THURLOW & AMBER
[2019] FCCA 3939
•23 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THURLOW & AMBER | [2019] FCCA 3939 |
| Catchwords: COSTS – Application for costs by independent children’s lawyer – absence of submissions in this regard – circumstances where neither party has received Legal Aid – circumstances where neither party has been wholly successful or wholly unsuccessful – Application advanced on ‘no evidence’ basis – Application dismissed. |
| Legislation: Family Law Act 1975 (Cth): ss.10B; 60B; 60CA; 60CC; 61C; 61DA; 65DAA; 65DAC; 65F; 68B; 75; 78; 79(4); parts VIII & XV Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Kowaliw & Kowaliw (1981) FLC 91-092 Stevenson & Hughes (1993) FLC 92-363 |
| Applicant: | MR THURLOW |
| Respondent: | MS AMBER |
| File Number: | PAC 5428 of 2016 |
| Judgment of: | Judge Harman |
| Hearing dates: | 21 & 22 January 2019 |
| Date of Last Submission: | 22 January 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 23 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | KPL Lawyers |
| Solicitors for the Respondent: | Mr M. Brown of Browns the Family Lawyers |
| Counsel for the Independent Children’s Lawyer | Mr Cairns |
| Solicitors for the Independent Children’s Lawyer | Auslawyers |
ORDERS
The parties, Mr Thurlow and Ms Amber, shall have equal shared parental responsibility for their children, X, born in 2004 and Y, born in 2007.
Y shall live with her Mother, Ms Amber.
X shall live with his Father, Mr Thurlow.
X shall spend time with his Mother as follows:
(a)One weekend per calendar month being, absent agreement to the contrary between the parties, the second weekend of each month from 5pm Friday until 5pm Sunday;
(b)One additional weekend per month which, failing agreement between the parties to the contrary, shall be the fourth weekend of each month from 10am until 5pm Sunday;
(c)On the Mother’s Day weekend in each year from 5pm Friday until 5pm Sunday;
(d)5pm Christmas Eve until 5pm Christmas Day in 2020 and each alternate year thereafter;
(e)5pm Christmas Day until 5pm Boxing Day in 2019 and each alternate year thereafter;
(f)Such further and/or other times as are agreed between the parents.
Y shall spend time with her Father:
(a)Each alternate weekend during school terms from the conclusion of school Thursday until the commencement of school the following Monday (extending to Tuesday in the event of a long weekend or pupil-free day) first such period to commence on the first weekend of each school term;
(b)Each intervening week during school terms from the conclusion of school Thursday until the commencement of school the next day (Friday), first such period to commence on the second Thursday of each school term;
(c)For one half of each New South Wales school holiday period being:
(i)During each of the short school holidays (those following conclusion of terms 1, 2 and 3) from the conclusion of school Friday until 5pm on the middle Saturday of the holiday period;
(ii)For one half of each Christmas/New Year school holiday period and, absent agreement between the parents to the contrary:
(1)For the first half of the holiday period in 2019/2020 and each alternate year thereafter, being from the conclusion of school on the last day of school attendance until 5pm 9 January;
(2)For the second half of all such holidays commencing 2020/2021 and each alternate year thereafter from 5pm 9 January until 5pm on the last Sunday of the school holiday period;
(d)For the Father’s Day weekend in each year from the conclusion of school Friday until 5pm Sunday;
(e)Such further and/or other periods as are agreed between the parents from time to time.
THE COURT NOTES that whilst the default periods that X is to spend with his Mother are defined by reference to the second and fourth weekend of each calendar month it is the intention of these Orders that X will spend time with his Mother when Y is in his Mother’s care and accordingly it is expected that the parties will negotiate arrangements to ensure that this occurs.
For the purpose of Y spending time with her Father Mr Thurlow shall collect or cause Y to be collected from her school and returned to her school or in the event that any period commences on a non-school day he shall collect Y from the Mother’s home and, at the conclusion of the period, Ms Amber shall collect Y from the Father’s home.
THE COURT NOTES that the intent of the above Order is that, during school terms, Mr Thurlow is responsible for ensuring Y’s school attendance whether he transports Y or arranges for her transport by another person or by public transport.
For the purpose of X spending time with his Mother, Mr Thurlow shall deliver X to the Mother at the Mother’s residence at the commencement of each period and Ms Amber shall return X to the Father at the Father’s residence at the conclusion of each period.
Each of the parents shall as far as practicable follow the recommendations of X’s paediatrician Dr B (or such other treating professional as X may be referred to by Dr B) and to facilitate same:
(a)Each parent such do all things, sign all documents and give all consents, authorities and instructions as are necessary to ensure that Dr B has the contact details of each parent, is able to meet with each parent and to receive information from, provide information to and discuss treatment with each parent and to attend any appointments as are arranged and be advised of those appointments in sufficient time prior thereto to permit attendance (whether separately or together);
(b)Each parent shall ensure that X is provided with his medication as prescribed by Dr B at all times whilst in their respective care, that each is aware of the medication prescribed for X and any directions or prescription as to its usage and otherwise able to receive all and any treatment from health professionals as is recommended.
Each parent shall forthwith and contemporaneous with the event advise the other parent of any significant illness, injury or hospitalisation experienced by X and/or Y whilst in their care and each shall provide all necessary consents, authorities and instructions as are necessary to any treating medical practitioner at those times to speak with the other parent and involve them in the child’s treatment or diagnosis and to visit either child if hospitalised.
In the event of any of the children being prescribed medication or a particular form of treatment which is required to continue into a period when the other parent will be caring for the children, any medication or material required for the treatment will be sent along with a description of the condition for which it is required and the appropriate dosage or method treatment.
Each party shall forthwith do all things, sign all documents and give all consents, authorities and instructions as are necessary to ensure that the details of each parent are recorded by any school attended by X or Y as both a parent and emergency contact person and including sufficient authority to ensure that each parent can receive directly from the school any newsletter, information, reports or notices issued by the school and to attend all and any events to which parents are invited or encouraged to attend.
That both parents shall ensure that they are listed as a responsible parent with any school, sporting clubs and sporting organisations that the children are enrolled or involved in and these Orders shall be sufficient authority for either parent to be provided with any information regarding their progress and performance, as well as any training and current playing draws.
The parties shall keep each other informed of their residential address, contact telephone number and an email address which can be used to communicate about issues in relation to the children, and shall keep those details updated including providing at least 21 days’ notice of any change in such details.
That each of the parties shall be at liberty, and are authorised, to consult with X’s treating health professionals, attend any appointments with X’s treating health professionals and obtain information, reports and any and all other information and details relating to X’s medical treatment from his treating health professionals.
That each party shall do all acts and things to cause X to be administered medication and receive any other treatment as recommended by his treating health professional/s and shall do no act or thing to prevent or interfere with the administration of such medication or treatment.
Pursuant to section 68B of the Family Law Act 1975, Mr Thurlow shall not attend at Ms Amber’s home at any time or for any purpose save to affect changeover of the children X and Y pursuant to the above Orders and/or in response to any invitation or entreaty by Ms Amber.
Ms Amber shall pay to Mr Thurlow within 8 weeks of today’s date i.e by no later than close of business 21 March 2019 the sum of $225,000.
Upon payment by the Wife to the Husband of the sum of $225,000 then:
(a)The Husband shall forthwith and contemporaneous therewith do all things, sign all documents and give all consents, authorities and instructions as are necessary to forever release any claim or entitlement against the Wife and/or with respect to her ownership or proprietorship of the property C Street, Suburb D, in the state of New South Wales;
(b)The Wife shall be declared pursuant to section 78 of the Family Law Act 1975 the sole and absolute owner as against the Husband of her right, title and interest in the C Street, Suburb D property;
(c)The Wife shall forever indemnify the Husband and hold him harmless are regards any expense, liability or encumbrance of the C Street, Suburb D property.
In the event that the Wife should fail, neglect or refuse to pay the sum of $225,000 to the Husband by close of business 21 March 2019 then the Wife shall cause the property to be listed for sale and sold by private treaty at a price agreed between the parties or failing agreement to be listed at a price fixed by a valuer jointly appointed by the parties for the purpose of determining the realistic sale price of the property by an eager but not over anxious vendor and the parties shall then accept any offer for purchase of the property at that price or not less than 95% thereof and upon completion of sale of the property the Wife shall cause the proceeds of sale then resulting to be distributed as follows and in the following priority:
(a)Discharge of the mortgage encumbering the property;
(b)In adjustment and payment of council and water rates;
(c)In payment of real estate agent’s commission, auctioneer’s fees and legal costs on sale and discharge of mortgage;
(d)As to the balance then remaining to be divided as to 37.5% to the Husband and as to 62.5% to the Wife.
Pending compliance with the above Orders (for payment of the sum certain to the Husband and/or sale of the property) the Wife shall make all payments as and when they fall due of interest with respect to the mortgage encumbering the property, together with council and water rates and shall the properly insured should that be a condition of the mortgage encumbering the property.
Pursuant to section 78 of the Family Law Act 1975 each party shall be and is hereby declared to be the sole and absolute owner at law and in equity as against the other of:
(a)Any motor vehicle in their respective possession, custody or control or of which they are the registered owner;
(b)All items of furniture, furnishings and contents and personalty in their respective possession, custody or control;
(c)All monies in their possession, custody or control (whether held in cash or on deposit with any financial institution);
(d)All and any shares or time shares of the parties and any liability and expense relating thereto;
(e)All and any contributions to or benefits or entitlements arising from membership of any fund of superannuation or insurance;
(f)All and any other asset however it might be so described in their respective possession, custody or control.
Grant leave to the Independent Children’s Lawyer to make Application for contribution to costs.
Dismiss that Application.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
Request that the Independent Children’s Lawyer meet with each of X and Y as soon as practicable and no later than 8 February 2019 to explain the above Orders to the children including but not limited to identifying those portions of the Orders which are agreed between the parents and were made by consent and those which have been determined by the Court and to the extent that it is considered appropriate and within the cognisance and maturity of the children to explain the reasons for those Orders.
