W & W & L
[2007] FMCAfam 438
•29 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & W & L | [2007] FMCAfam 602 |
| FAMILY LAW – Children – lives with and time with – re-location – family violence. FAMILY LAW – Property. |
| Family Law Act 1975, Part VII and Part VIII Evidence Act 1995 s.131 |
| A & A (Relocation Approach) [2000] FamCA 751; (2000) FLC 93-035 AMS v AIF [1999] HCA 26; (1999) FLC 92-852 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 B v B (1993) FLC 92-357 B v B (Re Jurisdiction) (2003) FLC 93-136 Brandt & Brandt (1997) FLC 92-758 Clauson& Clauson (1995) FLC 92-595 Coghlan & Coghlan [2005] FamCA 429; (2005) FLC 93-220 D & D [2005] FamCA 356 Doherty and Doherty (1996) FLC 92-652 Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-06 Figgins & Figgins [2002] FamCA 688; (2002) FLC 93-122 G & G (1984) FLC 91-582 Godfrey & Sanders [2007] FamCA 102 Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 HDM & MM and SJM [2006] FamCA 47 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 JB and BG (1994) FLC 2-515 Kennon v. Kennon (1997) FLC 92-757 KN and Child Representative & NN and JN [2006] FamCA 611 M & A [2007] FMCAfam 52 M & M [2006] FamCA 913; (2006) FLC 93-281 M and S (formerly E) [2006] FamCA 1408 M v M [1988] HCA 68; (1988) 166 CLR 69; (1988) FLC 91-979 Martin v Matruglio (1999) FLC 92-876 N and S and the Separate Representative [1996] FamCA unrep925; (1996) FLC 92-655 Norbis & Norbis (1986) 161 CLR 513; (1986) FLC 91-712 Omanici & Omanici [2005] FamCA 195; (2005) FLC 93-218 Paskandy v Paskandy (1999) FLC 92-878 Pierce and Pierce [1998] FamCA 74; (1998) FLC 92-644 R and R: Children's Wishes (2000) FLC 93-000 Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768; (2004) FLC 93-192 Robb & Robb (1995) FLC 92-555 Russell & Russell [1999] FamCA 1875; (1999) FLC 2-877 SDS & ACS [2006] FMCAfam 678 U v. U (2002) 211 CLR 238; (2002) FLC 93-112 Weir and Weir [1993] FamCA unrep469; (1993) FLC 92-338 West and Green (1993) FLC 92-395 Zalewski & Zalewski [2005] FamCA 996; (2005) FLC 93-241 |
| Applicant: | MR W |
| First Respondent: | MS W |
| Second Respondent | MR L |
| File Number: | MLM2191 of 2006 |
| Judgment of: | FM Riethmuller |
| Hearing date: | 13 December 2006 |
| Date of Last Submission: | 28 December 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 29 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Buchanan |
| Solicitors for the Applicant: | Gray Friend and Long |
| Counsel for the First Respondent: | Mr Arnold |
| Solicitors for the First Respondent: | Coadys |
| Counsel for the Second Respondent: | Mr Crowther |
| Counsel for the Independent Children’s Lawyer: | Ms Dowler |
| Solicitors for the Independent Children’s Lawyer: | Donald S Lampe |
ORDERS
A and B
That the children A born xxxx, B born xxxx live with the First Respondent.
That the children A born xxxx, B born xxxx live in the Mornington Peninsular area of Victoria, unless otherwise agreed in writing between the Applicant and the First Respondent and the Second Respondent.
That the First and Second Respondents have equal shared parental responsibility for the children A and B.
That the children A and B spend time with the Second Respondent as agreed between the First and Second Respondents, and failing agreement as follows:
(a)Each alternate weekend, from 6pm Friday until 6pm Sunday;
(b)For one half of all school holidays including the Christmas vacation, being the second half in odd numbered years, and the first half in even numbered years;
(c)From 5pm on 24 December to 12md on 25 December in odd numbered years;
(d)On father’s day from 10am until 6pm;
(e)On each child’s birthday, on the father’s birthday, on D L’s birthday and on C L’s birthday, for at least 4 hours if the birthday falls on a non-school day and no less than 2 hours if the birthday falls on a school day.
Notwithstanding order 4:
(a)The Second Respondent’s time with the children A and B end at 10am on Mother’s day;
(b)The children have time with the First Respondent from 5pm on 24 December to 12md on 25 December in even numbered years.
(c)The children spend time with the First Respondent on each child’s birthday, on the mother’s birthday, and on C’s birthday, for at least 4 hours if the birthday falls on a non-school day and no less than 2 hours if the birthday falls on a school day.
