VAN & NORD
[2017] FCCA 2727
•10 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VAN & NORD | [2017] FCCA 2727 |
| Catchwords: FAMILY LAW – Final parenting – child of a de facto relationship – best interests of the child – where the respondent seeks no orders with respect to the child – where the respondent does not desire a meaningful relationship with the child – prior orders made with respect to paternity – change of birth registration to include both parents – child to live with mother. |
| Legislation: Family Law Act 1975, ss.4AA, 60B, 60CA, 60CC, 60CC(2A), 61C, 61DA, 65DAC, 65DAA(5), 65M, 65N, 65NA, 65P, 69VA, 90RB, 90RD, 90SM, 117 |
| Somers & Collier [2017] FamCAFC 123 Elias & Elias (1977) FLC 90-267 Roy v Sturgeon [1986] DFC 95-031 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 Dylan & Dylan [2007] FamCA 842 |
| Applicant: | MS VAN |
| Respondent: | MR NORD |
| File Number: | PAC 5381 of 2014 |
| Judgment of: | Judge Harman |
| Hearing dates: | 11-12 July 2017, 10 October 2017 |
| Date of Last Submission: | 10 October 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 10 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell |
| Solicitors for the Applicant: | QAS Lawyers |
| The Respondent appeared in person |
ORDERS
THE COURT ORDERS ON A FINAL BASIS THAT;
Pursuant to section 90RD of the Family Law Act 1975, declare that the parties, Ms Van and Mr Nord, lived in a de facto relationship with each other commencing (omitted) 2009 and concluding March 2014.
Mr Nord shall pay Ms Van’s costs of and incidental to the proceedings to date, such costs fixed in the sum of $30,000 and to be paid by Mr Nord to Ms Van (or as she may direct in writing) by close of business 24 November 2017 failing which:
(a)Interest shall then accrue upon that sum or such portion of it as remains outstanding from time to time at the rate prescribed by the Federal Circuit Court Rules 2001;
(b)Ms Van shall be entitled to commence proceedings to recover that sum, interest accrued thereupon and costs of recovery in a Court of competent jurisdiction.
The child, X born (omitted) 2010, shall live with his mother, Ms Van.
Each of the parties, Ms Van and Mr Nord, shall forthwith and within 7 days do all things, sign all documents and give all consents, authorities and instructions as may be necessary to cause the details of X’s father, namely, Mr Nord, to be recorded upon the birth registration and any subsequently issued birth certificate for X.
In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said defaulting party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The Respondent, Mr Nord, shall, no later than close of business 10 November 2017, file and serve an Amended Response, Affidavit sufficient to comply with Federal Circuit Court Rules 2001 and Financial Statement.
Pursuant to Rules 14.06 and 24.04 of the Federal Circuit Court Rules 2001 and within 28 days the parties and each of them are to ensure that copies of the following documents are provided to all other parties, namely:
(a)Copies of income tax returns, assessment notices and BASs for the last 3 completed financial years for that party personally and for any entity in which that party has an interest (such as a private company, trust or partnership);
(b)An up to date statement with respect to any superannuation interest of that party together with a valuation of the fund if not an accumulation interest;
(c)Copies of bank statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest such as a private company, trust or partnership;
(d)Copies of credit card statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest;
(e)Market appraisals with respect to any parcel of real estate in which any party has an interest;
(f)Any document within the possession, custody or control of that party proving, disproving or tending to prove or disprove any allegation of fact contained in either party’s Financial Statement or Affidavit or which will be raised as an allegation of fact at hearing;
(g)Copies of market appraisals or computer site print outs as to value of:
(i)Any motor vehicle the value of which is not agreed;
(h)Copies of all and any documents relating to the purchase, renovation or improvement, payment of expenses and/or sale with respect to the property, Property A, and including all documents relating to the receipt and application of the proceeds of sale of that property.
Any document which is, at the date of this Order, in the possession, custody or control of a party and which is not disclosed and a copy provided to the other party in accordance with the above Order will not be admitted into evidence.
The matter is adjourned for further mention and directions to 17 November 2017 at 9:30am.
IT IS NOTED that at the next Court event and subject to the filing of material and the provision of disclosure as ordered above, that the matter will then in all probability be either referred to mediation at the party’s expense, referred to Arbitration (subject to the consent of the parties as required by the Family Law Rules 2004) or listed for final hearing.
The Respondent’s address for service shall be recorded as, (omitted), NSW.
A (language omitted) Interpreter is ordered for the assistance of the Applicant for the purpose of the mention 17 November 2017 at 9:30am.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
THE COURT NOTES THAT:
These orders have been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.
IT IS NOTED that publication of this judgment under the pseudonym Van & Nord is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5381 of 2014
| MS VAN |
Applicant
And
| MR NORD |
Respondent
REASONS FOR JUDGMENT
These proceedings involve a claim for declaratory relief by reference to section 90RD of the Family Law Act 1975.
Parties and issues
The parties to the proceedings are Ms Van, who is the Applicant, and Mr Nord, the Respondent.
Ms Van is legally represented and has been throughout the conduct of the proceedings and the hearing of this declaratory issue. Mr Nord appears today on what is, in effect, the third day of the trial, on a self-represented basis. Mr Nord has previously been represented, including throughout the first two days of the three-day trial of this cause.
The parties agree on very little, and, accordingly, the Court must hear and determine the plea before anything further can be advanced as between these parties and their competing claims for relief. So much is clear and apparent, for example, from the Full Court’s decisions in Somers & Collier [2017] FamCAFC 123 and Norton & Locke (2013) FLC 93-567, to name but two. Until the Court is seized of jurisdiction and has determined that there is jurisdiction then the Court cannot hear and determine a plea for substantive property adjustment relief, whether as between an alleged de facto couple or the parties to a marriage. In fact, until a positive determination is made that the Court has jurisdiction then there is nothing to hear.
These reasons are delivered on ex tempore basis and will, as soon as is practical, in light of the commitments of my staff to circuit and duty lists in the following weeks, be edited and made available in publishable form for the parties. The reasons will be edited for the purpose of grammar, spelling and the like. They will not be augmented or significantly altered in any fashion.
That course is desirable to the extent of concluding this tranche of litigation and bringing some degree of certainty to the future lives of these parties. It is perhaps less than ideal, in the sense that each of the parties is, to some extent, dependent upon the use and assistance of an interpreter for their participation in the proceedings, more so Ms Van than Mr Nord. Each party has had the assistance of an interpreter throughout. That assistance, of itself, has not been absent difficulties.
The step of delivering these reasons ex tempore is taken on the basis of expediency. If reasons were reserved rather than delivered on an ex tempore basis, there would be a delay of some months, at the least, before the Judgment could be completed and delivered.
Mr Nord has made clear, during his closing submissions, that, if he is not successful in his defence of Ms Van’s plea for relief, that he intends to Appeal. That is, of course, entirely a matter for him.
It is not intended to disadvantage Mr Nord by delivering these reasons on an ex tempore basis so far as time limits that apply to the lodgement of an Appeal. They are not matters that this Court can interfere with. They are matters as between Mr Nord and the Full Court, should he wish to take that path. With those time limits in mind all will be done to ensure that edited written reasons are available within a short period, and I would propose that that period would be no more than 14 days. However, the reasons are delivered on an ex tempore basis, as already indicated, to enable conclusion of this aspect of the proceedings. That is particularly so as the matter has been on foot now for only a few weeks short of three years.
The delay of three years is not entirely the fault of the Court or the consequence of an absence of resources. There have been myriad difficulties, which will become apparent in due course in a discussion of the conduct of the proceedings and the history of the matter generally, in concluding this hearing. However, until a determination of the plea for declaratory relief is addressed, these parties will not know whether their litigation will continue or whether the proceedings are at an end.
Consequent upon any positive determination of the section 90RD Application, there would need to be further Orders and directions regarding the conduct of the substantive proceedings. Further, there are extant Applications for costs made by each of the parties in relation to this aspect of the proceedings. There is also an issue which arises relating to a child and parenting Orders. There is no dispute that the child is the child of the parties as part of the delay in the hearing of the proceedings was brought about by adjournment to allow paternity testing following which relevant paternity declarations were made. I do not refer to that child, X, born (omitted) 2010, at this point as a child of a de facto relationship; as such a statement cannot and should not be made until such time as the declaratory relief is addressed.
If Mr Nord is successful in resisting the allegation of Ms Van that a de facto relationship existed between these parties, (and it is Mr Nord’s contention that no such relationship existed at any time), then the child could not properly be described as the child of de facto relationship. That is a matter of some significance as regards establishing jurisdiction and as will be touched upon shortly.
X is, however, most assuredly a child of the parties. That issue was, as it were, put to bed through the parties entering into Orders by consent on 11 February 2015. The matter was listed for trial on that date and adjourned to allow paternity testing. The paternity testing was completed and the parties were each content, based upon that evidence, to then provide their consent to a declaration pursuant to section 69VA of the Family Law Act 1975, that Mr Nord is, in fact, the father of the child X.
A further consequential Order that will be made today is in furtherance of that declaratory Order. Notwithstanding the declaration that has been made, the child remains absent any details of his birth father upon his birth certificate. That has two immediate consequences, one of which is more profound and significant than the other.
Firstly, it has led to the reality that Ms Van is not in a position to make Application for, or obtain an assessment of, Child Support. That is significant, but not the more significant of the two issues. The more significant issue is this child’s right, under the International Convention on the Rights of the Child, to have knowledge of his paternity.
Accordingly, an Order will be made at the conclusion of these reasons and – as to which the parties have been given notice and thus the opportunity to be heard, whether in support or opposition thereto – requiring both parties to do all things necessary to effect a change of birth registration for the child, so that the child might have the details of each of his biological parents recorded, as is his right.
It is germane to observe, as will be referred to shortly in a discussion of relevant applicable case law, that these parties agree on precious little as regards the facts and circumstances of their relationship with each other, using the term “relationship” in its loosest sense. Accordingly, some discussion will need to take place regarding credibility, as this is a case in which credibility looms large. Indeed, it is, by and large, the only means by which a determination could possibly be made of the factual issues in dispute.
It must also be observed from the outset that this is a case in which the Court’s role as a tribunal of fact is to the fore. This is a case in which the Court must hear and balance the evidence of the parties, make findings of fact and, consequent upon those findings of fact and by reference to the relevant provisions of the Act, determine whether a de facto relationship, as defined therein, has, in fact, occurred and, if so, determine when that relationship commenced and concluded.
