Vannielle & Zander

FAMILY COURT OF AUSTRALIA

VANNIELLE & ZANDER

[2009] FamCA 259

FAMILY LAW – PRACTICE AND PROCEDURE – where determined that matter was to proceed on an undefended basis due to the father’s failure to comply with previous orders or attend – where father attended the hearing late – father permitted to make submissions on children’s issues

FAMILY LAW – CHILDREN – parental responsibility – where the presumption of equal shared parental responsibility is rebutted – mother to have sole parental responsibility for the children

FAMILY LAW – CHILDREN – overseas travel – where the mother was born overseas – where the mother has family overseas – mother permitted to travel overseas with the children

FAMILY LAW – CHILDREN – change of name – benefit to the children of having the same surname as each other and the mother – mother permitted to change surnames of the children without the father’s consent

FAMILY LAW – CHILDREN – with whom children live – with whom children spend time and communicate – whether a 6 year old child to be permitted to have a mobile telephone – consideration of s 60CC factors – not appropriate to make an order requiring the child to have a mobile telephone – children to live with the mother and spend time with and communicate with the father at times agreed by the parties

FAMILY LAW – PROPERTY SETTLEMENT – De facto relationship – contributions of the parties – orders sought by the mother are just and equitable

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D & 65DAA
De Facto Relationships Act (NT) s 18
Family Law Rules 2004 (Cth) r 11.02

Tate and Tate (2000) FLC 93-047
State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

APPLICANT:

Ms Vannielle

RESPONDENT:

Mr Zander

FILE NUMBER:

DNC

697

2007

DATE DELIVERED:

7 April 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

10 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Roennfeldt

SOLICITOR FOR THE APPLICANT:

Withnalls

COUNSEL FOR THE RESPONDENT:

Self-Represented

SOLICITOR FOR THE RESPONDENT:

N/A

Orders

Children’s Issues

The mother have sole parental responsibility for the children J born on the … March 2003 (“[J]”) and L born on … March 2007 (“[L]”) (“the children”).
The children live with the mother.
The children spend time and communicate with the father at times and upon conditions agreed between the parties.
Paragraph 7 of the Orders made in the Family Court of Australia on the 17 March 2008 be discharged and the Darwin Registry of the Family Court of Australia return the passports for the children to the mother.
The parties are to advise each other as soon as possible of any emergency involving the said children whilst they are in their respective care.
If the mother wishes to take the children on a holiday outside the Commonwealth of Australia then the mother shall:
(a)provide the father at least 28 days written notice of her intention to take the children on holidays;
(b)provide the father a contact telephone number for the children whilst they are away;
(c)provide the father with a full itinerary, including accommodation, addresses for the children whilst they are away; and
(d)provide the father a telephone call upon arrival at each major holiday destination to confirm safe arrival; and
(e)ensure that the children are made available at all reasonable times for telephone communication with the father and allow the children to call the father at any time should the children so desire.
Without requiring the permission and signature of the father, the mother is entitled to amend the registration of the children with the Registrar of Births, Deaths and Marriages such that J will henceforth be known as “J Zander Vannielle” and that L will henceforth be known as “L Zander Vannielle”.