That for the purpose of Orders 4 and 5 handovers take place at the Hastings Police Station.
That the Second Respondent be permitted to communicate with A and B by telephone no less than each Tuesday and Thursday between 6.30pm to 7.30pm.
That each of the First and Second Respondents forthwith notify the other of any illness (and in particular A’s cystic fibrosis and B’s Turner’s syndrome), medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner or medical facility that provided medical treatment for the child.
That the First Respondent forthwith authorise the children’s medical practitioners to discuss fully the children's treatment and conditions with the Second Respondent, and notify him of appointments for the children to attend upon such practitioners.
That the Second Respondent be permitted to liaise directly with the children's school and sporting bodies to obtain any necessary information about the children's progress. The Second Respondent is to forthwith authorise the school and sporting bodies in writing to facilitate this.
C
That the child C born xxxx live with the First Respondent.
That the child C born xxxx live in the Mornington Peninsular area of Victoria, unless otherwise agreed in writing between the Applicant and the First Respondent.
That the Applicant and First Respondent have equal shared parental responsibility for C.
That the child C spend time with the applicant as agreed between the Applicant and First Respondent, and failing agreement as follows:
(a)Until the Applicant successfully completes the courses ordered herein:
(i)Each alternate weekend, from 9am Saturday until 6pm Sunday;
(ii)For one half of all school holidays including the Christmas vacation, being the second half in odd numbered years, and the first half in even numbered years, provided that the child is returned to the First Respondent’s care each third day from 6pm until 9am the following morning;
(iii)From 5pm on 24 December to 12md on 25 December in odd numbered years;
(iv)On father’s day from 10am until 6pm;
(v)On the child’s birthday and on the father’s birthday for at least 4 hours if the birthday falls on a non-school day and no less than 2 hours if the birthday falls on a school day.
(b)Following the Applicant’s successful completion of the courses ordered herein:
(i)Each alternate weekend, from after school on Friday until 6pm on Sunday;
(ii)For one half of all school holidays including the Christmas vacation, being the second half in odd numbered years, and the first half in even numbered years;
(iii)From 5pm on 24 December to 12md on 25 December in odd numbered years;
(iv)On father’s day from 10am until 6pm; and
(v)On the child’s birthday and on the father’s birthday for at least 4 hours if the birthday falls on a non-school day and no less than 2 hours if the birthday falls on a school day.
(c)Notwithstanding sub-orders (a) and (b):
(i)The First Respondent’s time with the child end at 10am on Mother’s day;
(ii)From 5pm on 24 December to 12md on 25 December in even numbered years; and
(iii)The child spend time with the First Respondent on the child’s birthday, on the mother’s birthday, and on A and B’s birthdays, for at least 4 hours if the birthday falls on a non-school day and no less than 2 hours if the birthday falls on a school day.
That the Applicant be permitted to communicate with C by telephone no less than each Tuesday and Thursday between 6.30 pm to 7.30pm.
That the Applicant be restrained, and an injunction issue restraining the Applicant from:
(a)Physically disciplining the child C; and
(b)consuming alcohol for the period 12 hours prior to time with C, or during the time that she is in his care.
That for the purpose of Order 14 handovers take place at a location to be agreed and failing agreement the Hastings Police Station.
That each of the Applicant and First Respondent forthwith notify the other of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to C when the child is in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner or medical facility that provided medical treatment for the child.
That the First Respondent forthwith authorise the C’s medical practitioners to discuss fully the child's treatment and conditions with the Applicant, and notify him of appointments for the children to attend upon such practitioners.
That the Applicant be permitted to liaise directly with the C school and sporting bodies to obtain any necessary information about the child's progress. The First Respondent is to forthwith authorise the school and sporting bodies in writing to facilitate this.
Courses
The Applicant and the Second Respondent, within 12 months of the date of these orders:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program ("the Program") at an organisation as nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the Program to the first Respondent or her solicitors.
That within 6 months of the date of these orders the Applicant complete an anger management course.
Property Orders
That the property situate at 442 Y Road, Y be sold, and the proceeds of sale applied as follows:
(a)Payment of the costs and expenses of sale;
(b)Discharge of the mortgage;
(c)Payment of the sum of $51,100 to the First Respondent.
(d)The balance of the proceeds of sale be divided and paid to the Applicant and First Respondent in equal shares.
That the parties have liberty to apply for further or consequential orders to effect the sale of the property referred to in order 23.