That is not to suggest that section 90RD of the Act requires specifically that a finding be made as to the commencement and conclusion of the relationship, although, in this case, I am satisfied that:
a)It is necessary to do so;
b)Such findings are available and open on the evidence.
Accordingly, I propose to take that course, to avoid future disputation between these parties. Greater precision is available on the evidence, in light of credit and how it has fallen as regards the evidence of these parties.
Material considered
In dealing with these proceedings, I have read and considered the documents that were identified in the Case Outline documents filed by Counsel retained by each of the parties at the commencement of the trial.
In the case of the Applicant, that has comprised:
a)Her Amended Initiating Application filed 11 February 2015;
b)Her Affidavit of evidence-in-chief, sworn or affirmed 19 May 2017 and filed the same day; and,
c)The Affidavit of Ms T, being the child of Ms Van, the Applicant in the proceedings. That Affidavit is also sworn or affirmed 19 May 2017 and filed the same day.
A Case Outline document was provided by Ms Van's Counsel which provides a useful chronology of events, a skeletal outline of submissions and a discussion of relevant principles. They will be referred to and portions thereof incorporated in due course.
In the case of the Respondent, I have read and considered each of the following documents:
a)His Response filed 11 February 2015;
b)The Affidavit of Mr Nord, sworn or affirmed 2 February 2015 and filed the same day;
c)A further Affidavit of Mr Nord. Why two were necessary is unclear, but, in any event, they are both admitted without objection. That second Affidavit is sworn or affirmed on 6 February 2015 and again filed the same day;
d)Further and finally, I have relied upon the Affidavit of Ms D, the wife of Mr Nord. Her Affidavit is sworn or affirmed 6 February 2015 and filed the same date.
A Case Outline document was also provided by Counsel for Mr Nord, as then retained, and that document is also read and considered.
Each of the authorities referred to in each of the Case Outline documents has been considered.
Each of the witnesses have been required for cross-examination and have, in fact, been cross-examined.
Before leaving the material considered, it is germane to observe that the Amended Application filed 11 February 2015 includes a plea for relief with respect to the child X.
Ms Van seeks Orders that X live with her and that the parents have equal shared parental responsibility. Specific Orders as regards a practice of relationship between X and his father are sought, together with, at least on an interim or interlocutory basis, Orders with respect to paternity testing and declaratory relief as to parentage. Those aspects have already been dealt with and addressed.
The Amended Application filed 11 February 2015 is essentially undefended as regards parenting relief. Accordingly, I propose to make portions of the Orders in relation to parenting as sought by Ms Van, as, after a period of more than two and a half years, no Response thereto has been filed. I would be loath to proceed purely on that basis, although it is clearly a path open and available to the Court.
Rule 13.03B of the Federal Circuit Court Rules 2001 permits the conclusion of proceedings and the granting of relief in favour of a party when their plea for relief is unopposed. However, the proceedings with respect to a child are discretionary proceedings, and they are not determined as would be proceedings commenced in other jurisdictions, for example by a Statement of Liquidated Claim. The proceedings are analogous to proceedings commenced by a Statement of Ordinary Claim. The Court must still be satisfied that the relief sought is appropriate.
To that end, it must again be observed from the outset that an Order for equal shared parental responsibility need not be pressed, and I do not propose to make such an Order. It would be unworkable in the circumstances and for reasons that I will touch upon, albeit briefly.
Further and finally, I do not propose to make any Orders with respect to the practice of relationship, time or communication between young X and his father, as Mr Nord’s evidence has been clear that he does not desire of such a relationship, has not pursued it and will not pursue it in the future. There are myriad reasons why that may well be so, not the least of which are connected very directly to the facts and circumstances of the case insofar as the relationship of these parties and the relationship of Mr Nord and his wife are concerned.
Evidence of the parties
This is a case in which a discussion of relevant case law might be more appropriate prior to a consideration of evidence. However, I propose to touch briefly upon the evidence and in particular matters of credibility. The case, as already indicated, very much succeeds or fails based upon issues of credibility.
As regards that which is ultimately to be found from the evidence and for reasons that I will expand upon, I prefer and accept the evidence of Ms Van and her daughter in preference to that of Mr Nord and his wife. That is not necessarily to suggest that one or more witnesses are telling untruths. However, these are not proceedings in which such findings are necessary. These are civil proceedings, determined on the balance of probabilities, and, in that regard, an erudite and useful discussion of what is required in that sense is undertaken, for example by Cronin J in Taisha & Peng and Anor [2012] FamCA 385, particularly his statement, at paragraph 78, that the onus is on the Applicant to prove the existence of a de facto relationship.
It is upon the evidence that the Court must be satisfied that the case is made out. The proceedings are, of course, determined on the balance of probabilities, a matter that will be discussed shortly by reference to relevant law and principle.
The parties are in agreement as to very few facts. One of the few things they agree upon is that they met each other for the first time in or about the latter part of 2007. At that point in time, Mr Nord was married to his wife, Ms D. He remains married to Ms D and remains living with her. Whether Ms Van was aware of that fact and circumstance at the time of the initial meeting of the parties is one of the many issues in dispute.
As to whether I must determine authoritatively which of the versions of events is preferable in that regard, I have some doubt. It has, perhaps, some modest relevance, and to that extent, again, I prefer the evidence of Ms Van. Her explanation of events in that regard is referred to both within her Affidavit material and her evidence during cross-examination, is more plausible and more consistent with the totality of evidence.
The parties did not immediately commence a relationship with each other in any form. It is the evidence of Ms Van that she sought some assistance from Mr Nord, in his occupation as a (occupation omitted), prior to their commencing a sexual relationship with each other.
There is certainly agreement between the parties that by (omitted) of 2009, that they had commenced a sexual relationship with each other. So much is highlighted, for example, in the Case Outline documents filed in the case of Mr Nord. Mr Nord’s assertion, as eruditely pled in the Case Outline, is that a de facto relationship never existed, that the only relationship that ever existed between these parties was in the nature of an adulterous affair, (at least in the case of Mr Nord), and that the parties were “lovers”.
The physical expression of that relationship and the engagement in sexual congress, which occurred between these parties, need not be traversed in graphic detail for the purpose of these reasons. Suffice to observe that the evidence of Ms Van is the more consistent. She is clear, precise and specific as to what she alleges in relation to the sexual congress which occurred between these parties throughout their relationship, however it might be described, or have been perceived, advanced or held out by the parties or either of them. Ms Van leads evidence that the parties engaged in sexual congress at one or more motels in (omitted) Sydney, at different times and on different days, at her home and at the office, or one or more of the offices of Mr Nord.
Mr Nord denies all of those matters save and except that the parties engaged in sexual congress at one or more motels. However, Ms Van’s evidence is also clear and specific as to the nature of engagement of the parties, not only including but extending beyond their sexual congress.
At paragraph 24 of her Affidavit, Ms Van pleads that from mid-2009 to August 2011, Mr Nord would spend “…4 to 5 times a week…” at her then home at (omitted). Ms Van suggests that Mr Nord stayed for periods of four to five hours on most occasions and, on other occasions, would stay overnight with her in her bedroom, leaving very early in the morning. Importantly, she suggested there were periods (although, she is unspecific as to their frequency, at least in her Affidavit) when Mr Nord stayed for a block of days. During her cross-examination, Ms Van indicated that it was only a handful of occasions that Mr Nord would stay at the home with her on a full-time basis and being for periods of a week to up to a month at a time.
What is striking in relation to that evidence by Ms Van, in relation to that period of the relationship between the parties, is the lack of hyperbole or formula. She does not, for example, suggest in the opening sentence quoted above, that Mr Nord stayed at the home for four or five “nights” per week, but suggests that Mr Nord would spend four or five “times” a week at the home. She goes on to clearly and specifically define what she means by that, being predominantly non-overnight visits. She is also very clear that there were periods of time when Mr Nord was present, on her case, for block periods, albeit the longest is suggested to be no more than a month.
That lack of exaggeration and hyperbole is in contradistinction to the evidence of Mr Nord, which might well be described as typified by absolutism and otherwise as “a movable feast”. There are aspects of Mr Nord’s evidence that are troubling, particularly the inconsistencies between evidence given by Mr Nord at different times, and which must be commented upon.
Mr Nord does not speak English as a first language. Nor does Ms Van. It is not a criticism of either, simply an observation of their reality. However, Mr Nord’s use of English, in both written and spoken form, is much greater than that of Ms Van. He speaks and engages with English, both written and oral, as part of the conduct of his business affairs. He is far more familiar, for example, with completing forms and documentation in his career as a (occupation omitted).
Mr Nord’s use of an interpreter throughout the proceedings has been problematic to say the least, although that is no criticism of the interpreter that has assisted Mr Nord today, nor of the use of an interpreter at all.
When the proceedings commenced, as was then the Court’s usual practice, an interpreter was provided for Mr Nord at the Court’s expense. During the course of Mr Nord’s cross-examination, although not during Ms Van’s cross-examination, (when Mr Nord indicated, through his Counsel, that he did not specifically require the interpreter to assist him, as he could either follow in English or understand what was said by Ms Van in (language omitted)), concern was raised, not only by Mr Nord but also by the attorney instructing Counsel (who spoke (language omitted)), that the interpreter was not faithfully and accurately repeating and translating that which was put as a question to Mr Nord nor that which was given as an answer. There was no controversy raised by those instructing Counsel for the Applicant that this was so (those attorneys also being fluent in (country omitted) and they being far better placed than either Counsel or the bench to make such a determination). Accordingly, the interpreter was discharged.
Thankfully, a private interpreter had been engaged by Mr Nord and those assisting him, to aid his wife in giving evidence, (although she was not called during the first two days of the trial). That interpreter proved to be far more reliable and less problematic when they took over. Thereafter, any inconsistency between answers that were given by Mr Nord through each of the interpreters, respectively, was sought to be attributed by Mr Nord to deficiencies in the interpreter. A number of difficulties arise with this proposition.
Firstly, during his use of either interpreter, Mr Nord was particularly difficult to pin down to answering questions. Mr Nord was wont to make statements, to provide commentary in relation to aspects of the matter and to assert his position in relation to certain matters, rather than being responsive to questions. In that regard, the answers given are of little assistance other than for the purpose of credit, as they do not form part of the admissible evidence. In any event, they did not assist Mr Nord’s position as he may have envisaged they did.