Financial Issues

The property located at M in the Northern Territory of Australia more particularly described as Vol … Folio … NT (“the property”) be listed for sale forthwith with a real estate agent agreed by the parties and failing agreement within 14 days from this date to be listed with Ms Y of Ray White Real Estate at a price agreed between the parties and failing agreement within 14 days of today’s date at a price nominated by a valuer appointed by the President of the Real Estate Institute of the Northern Territory for sale by private treaty for a period of 16 weeks.
In the event that the property is not sold within three months, the applicant mother shall be entitled to arrange for it to be offered for sale by public auction, with a reserve price, and upon condition nominated by the real estate agent chosen by the applicant mother for that purpose.
In the event that the property is not sold at that auction, unless it is sold by private treaty in the mean time, it shall be offered for sale at a second auction within six weeks of the first auction without reserve. At that second auction, provided that prior notification is given to the other, each party or their representatives shall be at liberty to bid.
Upon completion of the sale, the proceeds of the sale shall be applied as follows:
(a)firstly, in payment to the mortgagee to discharge the registered mortgage;
(b)secondly, to pay all outstanding municipal rates and other levies due in respect of the property;
(c)thirdly, to pay all costs, commissions and expenses of the sale;
(d)fourthly, to pay to the applicant’s mother the sum of $5,300 AUD;
(e)fifthly, to pay the applicant mother 70 per cent of the remaining balance; and
(f)sixthly, to pay to the respondent father the remaining balance.
The respondent father retain all motor vehicles that he has in his possession and all motor vehicles which are currently located on the property and the respondent father is to be responsible for making all arrangements and paying all costs associated with removing all motor vehicles located on the property with such removal of all motor vehicles from the property to occur prior to the date of settlement for the sale of the property.
The respondent father retain the business T Business and he indemnify and keep the wife indemnified in relation to all liabilities associated with the business.
Unless otherwise specified in these orders and except for the purpose of enforcing the payment of any money due under these orders and any subsequent orders:
(a)each party shall be entitled to the exclusion of the other to all other property and chattels of whatsoever kind or nature in the possession of such party as at the date hereof and for this purpose, bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, superannuation entitlements are deemed to be in the possession of the person who is name as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(b)each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this order.
The applicant mother and the respondent father shall execute all documents and do all acts and things necessary to give validity and operation of this order and in the event of a party refusing or neglecting to execute such document or to do any such act or thing:
(a)a Registrar of the Court is appointed to execute such documents and to do such act or thing in the name of the defaulting party; and
(b)the party in default shall pay all reasonable solicitor/client costs on an indemnity basis incurred by the other party for the purposes of enforcing this order.
Remove all matters from the pending list.

IT IS NOTED that publication of this judgment under the pseudonym Vannielle & Zander is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 697 of 2007