IT IS NOTED that publication of this judgment under the pseudonym Thurlow & Amber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5428 of 2016
| MR THURLOW |
Applicant
And
| MS AMBER |
Respondent
REASONS FOR JUDGMENT
These proceedings involve a number of issues to be determined between the parties, namely, Mr Thurlow, the Applicant (and the Husband to the marriage which founds jurisdiction with respect to property adjustment), and Ms Amber, the Respondent and Wife.
The issues listed for trial are numerous, and comprise:
a)Parenting. By the close of evidence, very many of the issues had been resolved by agreement. Discrete issues remained for determination. When the proceedings commenced and, indeed, when the trial commenced, the issues were far more numerous. The issues to be determined by these reasons relate to:
i)The allocation of parental responsibility for one of three children;
ii)Changeover arrangements with respect to the children or such of them as are relevant and, particularly, as to whether personal engagement with that transaction is required of the parties or either of them;
iii)The time arrangements for one of three children of this marriage, and in particular:
(i)Whether that arrangement would remain substantially as it presently is practised, being three or possibly four nights per fortnight;
(ii)Whether it increases to four nights or five nights a fortnight; or
(iii)whether it increases to an equal time arrangement;
and, collateral thereto, whether an arrangement that is less than equal occurs in one block or in more periods than that;
iv)Whether the Christmas school holidays are divided equally between the parties so that each has one half of the holidays, or whether the holidays are divided equally or relatively equally on a week-about basis; and
v)Certain injunctive relief sought by the Wife.
b)Property adjustment; and,
c)Costs of the Independent Children’s Lawyer . I make clear, however, that whilst costs were sought, no submissions were put in support of the Application, the costs were not quantified, and, accordingly, that Application can be dealt with quickly by dismissal in due course.
These reasons are delivered on an ex tempore basis. That is done not to suggest disrespect to the parties or an absence of appropriate and due consideration of the cases they have each presented. I would not proceed to deliver the judgment on an ex tempore basis if I was not satisfied that I sufficiently understood and apprehended the position that each advanced, the evidence that they had led, and had not been able to properly assess that evidence.
The reasons are delivered on this basis, however, rather than a reserved and more nuanced and detailed editing of a judgment, to ensure that these parties have some certainty. They have been involved in litigation for some little time.
This is a first-instance trial Court with a busy workload. Delivering these reasons on an ex tempore basis delays the commencement of the next hearing but, whilst that is a disadvantage to those parties, it is an advantage to these parties and to the Court. It gives these parties certainty and clarity, when their arrangements have been very much unsettled for quite some time in relation to at least some of their children.
In relation to the Court, it has the benefit of allowing the matter to be concluded whilst the evidence is clear, certain and fresh. If judgment were delayed and the next hearing commenced, it would simply have led to delay for these parties, and, during the period of delay until the next available judgment writing day, being April 2019, when a judgment could be commenced but, in all probability, not concluded, many hundreds of Court events would have occurred, distracting from the clarity of recollection of issues in these proceedings.
I am satisfied it is preferable for the parties - indeed, generally and in the majority of cases - that judgments be delivered by first-instance trial Courts such as this on an ex tempore basis wherever possible when the lack of relative complexity of issues permits it to be so.
The issues in this case are far from complex. That is not to be, in any way, disingenuous to the parties or pejorative of the importance to them and their children of a determination of their dispute. However, factually, the matter is relatively straightforward.
As these reasons are delivered on an ex tempore basis, and I am conscious that this will involve some significant delay before reaching the conclusion of the judgment, it is fair and appropriate to indicate, from the outset, the general nature of the Orders that I propose to make.
With respect to the issue of parenting, there are three children:
a)Mr E, born in 2001. He is presently 17 and will soon turn 18;
b)X, born in 2004. He is presently 14 and will soon turn 15; and
c)Y, born in 2007. She is presently 11, and will later this year turn 12.
In relation to those three children, I propose to make no Order with respect to the eldest of the children, Mr E. That is on the basis, as indicated, that he is nearly 18 years of age. Indeed, it would appear common ground between the parties and the Independent Children’s Lawyer that no Orders should be made. The Minute that is tendered and the submissions addressed with respect thereto at the conclusion of the proceedings are absent any claim for relief with respect to Mr E.
In relation to X, and the issues that particularly apply to him, the parties being largely agreed as to time and communication arrangements, I propose to make an Order for equal shared parental responsibility.
There are also a number of injunctions that are sought by the Wife. I propose to make those which are unopposed. I do not propose to make the balance.
In relation to young Y, I propose to make Orders that will see her practice a nine/five night arrangement as between her parents, and the five nights per fortnight during school terms that she spends with her Father to occur from Thursday to Monday in one week and Thursday to Friday in the other.
In relation to the issue of property adjustment, I propose to make Orders that will result in and effect a 62.5 per cent division of property in favour of the Wife, and a 37.5 per cent division in favour of the Husband, of such of the assets that will be considered.
I propose to discuss all of the evidence at large and at the same time, (although portions of the evidence clearly relate more to one issue than the other).
From the outset, it should be made clear that neither of these parties raise any issue or allegation of risk in relation to any of their three children. One can accept, from the evidence, that both parents are competent parents, at least as regards the physical care of their children.
Each has, at different times and perhaps to varying extents, been distracted by grief, anger or other sequelae of their separation from each other or the circumstances of the relationship pre-dating separation. That has led, at times, to a lack of support of the children’s relationship with the other parent, and neglect of the children’s emotional needs generally, bearing in mind that whilst the separation that has been effected between these adults is a significant and traumatic event for each of them, it is and has also been a significant and traumatic event for these children.
This case is perhaps emblematic of the impact upon children of parental conflict and their lack of communication post separation. Notwithstanding that both parties have participated in family counselling services, as Ordered by the Court, (not purely to comply with the requirements of section 65F of the Family Law Act 1975 (Cth) but with the genuine desire that it might be of some benefit to the parties and, through them, their children, in adjusting to separation and issues arising therefrom), very little has, at least until quite recently, changed.
History of proceedings
The proceedings were commenced by an Application Initiating proceedings filed on 21 November 2016, a little over two years ago. There has been some delay in the determination of the proceedings, predominantly arising from the parties.
When the Application was filed, an attendance occurred before a Registrar, seeking a consent to abridgement of time. That consent to abridgement of time was granted, such that the Application, having been filed on 21 November 2016, was listed for a first court event some two weeks later on 7 December 2016. On that occasion, the matter came into a busy duty list immediately prior to Christmas.
On the first return date of the proceedings, a number of Orders were made with respect to the children and by consent. Those Orders included the appointment of an Independent Children’s Lawyer to represent the children’s interests, certain injunctions with respect to the administration of medication to the middle child, X, and an adjournment of the proceedings. Certain injunctions were put in place restraining further encumbrance or dealing with a parcel of real estate. An Order was also made, of some importance, that the Husband would spend time with Y, the youngest of the children, for up to four consecutive nights per fortnight during the then pending school holidays.
The proceedings next came before the Court on 19 January 2017, a relatively short adjournment in the circumstances. On that occasion, the Independent Children’s Lawyer appeared and an Interim Hearing was conducted. The Interim Hearing was not concluded until after the Court’s sitting hours.
Orders were made on that occasion in relation to parenting as follows, (without intending to recite those Orders in their totality):
a.That the parents have equal shared parental responsibility for all three of their children;
b.That Mr E live with his Mother and spend time with his Father in accordance with his wishes;
c.That X live with his Father;
d.That Y live with her Mother;
e.That X spend time with his Mother from the commencement of Term 1 2017 - then approximately two weeks away - each alternate week from 3 pm Wednesday until 5 pm Sunday, and for half of school holidays. It is common ground between the parties that this has rarely, if ever, occurred after the making of the Orders.
f.That Y spend time with her Father each alternate week, from Wednesday to Sunday, and for half of the holidays.
The intention of the Orders was that all three children would spend time together and, particularly as regards X and Y, for the majority of their time.
A number of other Orders were made which are not of great moment with respect to this determination, save and except that an Order was made for the preparation of a private family report, pursuant to Part XV of the Family Law Act (supra). That report, ultimately, did not proceed. The parties on a subsequent occasion suggested they were not in a position to meet the costs of that report and, thus, a family report was ultimately ordered. It is abundantly clear, from the evidence as it has now been presented, that the parties were, in fact, in a position to fund that report should they have so desired. That circumstance has occasioned significant delay.
The parties were also on that occasion ordered to attend family counselling services, as defined in the Act,[1] through F Counselling. Both parties have given evidence that they have attended a number of services, although it is not apparent from their evidence what impact this has had on day-to-day, practical parenting arrangements for the children.
[1] Section 10B Family Law Act 1975 (Cth).
At the conclusion of the Interim Hearing on 19 January 2017, directions were made, (on the basis that the parties were commissioning a private report), listing the matter for final trial, commencing 31 May 2017, those dates being more than 18 months ago. That trial could not proceed as the report was not prepared as the parties had apprehended it would be - indeed, as they were ordered to do.
As a consequence of the above, on 21 March 2017, when the proceedings were listed for compliance check, the trial dates were vacated and, instead, an Order made for preparation of a family report. An Order was also made for young X to participate in the Anchor program through F Counselling. It would appear from the evidence that he has continued to do so and that he has an appointment in the foreseeable future.
The preparation of the family report was significantly delayed. That is through no fault of the Court or the parties. It simply arose as a consequence of a lack of family consultancy resources sufficient to permit its preparation more quickly. Indeed, the report was prepared by a Reg 7 Consultant to expedite its preparation, but it was not ultimately available for release to the parties until July 2018, a period well in excess of 12 months from the date it was Ordered.
Upon the release of the family report, trial directions were then (again) made and the matter moved towards hearing. Trial dates were allocated for 21 and 22 January 2019. The matter has proceeded to hearing on those two days. Judgment is delivered the day following the hearing (the matter concluded after Court sitting hours on the second day).