Secondly, the answers that were given by Mr Nord, when they were responsive to questions, were largely changeable and inconsistent, irrespective of the interpreter that was being used. If it was purely a matter of inconsistency between the first two interpreters, that might well give some support to the proposition that Mr Nord was misunderstood or had misunderstood or misapprehended questions. However, even with the same interpreter, different answers to the same or similar questions were given. Certainly, on this, the third day, the matter having gone over part-heard while Mr Nord was under cross-examination, the evidence given by Mr Nord, with no criticism of the second and third interpreters used by him, have been, again, internally inconsistent. Thus, even disregarding any testimony given whilst using the first interpreter, the inconsistencies are myriad and substantial.
That is particularly related, regrettably, to a focus upon the sex life of these parties. Mr Nord’s evidence on the topic has varied from, at its highest, a suggestion that sexual congress was engaged in between these parties three to four times a week to, at its least, that sexual congress occurred in a period of about three years, on no more than a dozen occasions – being approximately once a quarter, or thereabouts. The evidence that is given by Mr Nord in his Affidavit material does not sit comfortably with any of his answers during cross-examination. It may well be expected that a party’s recollection of events would be far from precise, some years after those events have occurred. That is all the more so in circumstances in which Mr Nord has found himself.
Mr Nord has, in his closing submissions, referred to his great “moral mistake” through his relationship with Ms Van. This is not a Court of morals. It is a Court of law. Moral judgments have no place within the Court. Mr Nord’s behaviours are a matter for his judgment and conscience and those of his wife, and such faith system as he holds. The Court need not engage in such judgment. It is purely a matter of seeking to balance matters and establishing a context for the evidence. Mr Nord has created what might well be described, with some accuracy, as an emotional prison for himself, through the relationship in which he has engaged. Certainly, aspects of his evidence make clear that for both he and his wife that it has been so. Mr Nord has given evidence, for example, that he had felt “trapped” in the relationship with Ms Van. He goes further to suggest that he was – to adopt the language used in his evidence at, for example, paragraph 25 of his Affidavit, “blackmailed” by Ms Van into remaining in the relationship with threats made by Ms Van that she would reveal him to his clients, to his wife and possibly others to cause him disadvantage.
Those stressors, which must have arisen from the non-contentious aspects of the relationship would no doubt have impacted Mr Nord’s recollection of events at different times. It does not, however, change the essential and irreconcilable differences in the evidence between these parties.
Ms Van asserts a de facto relationship between the parties commencing in the earlier part of 2009 and concluding in March 2014, a period of approximately 5 years, whereas Mr Nord describes his relationship with Ms Van (see, for example, paragraph 7 of his Affidavit sworn 2 February 2015) as “a sexual affair”, “the affair” and such and similar terms and for a much shorter period. More regrettably, that has extended to the position adopted by Mr Nord and advanced during closing submissions, that young X was not a product of a relationship, loving or otherwise, between he and Ms Van but “purely a mistake” arising from his sexual congress with Ms Van. Mr Nord’s evidence in the same paragraph of the Affidavit, paragraph 7, is that sex was occurring between he and Ms Van on average once per week, suggested to have always been at a motel.
That evidence is very much at odds with the latter protestations of Mr Nord that sexual congress was approximately quarterly, possibly three to four times per week, possibly once every three to four weeks and various other iterations of that relationship as would be apparent from any consideration of the transcript. I make clear that the transcript is not available. I have relied upon my own notes. That is common practice within this first-instance trial Court. However, all of those different aspects of Mr Nord’s evidence are readily available from those notes, the answers sometimes changing fairly rapidly.
The relationship of the parties, again, using that term in its loose sense rather than suggesting that the term fits any prescriptive criteria under the Act, certainly continued, without any dispute between these parties, between early 2009 and mid 2011. It is the evidence of Mr Nord and Ms Van with respect to events at that period of time (i.e. mid 2011) which is particularly in conflict each with the other. Mr Nord suggests that in approximately July 2011 he determined, in his own mind, that the relationship between he and Ms Van would end (see paragraph 13 of his Affidavit, sworn 2 February 2015).
Therein, he indicates:
I decided to end to the relationship with the Applicant (sic). On the next occasion that I saw the Applicant after making this decision I said to her words to the following effect – “I am married and I won’t leave my wife”.
That statement, of itself, does not obviate against Mr Nord’s earlier evidence that Ms Van was, as far as he was concerned, aware of his married status throughout. I do not suggest that it is so – it may be, simply, a reaffirmation, although it is also not inconsistent with Ms Van’s evidence. Ms Van indicates that she found out at a later time (2013) that Mr Nord was, in fact, married. Ms Van’s evidence is that whilst she had earlier observed a wedding ring upon Mr Nord’s hand and had asked Mr Nord if he was married, Mr Nord had replied to her that he “liked to wear it” rather than suggesting that it was worn for a specific matrimonial purpose.
Mr Nord goes on to suggest that he had indicated to Ms Van, in July, 2011, “We should not continue with this relationship.” Mr Nord then suggests that he was, perhaps for the first time, the subject of threats or taunts from Ms Van who was suggested by him to have replied:
If you end this relationship I will tell you wife (sic). I will tell all your friends. I will tell all your clients. I will destroy you. I will do the same if you do not visit me and my son regularly.
The evidence of Mr Nord with respect to young X, the son referred to in that passage, is somewhat internally contradictory of itself. At various times in his evidence, both written, to the Police and orally in the witness box, Mr Nord has given very different versions as to his belief as to the paternity of that child, indicating, for example, today, that he had always believed that he was the child’s father but had some nagging doubts inside himself, whereas at other times he has stridently denied any knowledge of paternity to the extent of requiring paternity testing to be undertaken during these proceedings. What is not in dispute is that whether a conversation did or did not occur between the parties in July 2011 that their relationship, at least sexually, continued thereafter for quite some little time.
The evidence of Ms Van, as to which she was not challenged, although a document purporting to corroborate her evidence in that regard was struck out and is not before the Court, is that she fell pregnant to Mr Nord in December 2014. Ms Van was not challenged on that evidence. There is no reason to doubt her assertion. It is not determinative of any issue in the case but it places, certainly, a time period for the ongoing sexual relationship between the parties as regards Ms Van’s evidence. On an acceptance of that evidence, the sexual relationship would be found to have continued until December 2014.
Mr Nord’s evidence is entirely unsatisfactory as to when the sexual relationship between the parties concluded. One might infer from Mr Nord's Affidavit material that the relationship, or at least sexual relationship between the parties, ended in 2011. However, that could only be inferred. The statement is never made with any particular clarity. The sexual relationship was conceded by Mr Nord repeatedly (and through each of the three interpreters) to have concluded some time at about July 2013 at which point in time certain events occurred between these parties which also have some little significance. The significance of those events perhaps relates more to credit than anything else.
In July 2011, a property had been or was in the process of being purchased by Mr Nord. The property was purchased at Property A and the registered proprietor of the property following settlement was Mr Nord alone. That is so notwithstanding the evidence, for example, of his wife, Ms D, that they “purchased all property together” – again, it may well be that Ms D had simply intended to suggest that, irrespective of the registered proprietorship of property, it was always intended that the purchase of the Property A property was by them and joint.
Ms D, in her Affidavit material, does not make specific reference to the Property A property that would allow any finding to be made that she has assisted in or even had knowledge of the purchase of that property. She is simply silent on the issue. However, from the witness box during her cross-examination earlier today, Ms D added – albeit somewhat unresponsively to the question that was put to her, that she and her husband, Mr Nord, had looked at the property in approximately April of 2011 prior to determining to purchase it.
Ms D was clear that she had attended the property on one occasion prior to purchase and had not been to the property since. That, perhaps, is just as well for the very threat that Mr Nord suggests he received from Ms Van (that Ms Van would tell Ms D and others of her relationship with Mr Nord) would well have come to the fore had Ms D attended at the property. That is not sufficient to doubt Ms D’s evidence that she had only attended the property once in early 2011, albeit that evidence is of little assistance in determining the substantive issue, although it is perhaps relevant to giving context to the evidence.
In mid to late 2011 and certainly by September/October 2011, Ms Van and the children in her care had taken occupation of that very property at Property A without payment of rent, it would seem, with the entire agreement of Mr Nord in that regard. Therein, the factual issue between the parties becomes particularly unclear but particularly significant.
Ms Van suggests that the purchase of the property was the joint endeavour of she and Mr Nord, that is, that the property was being purchased by them, albeit again there is no controversy – registered solely in Mr Nord’s name, although knowledge of that aspect of the transaction at the time need not be explored further.
The property was purchased, Ms Van asserts, for her specific use. She gives clear and specific evidence as to conversations that she alleges occurred between she and Mr Nord at that time. Ms Van is clear in her evidence that Mr Nord had indicated to her that he wished the property to be available for Ms Van, their child, X, as well as Ms Van’s two elder children from a prior relationship, and who have resided with Ms Van throughout the relationship of these parties, however described.
On that basis, Ms Van asserts that she took up occupation of the property and paid no rent, as an exercise of largesse and common purpose between the parties. Ms Van asserts (and corroborates and was not challenged) that she attended to payment of rates for the property and undertook certain renovations and improvements to the property as well. There is no controversy that handymen and others were also engaged in assisting with work to the property.
The purchase of that property and Mr Nord’s evidence regarding the purpose of its purchase and the means by which Ms Van came to occupy it is a curious issue in the case.
Mr Nord asserts that the property was purchased without any recourse or even knowledge by Ms Van of its purchase and for its use as an investment property. Mr Nord goes on to indicate in his second Affidavit that the mortgage encumbering the property, the majority of the purchase funds, required payments by him of not less than $2000 per month, or $24,000 per year. Notwithstanding that cost, Mr Nord did not, at any time, seek to have Ms Van pay rent with respect to the property. Indeed, he went to the extent of making a Statutory Declaration confirming that arrangement. The declaration, annexure G to the Affidavit of Ms Van, states:
This letter is to confirm that Ms Van & her children are currently staying at my property at Property A - at no cost.
Mr Nord suggests that this occupation of the property arose in circumstances where, having been threatened by Ms Van that she would reveal the relationship and as she was needing to leave her then rented accommodation, that he had offered for her to stay at the Property A property for one year without payment of rent on proviso that she then left. Ultimately, Ms Van stayed at the property for two and a half years until it was, as it were, sold out from beneath her. The property was ultimately listed for sale and, it seems, it may have, in fact, been sold before any consultation with Ms Van regarding the proposed sale.