MS VANNIELLE

Applicant

And

MR ZANDER

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings between the applicant mother Ms Vannielle and the respondent father Mr Zander commenced in the Family Court of Australia in the Darwin Registry in December 2007.
The mother sought orders both in relation to the two children of the relationship, J born in March 2003 and L born in March 2007 and orders by way of adjustment of property pursuant to the De Facto Relationships Act (NT).
Interim and procedural orders have been made.
Following various procedural orders made by other Judicial Officers, the matter was listed before me for a first day hearing on the 24 November 2008. The hearing took place by video-link between Darwin and Adelaide. The father attended unrepresented. The mother was represented by Ms Roennfeldt.
Included in the orders made that day was an order that both parties attend upon the Family Consultant with a view to updating the report before the Court in relation to the children’s issues in time for the report to be concluded no later than early February 2009. (The Family Consultant, Mr R had previously prepared a report in late May 2008).
I adjourned the matter to the 19 February 2009 at 10.00 am before me with a view to confirming that the trial would conclude in the sittings in Darwin due to commence on the 9 March 2009.
On the 24 November 2008 both parties were ordered to file and serve an affidavit of evidence-in-chief setting out all the evidence upon which they relied no later than the 16 January 2009. It was noted at that hearing that it was not an issue that the father was to be registered on the Birth Certificate of L as the father.
The father was present when the orders were made. The orders of the 24 November 2008 were also drawn, sealed and sent to the father at his address for service.
On the 19 February 2009 the matter proceeded before me again by video-link between Darwin and Adelaide. Ms Roennfeldt was present representing the mother. The father did not appear. The mother had not complied with the orders for filing her affidavit of evidence-in-chief but had filed an affidavit on the 17 February 2009. I extended the time for the mother to permit the late filing of that affidavit.
I directed the release of Mr R’s Family Consultant’s report dated the 16 February 2009 to the parties.
Due to the failure of the father to attend the proceedings and his failure to comply with the previous orders of the Court I ordered that the mother’s application in relation to children’s issues and financial issues be heard by way of undefended hearing before me by way of video-link on the 10 March 2009 at 2.15 pm Adelaide time (1.15 pm Darwin time).
Again the orders were prepared by way of formal sealed orders and forwarded to the father at his address for service.
The Court has received an affidavit of Ms Roennfeldt (filed on the 6 March 2009) which proves that on the 17 February 2009 the solicitors for the mother sent a sealed copy of the affidavit of the mother filed on the 17 February 2009 together with a covering letter (both by email and by post) to his address for service. That affidavit also proves that on the 24 February 2009 the mother’s solicitors sent a copy of the sealed Family Court Order dated 19 February 2009 and a covering letter to the respondent father by email and also by post to his address for service. Both the sealed order and the letter from the mother’s solicitors clearly indicated that the hearing before the Court on the 10 March 2009 was at 2.15 pm Adelaide time, and specifying 1.15 pm Darwin time.
Apart from the affidavits of service filed by the mother’s solicitors and an affidavit of the mother’s solicitor in relation to correspondence from the Commonwealth Bank (filed on the 6 March 2009) no further documents were filed by either party between the 19 February 2009 and the hearing of the 10 March 2009.
On the 10 March 2009 at 2.15 pm Adelaide time (1.15 pm Darwin time) the matter commenced by way of video-link between Adelaide and Darwin. The mother was present and represented by Ms Roennfeldt. There was no appearance for the father. He had been called.
There were no further documents filed by the father. There was no one representing the father.
I then proceeded to hear the submissions of the mother’s counsel, Ms Roennfeldt in relation to the orders which the mother was seeking. As she was completing those submissions and at about five minutes to three, the father arrived in the Darwin Courtroom.
The father was reminded that the matter had been set down for hearing on an undefended basis due to his failure to comply with previous orders. He was asked if he had any other applications in the matter. He said that he had only received material from the mother’s solicitors yesterday (9 March 2009). This was a reference to the mother’s solicitor’s affidavit of service of previous documents which had been sent some weeks earlier. At his request I stood the matter down briefly whilst he read the documents.
When asked again whether he had any further applications to the Court in relation to the matter proceeding undefended, the father said that he objected to the mother’s application in relation to the children in so far as it sought sole parental responsibility for the children, so far as it related to the release of passports and that he wanted his daughter to have the use of a mobile telephone.
When asked what he had to say about the matter proceeding undefended he said words to the effect of “I’m here and I would like to have a say in particular in children’s matters”.
Rule 11.02 (2) of the Family Law Rules provides that:
“If a party does not comply with these Rules … the Court may:
(a)dismiss all or part of the case;
(b)…
(c) determine the case as if it were undefended;
(d)…
(e)order costs;
(f)…
(g)make any order the Court considers necessary having regard to the main purpose of these Rules (see Rule 1.04).
In the Full Court decision of Tate and Tate (2000) FLC 93-047 consideration was given to hearing matters on an undefended basis. The Full Court said at paragraph 101:
“Problems of delay in the attainment of justice have long plagued the Courts. Well known remedies were even sought by way of Magna Carta in the thirteenth century. The aphorism “Justice delayed is Justice denied” is all too frequently manifestly true in this jurisdiction. Delays in cases such as this are often not fully compensable in purely money terms.”
The Full Court concluded at paragraph 108:
“Where, as here, non-compliance with the orders and directions of the Court will, in the opinion of the trial Judge, defeat the attainment of justice, then suitable remedies must be found. In this instance the remedy necessarily excluded the husband from any further participation in the proceedings. Whilst such cases are “exceptional”, and indeed unusual, no litigant, whether legally represented or not, should harbour any doubt that manipulation of the court processes, (as was attempted and indeed partially achieved in this instance), through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court. In doing justice to both parties, the exclusion of a defaulter, whose defaults threaten the achievement of justice, is not only an option, but, in such circumstances, becomes a regrettable necessity.”
One of the factors taken into account in relation to the prejudice to be suffered by the mother in relation to the financial proceedings was the letter from the Commonwealth Bank annexed to the affidavit of the mother’s solicitors filed on the 6 March 2009 which is a letter dated the 23 February 2009, indicating that due to the default in payment of the mortgage payments the bank may take possession and sell the property at M, being the property which is the main asset in the financial proceedings between the parties.
The solicitors for the mother replied to the letter by requesting that the bank “hold-off on any further action” as the matter was listed before the Family Court on the 10 March 2009 on an undefended basis.
The father did not provide an adequate explanation for his failure to participate in the updated family assessment report conducted by Mr R, in spite of the attempts by Mr R to contact him.
At the hearing before me on the 10 March 2009 the father did not seek to oppose the orders sought by the mother, save and except he wanted to be heard on the issue of whether the mother should have sole parental responsibility; whether the children’s passports should be returned to the mother and that his daughter J should be provided by him with a mobile telephone upon which he could communicate with her.
It is always necessary to balance the extent of the prejudice to be suffered by one party against the prejudice to be suffered by the other party. In this case the lack of adequate explanation from the father, together with the significant prejudice by way of cost and delay to be suffered by the mother, satisfies the Court that to be fair to the mother the proceedings should be concluded on an undefended basis. This decision is made taking into account the full impact of the authorities and in particular the High Court decision in State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146.
In considering all of the factors I proceeded to hear the matter on an undefended basis, but allowed the father to make submissions to me in relation to the children’s issues.