Material Considered
Prior to the commencement of the trial, counsel for each of the parties and the Independent Children’s Lawyer provided a case outline document summarising the material required to be read. The material read is as follows:
a)In the case of the Applicant Husband, I have read and considered:
i)The Initiating Application filed 21 November 2016;
ii)An Amended Initiating Application filed 16 January 2019;
iii)A financial statement filed 16 January 2019;
iv)A trial affidavit by the Husband sworn or affirmed 21 November 2018 and filed the same day;
v)An affidavit that both updates circumstances and purports to address certain aspects of the Wife’s evidence, that affidavit having been sworn or affirmed 24 December 2018 and filed the same day.
b)In the Wife’s case, I have read and considered:
i)Her Response filed 23 December 2016;
ii)An amended Response filed 21 December 2018;
iii)A financial statement filed 3 December 2018; and
iv)The Wife’s trial affidavit sworn or affirmed 3 December 2018, and filed the same date.
The affidavits of each of the parties reference to significant annexures or exhibits. They have also been considered, although separately tendered.
There are also a number of exhibits in the proceedings, including:
a)Exhibit A: The family report prepared in the proceedings;
b)Exhibit A1: Material from the National Australia Bank regarding a loan drawdown;
c)Exhibit A2: An email, or a chain of email communication, on or about 30 June 2017;
d)Exhibit A3: Material from a Department of Family and Community Services file, tagged H1. I make clear that whilst material is tendered from the Department of Family and Community Services, it is not to suggest that there is or has ever been any issue that the children are at significant risk of harm such as to meet the threshold for action in the State jurisdiction, nor indeed any risk of harm at all. Communication by the parties with the Department largely arose from the dysfunction in their communication and distrust of each other.
e)Exhibit A4: A Minute of Orders proposed by the Husband in addition to those tendered by and proposed by the Independent Children’s Lawyer, a document to which I will return shortly, and which are Orders that can largely be made with the consent of the parties;
f)Exhibit A5: A bundle of correspondence relating to procedural fairness afforded to the trustee of the superannuation fund against whom the Husband seeks a superannuation splitting Order;
g)Exhibit R1: A letter from G School relating to X;
h)Exhibit R2: Portions of a Department of Family and Community Services file, tagged A1 and A2, the Husband’s tender, A3, having been tagged H1;
i)Exhibit R3: A lease for the premises presently occupied by the Husband and his partner;
j)Exhibit R4: Documents with respect to a National Australia Bank Lending account, Account Number ...56;
k)Exhibit R5: A schedule, in the nature of a section 50 Evidence Act schedule relating to the above tender, of the payments made by the Wife with respect to a mortgage encumbering the matrimonial property;
l)Exhibit R6: An aide-mémoire document setting out the effects of the Orders proposed by the Wife;
m)Exhibit ICL1: A case plan in relation to the proceedings;
n)Exhibit ICL2: A letter from X’s paediatrician, August 2018;
o)Exhibit ICL3: A Minute of Orders proposed by the Independent Children’s Lawyer , and which are largely agreed, with respect to the proceedings;
p)Exhibit ICL4: A document with respect to the Independent Children’s Lawyer’s costs. The Independent Children’s Lawyer seeks payment by the parties of the totality of the Independent Children’s Lawyer’s costs as incurred.
The parties’ proposals
As has already been made clear, the proposals of the parties have shifted somewhat at different points in the proceedings.
It is germane to observe from the outset that with respect to the property adjustment aspect of the proceedings, the parties’ proposals at the commencement of the trial fell well outside of the reasonable range of expected outcomes. That opinion was expressed clearly to the parties. Each has moved somewhat during the course of the hearing, and certainly by closing submissions, as to that which they seek and which they seek to put submissions in support of.
By his Initiating Application filed on 21 November 2016, Mr Thurlow sought that he have sole parental responsibility for X, or, in the alternative, that he have sole parental responsibility for certain aspects of future decision-making for X, particularly relating to his medication and medical treatment. An Order was sought for equal shared parental responsibility of Mr E and Y. The Father sought that X live with him, that Mr E live with his Mother and spend time with his Father pursuant to his wishes, and that Y spend time with each parent on a week-about basis.
A number of injunctions were sought by the Father at that time, including a restraint upon the Mother interfering in any way with the administration by the Father of medication prescribed for X or contacting any persons involved with X’s medical treatment. That injunctive relief, as sought, is certainly consistent with that which has largely occurred in relation to X’s medical treatment from the time the proceedings commenced to the present, not as a consequence of any Order made by this Court, just a matter of practical reality.
In relation to the financial aspect of the proceedings, the Husband sought that a parcel of real estate at C Street, Suburb D, of which the Wife is the sole registered proprietor, (but, there being no dispute that the property was acquired during the relationship), be listed for sale and sold and the net proceeds of sale divided equally between the parties.
The Husband otherwise sought what might be referred to as “fairly standard Orders”, in the nature of declaratory pursuant to section 78 of the Family Law Act (supra) that each party retain that which was in their respective possession, custody or control.
By his Amended Initiating Application of 16 January 2019, the relief sought by the Husband was varied only slightly, in that an Order was proposed that X’s time with his Mother would be in accordance with his wishes, and that Y’s time with the Father would still be on a week-about basis, but with some change to the structure and implementation of those arrangements.
In relation to changeovers, curiously in common between the parties and, at the commencement of trial, the Independent Children’s Lawyer, it was proposed that the changeovers would occur, for Y, either by her being collected from school or, if that was not possible, from the car park of a supermarket.
In relation to financial issues, the Father’s Amended Application again proposed that the C Street, Suburb D property be sold, but now sought that the proceeds be divided as to 55 per cent to the Husband and 45 per cent to the Wife, and, in addition, that a superannuation splitting Order be made so as to adjust an amount between the parties to effectively equalise their superannuation entitlements.
The Case Outline document filed on behalf of the Husband, prepared by his counsel, largely replicated the relief that was sought in the Amended Application.
By the conclusion of trial, the parenting issue had substantially resolved, and I will turn to that issue shortly.
At the commencement of the proceedings and at the time that the Wife first filed a Response in the proceedings, 23 December 2016, the Wife proposed that there be equal shared parental responsibility for all three children, that all three children live with their Mother and that Y and X spend time with their Father each alternate weekend, from Friday to Sunday, and for one half of school holidays. Further Orders were sought, which are not particularly germane to the present determination in light of the substantial resolution of issues.
In relation to the financial aspect of the proceedings, the Wife proposed that she would pay to the Husband the sum of $50,000 and would then retain the C Street, Suburb D property, refinancing the mortgage encumbering that property, (although the mortgage would appear to be in the Wife’s sole name in any event).
By her Amended Response filed 21 December 2019, the Wife’s position in relation to parenting had changed somewhat dramatically. The Wife proposed that Mr E and Y live with her and that X live with the Husband save when spending time with his Mother. It was proposed that Y would spend time with her Father each alternate weekend from Friday till Monday, that being slightly less than the arrangement that was Ordered by the Court 19 January 2017, and slightly less as well as the arrangement that, it would appear, certainly on the Wife’s evidence, has been in practice from some little time, with Y spending from Thursday after school till Monday morning each alternate weekend with the Father.
In relation to financial issues, the Wife’s position had changed somewhat, whether to take into account an increase in the value of the C Street, Suburb D property or otherwise, so as to propose what was prefaced as an 80/20 division of the C Street, Suburb D property in her favour, representing a payment by her to the Husband of $120,000.
At the commencement of submissions, the position of each of the parties was dramatically impacted by exhibit ICL3. That Minute tendered by the Independent Children’s Lawyer proposed that the parents have equal shared parental responsibility for Y and that the Father have sole parental responsibility for X in relation to major long-term medical issues, (however that term might be interpreted or described). The document is silent as to the allocation of parental responsibility with respect to X, and one would presume, in those circumstances, that section 61C of the Family Law Act (supra) would apply, such that each parent would have parental responsibility for X, or at least major long-term decisions, at such times as X was in their respective care.
It was proposed that upon making any major long-term decision relating to X’s health, the Father would provide the Mother with information, reports and documents relating to that decision, and that the parties would otherwise each have parental responsibility in relation to all major long-term issues in relation to X. Again, the wording of that proposed Order would reflect the application of section 61C of the Family Law Act (supra).
The Father agrees to the above Orders regarding parental responsibility, the Mother does not.
The Independent Children’s Lawyer, during submissions, submitted that no objection would be heard from the part of the Independent Children’s Lawyer to an Order for equal shared parental responsibility in relation to each of the children.
The Independent Children’s Lawyer proposed that Y live with her Mother, and X with his Father. Both parties agree to that.
In relation to X, it is proposed that X would spend one weekend per month, on a weekend as agreed between the parties or, failing agreement between the parties, on the first weekend that coincides with Y being in the Mother’s care, in accordance with the Orders. The Father agrees to that Order. The Mother does not necessarily agree. The terminology of the Order is such as to create potential for real confusion and dispute between the parties in the future. Ultimately, I do not propose to make it, although I do propose to make an Order in similar terms for time to occur one weekend per month but with far greater specificity and prescription for reasons I will describe.
The Independent Children’s Lawyer proposes that X would be with his Mother each Mother’s Day from 9 am until 5 pm. The Father agrees to that Order. The Mother’s position is less clear.
The Independent Children’s Lawyer proposes, finally, that there be provision for time between X and his Mother each year from Christmas Eve until Boxing Day in one year, coinciding with Y being in the Mother’s care, and with both children being in the Father’s care in other years.
During submissions, it was also made clear that it was proposed that there would be one other weekend per month when time would occur, not overnight but for the day, 10am till 5pm on Sunday, to coincide with when Y was in the Mother’s care, as well as an Order for time as agreed.
In relation to Y, the Independent Children’s Lawyer proposes that Y would spend time with the Father each alternate weekend from Thursday to Sunday, (that, of course, being three nights). It was then clarified that the Independent Children’s Lawyer would propose the time continue through till the Monday, together with Thursday night to Friday in the other week during school terms, as well as half-holidays, Father’s Day, and a similar provision in relation to Christmas if considered necessary and appropriate, as well as a general catch-all, if it might be so described, as to time as agreed.
The Father largely agrees with those arrangements, and the Mother agrees to certain portions.
As would be apparent from the document, a number of the Order numbers are circled in blue pen. Those which are circled are suggested to be agreed by both parties.