Firstly, the extent of Ms Van’s occupation of the property is somewhat at odds with Mr Nord’s evidence and without explanation by Mr Nord. Secondly, there is, as already alluded to, the curious difficulty that if Mr Nord was so concerned that Ms Van would reveal herself to his wife, why he would place her in his property of which he asserts his wife, Ms D, was fully aware of as to its purchase and the purpose of its purchase, use as an investment property. It is, at the very least, curious. It certainly was not an exercise of clear thinking.
The evidence of both parties is that Mr Nord continued to visit Ms Van at that property. The parties are only in issue as to how frequently those visits occurred, how long the stays were and whether sexual congress occurred at that property or not. Mr Nord’s evidence in that regard is, again, unsatisfactory, through each of the three interpreters, providing different answers, including different answers to similar questions on the same subject matter through the same interpreter.
The relationship of the parties, on whatever basis, clearly continued from the time that Ms Van took occupation of the property in the mid to latter part of 2011 and until July 2013, nearly two years. At that point in time, an altercation, or possibly more than one altercation occurred between these parties.
The evidence of the parties regarding those events is not dramatically at odds as to what may or may not have occurred, and nothing much turns upon the minor differences. Certainly, Mr Nord experienced a number of scratches and bruises as a consequence of whatever occurred.
There is no controversy that Mr Nord went to the Police and sought their assistance. He attended upon a Constable A at (omitted) Police and provided a statement to Constable A. The statement is annexed to the Affidavit of Ms Van. A Provisional Apprehended Domestic Violence Order was sought and was made. It is germane to observe that the protected persons in relation to the Order were not confined to Mr Nord. Young X was included as a protected person.
The statement that was given to Police by Mr Nord, at paragraph 3 of that statement, is entirely inconsistent with that which is then asserted in subsequent correspondence forwarded by Mr Nord to Police, that correspondence also being in his evidence before this Court. At paragraph 3 of the statement, Mr Nord, having signed the statement prepared on his instructions, indicated, “I am currently in a domestic relationship with my girlfriend Ms Van. We have been in this relationship for 3 ½ years.
Indeed, that is somewhat corroborative of the agreed evidence of these parties as to when at least their sexual relationship commenced.
The statement continues:
We have one child together aged 3 ½ years of age. Ms Van also has two other children 11 years and 8 years old. These two children are not mine, but I assist in their care.
Mr Nord denies that any of those statements are true, as Mr Nord has asserted continuously, including when completely unresponsive to any question put to him.
Mr Nord subsequently wrote to the Patrol Commander of (omitted) Police on 7 August 2013, his statement being given approximately two weeks earlier on 19 July 2013. Therein, Mr Nord asserts, Ms Van and I have only relationship as lover since (omitted) 2009”.
One of the difficulties that arises, leaving aside the inconsistency between the two, is the inconsistency between that asserted in the letter and Mr Nord’s own evidence in these proceedings. He asserts in these proceedings, or at least one version of his evidence in these proceedings, that the relationship between the parties as lovers ceased in 2011, not July 2013, as is clearly inferred by the letter.
The letter does continue, however, “After around 10 days, She said that She got pregnant. She gave birth X on (omitted) 2010. X is not my son”.
Mr Nord concludes in a statement that is very emblematic of his evidence in these proceedings, “We have never been living together in a single day”.
The statement given to Police and signed by Mr Nord, whose written English proficiency is not an issue in these proceedings, is entirely at odds with the latter letter and, as already observed, each is, in their own way and on various levels, entirely inconsistent with Mr Nord’s evidence in these proceedings. Such inconsistencies do not befall the evidence of Ms Van or her daughter. That is not to suggest that there are not inconsistencies in Ms Van’s evidence, but I will address those shortly.
Following the events in July 2013, it is Ms Van’s evidence that the relationship between she and Mr Nord continued. That is so notwithstanding that in July 2013, and it is an issue of no controversy, Ms Van revealed herself to Ms D, Mr Nord’s wife, and Mr Nord was, it would seem as a consequence of that revelation and the events which were occurring at the time, required to confess to his wife that which was occurring. Ms D’s evidence and Mr Nord’s evidence is internally consistent in that regard.
Ms D indicates that she intended that she and her husband would remain together and indeed, they have. However, Ms Van’s evidence is that notwithstanding those revelations, the relationship between she and Mr Nord continued, as would be clear from the suggested miscarriage which occurred at six weeks of pregnancy and which occurred in (omitted) 2014, (indicating conception in (omitted) 2013). Ms Van was not challenged regarding that assertion and when it was put to Mr Nord to afford him the opportunity, by reference to Browne & Dunn (1893) 6 R 67 (HL), to comment upon or disavow the evidence, he simply indicated it was none of his business and he would not comment. Accordingly, I accept Ms Van’s evidence that it was so.
Not long after the events of July, 2013 the sale of the property at Property A arose in most curious circumstances and, perhaps, circumstances that were unfortunate on many levels. It is the events surrounding that sale which Ms Van asserts as marking the end of the relationship between the parties.
With respect to the sale of the Property A property, two matters must be noted. Firstly, it is clear, and it is not suggested by either party that it is otherwise, that the property was listed and sold without recourse to Ms Van as the occupant. She first became aware of the anticipated sale when she began to receive letters from the then attorneys for Mr Nord and the agent that had been instructed. The material that was forwarded to Ms Van was highly inflammatory and, one might say, inappropriate. In any event, Ms Van, having become aware of the intended sale, then instigated the second unfortunate event. She lodged a Caveat against title to the property and sought to protect and continue the Caveat through proceedings in the Supreme Court of New South Wales, which proceedings were, and could never have been other than unsuccessful in light of the settled case law. As a consequence, ultimately, the Application was dismissed with costs.
Ms Van then commenced proceedings in this Court not very much longer after the dismissal of the Supreme Court proceedings. Those proceedings were the appropriate action to take, rather than any step towards recording a Caveat. I make clear, for the sake of avoiding embarrassment to any, that the attorneys retained by Ms Van at that time were not those who have prosecuted this Application.
The evidence of the parties is otherwise fully contained within their documents and transcripts of evidence which, in the event of future controversy, will no doubt be obtained and available to the Full Court as they have not been to this Court, although I am satisfied that does not create any disadvantage. My notes have been thorough and have been consulted and re-consulted throughout the course of these proceedings.
I propose thus to address evidential issues by reference to credibility, subject to touching only upon one brief issue, which may or may not have moment and which I am satisfied need not be pursued to any point of finding.
The evidence of Ms D, when she took the witness box today, commenced by her identification, as would be required for the transcript. Ms D was then asked if she had read her Affidavit and, having indicated that she had, was asked whether there was anything within her Affidavit which she felt required amendment or correction. Ms D then went on to make a statement with respect to her evidence, that statement being that Ms Van’s evidence, that during the period 2011 to 2013, that Mr Nord had stayed overnight with her was incorrect. Ms D asserted that Mr Nord had stayed with her [Ms D] every night (as she had asserted in her Affidavit without caveat), “save the nights that she had been away on holiday” (emphasis added).
Curiously, that was the very point at which Mr Nord’s cross-examination had concluded on immediately before a break was taken and Ms D called. Ms D denied that she had had any communication with Mr Nord during that brief adjournment and before she took the witness box. As indicated, I need not pursue the issue. However, it is curious that she would make a statement of such nature in that context.
The evidence of Ms D, at paragraph 17 of her Affidavit had been:
In all the years that Mr Nord and I have been together, both before and after we were married, Mr Nord and I have always been together over night. Mr Nord has never slept away from our home overnight.
Two issues arise, which do not necessitate a finding, as indicated. However, they are of great significance. Indeed, they are one of the tipping points with respect to credit in this case. Firstly, both Mr Nord, immediately before his cross-examination concluded, and Ms D, largely unsolicited, were quick to point out that their absolute conviction that they had never been apart from each other overnight on any occasion was subject to the qualification that this, of course, did not include periods when one or other was on holidays overseas without the other. That is a fact that only became apparent when it was put to Mr Nord on the third day of trial and during his cross-examination.
That chronology is not identified as a criticism, purely to reflect when it arose – as a consequence of material produced in response to a subpoena issued to the Department of Immigration and Border Protection. That subpoena was issued shortly prior to the first two days of hearing, and received by the Court on 27 June 2017. The material was inspected this morning. It may have been inspected previously.
What that material made clear is that the absolute assertion by each of Ms D and Mr Nord, that they had never slept a night apart from each other, simply could not have been correct. Ms D has had seven overseas trips between (omitted) 2009 and (omitted) 2013 – the period covered by the documents produced and ultimately tendered. All but two of those trips had been entirely absent Mr Nord, and even the two that have overlapped to any extent have involved a period of separation of Mr Nord and Ms D.
As a consequence, there have been periods of up to a month when Mr Nord has been in Australia and Ms D absent Australia, thus the opportunity and, indeed, the potential for consistency with Ms Van’s evidence that, for limited periods, as she identified in her cross-examination – not many, only a handful – that Mr Nord would stay with her full-time, rather than visiting and going home before the end of the evening, or occasionally staying overnight. The holiday absences of Ms D, without her husband, curiously are indeed periods of a little over a week to a period of about a month at a time.
Secondly, there is no basis at all upon which Ms D could assert, as she has sought to do in her affidavit, on oath, that her husband has never slept away from the home overnight. She has been absent for significant and extended periods and, thus, could have no relevant knowledge of where Mr Nord slept at those times.
Credibility
A convenient starting point for a conciliation of credibility is that observed in Moby & Schulter [2010] FLC 923-447 at paragraph 8. Therein, Mushin J, an excellent jurist, commenced in reciting the dilemma faced in those proceedings which circumstances are very much reflected in these proceedings, namely:
The parties disagree on nearly all of the important facts in these proceedings. Accordingly, it is necessary for me to make findings with respect to credibility. During the trial, both parties gave me cause for concern with regard to the reliability of their evidence. There is great antipathy between them and quite naturally, each of them sees the contentious facts through her or his own eyes. At times, that led to each of them exaggerating their respective versions.
I quickly seek to differentiate, however, the observations of Mushin J, largely applicable but not entirely, to the circumstances of this case. The criticism is apt, with respect to Mr Nord and Ms D. Their evidence has been wont to be given in terms of absoluteness. The response by Mr Nord to any proposition put to him during cross-examination, contrary to his position and which proposition may have been of assistance to Ms Van, was to deny it absolutely. There was no doubt in his mind – no nuance. No shades of light and dark, purely black and white. He was telling the truth. Ms Van and, it seems, her daughter, were lying.