Background and Brief Chronology

The mother was born in October 1978 and is aged 30. The father was born in February 1959 and is aged 50. The father was born overseas but has spent most of his life in Australia. The mother was born in the Netherlands. The parties commenced living in a de facto relationship in Australia in 1997. They have lived in the Northern Territory since 1998. There was a brief separation in September 2005 for a period of 5 months. The parties reconciled and finally separated on the 27 May 2007.
The land at M in the Northern Territory was purchased in around October 2000 with the assistance of $31,315 borrowed from the mother’s mother. This money was placed in a bank account which provided sufficient savings to enable the parties to have an ability to borrow funds. As a result the parties borrowed $84,000 from the Commonwealth Bank. (The original purchase agreement with the vendor of the property was that after a payment of $180 per month for a two year period, they were able to purchase the land for $75,000).
Prior to the settlement of the property the mother’s mother gave her $12,295.80 which was transferred to the mother in October 2002. This money was used to drill a bore and install a pump on the M property.
The parties repaid the mother’s mother $20,000. The mother has also since separation repaid her mother $6,000. A debt of $5,300 remains outstanding due to the mother’s mother.
The parties moved onto the M property when the child J was two weeks old. The improvements were only an iron shed with very limited facilities.
In 2001 the parties established a business known as T Business. The mother asserts the business was set up in her name alone because the respondent requested that it be in her name so he did not have to pay child support to his former partner for his daughter.
During the relationship the wife worked both in the business and at outside employment from time to time. Following the first separation in 2005 the business was transferred by the mother to the father, although he continued to use the ABN number established by the wife.
After the parties’ separation in 2005 the parties reconciled and commenced living in a rented property at D.
Following the final separation in May 2007 the father retained all of the possessions, including the motor vehicles and the furniture. The mother moved to a granny flat on a friend’s block and resided there together with the children.

At the beginning of 2007 the mother’s father had given her 2,000 EURO which was then approximately $2,600 with which she purchased a Corolla motor vehicle. The only items she took when she left the father were items that she could fit in the Corolla.
At the time of separation J was aged 4 and L was eight weeks.
Since the separation the mother has continued to make payments on credit cards which were outstanding at the time of separation. Since the separation the mother has been employed on a part-time basis in the aged care industry. She has not received any child support payments from the father.
The father has continued to own and operate the business T Pty Ltd, trading as T Business.
The father continued to pay the mortgage on the jointly owned M property since separation but defaulted on some payments when they were due.
By letter of the 6 November 2007 correspondence was received from the bank threatening foreclosure proceedings.
Further default and penalties have been added to the home loan account since.
No work has been done on the M property since separation.
The mother maintains in her affidavit of evidence-in-chief that the father frequently gambled and drank to excess and that his behaviour placed the children at risk and wasted the family’s funds.
Interim orders were made in the Family Court of Australia for the children to spend time with the father on a regular basis. Notwithstanding these orders the father has frequently failed to collect the children at the appropriate dates and times and has not been present when the mother has tried to contact him concerning his time with the children.
When the mother swore her affidavit on the 16 February 2009 the father had not spent any time with the children since the 21 December 2008.
When the matter came on before me on the 10 March 2009 the Court was informed that the father had spent time with the children the previous Sunday.
The children J and L continue to reside with the mother. J attends the local school. L attends child care and a family day care placement, whilst the mother attends to studies and part-time work.
Before me the father did not challenge the order that the children live with the mother.