The Independent Children’s Lawyer otherwise proposes a changeover arrangement such that Y would be collected from and returned to school, although noting that she would travel by public transport, and in relation to X, that he would be delivered to the Mother’s residence and returned by the Mother to the Father’s residence at the commencement and conclusion of the period. The only issue in that regard is whether the Order provides specifically that the Father and Mother personally will undertake that travel or whether the Order would provide that each parent is to cause that delivery or return occur.
The parties submit to Orders as proposed by the Independent Children's Lawyer in paragraphs 12 to 17 relating to certain issues regarding medical treatment, authorising schools to provide information and the like. I will make Orders in those terms or similar terms so as to conclude those controversies. Thus, the battle lines, as they might be described, between these parties were drawn.
Cross-examination and credit
Both parties were required for cross-examination, as was the family report writer. At the conclusion of that evidence, I make clear that, to my mind, there were a significant number of issues that are not in dispute between the parties or, where in dispute, are not significantly in dispute or are not particularly relevant or germane to any finding of fact that need be made in these proceedings to allow the determination.
Where controversy exists between the evidence of the Husband and the Wife, I accept the Wife as the more accurate historian. That is not to suggest that either party has necessarily engaged in deliberate mistruth or that their evidence is implausible or disbelieved. However:
a)The Wife more readily offered concession - for example, her acknowledgment that a communication that she had forwarded to the Husband was inappropriate - whereas the Husband was less willing to offer such concessions;
b)The Wife was more detailed in her evidence - more specific as to particular issues, both in relation to parenting and property. They will be touched upon in discussion of specific areas of evidential controversy.
c)The Husband’s evidence was categorised by generalities and broad assertion. That was particularly so in relation to financial aspects of the proceedings, but not confined thereto.
The relevant areas of controversy are limited and are not, of themselves, dispositive. I will address specific areas of controversy suggested to be especially important to the issues in dispute.
I by and large adopt the chronology of events proposed in the Case Outline filed by counsel for the Wife. Many aspects of that document and that which is referred to therein are agreed or non-contentious. To the extent that contentious aspects are included, I am not satisfied they are relevant, and thus they are redacted.
The chronology of events, and thus the Court’s findings, are as follows:
a)1974, the Husband was born;
b)1977, the Wife was born;
c)1999, the parties married and commenced to cohabit.
d)1999, the parties purchased a home at Suburb H, New South Wales, for $220,000, borrowing the entire amount, with the Wife’s parents being guarantors;
e)Between 1999 and 2007, the Husband was employed full time as a labourer on a self-employed basis;
f)2000 to 2001, the parties lived with the Wife’s parents for approximately 12 months. It is suggested in the Wife’s evidence, and I accept, that this was to assist the parties to get ahead financially at a time when they were struggling somewhat. The basis for that is an issue of real contention in this case;
g)In 2001, the young eldest child, Mr E, was born. I make clear that prior to Mr E’s birth, indeed, very shortly thereto and from the date that the parties commenced their relationship together, the Wife was in employment, whether part time, casual or, at times, full time and part time in addition. During that period, the Wife also completed a course of study which led to her obtaining a qualification as a public servant, an employment that she has held since 2002;
h)2001, the parties refinanced the mortgage over their Suburb H property for the first time. The basis for that refinance was twofold. Firstly, the refinance was to relieve the Wife’s parents of their obligation as guarantors, thus releasing them from that liability. Secondly, additional funds were borrowed and used to discharge a number of debts which had then accrued with respect to the conduct of the Husband’s business;
i)2002, the Wife commences employment as a public servant on a full-time basis;
j)2003, the parties again refinance the mortgage encumbering their home. On this occasion, the purpose of refinancing was to pay a number of debts incurred with respect to the Husband’s business. The parties agreed at that point that, thereafter, the Husband’s income would be used to pay the mortgage and the Wife would meet all other expenses. It is submitted in the Wife’s case, and I accept and find, payment of the mortgage on a regular basis did not thereafter occur;
k)2004, the second child, X, was born. The Wife took 10 months maternity leave;
l)2004, the home of the parties, it would seem very much corresponding with the birth of X, was the subject of foreclosure and sale by mortgagee and possession as a consequence of non-payment of the mortgage. After the sale of the properties, the parties had an extant debt of $10,000 which it took them some time to pay;
m)2004, the parties moved to a property owned by the Husband’s parents at Suburb J. The parties agreed at that point that the Wife would manage the financial affairs of the parties henceforth;
n)2006, the home at C Street, Suburb D was purchased for $410,000. The property was purchased in the Wife’s sole name. A mortgage of $380,000 was obtained, again in the Wife’s sole name;
o)In 2007, the youngest child, Y, was born;
p)2007 to the present, the Husband has been employed as a labourer rather than being self-employed. On the Husband’s evidence, although it substantially arose during his cross-examination rather than his evidence-in-chief, that employment was initially working nights but has now changed or is in the process of changing so that he will work a morning shift. The shift is suggested during the Husband’s cross-examination to commence at or about 4 am and conclude at or about 3.30 pm and with the possibility of a break of some hours during the morning. I have some difficulty placing any significant weight upon that evidence, however. Not to suggest that it is untruthful, but merely because absent questions during cross-examination, it would never have been led;
q)2008, it became apparent that there were significant debts owed by the Husband as a consequence of the earlier conduct of his business prior to 2007. Those debts had begun to develop in 2002/2003 or so, as was conceded by the Husband during his cross-examination. The evidence suggests that at one point, the debt had increased to approximately $160,000 or an amount approaching that, but as a consequence of substantial negotiation with the tax office, was reduced to a sum a little short of $40,000. That debt was ultimately paid out in 2016, at or about the time of final separation of the parties and as a consequence of loans advanced by the Husband’s Father. The Husband’s Father is agreed by both parties to have advanced various sums during the marriage of the parties, including purchasing a motor vehicle at one point in time;
r)2010, X commences school. Having commenced school, difficulties with his behaviour became readily apparent. He was referred to a number of persons for investigation;
s)2011, X was referred for further investigation, as his behaviours had not abated substantially;
t)2013, and whilst X was in year 4, his behaviour at school became a significant concern. At that point, both parties were referred to and attended upon Dr B, paediatrician, who has continued to treat X. The good doctor diagnosed X with ADHD and possibly also Tourette’s syndrome. There has been treatment and variations in treatment since;
u)2014, X was prescribed Ritalin. Following that prescription and the administration of the medication on a regular basis, his behaviour did not improve or substantially improve;
v)July 2015, the parties separated. They remained separated until December 2015, when a reconciliation was affected. At that time, the Husband’s Father purchased a motor vehicle which was registered in the name of the Wife. The vehicle was subsequently transferred back to the Husband’s Father in August 2015;
w)2015, X was taken to hospital after a self-harm threat made by him;
x)2016, X, then in year 6, demonstrated further and intensified difficulties with his behaviour. It is not possible from the evidence to ascertain the impact of the disruptions and dysfunctions within the household at that time upon young X or whether it is purely as a consequence of some underlying pathology as diagnosed by the good doctor. In any event, both parties are clear that there was significant stress in their lives and within their household at that time;
y)April 2016, the parties separated for a period of two weeks;
z)July 2016, the parties separated on a final basis. At the time of separation and during the earlier separations, all three children remained living with the Wife. That circumstance continued, at least as regards X, until 29 August 2016. Whilst that is not a substantial period of time – two months or thereabouts – I accept and prefer the Wife’s evidence. The Husband asserts that the child left with him at the time of separation. I am satisfied that, in fact, the child left with him in August, at which time he had spent time with his Father, indicated to his Father that he wished to live with his Father rather than his Mother, and, as a consequence, the Father took the child to the Mother’s home and sent him inside to collect items. Whilst that was occurring, the Mother had gone out to speak with the Husband, who had simply told the Mother that the child wished to be with his Father and thus it would be. Not a great deal turns upon those slight differences, but it is somewhat relevant to and corroborative of complaints made by the Wife in relation to unilateral decision-making on subsequent occasions;
aa)29 August 2016, the parties were called to a meeting at X’s school following concerns that were raised by the school in relation to X’s general behaviour, particularly relating to inappropriate sexual behaviour. One of the matters that arose during cross-examination of the Husband related to suspensions that X has experienced in 2018. The Husband conceded two. I prefer and accept the evidence of the Wife that there had been three – April, June and November/December 2018 respectively. The Husband was unable to give any detail as to the bases for those suspensions.
The Husband did indicate that a police liaison officer had become involved, at least in relation to the last month-long suspension, which suggests that what occurred at the school must have been more than the Husband intimates, (ie, a disagreement with a teacher or the child uttering comments which caused offence to the teacher, possibly homophobic in nature). The Wife annexes to her material a letter from the child’s then school, 12 May 2017, suggesting that there had been a previous letter, or letters, and that concerns were held at that point in time with respect to the child’s behaviour, the behaviour having deteriorated significantly, and those concerns including:
X’s regular reference to paedophilia, the images he has collected of younger children, the comments he has previously made about wanting to die, his collection of racially offensive content, his collection of highly sexualised material, his inappropriate comments to staff.
What is clear is that by the meeting 29 August 2016 and notwithstanding the Ritalin prescribed and the medication regime (the parties do not suggest other than following the regime to that point), that the child’s behaviour was not significantly improving.
In November 2016, the child attended an orientation day at K School. Again, the school was concerned about a number of aspects of the child’s behaviour, as already referred to.
On 30 November 2016, X was taken by his Father to see the paediatrician and his medication was changed. There is no suggestion the Wife was involved in that discussion or particularly advised in any clear or certain terms or at any specific time after that occurred. The Wife’s evidence in that regard is consistent with that of the Husband.
The Husband makes clear that some time after separation - there is no reason to doubt that it would be as alleged by the Wife, November 2016, (indeed, the Husband’s affidavit paragraph 25 would connect it to that period) - that the Husband took the child for review of his medication as the Husband was concerned about the effectiveness of that medication in regulating the child’s behaviour.
On 8 December 2016, the Mother spoke to X on the telephone and the child uttered to her, “I want to die. I want to kill myself”. The preceding day, interim Orders had been made by this Court.