Whenever a splittable payment is payable in respect of the superannuation interest of Mr W (member 15334431) in the ARF Super Fund (AustralianSuper):
(a)Ms W is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $24,500 at the operative time of the date 4 days after the service of this order on the fund;
(b)There is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order; and
(c)The above order binds the trustee or trustees from time to time of the superannuation fund.
Unless otherwise specified in these orders and save for the purposes of any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the said former matrimonial home being deemed to be in the possession of The Applicant).
(b)Insurance policies remain the sole property of the owner named therein.
(c)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM2191 of 2006
| MR W |
Applicant
And
| MS W |
First Respondent
And
| MR L |
Second Respondent
REASONS FOR JUDGMENT
This case concerns the care arrangements for three children and the division of the property of Mr W (the Applicant) and Ms W (the First Respondent).
Ms W is the mother of all three of the children:
a)A born xxx 1996;
b)B born xxx 1997; and
c)C born xxx 2001.
Mr L (the Second Respondent) is A and B’s father. Mr W is C’s father.
All three children live with Ms W. A and B spend time with Mr L and C spends time with Mr W.
Background
Ms W was born on xxx and is 37 years old. Mr L was born on xxxx and is now 41 years old. Ms and Mr L stared living together in 1988. In 1989 they had their first child, D (born xxx 1989) who is now 17 years old. In 1993 they separated, and it appears that Mr L had no contact with D for 12 months. In 1995 they reconciled and married and thereafter A and B were born. In 1998 they separated finally.
Later in 1998 Ms W started a relationship with Mr W (born on xxxx and is now 41 years old), following which C was born. Six months later, on 21/10/2001 Ms W and Mr W married. They separated on 12/12/2005 and have not reconciled.
Ms W also lives in Victoria, but seeks to relocate to Western Australia where she will live in York, a town north of Perth. Ms W has commenced a relationship with a farmer near Y, although it has not reached the stage of her seeking to live with him.
Mr L has re-partnered and lives with his current partner, Ms L, her children from a former relationship (CL who is 9 and RL who is 8), and a child they have together, C, who is not yet one. The eldest child of Ms W and Mr L, D, resided with Mr L for the 7 years leading up to the trial, but recently has been living with Ms W.
All seven children in the extended families know each other, and appear to get along well.
The law
The power to make a children’s order is provided for in s.65d of the Family Law Act 1975. This power is subject to the effects of a variety of provisions in Part VII of the Act. Either or both parents, the child, grandparents or ‘any other person concerned with the care, welfare or development of the child’ may apply to the court for parenting orders: see s.65C. In this case the parties are the parents of the children with respect to whom they seek orders.
Relevant Factors in considering parenting orders and the best interests of the child
In deciding what informs the discretion under s.65D of the Act, a number of steps are necessary. First, regard must be had to the objects and principles set out in s.60B:
60B [Object of Part and Principles underlying it]
(1) [Object of Part] 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) [Principles underlying object] 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 must regard the best interests of the child as the paramount consideration: see s.60CA. Although it should be noted that this is not the sole or only consideration when making a parenting order: see the discussions in B v B (Re Jurisdiction) (2003) FLC ¶93-136 and U v. U (2002) 211 CLR 238; (2002) FLC ¶93-112 and the cases referred to in those judgments.
Whilst lawyers often speak of re-location cases, as though they are somehow different to other children’s cases, ‘relocation cases are but a particular example of proceedings under Part VII’: see B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755.
The approach to be adopted when the cases involves a potential relocation was considered by the High Court in AMS v AIF [1999] HCA 26; (1999) FLC ¶92-852 where Gleeson CJ, McHugh and Gummow JJ said:
47. With respect to the present appeal by the mother, we agree with Kirby J that the State Family Court erroneously exercised its discretion by requiring the demonstration by the mother of "compelling reasons" to the contrary of the proposition that the welfare of the child would be better promoted by him continuing to reside in the metropolitan area of Perth. The Full Court should have intervened on this ground and, for that reason, the mother's appeal to this Court should be allowed.
48. When the matter is heard again, it will be for the State Family Court to take into account, upon the evidence then before it and in framing any orders it may make, the need not to impose upon the freedom of intercourse of either party between Western Australia and the Northern Territory, or between that State and any other State, an impediment greater than that reasonably required to achieve the objects of the applicable legislation. This will be the 1997 WA Act but with the status quo supplied by s 61C of the substituted Pt VII of the Family Law Act.