The evidence of Ms Van’s daughter would appear to be somewhat exaggerated at times. I accept the submission put by Counsel on behalf of Ms Van that, at the time of her observations, she was a child. Indeed, that much is apparent, from the statement given by Mr Nord to Police. Accordingly, her recollection might not be as accurate as it could be, particularly as regards, for example, the chronology of events. However, she was clear and specific in certain aspects of her evidence, including assisting her mother by hanging out washing that her mother had done, and which washing included the underwear of Mr Nord. The highest the attack upon the daughter’s veracity reached was to suggest to her that she had no means of knowing whose underwear it was. Her evidence was that no other male person had stayed at the premises.
The evidence of Ms Van was not perfect and certainly not without criticism. However, I accept her as a witness of truth. I also accept that which is submitted by her Counsel, with respect to her evidence and any deficiencies with that evidence.
Ms Van has been extremely stressed during these proceedings. She is a woman of little financial means. She was, until her eviction, as it were, from the Property A property, living rent-free, relying upon Centrelink benefits and perhaps some meagre funds she received from (occupation omitted), largely undertaken from the home together with the financial largess of Mr Nord, (although that was quite meagre and few and far between in its provision). The sale of the Property A home was a significant stressor for Ms Van.
The stress that Ms Van suffered as a consequence of those events and these proceedings may well have impacted upon her presentation and her ability to focus and answer questions as clearly and specifically as might be desired. Indeed, the impact of these proceedings and the stress of them upon her was apparent by the reality that the second listing of this matter for trial was vacated on the basis of a contested adjournment Application when Ms Van had fallen significantly ill. Medical evidence was tendered to support her propositions at that time and even though that evidence had been disclosed, the adjournment Application was opposed and dealt with on a contested basis. Costs were reserved at the conclusion of that contested adjournment Application, although they are not pressed in closing submissions. Accordingly, I accept the submission as to the stress and impact of the proceedings upon Ms Van’s recollection. That being said, however, Ms Van’s evidence is remarkably precise, clear, consistent and plausible throughout.
Secondly, Ms Van is from a non-English speaking background. It is not about making allowances for witnesses who do not have good English language skills, although such an allowance might be made in any event. But Ms Van has poor spoken and written language skills. In written English, she is essentially illiterate. That has some real significance as regards aspects of her evidence which are inconsistent with what might be broadly described as prior inconsistent statements, for example, completion of X’s birth registration and the omission of Mr Nord’s details as the child’s father as well as completion of material for registering X with Centrelink following his birth. One might well suggest that, for example, an Elias Principle,[1] issue might arise, although one would think the Full Court has put that argument very much to bed as I had sought to discuss at some length, perhaps far too abundantly, in my earlier decisions in Benedict & Peake [2013] FCCA 332 and Benedict & Peake [2014] FCCA 642.
[1] Elias & Elias (1977) FLC 90-267.
Even if such a principle were to apply, or even if it were approached from a more general basis of a prior inconsistent statement impugning credit, Ms Van and Mr Nord are at one with respect to the aetiology of the above documents. There is no issue that X’s birth and Centrelink registrations were completed by Mr Nord and not by Ms Van. Ms Van simply signed the documents at a point in time when her English language skills, particularly written, were so poor that she would, in all probability, have had little or any understanding of what the form had said. Accordingly, and to that extent, the earlier statements and the documents containing them, including those tendered in Exhibit R1 and as annexed to Mr Nord's Affidavit material, are clearly inconsistent with Ms Van’s position, but the inconsistency is created not by Ms Van but Mr Nord, who was the author of the document, simply not its signatory.
Thirdly, Ms Van can well be described, without any criticism or offence to her, as an unsophisticated litigant. She does not come to Court for a living. These proceedings relate to her personal affairs, including addressing issues with respect to the paternity of her child (including the lightly veiled suggestion by Mr Nord inherent in that proposition, that she has, as it were, slept with others). The evidence of Ms Van has gone to a miscarriage and other intimate issues regarding her relationship with Mr Nord.
In those circumstances, the issues of stress, English language usage and understanding and her unsophisticated presentation and the nature of the proceedings are such as to address, and in my mind satisfactorily address and explain, the modest and minor inconsistencies which arise in her evidence.
The same cannot be said of Mr Nord. He is, as it were, a sophisticated litigant. He is a (occupation omitted) by training. His English language skills, particularly written, are vastly superior to those of Ms Van. His ability to answer questions, provide instruction and participate in the proceedings is substantial compared to Ms Van. It is to be observed that his Affidavit material is attested without translation. Accordingly, one can accept that his ability to comprehend and follow the proceedings is far more abundant than Ms Van’s.
That is not to suggest that Mr Nord does not, should not and could not be provided with the assistance of an interpreter for the purpose of the proceedings. There is a world of difference between being a litigant from a non-English speaking background but reasonably well versed in both oral and written English and being expected to participate as a litigant in proceedings which affect one’s own life without assistance. The stresses which arise warrant and require the provision of interpreters.
However, the same allowances as apply to Ms Van cannot be made as regards Mr Nord and they impact directly upon his credibility. Mr Nord’s evidence, in contradistinction to that of Ms Van is, in places, implausible, internally inconsistent and, at certain points, simply contradictory. Inconsistency arose repeatedly and with different versions of events given in a very short turnaround. The answers that were given changed dramatically in the space of minutes, not only as between the first and second tranche of this three day trial but throughout the evidence given with the assistance of each interpreter.
It is also important to observe the consistencies between events and the evidence of Ms Van. For example, whilst it is not impossible, it is difficult to comprehend how or why Ms Van, at a time when Mr Nord suggests he had broken off the relationship, was offered rent free accommodation for what transpired to be at least two and a half years and, in circumstances where, as I have already observed, he placed Ms Van in the very place that must have piqued his great fear and anxiety in light of her threats to communicate the relationship to his wife Ms D, being her presence at an address which Ms D makes clear she knew.
What is also entirely consistent with Ms Van’s evidence is timing of the sale of the property. Ms Van submits that the relationship ended or began to end in late 2013 and no later than March 2014. That was the period in which the relationship was becoming increasingly stressed and stressful, no doubt for both parties. I accept wholeheartedly that for Mr Nord, living between his marriage and this relationship, however it might have been held in his mind or appropriately described at that point in time, was stressful and all the more so once the revelation of the relationship to his wife had occurred in July, 2013.
Ms Van’s evidence is that at about the point in time that the relationship broke down between she and Mr Nord, that Mr Nord took action towards selling the property. The sale at that point and not earlier is consistent with the relationship breaking down. One would think that Mr Nord might not have offered let alone have not permitted Ms Van to take occupation of the property, if he had determined in 2011 that he wished to end the relationship. His only explanation for that action, inconsistent with his desire to have nothing further to do with Ms Van, is that he is a “compassionate” man, although a man of no sufficient compassion to refer to his biological child X as other than a mistake for the purpose of these proceedings.
One would think that following the alleged assaults in July 2013 that Mr Nord might have taken some action to then put Ms Van out of the property, or to put the relationship behind him. Indeed, the failure to do so is consistent with Ms Van’s evidence that the relationship simply had experienced a difficulty at that point in time, Ms Van’s evidence being when it became abundantly clear to her that Mr Nord was married and did not intend to leave his wife, and that this was the cause of the arguments and hostilities between the parties. All of those facts and circumstances are consistent with the evidence of Ms Van and inconsistent with the evidence of Mr Nord.
I am also conscious of that opined by Tree J in McMaster & Whyler [2013] FamCA 989 commencing at paragraph 11:
The credibility of the applicant was not seriously impugned [indeed, in this case it was not impugned either]. However the credibility of the respondent was strongly challenged on several fronts.
That is, in fact, very much the case as between these parties. For those reasons, amongst others, I am satisfied that Ms Van is the more credible witness, and that her evidence should be accepted and preferred.
Mr Nord, in contradistinction, has made prior inconsistent statements. As already referred to, his statement to Police, its later retraction and the inconsistency of both of those documents, or at least one of them, with his written evidence in these proceedings.
Mr Nord has been secretive throughout his relationship with Ms Van. Indeed, he conceded so much during his cross-examination this morning. All of the evidence must be seen within that context. Again, it is not moral judgment of Mr Nord, simply an observation and acceptance of his admission. For example, Mr Nord submits – indeed, there is little factual controversy about the matter in these proceedings – that there was no public holding out of the relationship by these parties to others. That is entirely consistent with Mr Nord’s evidence that he was somewhat ashamed of the adulterous relationship and fearful of its discovery and desired and determined to keep it secret. In those circumstances it is, at the very least, disingenuous to then seek to assert that Ms Van should not be accepted as a credible witness as to the existence of a relationship between she and Mr Nord based purely upon that circumstance of secretiveness. Indeed, it is a factor touched upon by Cronin J in Taisha & Peng and Anor, paragraph 77:
The secretive nature of the asserted relationship, the various circumstances of the living arrangements which changed from time to time and which are as consistent with a mother and daughter relationship as they are of a sexual relationship, the absence of any significant corroborative material to support the major assertions and the absolute denials of the family and the respondent’s other witness, all lead me to doubt the case of Ms Taisha. I cannot guess because that is exactly what the trial judge did in Briginshaw. I find that I am not persuaded to the appropriate standard as to the existence of a de facto relationship.
I have also already indicated that the evidence of Mr Nord is very much typified by hyperbole and absolute language. Everything was answered as absolutely denied, things never or always happened, and the like. Those absolutes do not assist Mr Nord in establishing his credit. Indeed, it makes it all the simpler for Ms Van to impugn that credit, as she need only demonstrate that something occurred once for the absolute denial of its existence to be unacceptable.
Case law
I do not propose to canvass the evidence in greater detail. I will refer to aspects of it by reference to the relevant case law, which I will now turn to and seek to summarise through the far more erudite and authoritative description of Judges of the Family Court of Australia and Full Court, commenced by incorporating paragraphs 6 to 21 of Cronin J’s decision in Taisha & Peng and Anor. It eruditely sets out the legal issue that is to be determined by this Court, as to whether a de facto relationship has existed between these parties, as opposed to a relationship of more broad definition:
6. Because the Court can only exercise its powers to deal with the parties’ property if there existed a de facto relationship, the declaration of the existence of that de facto relationship is in the nature of a jurisdictional fact (see Jonah and White [2011] FamCA 221). The onus is on the applicant to establish that the Court has that jurisdiction.