Children’s Issues

The issues in dispute are:
(1)whether the mother should have sole parental responsibility or whether it should be equal shared responsibility;
(2)whether the passports for the children should be returned to the mother and she be permitted to travel overseas with the children upon appropriate notice to the father;
(3)whether J should be permitted to use a mobile telephone to be provided to her by the father;
(4)surnames of the children.
The most relevant provisions of Part VII of the Family Law Act are ss 60B, 60CA, 60CC, 61DA, 65D and 65DAA.
Section 60B
(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 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).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views: and
(ii)to develop a positive appreciation of that culture.
Section 60CA
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)Additional considerations are:
(a)          any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;
(b)          the nature of the relationship of the child with:
(i)    each of the child's parents; and
(ii)   other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)          the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)     either of his or her parents; or
(ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i)    either of his or her parents; or
(ii)   any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)    the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and
(ii)   the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)          has taken, or failed to take, the opportunity:
(i)    to participate in making decisions about major long-term issues in relation to the child; and
(ii)   to spend time with the child; and
(iii) to communicate with the child; and
(b)          has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)   spending time with the child; and
(iii) communicating with the child; and
(c)     has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Consent orders
(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6)For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)          to maintain a connection with that culture; and
(b)          to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)   to develop a positive appreciation of that culture.
Section 61DA
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65D
Court's power to make parenting order
(1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order.
(2)Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
(3)If the application for the parenting order was made as a result of the adjournment under paragraph 70NEB(1)(c) of proceedings under Subdivision E of Division 13A of Part VII:
(a)the court must hear and determine the application as soon as practicable; and
(b)if the court makes a parenting order on the application, the court may, if it thinks it is appropriate to do so, dismiss the proceedings under that Subdivision.
Section 65DAA
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)          days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
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.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

Whether the mother should have sole parental responsibility or whether the same should be joint;

The evidence before me indicates that there have been substantial difficulties in the relationship between the mother and father of the children. The ability of the mother to communicate with the father concerning the children’s welfare has been hampered. Her ability to communicate in a practical way with the father has been hampered both by the level of conflict between the parties and the past poor relationship between the parties as well as the father’s absence from his usual place of residence on a regular basis, leaving the mother unaware of his whereabouts.
The evidence establishes that the mother has a much greater understanding of the developmental needs of both of the children. The father has not displayed a high level of understanding.
The mother has been the primary caregiver for the children since their birth.
Between the 21 December 2008 and the 16 February 2009 the father did not spend time with the children, nor did he provide the mother with any ready means for her to contact him should there be issues which would require discussion between them as parents.
Taking all of the factors in this matter into account I am satisfied that this is a matter in which the presumption of equal shared parental responsibility is rebutted and it is in the best interests of the children that the mother have sole parental responsibility for them.

Whether the passports for the children should be returned to the mother and she be permitted to travel overseas with the children upon appropriate notice to the father;

The mother sought orders that previous orders made in the Court be discharged and that the passports for the children be returned to her. She suggested that an order be made that if she wished to take the children on holiday out of Australia then she provide the father with at least 28 days written notice, other information including full itinerary for the children while they are away and methods of communication between the father and the children. The father opposed these orders.

The mother was born in the Netherlands. Her mother, father and sister all live in the Netherlands. In June 2008 the mother travelled with the children to the Netherlands to spend time with her family and for the wedding of her mother to her new partner. She hopes to travel again in 2009 anticipating that her mother will assist her with the cost of tickets. In her recent affidavit the mother specifically states:
“I am aware that I am not at liberty to re-locate to the Netherlands with my children.”
The father’s opposition was based upon his concern that the children may not return. The mother has demonstrated in the past that she is aware of her responsibilities in relation to the children and their residence in Australia. The Netherlands is also a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. I am satisfied that the orders that the mother seeks concerning the children’s passports and overseas travel will allow the children to develop a relationship with their extended family and enjoy the benefits of the cultural background of the mother.

Whether J should be permitted to use a mobile telephone to be provided to her by the father.

The father sought orders that J be provided with a mobile telephone so that he could telephone her without having to speak to the mother. The mother opposed this. She said that J was too young to have unsupervised use of a mobile telephone. J has only just turned six.
It is not appropriate that there be any order which would require the mother to ensure that J had a mobile telephone in her possession for uncontrolled use.