Following AMS v. AIF the Full Court has considered the issue of relocation on a number of occasions, most significantly in Paskandy v Paskandy (1999) FLC ¶92-878, Martin v Matruglio (1999) FLC ¶92-876 and A & A (Relocation Approach) [2000] FamCA 751; (2000) FLC ¶93-035. In A & A, the Full court said:
54. Two features of the case should be noted at the outset. First, it seems to us that that there was a narrow ratio decidendi to the relocation aspect of the case and there are matters in each judgment on which there is no express agreement by other members of the High Court bench, such as to from a clear majority view. The subsequent Full Court judgments of Paskandy v Paskandy (supra) and Martin v Matruglio (supra), which were considered by counsel, have, however, adopted certain obiter dicta to which regard must be had. Since the hearing of the appeal, a further Full Court judgment has been published, (SMG and RAM (2000) FLC ¶93-020) and we have also examined the approach taken therein.
…
The Full Court went on to set out a number of important matters to be borne in mind when deciding parenting cases that involve proposals for re-location as follows:
108. It is convenient to bring together in a summary from the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
· The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
· A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
· It is necessary for a court to evaluate each of the proposals advanced by the parties.
· A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'."
· The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
· It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
· The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.
· It is to be expected that reasons for decision will display three stages of analysis and:
1.A court will identify the relevant competing proposals;
2.For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
·As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
·The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
·In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of movement:
·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both from and substance are congruent with a party's rights under s92 of the Constitution, where applicable.
·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
·In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.
Since A & A (Relocation Approach) Part VII of the Family Law Act has been significantly amended. In Godfrey & Sanders [2007] FamCA 102 Kay J, exercising the power of the Full Court referred to a recent decision of Dessau J in M and S (formerly E) [2006] FamCA 1408, saying:
29. The very many authorities that discuss the appropriate principles to be applied in relocation cases and as cited at the commencement of the Federal Magistrate’s judgment (see par 14 above) are all decisions that were made before the substantial amendments to the Act in July 2006. My research has only located one decision in which the effects on previous decisions relating to relocation cases as a result of the new amendments has been analysed by a Judge of this Court. That is a decision of Dessau J in M and S (formerly E) [2006] FamCA 1408.
30. That case concerned a proposed move to England from Australia by the mother of the child which would severely impact upon the existing arrangements that saw the child spending time with her father on two weekends per school term and half the school holidays. Her Honour said:
26. There is no explicit relocation provision in the new legislation, although one was considered. Recommendations of the House of Representatives Standing Committee on Legal and Constitutional Affairs’ Report on the exposure draft of the Bill (“the Report on the Bill”) recommended that the Act be amended to include a provision that, where there is a proposal for any change in the child's living arrangements that would substantially affect the child’s ability to reside or spend time regularly with the other parent or extended family, the court “must be satisfied on reasonable grounds” that such relocation would be in the child’s best interests. The recommended provision would have effectively placed an onus of proof on the moving party, and as such would have been a significant shift from existing case-law. The proposal was not adopted, although in second reading speeches there was discussion about possibly incorporating it into the Act after a report from the Family Law Council on relocation. For completeness, I note that the Family Law Council report was published in May 2006. The Council concluded that the best interests of the child should remain the paramount consideration in relocation cases, with the factors in s 60CC to be considered.
27. The amended Act has one reference to a parent moving away from another, in s 4, where “major long-term issues” are defined as including:
“(e) Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to from a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”
Save for underlining the significance of such a move as an important issue for parents to decide, that definition does not assist further as to the correct approach in such cases.
28. Although there is nothing in the new legislation explicitly altering the previous approach to relocation whereby the court was obliged to consider the child’s best interests as the paramount consideration, the amended Act does provide a context, through its objects, principles, and particular considerations, that is substantially different from the context in the previous legislation. As the Full Court in Goode’s Case [(2006) FamCA 1346] observed (at para 72):
“… it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children…”
29. Before July 2006, the object of Part VII was expressed in s 60B(1) as follows:
“The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
30. In the recent amendments, s 60B(1)(a) provides that the objects 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;”
In the revised explanatory memorandum to the Bill, it was noted (at para 52) that the object was consistent with the introduction of a presumption in favour of equal shared parental responsibility.
31. The principles underlying the objects are similar to the previous version, but s 60B(2)(b) is now more specific about the right of children not just to have contact with both their parents and other significant people, but to “spend time …” and to “communicate” on “a regular basis” with both parents and other significant people “such as grandparents and other relatives”.