7. The definition of a de facto relationship is set out in s 4AA(1) of the Act. It provides:
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
8. Section 4AA(2) provides certain circumstances that might give rise to a conclusion that people were having a relationship as a couple. No particular finding in relation to any of the defined circumstances is to be regarded as necessary (see s 4AA(3)).
9. Section 4AA(2) is prefaced by a heading which reads “Working out if persons have a relationship as a couple”. In my view, it is not necessary to look to s 4AA(2) unless there is some definitional uncertainty from a literal reading of s 4AA(1). The latter section has mandatory requirements but the wording of the former, indicates it is to be used as a guide for the purposes of s 4AA(1).
10. Albeit the requisite elements of s 4AA(1) must be proved, interestingly, s 4AA(4) provides:
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
11. Thus, while the onus is on the applicant to prove on the balance of probabilities that a de facto relationship existed, the Court may attach whatever weight it considers appropriate. The Evidence Act 1995 (Cth) applies (see s 4(1)) and s 140 requires the Court to apply the standard of proof which is described as the balance of probabilities although it would seem that the weighting and the balancing task is much less formal than in other civil proceedings. In my view, s 4AA(4) does not ameliorate the requirement for the applicant to prove her case on that transparent standard.
12. In Moby and Shulter [2010] FamCA 748 Mushin J looked at s 4AA(1) and said:
137. …in Simonis v Perpetual Trustee Co. Limited (1987) DFC 95-052, Kearney J agreed with the approach of Powell J referred to in the previous paragraph and held (p 75,589):
I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts.
138. The approaches of both Powell J and Kearney J quoted above were adopted by the Court of Appeal of the Supreme Court of New South Wales in Light v Anderson (1992) DFC 95-120.
139. While I respectfully agree with the approach of their Honours, before the definition may be considered as constituting "a single composite expression of a comprehensive notion or concept", there are two specific elements of that definition which require individual consideration. The first of those is the concept of "a couple". For the purposes of the definition, "a couple" is constituted by two people, whether of the same or opposite sexes.
140. The second specific element is the concept of "living together".
13. It has also been said that it is the composite picture that must be looked at and any attempt to isolate individual factors and attribute to them relative degrees of …importance involves a denial of common experience and will almost inevitably be productive of error (see Barry and Dalrymple [2010] FamCA 1271 referring to the Full Court of the Federal Court of Australia in Lynam v Director-General of Social Security (1983) 52 ALR 128). Whilst a composite picture is clearly the only way any case can be determined here, these are mandatory requirements because they go to jurisdiction. Without proving that the parties were a “couple”, there can be no de facto relationship just as conversely, if a couple of people live together but there is no domestic relationship, the section is not satisfied.
14. In Moby and Shulter (supra) Mushin J went on to examine s 4AA(2) as it applied to the parties in that case. With respect, in my view, that exercise is not necessary unless the jurisdictional fact cannot be established from a consideration of s 4AA(1) alone. That is supported by the explanatory memorandum to the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 where in respect of s 4AA(1) the memorandum referred to the requirements whilst s 4AA(2) was referred to as providing a list of circumstances for a court to consider.
15. Turning then to the two requirements. The applicant must establish that the parties were a couple and then establish that the couple lived together in a domestic relationship. The word “genuine” in my view, adds nothing to the definition.
16. The word “couple” is not defined.
17. The Australian Bureau of Statistics defines a “couple relationship” as:
being two people usually residing in the same household who share a social, economic and emotional bond usually associated with marriage and who consider their relationship to be a marriage or marriage-like union. This relationship is identified by the presence of a registered marriage or a de facto marriage. (See website DBS).
I note that that definition is used for census purposes.
18. The Shorter Oxford Dictionary defines “couple” as a union of two. (See 6th edit (2007)). The very word “couple” comes from the Latin which is a tie or a bond.
19. In Jonah and White (supra) Murphy J defined the relationship as being a de facto relationship when the parties had so merged their lives that they were for all practical purposes, living together as a couple which he thought was the “manifestation of coupledom”. His Honour said that it was the nature of the union that lay at the heart of the statutory considerations. I cannot add to what Murphy J said and I respectfully adopt his view.
20. But there must still be evidence of a domestic relationship. Mushin J in Moby and Shulter (supra) at para 167 said it was not a term of art but had to be given its ordinary meaning. I respectfully also adopt that because, having regard to s 4AA(4), the Court can take a wide discretionary view of the way in which the parties themselves conducted their relationship. Even having said that however, a domestic relationship must be one in which there are activities of running a household or shared households. That is, something must be seen to be related to domesticity which refers to home conditions and arrangements. For example, it could be indicated by people coming and going as if entitled to use and share the home’s facilities which is quite distinct from a boarding house or backpacking hostel where individuality reigns.
21. A couple therefore living in a domestic relationship is the opposite of a couple of individuals.
His Honour canvasses dictionary definitions and an abundance of both Federal and State determinations with respect to whether a de facto relationship can be established.
Similarly, I incorporate the erudite discussion of Tree J in McMaster & Wyhler at paragraphs 5 to 10:
5. Pursuant to s.90RD(1) of the Family Law Act 1975 (Cth) (“the Act”) this Court is empowered in proceedings brought under, amongst other provisions, s.90SM of the Act, to declare for the purposes of those proceedings that a de facto relationship existed, or never existed, between the parties.
6. The definition of “de facto” relationship for the purposes of the Act is contained in s.4AA. Sub-section (1) provides as follows:
4AA(a) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see sub-section (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has affect subject to sub-section (5).
7. Sub-section (5) provides as follows:
For the purposes of this Act:
(a) a de facto relationship can exist between two persons of different sexes and between two persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
8. Some elaboration of the circumstances relevant to working out if persons have a relationship as a couple is contained in sub-section (2). That provides as follows:
Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
9. Statutory guidance as to the inter-relationship of those circumstances, and the weight to be given to them, is provided in sub-sections (3) and (4) as follows:
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A Court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.
10. Those provisions, or their state counterparts, have been the subject of considerable judicial discussion, principally in an attempt to more precisely analyse what will comprise “a couple”. Much of that analysis seems to have its genesis in the difficulty in satisfactorily distilling the essence of such a common, everyday concept. From those decisions the following propositions may be stated:
(a) Whether a de facto relationship exists or not is a question of fact, not a matter of discretion;[2]
(b) A de facto relationship does not need to be akin to a marriage[3] although the nature of the association involved in a marriage relationship may be instructive;[4]
(c) The parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time;[5]
(d) Whilst a composite expression, it is comprised of two parts “a couple” and “living together” each of which must be established;[6]
(e) There need not be full time living together;[7]
(f) The relationship may be unhappy, but still subsisting;[8]
(g) Sexual or other exclusivity is not necessary;[9]
(h) The gist of the inquiry is the degree to which parties have merged their lives into one.[10] That connotes financial, emotional and physical interdependence.[11]
[2]Jonah v White [2011] FamCA 221 at [58] per Murphy J.
[3]Moby v Schulter (2010) FLC 93-447 at [163]-[164] per Mushin J.
[4]KQ v HAE [2007] 2Qd R 32 at [18] per McMurdo P, Keane & Holmes JA.
[5]Vaughan v Bele [2011] FamCA 436 at [11] per Cronin J.
[6]Taisha & Peng [2012] FamCA 385 at [12]-[21] per Cronin J.
[7]Moby v Schulter (supra) at [140].
[8]JRR v PH [2005] QSC 253 at [29] per Byrne J.
[9]ibid at [62]-[64].
[10]ibid at [60] and [67].
[11]Zau v Uongh [2013] FamCA 347 at [35] per Cronin J.
The Court must have regard to each of the factors in subsection (2A) although they are not exhaustive.
Subsections (3), (4), (4A) and (5) are not relevant to this determination, dealing as they do with Applications for Costs by or involving Independent Children’s Lawyers or child welfare agencies.
I will briefly touch upon each of the factors in subsection (2A).
Financial circumstances of the parties
Ms Van’s financial circumstances are known. She has filed a Financial Statement on 10 November 2014. Her evidence would suggest that little, if anything, has changed since that time.
Ms Van receives income by way of a small and modest amount of net rent that she receives from the property that she owns in South Australia and is otherwise dependent upon Centrelink benefits. She receives precious little by way of Child Support from any of the fathers of the three children who live in her care. The property in South Australia is of modest value, suggested in 2014 to have been valued at $180,000 but at the same time encumbered by a mortgage of $177,000, leaving little, if any, equity. Accordingly, Ms Van is very much, to use language from other jurisdictions, a person of straw.
The financial circumstances of Mr Nord are not known. He has not filed a Financial Statement and an Order requiring that it be filed has been absent jurisdiction. The Court is not in a position to compel him to do so as until such time as a declaration is made that the Court has jurisdiction (see, for example, Norton & Locke).
The financial circumstances of Mr Nord are not known. What is known is that:
a)He is employed as a (occupation omitted);
b)He owns the home in which he lives with Ms D – the registered proprietorship of the property is not known; and
c)Mr Nord has the net proceeds of sale or at least received the net proceeds of sale of the Property A property which was sold for somewhat more than it was purchased for and there being no evidence that the mortgage had increased at any time.
Accordingly, I am satisfied that Mr Nord’s financial circumstances, whilst not specifically known, would not obviate against an Order for costs.
Whether a party is in receipt of legal aid
Neither is.
The conduct of the parties with respect to the proceedings, including compliance with disclosure, etcetera
There is no specific complaint in that regard. However, as regards conduct, there are certain aspects of the evidence which would suggest that a more forensic approach might have been adopted by Mr Nord towards these proceedings. It is to be remembered that the substantive plea for relief that Ms Van will now be able to press seeks a payment to her of $100,000.
The costs incurred by the parties to date are not known. However, by reference to the scale in schedule 1 of the Federal Circuit Court Rules 2001, the costs that Ms Van would be entitled to from that scale alone would exceed $30,000 or around one third of the amount that is actually in dispute between these parties in the substantive proceedings. I am conscious of that which fell from Sackar J in Bryant v Hawkesbury Radio Communication Co-operative Society Limited [2014] NSWSC 848, particularly at paragraphs 110 and 157 which I incorporate herein:
110. In my view, in the modern era and consistent with section 56 of the Civil Procedure Act parties have an obligation to constructively collaborate not just on the issues to be ventilated at trial but on the most efficient methods to do so. As has been otherwise said, litigation is not a game and the expense of the courts to the public is so great that their use must be made as efficient as is compatible with just conclusions: see Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 per Heydon JA at [26] and White v Overland [2001] FCA 1333 per Allsop J at [4].