Surnames of the Children

J was born in March 2003. Her surname is “Zander”. L was born in March 2007. At the time the father refused to sign the registration papers for L when he was born. He has not signed the papers necessary to have him described as the father on the Birth Certificate.
The mother seeks that the children have the same surname and would prefer that that surname was her surname namely, “Vannielle”.
The father has sworn an affidavit in which he acknowledges that L is his son.
The mother sought orders that without requiring the permission or signature of the father that she be entitled to amend the registration of J’s name so that she has the surname of “Vannielle” the other names of J. In the alternative the mother proposed that J’s name be “J Vannielle-Zander” and that L be “L Vannielle-Zander” or remain simply “L Vannielle”.
The father said he had no idea why the mother wanted to change the surname.
He appeared unable to appreciate that there would be some benefit to the children having the same name as each other and their mother.
Considering the factors which would promote the best interests of the children there is an obvious benefit to a brother and sister having the same surname and a further obvious benefit to them as having the same name as the person who has sole parental responsibility for them.
The relationship with the father can be maintained by each of the children having the name “Zander” as part of their other names before the surname of “Vannielle”. This need not be hyphenated. The hyphenated name of “Zander-Vannielle” is long and could be cumbersome for the children.
It is therefore in the best interests of each of the children that the mother be given permission to change the names of the children without the father’s signature so that J’s name is henceforth “J Zander Vannielle” and that L’s name is “L Zander-Vannielle”.

Conclusion on Children’s Matters

The provisions of Part VII of the Family Law Act apply when considering the orders to be made.
It is necessary to ensure that the paramount consideration is the best interests of the children. I take into account all of the relevant provisions of Part VII and in particular the criteria set out in s60CC.
The orders sought by the mother include orders which provide for the father to spend time with the children.
When considering whether to make the orders which the mother seeks I take into account the evidence of the mother, particularly that in her affidavit filed on the 17 February 2009. The mother recognises the importance of the children maintaining a relationship with the father.
I am satisfied that the mother will ensure that the children have a meaningful relationship with the father.
The orders the mother proposes are also orders which will ensure that the children are protected from any harm. The evidence before the Court indicates that the mother is able to provide appropriate care for the children, including emotionally and psychologically, that she has the appropriate attitude to the care of the children.
I am satisfied therefore that it is in the best interests of the children to make orders which provide that the mother have sole parental responsibility for both J and L, that they live with her and spend time and communicate with the father at times agreed between the parties.
It is also appropriate to make the orders permitting the mother to change the children’s names; collect the passports for the children and upon giving appropriate notice to the father to be able to travel for a holiday overseas.

