend time with him during the same.
To the extent that any other aspects of the parenting orders to be made are not the subject of particular discussion in these Reasons, I have concluded that the same are in the children’s best interests because such orders will, for example: enable both parents to be kept informed about the children and their progress and afford the children the opportunity to maintain communication with each parent in the time between face to face interactions.
For the reasons expressed, I consider that the orders set out at the commencement of these Reasons are the orders which, in the reality of the children’s circumstances, as established by the evidence before me and as adverted to above, are now in their best interests and proper.
I certify that the preceding two hundred and two (202) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 29 July 2022
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