157. Whilst the system of justice administered by courts in this state is adversarial, in the modern era in my view parties have a distinct and clear obligation to cooperate with each other and the court to achieve a quick and inexpensive solution to their grievances including in my view good faith settlement discussions.
Those factors, whilst they addressed the refusal of costs to an Applicant who had been successful but who had refused to participate in any negotiation or mediation, have some collateral relevance to these proceedings. Mr Nord, if he had adopted a more objective, nuanced, forensic balance of the evidence in the case, particularly once the border and protection documents – Exhibit A1 – were available, which they have been now for quite some months, might well have realised that there were some substantial difficulties with the evidence in his case, leaving aside the vast inconsistencies and changeable nature of his own evidence during the course of the matter.
However, that is not specifically an issue of conduct.
Whether the proceedings were necessitated by the failure of a party to comply with previous orders
This is not relevant.
Whether a party has been wholly unsuccessful
Mr Nord has been wholly unsuccessful. Adverse credit findings have been made against him. Those credit findings, this being very much a finding of fact based decision, have been fatal to his cause.
I am conscious of that which fell from the Full Court regarding this factor in Davida & Davida (Costs) [2011] FamCAFC 61 and I incorporate the appropriate passage therefrom:
The other justifying circumstance is the husband’s relative success. True it is that the relevant paragraph in section 117(2A) refers to a party being “wholly unsuccessful”, but I think it is fair to say that the practice has been to look at what one might term the relative merits of success or lack of success between the parties, even if necessary doing that under the last matter mentioned in section 117(2A), being any “other” matter.
In Davida & Davida, the Full Court made clear that one might have regard not only to the lack of success of one litigant but the relative success of the other.
In this case, Ms Van has been wholly successful in that her evidence has been accepted and preferred and the declaration that she has sought will be made. This factor strongly supports an Order for costs.
Offers of settlement
There is no evidence of any offers having been made. Indeed, it is difficult to comprehend that any would have been made, at least from Mr Nord’s position, in light of the strident opposition that he has had to any finding of fact as to the existence of a relationship. I can well empathise with Mr Nord’s position in that regard. Much hangs upon this determination. Not only the ability of Ms Van to continue with an Application but, potentially, some real impact upon Mr Nord’s marriage and its longevity and that which would flow as a consequence of separation from Ms D – a further set of proceedings between Mr Nord and Ms D (as to which jurisdiction is not an issue as those parties are married) and the financial disadvantage that would follow. However, this is not a Court of misericordia. Decisions are not made based on empathy. They are made based upon a sensible use of Court resources, sensible forensic decisions based upon the evidence that is available and concessions being made where appropriate.
It might have been better for this case to have simply been settled on a without prejudice basis and the parties have moved on than to have invested the time and effort that they have, now a little short of three years.
Such other matters as the Court considers relevant
This case, like all section 90RD declaration cases, abundant as they are before the Court, is determined on its facts. It is a matter of accepting one party’s evidence or the other. In most respects, the evidence of Ms Van and Mr Nord are simply inconsistent and cannot sit together. Simply, one party is found right (or more probably right) and the other wrong.
In this case, it has been very much “high-stakes poker”. Mr Nord has invited the Court to find that he is the witness of truth and veracity and that Ms Van has manufactured evidence. Ms Van does not run her case to suggest that Mr Nord has manufactured evidence, but certainly he has denied matters which, even when he has been faced with evidence that might have induced a competently represented litigant (as Mr Nord was until a few days ago) and a reasonably prudent litigant, particularly a sophisticated and intelligent litigant, to have made concessions, such as with respect to overseas travel by his wife, he has not been able to bring himself to do even that.
It is to be remembered that there were three absolute denials by Mr Nord, very much Judas-like in their scale, of the counter-proposition that he and his wife had ever spent a night apart. On each occasion Mr Nord replied “absolutely not”. This continued until day 3 of the hearing when the documents relating to his wife’s overseas travel were introduced. Then and only then was the caveat introduced, the concession made that, “of course”, they were not together when his wife was not in the country.
In those circumstances, I am satisfied that costs should be awarded. They are justified and it is just and equitable that Ms Van should have her costs. It would be unjust and inequitable if she were refused costs.
It is not agitated that an award of indemnity costs would be made. I am conscious that the scale of costs in schedule 1, which I must consider by reference to Division 21 of the Federal Circuit Court Rules 2001, provides a sufficiently generous address of such matters to enable the proceedings to be determined with justice.
It is relevant to briefly consider the history of the proceedings, particularly to explain the three year delay until this point.
The matter was commenced with an Application Initiating proceedings filed on 10 November 2014.
The matter was returnable before the Court on 16 December 2014. The matter had been listed, it seems, at short notice on the basis of urgency regarding the proposed sale of the property, although nothing was pressed at the first return date as, regrettably, the home had sold. Mr Nord’s documents were filed shortly prior to the first return date and, as a consequence (and it being apparent that the jurisdictional issue was present), the matter was fixed straight to hearing with no other intervention. Indeed, no other intervention could have been ordered.
The matter was fixed for hearing to commence on 11 February 2015. On that date, regrettably, as sometimes occurs, the matter was not reached. The parties used the time, however, to negotiate a set of Orders with respect to paternity testing and which enabled that issue, at least, to be put to bed. However, on the basis that, whilst the child’s paternity was established, there was still dispute as to whether the parties had ever been in a de facto relationship with each other, jurisdiction could not be established by the child’s existence alone.
Accordingly, when the matter next returned before the Court, 8 May 2015, a declaration of paternity was made by consent and the matter adjourned for call over. This adjourned date sadly fell at a time when the Court’s resources were at the lowest with the Registry having gone from 5 Judges to effectively 2 in a short space of time. Thus, no dates were available to which to list the matter for hearing.
From the call over, the matter was listed for a further two day hearing, 13 and 14 April 2016. The matter could not proceed on those dates, due to the mother’s illness, and, as already alluded to, a contested adjournment Application took up a whole day. The matter was ultimately adjourned to a mention date, to ensure that the mother’s health had recovered, and as no further dates were available.
The father’s costs of the adjournment were reserved in the sum of $8,242, but those costs have not been pressed, although an opportunity was provided to make submissions with respect to costs.
When the matter returned for call over, 9 November 2016, the proceedings were further adjourned, regrettably so. The matter then returned on 11 April 2017 and, from there, the matter was listed for a one-day trial, with a notation that the matter would continue on the next, second day “if necessary”.
The matter occupied two full days and was then adjourned part-heard for this third and final day.
On that basis, I am satisfied that costs, by reference to schedule 1, would include the following:
a)Item 1, commencing proceedings by an Initiating Application, $2199;
b)Attendance on the first return date, item 13(a), $299;
c)Preparing for a two-day hearing, item 7, $5811;
d)The first hearing: whilst the matter was listed for two days, I propose to allow one day and without advocacy loading, as the matter was simply not reached. Accordingly, item 13(c) provides an amount of $2199;
e)There is then the further mention, 8 May 2015, and again 6 July 2015, each of which would be item 13(a), short mention, $299 each or $598 in total;
f)The hearing 13 April 2016, I propose to allow under item 13(c), as one day, $2199;
g)The further hearing on 9 November 2016 would be on the same basis, item 13(c), $2199, together with item 12, advocacy loading of 50 per cent, being an additional $1099.50. The matter did proceed with respect to a contested adjournment Application;
h)There was a call over on 11 April 2017, which would be allowed as item 13(a), $299;
i)There is then the two-day hearing, 11 and 12 July 2017, for which I would allow both item 13(c) and item 12, advocacy loading, for each day, being $2199 per day hearing fee and $1099.50 advocacy loading, making $4,398 and $2,199 respectively.
j)There is then further preparation for one day, item 6, $4686;
k)The hearing of today, I would allow item 13(c) and item 12, the advocacy loading, at $2199 and $1099.50 respectively;
l)The filing fee and hearing fee have not been paid, as Ms Van is in receipt of pension benefits which entitle her to an exemption. There have, however, been three subpoena issued and service fees and conduct money paid. The specific amounts are not known, but I propose to allow $120 each for service and conduct fees, being $360 in total, together with a service fee in relation to an Initiating Application of $120 ($480 in total);
m)Item 15 permits an allowance with respect to photocopying and other disbursements. I propose to allow an amount of $300. I do not propose to count the number of pages copied and apply a per-page rate. The allowance is not, I am satisfied, overly generous.
Those amounts would total $32,264. I propose to round that down to an amount of $30,000.
Division 21A of the rules envisages that there might be some departure from the scale, and I am satisfied it is appropriate, as:
a)Firstly, there has been a significant delay due to the mother’s illness. The illness was not the mother’s fault. It was largely impacted by these proceedings. However, there were costs thrown away as a consequence. However, as the costs are not pressed at hearing, I do not propose to allow the full amount that was reserved, but a modest adjustment;
b)Secondly, I am conscious that the scale I have used by reference to schedule 1 is that which has applied since the commencement of this financial year, and, accordingly, some slight discount would be appropriate, as the scale that would have been applied at any specific date would have been marginally less.
In those circumstances, I propose to make an Order for costs in the sum of $30,000, to be paid no later than 24 November 2017, being approximately six weeks hence.
It is again to be observed that these costs are incurred in the context of a claim which has a value of $100,000. The costs which have been incurred by the Court in funding the litigation would likely be of a similar nature in resources lost and not available to other parties, by reference to authorities such as Aon Risk Services & Australian National University [2009] HCA 27, Haset Sali v SPC Ltd [1993] HCA 47, Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46.
That leaves the issue of the parenting arrangement.
Parenting orders
As indicated, the parenting arrangements for this child are undefended. They have been since the Amended Application was filed two and a half years ago.
As already observed, Mr Nord has made clear that he desires no relationship with this child. They are matters for him. They may well be impacted by the circumstances relating to his marriage and his desire to preserve it. One would imagine Ms D would have some real difficulty seeing that relationship engaged with, between Mr Nord and X, if their marriage is to subsist, when she is fully aware of the circumstances of the child’s conception and birth. However, the child is entitled to finality, and Ms Van is entitled to the determination of her Application.