On 19 January 2017, further interim Orders were made. The arrangements provided by those Orders have been significantly varied, or not followed by the parties or one of them since. That which has occurred has varied from the Orders made in that:
a)X has spent very little time with his Mother, whereas he was to spend four-day blocks each fortnight with her as well as part of the holidays; and,
b)The arrangements for young Y have changed so that she has spent Thursday to Monday each alternate weekend rather than a longer block as Ordered.
In Early 2017, X’s school, K School, attempted unsuccessfully to manage his behaviour. On 3 April 2017, X again expressed thoughts of self-harm to his Mother. The Mother rang the mental health team - an entirely appropriate response to that which was uttered to her.
In May 2017, X was asked to leave K School. Issue was taken by the Husband as to the Wife’s reference that he was expelled. It is at least common ground that the school made clear he could not continue to attend. Thereafter, and for an entire school term, X did not attend school. That would appear to have arisen on a number of bases, some of which were beyond the control of the parties.
X was referred for assessment by the Department of Education. In June of 2017, X was accepted by the Department of Education for enrolment in what might be described, without intending any disservice or discredit to the school, a “special” school, at least a school intended for children with special needs - in this case, emotional disturbance - and with the availability of significant supports. The Mother indicated her agreement to that course of action. The Father suggested that he had concerns about the school and felt that a mainstream school would be preferable for the child. It would not appear that the parties discussed their respective positions with each other, although they each communicated them to the school or the Department.
As a consequence, however, of the Father’s desire that the child attend a mainstream school, there was some further delay of two or three weeks before the child was enrolled at his present school and then resumed school in term 3.
On 25 July 2017, family dispute resolution occurred. No agreement was reached, although it would seem that, at least chronologically, the FDR corresponded with the change in Y’s arrangements to Thursday to Monday.
August 2017 is, the Wife suggests, the last time that she was informed by the Husband of any medical appointment for X. I accept that that is so.
On 4 February 2018, X attended a period of time with his Mother and an incident occurred in the Mother’s home whereby X became angry and aggressive and was throwing items and hitting his Mother. He was yelling derogatory comments and began to break items in the home. The Mother, who had the care of the two other children at the time, became frightened for her welfare, as well as that of X’s siblings, and called the police. It seems that, in total, the police have been called on three occasions, all in similar circumstances, all in the early part of 2018.
On 16 August 2018, the parties were divorced.
From 23 November to 10 December 2018, X was suspended from school. There are also the suspensions which I am satisfied occurred in April and June of 2018 respectively, though for much shorter periods. It is also clear (see, for example, paragraphs 147 to 150 of the Wife’s material and her evidence during cross-examination), that the Wife has spent very little time with X since then, although, in more recent months, particularly July, November, December and Christmas 2018, time has occurred, including overnight. No complaint is raised with respect to those times, save, as is submitted by counsel for the Husband, that the periods corresponded with special events – the Mother’s birthday, a cousin’s birthday, a wedding and Christmas itself.
I will now turn to and discuss areas of specific controversy. It is not intended to suggest they are the only areas of controversy, but they are those most relevant to the determination of these parties’ issues.
Allocation of Parental Responsibility
It is the Husband’s case that the parties simply do not communicate, cannot communicate, and when they have sought to communicate, particularly with respect to X, that the decisions or absence thereof have been disadvantageous to X. That is a matter taken up by the family report writer, who has accepted that disadvantage has been occasioned to young X as a consequence of difficulties in the past, particularly connected with changes to his medication and school.
In relation to each of those issues, however, I am not satisfied there is any evidence to suggest that the parties have ever engaged in active conflict with respect to those items prior to separation or that they have engaged in anything that could be described as active conflict in making such decisions post-separation. The closest that it comes to this is paragraph 22 of the Husband’s trial affidavit, which deals with the prescription of Ritalin in February/March 2016, and at or about the time that X came into the Father’s care, that X was again prescribed and took Ritalin. The Father describes that the medication provided at that point was quick release capsules of Ritalin. He then concludes the paragraph with the assertion that:
X stayed on this medication up and until August 2016 when Ms Amber, the Wife, changed the medicine to a medicine known as Vyvanse [another drug used to treat ADHD].
That is somewhat inconsistent with other aspects of the Husband’s evidence, including his evidence at paragraph 25, that in November 2016, some three months after the time when it is suggested the Wife changed the child’s medication, that the Husband attended upon the doctor to change the medication from slow release Ritalin to quick release tablets. That might explain some of the confusion in text messages between the parties annexed to the Mother’s material, wherein the Mother is castigated by the Father for not administering the medication correctly, but the Mother raises issues regarding the change in slow to quick release capsules.
I am not satisfied that there is any evidence that would support a finding that the Wife has ever changed the child’s medication. She is clear in her evidence, perhaps explicably so, commencing paragraph 87 that from the first diagnosis with ADHD that she was concerned about the child taking Ritalin. She raises a number of bases for that concern, including her past work experience in dealing with children with behavioural problems taking Ritalin, a suggested discussion with the paediatrician that it could perhaps increase and make worse the symptoms of the child’s diagnosed Tourette’s syndrome, whilst there is controversy between the parties as to whether that diagnosis has ever been advanced. There is no material tendered which authoritatively addresses the issue and I prefer the Wife’s evidence.
Finally, the Wife complains that she had concerns about the child’s medication regime in the Husband’s household, alleging a conversation at one point in time wherein it is suggested the Husband conceded he was taking the child’s Ritalin himself to stay awake as part of his employment as a labourer. I need not pursue that issue further, save and except to accept that the Wife advances that she held concerns. She does not, however, suggest that she ever changed the child’s medication or failed to give it to him. There is no probative evidence that could demonstrate to the contrary.
The changes which are suggested to have occurred largely occurred at the Husband’s instigation. I am not critical of him in that regard. He is clear in his evidence that he held concerns as of late 2016 that the then prescribed medication was not working effectively. Indeed, the difficulties that continued with the child’s behaviour at school must corroborate that it was so. However, the change that was instigated at that point was instigated by the Husband, albeit for good purpose and good reason, and not communicated or communicated well to the Wife.
The parties have never been in active conflict. The Wife has never suggested through her evidence, which I accept, that she has withheld the medication from the child or failed to give it to him. The closest the evidence came was cross-examination of the Wife as to her knowledge of the child’s medication regime as at Christmas 2018. The Wife was clear in her evidence that she had not been given any particular information by the Husband, was reliant upon the child to inform her, and that she had made inquiries of the child’s doctor but had not heard back from him.
In relation to schooling, a similar pattern arises. I have already touched upon the evidence by reference to the chronology. Difficulties arose and both parties were aware of them. Both parties attended a meeting with the child’s then school. Both parties cooperated in the process of assessment for the child to attend the special and supported school. The Mother agreed to accept that placement when it was offered. It was the Father who did not. It was the Father’s unilateral determination that the child would not attend the school. The Mother would not appear to have received any significant information regarding the children’s schooling since.
The Father suggested he has provided the Mother’s details to the school. It may well be that he has. However, the Mother describes in her material, and one would think in her line of work that she might have some understanding of the issue, that she has attempted to obtain information from the school but has been told that because she did not enrol the child and is not the residence parent, that information would not be given to her but could be given to her by the Father (paragraph 110 of the Mother’s trial affidavit). I accept that evidence.
Accordingly, any disadvantage which has flowed in relation to schooling, including the child missing an entire term of school - although a portion of that absence related to the assessment period – does not arise from any action or inaction on the part of the Mother. The difficulties in communication between the parties similarly have not caused those difficulties. They have caused a lack of knowledge and a lack of engagement in those decisions by the Mother.
Similarly and consistent with the above is the Mother’s evidence, which I accept, as to how young X came into the Father’s care. The child expressed to his Father a desire that it be so. The Father acted upon the child’s expressed desire, taking the child to the Mother’s home, directing him to collect items, telling the Mother how it would be, and leaving with the child. The Mother might be criticised for not causing a greater fuss, but what purpose would that have served other than, in all probability, a police attendance, causing greater discomfort for all.
I am not satisfied that there is any evidence that demonstrates active disadvantage to the child or active conflict with respect to any purported exercise of equal shared parental responsibility. It is simply that no significant or necessary effort has been made to enliven that arrangement. In that regard, it is important to observe what is required by section 65DAC of the Family Law Act (supra) in the event that an Order for equal shared parental responsibility is in force, which, of course, it has been since January 2017. That section provides that if two or more persons are to share parental responsibility and exercise parental responsibility with respect of major issues decisions, including school, and change of school, and medical issues, that the Order is taken to require that the parents consult each other in relation to the decision and make a genuine effort to come to a joint decision, necessarily importing that it is consultation prior to the decision being made. It is simply that this has not occurred.
Thus, I am not satisfied that either party could point - nor the family report writer for that matter, although it is not raised as a criticism of her, she relies upon that communicated by the parties – to any instance wherein such discharge of the duties and responsibilities of equal shared parental responsibility has occurred. Communication has been attempted but it has not led to conflict or disadvantage. It is on that basis, together with others which I will articulate, that I am satisfied that an Order for equal shared parental responsibility should ultimately be made.
Changeover Arrangements
Clearly, these parties have had significant disagreement in relation to changeover arrangements. One portion of that relates to X simply not being delivered. It may well be that X, (noting his emotional difficulties, expressing at times a desire to self-harm, his behaviour being extraordinarily difficult to manage, leading to school suspensions and the like), has been delivered but refused to attend.
During submissions, it was put by counsel for the Husband that a personal obligation upon the Father to deliver X might create further conflict if, for whatever reason, the Husband was not available to deliver him, thus causing conflict.
Counsel for the Father points to emails and text messages between the parties wherein, on a prior occasion, or possibly occasions, the Father had enlisted his parents, with whom he lived from separation until quite recently, to collect Y on his behalf and the Mother declined to deliver the child other than to the Father himself.
Whilst I accept that the Order provided for such a personal responsibility, or it might be inferred, (the Orders would, in fact, appear silent with respect to changeover arrangements) such that the Mother would have some validity in the position she adopted, these actions have been far from helpful, at least in relation to Y.