32. The matters for the court to consider in determining a child’s best interests, as now set out in s 60CC, are also different in part from those set out in the previous s 68F(2) of the Act. In particular, there are two considerations expressed as “primary considerations”, the relevant one being:
“…the benefit to the child of having a meaningful relationship with both of the child’s parents…”.
There are then “additional considerations”, including a newly expressed consideration:
“(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;”
33. The revised explanatory memorandum noted (at para 49) that the intention of separating the primary considerations from the additional considerations was to:
“…elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act.”
The memorandum went on to explain (at para 52) that they were elevated as they deal with “important rights of children and encourage a child-focused approach”, although it was acknowledged (at para 51) that there may be some instances where the secondary considerations outweigh the primary ones.
34. In the second reading speech in the Senate on 11 May 2006 (at page 55), it was noted that the Report on the Bill referred to the primary considerations in s 60CC(2) as intended to “draw appropriate attention to the objects’ provisions in a positive way”, and likely to assist in directing the court’s attention to those objects, “particularly in relocation cases”. That point, however, was not expanded upon further.
35. The Attorney General’s submission to the House of Representatives’ Standing Committee on Legal and Constitutional Affairs noted that the primary considerations were “almost certainly” likely to have an impact upon the way in which relocation cases were decided, in particular, the emphasis on maintaining a meaningful relationship with both of the parents (see page 51 of the Report). Again, there was no further discussion or elaboration.
36. Although not in relation to relocation, Goode’s Case is of assistance, in underlining the legislative intent in favour of substantial involvement of both parents. The Full Court made it clear that in interim hearings, instead of simply preserving a status quo, the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. In paragraph 65 of Goode’s Case, the Full Court sets out the pathway for the court to follow. I am satisfied it is also the appropriate pathway in this case.
37. As noted, Counsel for both parties in this case agree that whether O lives in Melbourne or the UK, neither the concept of equal time nor substantial and significant time is a reasonably practicable outcome, so that, as set out in paragraph 65.8 of Goode’s Case, the issue is then:
“…at large and to be determined in accordance with the child’s best interests.”
And
“9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.”
38. Counsel for the father submitted that the new Part VII provisions effectively cast an onus of proof on the applicant for relocation. They do not, and it is clear that was not the intent of the amendments. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.
39. The objects and principles of the Act, the primary and additional considerations under s 60CC, together with the various provisions in relation to equal shared parental responsibility, direct the court squarely to maintaining the important relationship between a child and his/her parents. But the child’s best interests remain the court’s paramount consideration (s 60CA). In the opening words of the objects provisions in s 60B(1) of the Act, and again in s 60B(2) where it is stated that the principles set out there apply “except when it is or would be contrary to a child’s best interests”, the legislature has not diminished the best interests test as integral to any parenting issues, including the difficult issue of relocation.
When determining the best interests of the children, one must have regard to the ‘primary’ and ‘additional’ considerations that are set out in s.60CC as follows:
60CC [How a court determines what is in a child’s best interests]
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 from 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 views;
(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 form:
(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
having contactspending 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)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
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.
(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).
The Court must also consider any risk of family violence, as required by s.60CG:
60CG [Court to consider risk of family violence] (1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
The phrases ‘family violence’, ‘member of the family’, and the terms ‘abuse’, ‘relative,’ and ‘step-parent’ are all given detailed definitions in s.4 of the Act:
4(1) [Definitions] in this Act … unless the contrary intention appears:
…
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b)a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first‑mentioned person or the other person, and where there is unequal power in the relationship between the child and the first‑mentioned person.
…
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
…
step-parent, in relation to a child, means a person who:
(a) is not a parent of the child; and
(b) is or has been married to a parent of the child; and
(c)treats, or at any time during the marriage treated, the child as a member of the family formed with the parent.
…
(1AB) [Where a person is member of the family] For the purposes of:
(a)the definitions of family violence and step-parent in subsection (1); and
(b) paragraphs 60CC(2)(i) and (j); and
(c) section 60CF;
a person (the first person) is a member of the family of another person (the second person) if:
(d)the first person is or has been married to, or in a de facto relationship with, the second person; or
(e)the first person is or has been a relative of the second person (as defined in subsection (1AC)); or
(f)an order under this Act described in subparagraph (i) or (ii) is or was (at any time) in force:
(i)a parenting order (other than a child maintenance order) that relates to a child who is either the first person or the second person and that is in favour of the other of those persons;
(ii)an order providing for the first person or the second person to have custody or guardianship of, or a right of access to, the other of those persons; or
(g)an order under a law of a State or Territory described in subparagraph (i) or (ii) is or was (at any time) in force:
(i)an order determining that the first person or the second person is or was to live with the other of those persons, or is or was to have custody or guardianship of the other of those persons;
(ii)an order providing for contact between the first person and the second person, or for the first person or the second person to have a right of access to the other of those persons; or
(h)the first person ordinarily or regularly resides or resided with the second person, or with another member of the family of the second person; or
(i)the first person is or has been a member of the family of a child of the second person.