However, to the extent that Mr Nord has stridently advanced his position that he wants nothing to do with the boy and seeks no Orders, I am satisfied that it is appropriate to deal with and conclude the Application now. It will not prejudice Mr Nord’s position, it will give certainty to Ms Van (who after two and half years is entitled to that much) and is in X’s best interests.
I must have regard to each of the legislative provisions (see Goode & Goode (2006) FLC 93-286 and Marvel [2010] FamCAFC 101).
I must commence with section 60CA of the Act, being the requirement that any Order that is made is in the child’s best interests.
I must have regard to the objects and principles in section 60B of the Act, and which I incorporate herein:
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Court cannot make Orders that meet X’s best interests by ensuring that he has the benefit of both parents having a meaningful involvement in his life, as his father does not desire such an involvement.
That is sad for X. It is no doubt sad for Mr Nord. There has been involvement in the past. Indeed, the few photographs that are tendered of outings by these parents together with their son and of family events involving Ms Van, Mr Nord, X and his sisters would indicate that it was a matter of real joy and enjoyment for all. But these are decisions that adults make, and their decisions are not always insightful or well placed. They will have disadvantage for X, but he will have the benefit of his sisters and mother to provide him with ongoing love.
There is no need to protect the child from any harm through abuse, neglect or family violence. The child is receiving abundantly adequate and proper parenting from his mother and sisters, and there is no Order this Court can make nor need make to assist in having parents fulfil duties and meet responsibilities. Ms Van meets hers gladly and willingly and will continue to do so. Mr Nord has abandoned his role.
The principles underlying the objects create certain rights for this young lad. They include a right to know and be cared for by both parents. But this Court cannot make an Order that enforces that right against an unwilling parent. If Mr Nord does not desire any relationship with this child, it cannot be forced upon him. Indeed, it would be counterintuitive.
The Act makes clear that, whilst it is the child’s right to a relationship, the making of an Order[12] vests the right pursuant to the Order in the parent, and, accordingly, one would be loath to provide a right to a parent when they have expressly indicated that they do not desire it.
[12] See sections 65M, 65N, 65NA and 65P of the Family Law Act 1975.
The Court cannot make any Order that will allow this child to spend time or communicate with both parents, as the father removes himself from the child’s life. In reality there is no barrier.
The parents will share duties and responsibilities through the issue of a Child Support assessment, but very little else. The parents will not agree about future parenting. They will not engage with each other, no doubt.
I do not propose to make any Order with respect to parental responsibility. Ms Van proposes equal shared parental responsibility but in light of Mr Nord’s attitude to the child that could not be appropriate or practicable. There is no plea for sole parental responsibility.
I propose to leave the parties to the provisions of section 61C of the Act. Each will have parental responsibility whilst X is with them and that will have the net effect, at this point, that, in practical terms, Ms Van will make all of the decisions. There is no obligation created, for example by section 65DAC of the Act, in those circumstances, for any consultation with respect to decisions.
If there is to be any issue of overseas travel, it may be necessary for Ms Van to return to the Court and seek an Order for sole parental responsibility. There is none presently proposed or likely given Ms Van’s financial circumstances. If travel became possible one would hope that might be avoided consensually, as, in the circumstances, and Mr Nord having rejected any Application or involvement with the child, notwithstanding that it is offered – would no doubt face a significant costs Order if such an Application were necessary. Children have a right to enjoy their culture, and, for these parties, that would involve, potentially, overseas travel in the future. For present, it is not envisaged. Indeed, on her financial – in her financial circumstances, regrettably, Ms Van could not presently afford it. It can be left to another day.
I must then have regard to the presumption of equal shared parental responsibility in section 61DA of the Act and determine whether the presumption applies and, if it does apply, whether it is rebutted. The presumption would apply. There are allegations by Mr Nord of family violence perpetrated upon him by Ms Van. However, I have not pursued those issues to any factual finding, nor need I, for the purpose of the declaratory relief and, for the purpose of the parenting issue, absent such a finding, the presumption would apply. However, I am satisfied it would be contrary to the child’s best interests for the presumption to apply.
These parents do not communicate, are not likely to communicate with each other in the future and could not realistically be suggested as capable of making joint and consensual decisions. In those circumstances, the child would be disadvantaged if decisions could not be made. The practical reality is that, at all times since birth, Ms Van has made decisions for this little boy and she has done so very well and to a high standard. His needs are met. He is developing well. His needs, subject to the absence of his father, are well addressed and will continue to be so. Accordingly, I am satisfied that the presumption is rebutted as impractical.
I must then have regard to section 60CC of the Act and each of the factors therein, commencing with the primary considerations of the benefit of the child of a meaningful relationship with both parents and the need to protect the child, the latter prioritised over the former by subsection (2A), but not in play in this case.
I am thus left to determine how Orders might be made that will provide to X the benefit of a meaningful relationship with both parents. Bluntly, it cannot be achieved. It can only be achieved if parents wish to have such involvement and Mr Nord has made clear that he does not.
Mr Nord does not for his own reasons, good or otherwise, and accordingly, the primary considerations are of little assistance.
I must then turn to the additional considerations, which as observed by Carmody J in Dylan & Dylan [2007] FamCA 842, or that portion of the decision not interfered with on Appeal, may, in combination or singularly, outweigh primary considerations. I will deal briefly with each.
Views
There is no specific evidence of the child having a particular view one way or another regarding his future arrangements, save and except that he is very happy and well settled in his mother’s care and would, no doubt, be distressed by removal therefrom, particularly as his father is determined to be a relative stranger to him and in his life.
Nature of the child’s relationship with each parent and other people of significance to him
This little boy enjoys an excellent and close relationship with his mother and with each of his sisters. He will continue to live with them and benefit from those relationships. The Orders that are proposed for young X to live with his mother will continue such an arrangement.
The extent to which each parent has taken, or failed to take the opportunity to participate in decision making, spend time or communicate with the child
This factor, of itself, obviates against any Order for time or communication in favour of Mr Nord. He does not seek one. Mr Nord’s decision is not of benefit to the child, per se, but it is a reality for this child.
The extent to which each parent has fulfilled their obligation to maintain the child
Ms Van has done so, Mr Nord has not, or at least not to any significant extent. The ability to now obtain a Child Support assessment as a consequence of Mr Nord’s details being included on the birth certificate may change that. The child has a right, both as to knowledge of his heritage and paternity and his right to maintenance and support from both parents. Both rights are created by the International Convention on the Rights of the Child[13]and will be achieved thereby.
[13] Articles 7, 8, 26 and 27.
Likely effect of change, including separation from either parent or other person
The Orders made by this Court will not separate X from anyone. He will continue to live with his mother and sisters. He will continue to have nothing to do with his father, as a consequence of his father’s own decision.
Practical difficulty and expense
I incorporate herein section 65DAA subsection (5) of the Act:
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parents live remarkably close to each other, but geography is not the difficulty here. The parents have no capacity to implement any arrangement for time, as Mr Nord does not wish to participate. The parents have, thus, no capacity to communicate and resolve difficulties, and if Mr Nord wishes to seek to repair and continue the fragile and fractured marriage which subsists between he and Ms D, no doubt it is part of his determination that the relationship will not be practised.
The impact on the child
This is potentially negative, but cannot be addressed by Orders made by this Court and will be addressed positively and appropriately by Ms Van.
Capacity of each parent to meet the child’s needs, including emotional and intellectually
The decision by Mr Nord to terminate any relationship with the child is not focused upon the child. It is not focused upon the child’s needs. It is focused upon Mr Nord’s needs. However, that criticism aside, both parents are capable of meeting this child’s needs, should they wish to. Indeed, the photographic evidence demonstrates they have. I accept Ms Van’s evidence that both parents have been involved in attending to arrangements for this child.
It seems somewhat mean spirited, certainly, contrary to the assertion of empathy, for Mr Nord to assert, for example, in absolute terms, “absolutely not” that he has ever held affection for the child, attended to items for him, assisted in his education, assisted in playing with him, or done anything at all for him. If one accepted Mr Nord’s evidence, albeit that it is somewhat contradicted by the photographic evidence, the child has simply been a presence, perhaps even an annoyance, while he is attending upon the child’s mother wishing to engage in sex with her. In any event, those issues aside, both are capable and Ms Van abundantly so.
Maturity, lifestyle, sex and background of the child
This child is born of an adulterous affair. There is no other way of describing it. It is how Mr Nord describes it. The child need not be aware of those circumstances. One would think we have moved well beyond the laws as they stood at the time of my legal education, where one could go to the seventh floor, Sydney University library, and obtain a copy of the laws of bastardry. One would think that this child might grow up simply knowing nothing more than he is the product of two people, who at some point in time found something in each other and who is himself unique, special and loved.
Beyond that, the factor does not assist.
Neither parent identifies as Aboriginal or Torres Strait Islander, thus, nor does the child.
The attitude of the parents is addressed above.
Family violence is raised by Mr Nord. As the parties have nothing to do with each other and will not in the future, it does not assist in this decision.
There are no family violence Orders. There was briefly a Provisional Order which included, curiously, young X as a protected person. It was withdrawn and discontinued by Police at the request of Mr Nord.
It is also to be observed that Police are bound by protocols with respect to prosecution of complainants once a complaint is made. One might well imagine, although I need not make any finding, that one factor the Police had taken into account in determining to not press the Application, even though it involved a child, and the Police protocols would have required that it otherwise be so, would be difficulties they may have apprehended with Mr Nord as a witness, in light of the significant variance in the two accounts that he had provided to them.
In any event, there are now no family violence Orders.
Whether it is preferable to make an order that will least likely lead to the institution of future proceedings
The only potential future proceedings that would arise on the evidence is the potential for an Application for sole parental responsibility to be allocated to Ms Van should overseas travel arise.
Otherwise, the Orders that are sought and otherwise proposed to be made will adequately address this child’s needs, and, as Mr Nord has disavowed all involvement in the child’s life and, as it were, walked away from this child as his own, notwithstanding that he should be given credit for having consented to the declaration of paternity, at the very least, no further Application is likely at any time.
Accordingly, and for all of those reasons, Orders are made as set out above.
Then the balance of the matter will be the subject of Orders for filing and disclosure and the matter brought back on a further date.
I certify that the preceding two-hundred and fifty-nine (259) paragraphs are a true copy of the reasons for judgment of Judge Harman.
Date: 9 November 2017
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