In relation to X, the clearest evidence is that the times when X has, in fact, attended with his Mother have been times when his Father has delivered him, albeit very much like an exchange of hostages at the Bridge of Spies - the parents meeting with their cars parked adjacent to each other in a supermarket car park. Similarly, communication between the parties with respect to issues is poor. It has, at times, been quite terse, hostile and inappropriate, particularly in the case of the Father, but as the Mother concedes, she also at times responding in like fashion.
The Father’s communications with the Mother have largely been after the event - for example, emailing her in June 2018 to advise, “I’m letting you know that as from yesterday, X is suspended from school for one week” and the like.
The changeovers that have occurred with Y are far less attended by difficulty. She can be, and in the future will be, collected predominantly from school and with the parents not needing to meet each other very often.
I accept the Mother’s evidence that, particularly early in the separation of the parties, but not necessarily that distant as to be irrelevant, that the Father has attended at her home outside of arrangements, outside of Orders, and, at times, when it is simply unnecessary and uninvited. The Mother would not appear to be criticised on the same basis.
I accept that the communication between X and his Father that has occurred during periods when X has spent time with his Mother has been disruptive. However, that does not necessarily lend support to the need for highly prescriptive and restrictive Orders precluding and barring all communication between them. There are, perhaps, other means by which that might be achieved and addressed.
During cross-examination, and particularly connected with X, the Husband was strident in his assertion that he had done all that he could to support the child’s relationship with the Mother and to facilitate the relationship between the Mother and child. I have some difficulty in accepting that this is so or, if it has been so, that it has been ineffective. That finding is irresistible, at least the latter, as the child has simply not attended very often and there was an Order of this Court in force requiring that he spend four days a fortnight and half of the holidays with his Mother.
Certainly, there are difficulties in the Mother’s relationship with X. They cannot be ignored. I do not wish to give the impression that the Court finds that any difficulties in X’s attendance for periods of time with his Mother are caused by an absence of support or other action or inaction on the Father’s part.
The Mother calling the police on three occasions may well have caused some significant anger and resentment for X. However, her actions would not appear inappropriate in light of her need to feel safe and secure in her own home, her need to ensure that the other siblings were safe and secure in their home and the Mother being, as it were, at her wit's end with X’s behaviour.
It is also to be observed that difficulties are acknowledged by both parents in relation to X’s behaviour at the time of those police attendances, being periods at or immediately following the acknowledgement, on the Father’s evidence, that his then medication regime was not working, required change and was changed and would have taken some time for his behaviour to stabilise.
All of those difficulties aside, the conundrum arises as to why, if both parties have desired the same outcome, an abundant practice of relationship between X, his Mother and, whilst in her care, his relationship with his siblings, that it has not occurred. There is no readily available answer on the evidence. It is, perhaps, preferable to focus upon the positives that the time arrangements that have occurred, roughly once per month over the last few months at least, have been positive. They have been beneficial to X. They have occurred without any significant difficulty. He would appear to have enjoyed the time. They are also occasions that have been initiated through the direct involvement of both parties in the changeover.
Injunctions sought by the Mother
Exhibit R3 comprises injunctive relief sought by the Mother commencing with the Husband being restrained from communicating with X by phone or SMS during times he lives with or spends time with the Wife. Secondly, it is sought that the Husband’s time with Y be contingent upon him being personally available to primarily care for the child. Leaving aside the ambiguities in language, it is not an obligation I intend to impose.
The Wife seeks that the Husband be restrained from communicating with the Wife except in relation to the children. Again, that is not an obligation I intend to propose. That is not to suggest that the Husband should feel permission to contact the Wife at any time and in any form or fashion including, as he has done on occasion in the past and on one occasion, (noting that the Wife concedes she responded in similar terms), telling the Wife to “fuck off”.
That would seem to be language that X has adopted, and one would think, noting the gay abandon with which it was used by the Husband, particularly in early communications between the parties, that it might have had some impact upon X’s attitude.
Lastly, the Wife seeks a restraint to ensure that X attends regular therapy with Ms L, psychologist, and to follow any recommendations of Ms L. The latter is not particularly objected to by the Husband. It might well be argued to fall within the ambit of the Orders that are agreed and as proposed in exhibit A4 that both parties are to consult with X’s treating health professionals. For the sake of abundant caution, it is perhaps not problematic to be clearer and more specific in relation to Ms L.
Certainly, I accept, in relation to the injunctions that the Wife seeks, that they are sought for good purpose and genuinely. The difficulty that arises, which I will touch upon shortly, is in relation to the extent, nature and appropriateness of injunctive Orders made as they are founded in section 68B of the Family Law Act (supra). On that basis, I do not propose to make three of the four.
Y’s time with her Father
A significant aspect of the evidence is the weight to be attached to this young lass’s views. I will deal with that in a consideration of the legislative provisions.
There is no dispute or controversy, however, that this young lass has expressed a fairly clear view that she wishes to spend more time with her Father. I accept that evidence and accept that it is so. However, as regards the child’s expressed views, I accept that what the child is seeking to communicate is that she wants qualitatively more time with her Father and that she wants time when her Father is present. That arises, particularly, from the Father’s past work arrangements, which the Father suggests has recently or will very soon change from night shift to day shift. That has meant that the Father has been absent of an evening and, until November 2018, was living with his parents, neither of whom are witnesses in this case. From some point in November 2018, it has meant that if the Father is absent at night, or, for that matter, very early in the morning when the child’s wakes, that the child is cared for by the Father’s partner, Ms M - also not a witness in this case, nor participating in family report interviews.
I pause to observe that I do not intend to infer some negativity in relation to any of those absent persons as a consequence of their absence. Clearly, the children’s paternal grandparents are persons of importance to all three. They participated in family report interviews, and observations with them demonstrate the attachment that these children have to their paternal grandparents. What is related in the report also suggests that the grandparents have no great opinion of or present affection for their former daughter-in-law.
What I do not accept in relation to the child’s expressed views, as set out particularly in the family report, is that the child wants equal time. The Mother is clear that the child has said that to her - that she wants equal time - as does the Father. The family report writer refers specifically to young Y referring to equal time. However, the family report writer, both in her report and during her cross-examination, is clear that she did not attach any real weight to that statement by the child, suggesting in its specific context that the child had a perception of fairness and parity as between her parents and thus was somewhat motivated, at least potentially so, to offer that alternative.
The family report writer during cross-examination was also clear that the circumstances of her elder brothers having, as it were, chosen camps – Mr E preferring the Mother, X the Father - may well have motivated her to seek to navigate the difficulties into which she now was propelled so as to avoid the circumstances of her brothers and achieving parity between her parents. What she did describe was feeling fed up with speaking to everyone - presumably, the Independent Children's Lawyer and family report writer, but possibly also others.
The parts of the report that the parents, perhaps, have placed less focus upon, but should have, are the parts of the report, (for example, paragraph 65 and 69) where Y expresses very clearly that her present circumstances and, indeed, those immediately pre-dating separation when the parents argued a great deal, make her very sad, that she wishes they would stop fighting, that she feels that her family is torn apart, that she now feels that being in the dark or being alone makes her scared.
She was clearly conscious that her Mother would be unhappy if she was to express her view and that view reported that she wanted to spend more time with her Father. That, perhaps, lends some real context to the weight which might be attached to the child’s expressed views, interpreted as the family report writer does, as the child adopting equal time to be “fair” whether to her, the parents, or otherwise, (see paragraph 66). What it reflects is the child’s real and strident desire to be able to continue to practice a relationship with each of her parents and, in spending time with her Father, spend time with him, not with others. It is not that she dislikes others or does not love them, but that she has a yearning and a desire for her Father’s time and attention.
His Honour continued:
If, on the other hand, losses of a financial kind have been suffered by the parties to the marriage in the course of the pursuit of matrimonial objectives such as the gaining of income or the acquisition of assets whether the liability for such losses be joint or several, then, in my view, such losses should be shared by the parties. Although, not necessarily equally and taken into account when altering property interests.
Those two passages have some real relevance to this case. The gambling issue has, to an unquantified extent, impacted upon the financial circumstances of the parties, and disadvantageously so. Those difficulties substantially contributed to, although not the sole cause, the sale of the previous property with a consequent debt left to the parties and an unspecified and unascertainable reduction in sale price through accumulation of fees and legal costs of the mortgagee and the reality that the property was sold by a mortgagee in possession.
I am not concerned that an inability to specifically quantify the loss is required. That arises from a number of authorities, including Kowaliw, but also the Full Court’s decision, for example, in Mayne & Mayne (2011) FLC 93-479, as well as AJO & GRO (2005) FLC 93-218 and Browne & Green (2002) FLC 93-115
In Mayne & Mayne, their Honours, comprising the Full Court, at paragraph 91 referred to having had the advantage of considering the measured judgment of Bryant CJ in Shimizu & Tanner [2011] FamCA 271 and, in particular, paragraph 72, to which I will turn shortly.
I do not regard any adjustment pursuant to the Kowaliw principles as being appropriately made as an addback. It should, rather, be a section 75(2) adjustment.
In Browne & Green, their Honours, Faulkes DCJ, May and Strickland JJ, had opined that if in a case where economic losses had been sustained during a marriage the Court concludes that one party should be solely responsible for those losses, then the preferred course would be to make an adjustment in favour of the other party pursuant to section 75(2)(o).
The passage of Bryant CJ in Shimizu & Tanner specifically relates to the facts of this case, at least potentially so. Therein, at paragraph 78, her Honour said:
It is not the court's function to conduct an audit of the marriage or of the relationship finances. The parties' remedies for resolving disputes about expenditure while they are together are centred on them and them alone. Choosing one transaction from many prior to separation for different treatments, specifically 'to be added-back' or notionally included in the pool of property may make doing justice and equity between the parties difficult.
On one argument, it might thus be suggested that if the Husband had gambled in the relationship and occasioned loss, irrespective of what those losses may have been, so what? However, the answer is perhaps given by the parties’ own conduct. They did address the issue during the relationship. Following the sale of the property by the mortgagee in possession in 2004, the parties changes their financial circumstances. The Wife became far more responsible, if not solely responsible, for the financial management of the household. That continued until at least the latter portion of the relationship. It also suggests that the impact of the Husband’s gambling, had it continued beyond that time, was reduced - not completely obviated, but certainly reduced.