(1AC)[Where a person is a relative] For the purposes of subsection (1AB), a relative of a person is:
(a)a father, mother, grandfather, grandmother, step father or step mother of the person; or
(b)a son, daughter, grandson, grand daughter, step son or step daughter of the person; or
(c)a brother, sister, half brother, half sister, step brother or step sister of the person; or
(d)an uncle or aunt of the person; or
(e)a nephew or niece of the person; or
(f)a cousin of the person; or
(g)if the person is or was married–in addition to paragraphs (a) to (f), a person who is or was a relative, of the kind described in any of those paragraphs, of the person’s spouse; or
(h)if the person is or was in a de facto relationship with another person–in addition to paragraphs (a) to (f), a person who would be a relative of a kind described in any of those paragraphs if the persons in that de facto relationship were or had been married to each other.
Parental Responsibility
When considering the specific orders that should be made, it is appropriate to start with a consideration of parental responsibility. This is defined in s.61b:
61b [Meaning of parental responsibility] In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61c provides for each parent to have parental responsibility, subject to any parenting orders, even if the parents are separated. However, in considering the appropriate parenting orders a presumption that it is in the best interests of the child for the parents to have ‘equal shared parental responsibility’ may arise as a result of s.61da which provides:
61da [Presumption of equal shared parental responsibility when making parenting orders] (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
The effect of an order for shared parental responsibility is set out in s.65dac of the Act as follows :
65dac [Effect of parenting order that provides for shared parental responsibility] (1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65dae).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Parenting time
When deciding upon orders for parenting time, further specific requirements are set out in the Act, if orders are to be made providing for ‘equal shared parental responsibility’ for the children. Section 65daa states:
65daa [Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances]
Equal time
(1) [Court must consider whether equal time is in the best interests of the child] 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) [Court must consider whether the child spending substantial and significant time with each parent is in the best interests of the child] 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)[Substantial and significant time] 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.
In Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 the Full Court discussed the meaning of the term ‘consider’, saying that the wording of the sections ‘suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s.65daa(1)(a), being the best interests of the child, and s.65daa(1)(b), reasonable practicability, are met’: see para [64].
Standard of proof
The appropriate standard of proof in family law proceedings is the balance of probabilities, as set out in s.140 of the Evidence Act 1995:
140[Civil proceedings: standard of proof] (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The operation of this provision was discussed by Carmody J in D & D [2005] FamCA 356 where his Honour said:
145. Lord Nicholls discussed the relevant standard of proof to be applied in non-criminal proceedings in his judgment in Re H and Ors (Minors) (Sexual Abuse: Standard of Proof)[[1996] AC 563 at 586] in the context of a wardship application. His Lordship relevantly stated:
"Despite their special features, family proceedings remain essentially a from of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. . . . Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".
146. What this means in a practical sense is the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. [Re: Dellow's Will Trusts, Lloyd's Bank Ltd v Institute of Cancer Research (1964) 1 All ER 771 at 773 per Ungoed-Thomas J]
147. Thus, civil proof is not a simple matter of belief and persuasion but of "reasonable satisfaction" following a real search for the truth and evaluating the evidence adduced with regard to the matters mentioned in s.140(2) and other relevant variable factors, including those referred to by Dixon J in Briginshaw [See generally, A. Ligertwood, Australian Evidence, 4th Edition, Butterworths, 2004 at p. 82-83] and in the light of the parties' respective power or capacity to produce or contradict it. [Blatch v Archer (1774) 1 Cawp 63 at 65; 98 ER 969 at 970. See also Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454 [36]; Burke v LFOT Pty Ltd (2002) 209 CLR 282 at 330 [134]].
148. The balance of probability standard takes account of the instinctive judicial feeling that even in civil proceedings a court should be surer before finding serious allegations proved than when deciding less serious or trivial matters. However, the law looks for probability not certainty. There are degrees of probability but, when the law talks about "the balance of probabilities", it envisages a degree of probability to the point that a court can be satisfied that the alleged fact in issue is more likely than not.