Property

The De Facto Relationships Act (NT) permits the Court to make such order adjusting the interest of the parties in the property as the Court considers just and equitable having regard to the matters set out in s18(1)(a) and (b) which state:
(1)The order which a court may make under this Division with respect to the property of de facto partners or either of them is such order adjusting the interests of the partners in the property as the court considers just and equitable having regard to -
(a)the financial and non-financial contributions made directly or indirectly by or on behalf of the partners to the acquisition, conservation or improvement of any of the property or to the financial resources of the partners or either of them; and
(b the contributions (including any made in the capacity of homemaker or parent) made by either of the partners to the welfare of the other partner, or to the welfare of the family constituted by the partners and one or more of the following:
(i) a child of the partners;
(ii) a child accepted by the partners or either of them into the household of the partners, whether or not the child is a child of either of the partners; or
(iii)any person dependent on the partners who has been accepted by the partners or either of them into the household of the partners.
At the commencement of cohabitation the father owned an old motor vehicle and an old campervan. Otherwise, neither party had any assets of significant value.
The mother alleges that during their relationship the father gambled and wasted monies by purchase of old motor vehicles.
The mother also alleges that the father has objected to the proposed sale of the property notwithstanding his default of payments of the mortgage and that it was always likely that the property would have to be sold. As a result there have been further losses in relation to the mortgage.
During the relationship the mother worked when she obtained a valid visa to enable her to work in Australia. She did not work for part of the time when she had the care of the children.
As previously indicated the parties were able to purchase a block of land at M only because they were able to use the loan from the mother’s mother as an asset which permitted them to obtain the mortgage over the property. The mother’s mother has also given a significant sum of $12,295.80 which enabled them to install a bore on the property.
The parties further borrowed funds to enable some of the monies to be paid back to the mother’s mother.
After L’s birth, the baby bonus was used by the mother to repay further monies to her mother. A sum of $5,300 still remains owing to the mother’s mother.
The business established by the parties in 2001 involved contributions by both of the parties.
Although the mother did work in the business, she was not actively involved once the children were born. Thereafter she was involved primarily in providing for the children’s full time care.
The mother signed the business over to the father in 2005. He has since had sole control of and any benefits from that business. The father kept most of the household possessions at separation. The father has made payments for some of the mortgage instalments since separation but has not made payments on time, the arrears incurring penalties. Neither party has lived on the property at M since separation.
Since the separation the mother has paid off the credit cards in her name which were joint debts at separation.
There is insufficient evidence before the Court which would indicate that the debts in the name of the father at separation were debts which should be considered joint responsibility.
Both parties assisted with improvements to the property at M, including the construction of the shed that became the home. The mother also assisted with gardening.
The mother made a significant contribution to the welfare of the children, both during the relationship and most significantly since separation. The father does not pay child support for J. Because the father is not on L’s Birth Certificate the mother has not been able to obtain child support for L.
The mother has been the primary caregiver for the children since their births and has provided significantly for their care, welfare and development since separation.
I accept the assets and liabilities of the parties at separation were as follows:
Assets at Separation  Est Value
M property  $105,000.00
T Pty Ltd trading as T Business (Plant & Equipment
Including three vehicles, a Toyota
Dyna Truck 1988 and signage, bollards)  $60,000.00
Household contents in father’s possession at
Separation  $1,500.00
Nissan Ute 1984 in father’s possession  $1,000.00
Toyota Blue in father’s possession  $200.00
Toyota Red in father’s possession  $200.00
Box Trailer 1982 in father’s possession  $200.00
Toyota Corolla 1991 in mother’s possession  $1,000.00
Caravan in father’s possession  $500.00
Total:  $169,600.00
Liabilities at Separation
Mortgage to CBA for M property  $83,713.00
ANZ Visa Card (used for T P/L expenses)  $7,288.00
CBA Master card (used for T P/L expenses)  $1,835.00
Balance of loan to parties owed to mother’s mother              $9,300.00
Total:  $102,136.00
The assets and liabilities of the parties at the time of the hearing before me are as follows:
Current Assets  Agreed Value
M property (in joint names)  $145,000.00
T Pty Ltd trading as T Business (Plant & Equipment
Including a Toyota Hilux Ute 1991 worth $250,
Toyota Toyace twin bac worth $400, Toyota Camry
1991 worth $250, a Toyota Dyna truck 1988 worth
$600 and signage, bollards worth $1,200)  $2,700.00
(in possession of the father)
Household contents in father’s possession at
separation  $1,500.00
Nissan Ute 1984 in father’s possession  $1,000.00
Toyota Blue in father’s possession  $200.00
Toyota Red in father’s possession  $200.00
Box Trailer 1982 in father’s possession  $200.00
Caravan in father’s possession  $500.00
Total:  $151,300.00
Financial Resources
Father’s CBUS  $1,500.00
Mother’s Australian Superannuation  $700.00
Total:  $2,200.00
Total Assets & Resources:  $153,500.00
Current Liabilities
Mortgage to CBA for M property  $88,000.00
ANZ Visa Card (used for T P/L expenses)  $6,430.00
CBA Master Card (used for T P/L expenses)  $1,365.00
Balance of loan to parties owed to mother’s mother              $5,300.00
Total:  $101,095.00
Net Assets and Liabilities:  $52,405.00

Taking into account the provisions of s18 of the De Facto Relationships Act (NT) I am satisfied that the mother has made a significant financial and non-financial contribution towards the acquisition, conservation and improvement of the property at M and the other assets and financial resources of the parties.
The mother has also made a substantial and significant contribution to the welfare of the family, in particular to the welfare of the two children of the parties.
The mother proposes that the property at M be sold and that after payment of all costs, outstanding rates and taxes, costs of sale, discharge of the mortgage and payment to her mother of the sum of $5,300 the remaining proceeds be divided as to 70 per cent to the mother and the balance to the father. It is proposed that the father retain the other assets in his possession which have a total value of $5,300 and his superannuation of $1,500. He does of course remain responsible for the credit card debts in his name which the wife disputes should be considered a joint liability and which are significant.
The wife will also retain her superannuation which is a small amount of $700.
Taking into account the significant contributions of the mother by way of financial contribution from the assistance given to the family by the mother’s mother by way of loan and gifts and her significant contribution to the welfare of the children since their birth and in particular since separation without child support, I am satisfied that the orders which the mother seeks are just and equitable in accordance with s18.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate:

Date: 7 April 2009

[2009] FamCA 259

7 April 2009

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