I am satisfied that those actions by the parties, recognising those difficulties and taking action to avoid future difficulties, sets apart from that which her Honour quite correctly opines that it is not the Court’s role to re-order the marriage. In the circumstances of this case, there should be some adjustment.
In Challen & Challen [2007] FamCA 1292, Murphy J had set out in paragraph 72 to 81 considerations in relation to wastage or premature distribution, summarising the Full Court’s decision in AJO & GRO, in particular.
His Honour, as is his want, posed five rhetorical questions which assist perhaps in this case:
(1)Is it contended that property that would otherwise be available for distribution between the parties has been dissipated with the consequence of loss? The answer must be yes, even though it cannot be quantified;
(2)If so, is it alleged that the dissipation was in respect of things other than want in the particular circumstances could be called reasonable living expenses. As was discussed in De Angelis (2003) FLC93-133, an argument rejected by the first instance trial Judge and Full Court, gambling is legal. Indeed, it is pathetically prevalent. One cannot watch a sporting event live or on TV without being bombarded with entreaties to download numerous apps and spend one’s money frivolously in the pursuit of gambling, albeit encouraged to do so responsibly (whatever that might mean). However, it is a legal endeavour, as is, for example, consumption of alcohol. But consequences flow. In the case of alcohol consumption, a parent who is rendered inebriated on a regular basis would have some difficulty persuading a Court to make extensive parenting Orders in their favour. Similarly, when gambling has arisen, legal or otherwise, and as the Full Court accepted in De Angelis, the financial consequence can be considered. Gambling is not a reasonable living expense. I accept, however, the Husband may have been motivated in his gambling, consciously or otherwise, by depression or other upset of his emotional function. However, accepting that gambling is a medical condition which one may have little or any control over is not an end to the issue. It is the behaviour and its consequence that are relevant.
(3)If it is asserted that a loss of property results from dissipation of property other than in meeting reasonable living expenses, is it asserted that the result should be a sharing of that loss by the parties equally? No. The Wife seeks to be absolved from any consequence of the gambling losses, including but not limited to - unquantifiable as they are to specific dollar figures – the loss of the previously owned home by mortgagee and possession sale.
(4)If it is contended that this be the result, why should there be an add-back as distinct from a section 75(2) adjustment? The Wife does not agitate for add-back. She agitates for an adjustment, appropriately so by reference to contribution and/or section 75(2), incorporated by section 79(4) as an element of contribution.
(5)How should either an add-back or adjustment be quantified? That is somewhat difficult when it is impossible to quantify what the Husband has spent or what he has lost, or in fact if he has lost at all (though it would appear conceded from the Husband’s limited evidence that loss has occurred). One could not understand why the Husband would express, for example at paragraph 65, that he very much regrets gambling if he had been spectacularly successful and won. It must be inferred that he did not.
Some guidance is given by De Angelis, and as referred to and at least inferentially adopted by the Full Court in Zabarac & Zabarac [2016] FamCAFC 186. In the latter case, the Full Court accepted, adopted and affirmed the findings that had been made by the trial Judge that the gambling which had occurred in that case should be adjusted by reference to section 75(2)(o) of the Family Law Act (supra) and that the gambling, even though it could not be quantified, could and should be adjusted in that regard. It was very clear (see, for example, paragraph 98 of that decision) that it was found impossible to quantify gambling losses. Although, it was accepted (at paragraph 109) that the effect of the Husband’s own evidence, inferentially perhaps in this case, was that his gambling reduced funds available to the parties during the marriage.
I reject the suggestion that I should ignore his gambling because the Wife was complicit in these activities. The Wife does not suggest in this case that she was and I prefer her evidence. She certainly submits that she was aware but is very clear in her evidence, which I accept, that she was not aware of its extent or its duration.
In De Angelis, the Full Court similarly accepted and upheld the findings that had been made by the trial Judge. They had perhaps gone beyond that referred to in Zabarac. A finding had been made that contribution was effected as well as a section 75(2) adjustment. So much follows at paragraph 42. That arose on the basis that, whilst engaged in the gambling activity itself, there must be been a reduction in time available to make other contribution, not only financial but as a homemaker and parent. That might be part of the regret that is expressed by the Husband (though it is accepted by the parties that their homemaker and parent contributions were, particularly in the latter years of their marriage, relatively equal).
The acceptance of the Wife’s argument that she has made a post-separation contribution over and beyond the Husband through servicing the mortgage over the home, which I accept is appropriately quantified in the material tendered in the Wife’s case, and placing greater weight upon the Wife’s evidence with respect to the Husband’s gambling in light of the complete absence of evidence by the Husband that would assist in better understanding or quantifying that issue, the appropriate adjustment in relation to contribution should be in a range, as submitted by the Husband, of 52.5 per cent to 57.5 per cent. Greater contribution is submitted by the Wife through her counsel, although at a far higher level.
I do not accept that I could arrive at a finding of 70 per cent as the Wife submits. It would, to my mind, be outside of a reasonable range, and thus appellable error. On the basis of a range of finding of contribution of 52.5 to 57.5 per cent, which I accept as reasonable, I intend to take the middle path or mean – 55 per cent.
In turning to section 75(2) of the Family Law Act (supra), there are a number of factors that have some relevance in this case.
As was fairly submitted on behalf of the Husband - the Husband’s counsel having conducted his case with precision, zeal, and having done all that could be done to present the case at its best - if care arrangements for young Y were not equal, there might be some very modest adjustment in the Wife’s favour. I certainly accept that submission as regards that specific factor. However, there are others. I will deal with each individually.
Age and state of health of the parties
This does not assist. The parties are relatively similar ages and they are both capable of working and earning a relatively similar income.
The income, property and financial resources of the parties and their capacity for physical and mental work in the future
Each is capable of work in the future. Neither has any impediment.
The income, property and resources of the parties
I am satisfied, this does not assist a great deal or at all. The property of the parties and their financial resources will be adjusted.
Who has the care and control of a child under 18
The Wife, at present, has the care of two, the Husband one. Mr E will soon have completed secondary school. It is probable, although not yet known, that he will attend tertiary education. I am conscious of that described, for example, by Kay J that the duty to support a child (although, this factor is specifically limited to children under 18, it is an obligation which can be considered under section 75(2)(o)), need not be a legal duty, it can be moral.[2] That is a factor perhaps not under subsection (c) but latter provisions, but which has some small favour in the Wife’s case. That is not to ignore the fact that the Husband has the full-time care of X. X also has special needs, although there is no evidence to suggest it dramatically impacts upon the Husband’s capacity to work or the expense base for meeting that child’s needs. It is otherwise a relatively neutral factor.
The commitments of the parties to enable them to support themselves or any other person they have a duty to maintain
[2] Gerges & Gerges (1991) FLC 92-204.
Mr E becomes relevant at that point, as does Y. Each party will provide support for Y in a substantial and significant care arrangement. It is a factor that provides some very modest support to the Wife’s case, but extremely modest.
The responsibilities of either party to support any other person
Beyond the children of the relationship, there are no such responsibilities.
The eligibility of a party to receive a Commonwealth or State pension or superannuation pension
Neither has such an entitlement.
Where the parties have separated, the ability of each to maintain a standard of living that in all the circumstances is reasonable
As the Full Court has been clear, it need not be the same standard of living, nor should it be at the other end a subsistent standard of living.
This has some relevance in this case. The Husband has re-partnered. The circumstances of that re-partnering are not known, purely because they are not referred to in the Husband’s evidence beyond the extent of the Husband disclosing in his financial statement that he has a partner and asserting that she earns $600 per week – although it does not identify the source of income, her occupation or anything else that would assist.
I certainly accept his evidence that his partner has three children, two of whom, at least, are adults. It is unclear whether they are self-supporting or not. It may well be that they also introduce income to the household as they are members of the household. I do not find that it is so. It is simply a possibility which cannot be further considered as the Husband’s evidence is silent.
The Husband indicated in cross-examination that his Wife is not presently working as a consequence of an injury. It is unclear whether she has any compensation claim. He suggests she will return to work in February, only some weeks hence. Thus, whatever income she is capable of deriving, she will resume deriving.
It is also not known what this woman’s financial position is. She may be a person of great substance, she may not. I cannot infer the Husband has any responsibility or duty, legal or otherwise, to support or maintain her, nor can I be satisfied that she has wealth that will benefit the Husband, but the only reason that cannot be addressed is, again, the absence of any evidence by the Husband, evidence that should be before the Court.
Whilst it cannot be quantified, I am conscious of authorities such as Burgoyne & Burgoyne (1978) FLC 90-467, Black & Kellner [1992] FLC 92-287 and Weir & Weir [1993] FLC 92-338 that in circumstances where something is not disclosed, the Court need not be as cautious in its approach, that in all probably that will provide some benefit to the Husband, even if only to introduce an income, even if it is modest, and to allow a sharing and defraying of expenses. It is a factor, accordingly, which favours the Wife modestly.
The ability of the parties to undertake retraining
This is not relevant.
Impact on creditors
The Orders that are proposed will not affect a creditor. Both parties will have sufficient to meet their expenses and the debts that they have disclosed. The most significant debts these parties presently face are their legal fees, incurred but unpaid at this point, which between them exceed $125,000. That is money neither will have available to them, but certainly what they will receive under the Orders I propose to make will be more than sufficient to pay.
The extent to which each party has contributed to the income, earning capacity, property and financial resources of the other
I am not satisfied that is relevant. The Wife completed her qualifications to become a public servant during the relationship, but she had commenced that study when the relationship commenced. It was very early in the relationship and the contributions of the parties respectively during the relationship, with the income it now produces for the Wife that is taken into account is sufficient to address that issue.
The duration of the marriage and the extent to which it has affected earning capacity
The relationship has not affected the earning capacity of the parties. They are both capable of earning income.
The need to protect the role of a party who is the role of a parent and wishes to continue in that role
Both will be able to do so, albeit as working parents.