In M v M [1988] HCA 68; (1988) 166 CLR 69; (1988) FLC 91-979 the High Court examined the impact of sexual abuse allegations in family law proceedings, saying:
19. … the ultimate and paramount issue to be decided in proceedings for [children’s orders], a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v. McKee [1951] AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of [time with a child]. The court is concerned to make such an order for [time with a child] which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to [time with a child], but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. …
23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if [time with the child] be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the [court] is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account ...
25. ... To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
Following M v. M, a majority in the Full Court, in B v B (1993) FLC 92-357 ( at 79,778) said:
The "unacceptable risk" test is therefore the standard used by the Family Court to "achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access". In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the child in having access with a parent outweighs the possible benefits to them from that access.
The issues are too complex for any detailed definition that makes the outcome of any given case obvious. The care to be taken in making findings can be seen from the contrasting comments of the Full Court (in cases where there were great contrasts in the evidentiary material) highlighting the significant dangers that lie at the heart of every case. The dangers to the child of continued abuse were aptly described by Fogarty J in N and S and the Separate Representative [1996] FamCA unrep925; (1996) FLC ¶92-655:
112. It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.
The dangers of a finding of abuse when none has occurred were described in Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768; (2004) FLC ¶93-192 (where the father sought supervised time) as:
21. The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.
In N and S and the Separate Representative [1996] FamCA unrep925; (1996) FLC 92-655 Fogarty J (in a dissenting judgement) provided a useful list of matters (at 82,714) to be considered when dealing with issues of alleged sexual abuse:
138. Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
139. In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
140. This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
141. In answering the unacceptable risk question the Court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of "unacceptable risk" must be assessed in light of the grave consequences of sexual abuse to a child's development, as well as the effects of future contact with the party.
Reasoning process
In Goode & Goode the Full Court considered the reasoning process that should be applied under the Act in its current from with respect to interim decisions: see para [82]. This guide can be usefully adapted to final hearings as follows:
a)identifying the competing proposals of the parties;
b)identifying the issues in dispute in the … hearing, and making relevant findings;
c)considering the matters in s.60CC that are relevant and … making findings about them …;
d)deciding what orders should be made about parental responsibility
e)if s.60DAA is enlivened, considering making an order that the child spend equal time with the parents, and if not equal time, substantial and significant time;
f)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC.
Role of the Independent Children’s Lawyer
In determining the matter I note the Independent Children's Lawyer's role under s.68LA of the Family Law Act. His role is to from an independent view based upon the available evidence, of what was in the children's best interests in these proceedings. The role of the Independent Children's Lawyer is to deal impartially with the parties, ensure the views expressed by the children are put before the Court, and to represent the best interests of the child (although not being bound to act on the instructions from the children).
In that role the Independent Children's Lawyer formed a preliminary view based upon the written evidence and materials, and diligently attended and observed the course and conduct of the trial. That the Independent Children's Lawyer's preliminary views changed over the course of the hearing to a view in favour of shared care indicates that his views were based upon the very real advantage one has in a trial of observing the demeanour and conduct of the parties when giving evidence.
Proposals of the parties
Ms W seeks to relocate to Western Australia with the children to ‘make a fresh start’, and be closer to her family. Ms W also wishes to live a long way away from Mr W as she says she remains fearful of him.
Ms W seeks orders that provide for the children A and B to spend time with Mr L for one half of the school holidays, together with time by telephone and internet webcam at such other times as may be agreed.
Ms W proposes that C spend time with Mr W for one half of the school holidays (but only 2 weeks of the long vacation), and that until 2011 contact with Mr W only occur during the day time. She proposes that she would accompany the child to Melbourne and be responsible for the cost associated with the return travel. Ms W also seeks orders that Mr W undertake and complete a parenting program and an anger management program, and that he be restrained from consuming alcohol in the period 24 hours prior to any time with the child.
Ms W says that she would not re-locate if she were not permitted to take the children with her.
Mr L proposes that children remain in Victoria so as to facilitate regular time with him and the children and to further facilitate the ongoing development of the relationship between the children and the eldest sibling D, and the child of Mr L and his current partner. He also says that he has been able to provide the children with some degree of protection in the past: Mr L had previously brought court proceedings in an attempt to protect the children from Mr (although not entirely successfully). Mr L says that the regular time with him also provides an ongoing protection for the children. He doubts the capacity of
Ms W to fund the air fares, and has little financial capacity to fund the fares himself.
Mr W seeks orders for C to stay in Victoria. He says that he has a close relationship with C and that she has close relationship with all of her siblings. He also says that C has a close relationship with her paternal grandparents.