If either parent is cohabiting, the financial circumstances of that cohabitation
Consistent with the above discussion, that simply cannot be addressed due to the Husband’s non-disclosure. I am satisfied this must favour the Wife, as it is the Husband’s lack of disclosure that causes the difficulty.
Terms of Orders upon creditors and vested bankrupt property
This is not relevant, nor is section (naa).
The rate of child support that is paid by the parties
This has already been addressed. The parties have an informal arrangement that seems entirely appropriate and one would hope will continue.
Other facts and circumstances
This is where an adjustment can and should be made to accommodate issues with respect to gambling and the non-specific impact that has had on the relationship.
That, in combination with the other factors that I have identified, particularly the unknown circumstances of the Husband’s de facto relationship and cohabitation and nothing being known of his partner, the care arrangements for the children that will subsist into the future and which are conceded on the Husband’s part would have a modest and small impact, and the balance of factors discussed, should see an adjustment, pursuant to section 75(2), I am satisfied, in the range of 5 to 10 per cent. I, again, propose to adopt the middle figure or mean - 7.5 per cent.
It is thus, by accumulating the contribution and section 75(2) adjustments, that the figure of 62.5 per cent is derived.
I must also address the issue of superannuation. The Husband seeks an Order which splits super. At the conclusion of the case, procedural fairness correspondence is tendered. On the basis of a 62.5 to 37.5 adjustment, there would be a split with respect to superannuation of around $10,000, but no more, in the Husband’s favour. I am satisfied that the preferable course would be to make some further and modest adjustment in relation to the cash payment that the Husband would receive, rather than to engage in that super-splitting exercise. Both parties are relatively young and they will be able to continue to accumulate superannuation.
The Husband’s superannuation is lower as a consequence only of his having been self-employed for a significant period of the relationship. During that period, as already observed, he has engaged in gambling and that has diminished the ability of the parties jointly and the Husband, as regards conduct of his business, in meeting the expenses of that business. Thus, I am satisfied, on the balance of probabilities, it has probably had some impact upon the past capacity of the Husband to accumulate superannuation. Further, subject to how his business was structured, it may not have been subject to superannuation guaranteed levy obligations.
In all of those circumstances, I do not propose to make a superannuation splitting Order. I propose simply to round, very modestly, the payment that would be made by the Wife to the Husband on the basis of a percentage division of the land.
The equity that is available, as already described, in $596,470. Thirty-seven and a half per cent of that amount is $223,676. As indicated, I propose to round that up, albeit quite modestly, to an amount of $225,000 even. That will provide some recompenses regards the very modest disparity in superannuation, but taking into account also the factors I have described as to why otherwise the superannuation should not be adjusted.
The Wife seeks the opportunity to retain the property by paying a sum certain to the Husband. I propose to allow a period of eight weeks to enable the Wife to make application for finance. That may be made more complex by her need to discharge her debt with respect to legal fees. Thus, a greater period than might ordinarily be allowed, six weeks, is provided.
In the event that the property cannot be refinanced to enable the Wife to borrow, and I am satisfied no specific Order with respect to refinance needed to be made as the Wife would need to obtain a refinancing of the existing mortgage, in any event, and that debt is in her sole name, then the property would need to be listed for sale and sold. At that point in time, rather than a sum certain, I would revert to a percentage division. I am satisfied that is appropriate, as it is possible that the vagarities of the market may see the price of the property increase or decrease and the parties should share in it. Even if the property was sold for exactly the amount that each of the parties have indicated they believe it is worth, then there would be sale costs and other amounts which would further reduce that which was available for the parties and there is no reason why the Wife would disproportionately bear those fees.
Further, if provision were made for payment of a sum certain by a specific date, interest would accrue thereupon if not paid in that time. The interest rate under the Federal Circuit Court Rules 2001 (Cth) is significantly higher than market rates and the interest that would accrue, particularly if there was a delay in sale of the property beyond the control of the parties, would be substantial, again, artificially and arbitrarily disadvantaging the Wife. In those circumstances, however, those Orders will be made.
Costs of the Independent Children’s Lawyer
In relation to the Application for Costs by the Independent Children's Lawyer and in the absence of submissions, it is difficult to formulate an appropriate basis upon which an Order can or would be made.
The Application is governed, in any event, by section 117 of the Family Law Act (supra). Subsection (1) creates what is often referred to as the general rule (see Penfold & Penfold (1980) FLC 90-800) that each party shall bear his or her own costs. The independent children's lawyer is, of course, not a party – see Bennett & Bennett (1991) FLC 92-191.
Leaving that aside, subsection (2) would still apply, that in considering whether discretion is to be exercised, the Court must be satisfied that it is both just and that there is a justifying circumstance for such an Order (see Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812).
To avoid any controversy, subsection (3) makes clear that the Independent Children's Lawyer, even as a non-party, has standing to bring an application.
Subsection (2)(a) sets out a list of prescriptive considerations. Those considerations must be considered but they are not exhaustive.
Subsection (4) precludes an Order being made in favour of an Independent Children's Lawyer if a party has received Legal Aid, (neither has), or if the Court considers that a party would suffer financial hardship.
Subsection (5) requires that the Court disregard the funding regime for Legal Aid commissions, (ie, to not return money to public coffers purely to ensure that they are reimbursed).
Subsection (4)(a) is not relevant, dealing with issues relating to child welfare agencies.
Financial circumstances of the parties
Each could afford to bear an Order for costs. That is not to suggest that they must, nor that the ability of a party to meet costs is the test. It must be justified and it must be just. Justice might be interpreted as between the parties and the Independent Children's Lawyer. The absence of submission, however, makes it difficult for that factor to be considered.
Legal Aid
Neither party is in receipt of a grant of Legal Aid. Indeed, if they were, jurisdiction would be concluded.
Conduct of the parties
Neither party could be criticised for the conduct of the proceedings. Evidentially, there are some criticisms but each has done what is required of them, save and accept that they did not fund a Part 15 report as initially ordered.
Whether the proceedings are necessitated by a failure to comply with an Order
This is not relevant. Neither party has been wholly successful or unsuccessful. Although the test under the section is a lack of success, subsequent cases have extended to include a lack of success. This also does not assist.
Offers in writing
This is not raised as relevant
Other relevant considerations
This would not appear relevant and the absence of submission makes that irresistible.
What is clear from that which is tendered by the Independent Children's Lawyer is that the initial contribution sought by the Husband has been paid. I am not asked to make any Order for reimbursement or return. Accordingly, I propose to interfere no further in that regard.
I make clear that had submissions been put, it may well have been that justification could have been established and/or justice, both being required. However, it is the absence of submission, the Application being advanced on a no evidence offered basis, as it were, that precludes any further address and thus the Application must be dismissed.
Injunctions
In relation to the injunctions that are sought by Ms Amber, the jurisdictional foundation for such Orders must be found in section 68B of the Family Law Act (supra). That section provides a broad power to make such Order or grant such injunction as the Court considers appropriate for the welfare of the child. It goes on to list specific jurisdictional grounds, being personal protection of the child, personal protection of the parent or another person, restraint upon entering into the place of residence, employment or education of the child, parent or other person, or restraining entry into other specified premises.
The Court must be satisfied that it is just and convenient to do so, in addition to the Court being satisfied that it is appropriate.
There are potentially a number of difficulties with respect to the exercise of jurisdiction under section 68B as sought to be exercised and beyond the legislative mandates that the Court is satisfied as to appropriateness, justice and convenience.
It is, as it were, a sledgehammer in some circumstances to achieve a somewhat subtle and nuanced outcome.
In relation to the Order that is sought that the Husband not attend at the Wife’s home, clearly it falls within jurisdiction. To the extent that it may assist in avoiding future conflict, dispute or unease, I am satisfied that it is appropriate, just and convenient. The balance of Orders that are sort, however, do not fall within that category.
An Order which requires that a parent be personally present at such time as their children are in their care is not, I am satisfied, an appropriate injunctive Order under section 68B, particularly in the circumstances of this case, nor am I satisfied that it is an Order that could or should properly fall within the broad umbrella of that which might be addressed by a parenting Order as defined in the Act. It is overly prescriptive and, in the circumstances, unnecessary.
Y, indeed X, has two working parents. No such prescription is sought with respect to X. Indeed, it could not be as it would render the Father unemployed, and, if mutualised, both parties. No such restraint is sought in relation to the Mother in relation to either Y or Mr E. There is no evidence suggesting that it would be disadvantageous to Y if she were, for example, to be cared for by her grandparents or the Father’s partner whilst he was not personally present. I am not prepared to make such an Order on that basis.
The restraint to not communicate with the Mother is again, I am satisfied, unnecessary. One of the complaints in this case is a paucity of communication. Certainly, there is validity to the complaint that communication was initially terse, unpleasant and inappropriate. That would appear to have abated somewhat, and one would hope would continue to be so.
Failing such abatement, there is a far more readily available remedy available under State law in the nature of an Apprehended Domestic Violence Order should communication again deteriorate to a point of inappropriateness, particularly if it causes or generates fear. It is also far more easily enforced.
The final Order that I am not prepared to make is the Order which precludes any communication with X by telephone or SMS whilst in the Mother’s care. I understand fully the basis upon which the Mother seeks it, seeing such communication as undermining her time, limited and frugal as it is. However, it is unworkable as sought. It would preclude any communication, even a courteous SMS simply saying, “Hi. Sure you’re having a good time. Say hello to mum for me.”
I appreciate that is not the kind of communication that Ms Amber apprehends would occur, nor is it necessarily intended to preclude it. What is intended is to ensure that the child is supported in placement with the Mother, not distracted from his time, and certainly not encouraged to leave. I am not satisfied the evidence would sufficiently support a finding that this has occurred or would likely occur, and thus I am not satisfied it is appropriate, convenient or just.
The final Order is to compel engagement with Ms L. I am satisfied, encapsulated by the Orders that are to be made by consent requiring that both parties consult with any treating health professionals and ensure that X receives whatever is necessary and recommended by those health professionals, that the Order simply reinforces such an obligation. Thus I will make it.
For those reasons, Orders are made as follows.
I certify that the preceding three hundred and forty-six (346) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 25 November 2020
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Costs
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Consent
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Remedies
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Procedural Fairness
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Appeal
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