The Independent Children's Lawyer submitted that the children should remain in Victoria, living with the mother, and spending time with Mr L and Mr W as they had done prior to the trial.
The evidence
The wife relied upon her own evidence and the evidence of Mr S, with whom she is now in a relationship. Mr W relied upon his own evidence. Ms L relied upon his own evidence. The Independent Children’s Lawyer called the family report writer to give evidence.
I had the opportunity of observing the parties and witnesses giving evidence and being cross-examined in the witness box, which provided a real advantage in this case.
Mr W is a manager at a milk factory, who was formerly a hotel bouncer. He is a large man who presented very neatly dressed. He was very direct and strong in the answers that he gave to questions. His evidence on issues of violence can not sit with the comments of the children and his behaviour toward Ms W. Generally I was unimpressed with him as a witness and prefer the evidence of Ms W and Mr L over his evidence.
Ms W presented as a well dressed woman who was somewhat nervous in the witness box. It appeared that she was genuinely fearful of Mr W and that this had an impact on her capacity to give evidence. It also seemed apparent that reflecting upon the events surrounding her relationship with D were difficult for her to face.
Her demeanour and answers to questions surrounding her proposed move led me to the view that her concern was primarily her own needs and not that of the children. The manner in which she attempted to move to WA was manipulative of Mr L, playing upon his concerns for the welfare of the children and her. She gave evidence that she thought that D was now considering a move to Western Australia if she moved. Encouraging D to move to Western Australia appeared to be more designed to assist her case than meet D’s needs for a relationship with her and his siblings, requiring him to leave all of his connections in Victoria to pursue a relationship he was denied over many years.
It is impossible to determine the full extent of the impact of family violence by Mr W, however it is difficult to avoid the proposition that the relationship with Mr W was, at the time, more important to Ms W than the violence suffered by herself, A and B, and the exclusion of D. When viewing her evidence as a whole against that of Mr L I have formed the view that she is manipulative, recasting events in a light the best portrays her interests, when on many occasion she has acquiesced to, or even supported conduct of Mr W that was harmful to D, A and B.
Mr L presented a little more casually than Mr W or Ms W. His evidence was consistent and appeared genuine. His explanation of the most recent event where he and D came to blows was convincing. However, I also formed the view that he is quite strong willed about matters that impact upon him, hence standing up to D, refusing to drive for contact for a period of time and applying to the court in the past.
I accept that he is now in a stable relationship, and with little funds to meet the costs of travel. I also bear in mind the sense of frustration that he must have felt in being unable to properly protect the children in the past, despite court proceedings, due to Ms W’s support for Mr W.
I generally accept Mr L’s evidence over that of Mr W or Ms W.
My overall impression of Mr L is that he has actually provided a great deal of support and stability for the children over the years, and that his presence and interest have been a strong protective factor for them, even if he has not been directly successful in every step he has taken.
Family violence
Ms W alleges that both Mr W and Mr L were violent. Both denied these allegations.
Allegations of family violence against Mr W
Mr W was cross-examined about violence to the wife and children. He denied the allegations that the children make in the Family Report, claiming that they must have been coached. He says that he would discipline the children by smacking them on the bottom and sending them to their rooms. He admitted that once a smack left a red mark.
This must be seen in contrast with the evidence of the Family report Writer of the versions of the children. A describes being smacked with a wooden spoon, being picked up by the throat, and being dragged along by the arm and getting carpet burn. He says that he was scared of Mr W. The family report writer described A as being very clear in stating that Mr W had physically abused him and having hit Ms W. Similarly, B described Mr W as ‘really violent’, she said that Mr W ‘wacks us really hard’, threw her against a wall and ‘picked A up by the throat’. She says she wouldn’t feel safe is she had to live with Mr W again. She also describes Mr W as having hurt her mother. C recounts that Mr W threw A and B against a wall.
I found Mr W’s evidence on violence towards the children unconvincing when he was cross-examined by counsel for the ICL. Most disconcerting was the statement that the injunction from the court against physical discipline simply led to him abandoning the use of a wooden spoon. Mr W said that they were not meant to smack the children ‘in theory’.
In 1999 Mr W assaulted Mr L and was charged by the police. As a result Mr W was fined and required to pay compensation of around $11,000. The incident occurred at a handover involving the children. Mr W says that Mr L shoved Ms W and he reacted inappropriately.
Whilst denying any violence to the Family Report Writer and in cross-examination, Mr W sets out in his affidavit a number of explanations for violent events. He admits that there was an incident when Ms W suffered two black eyes, saying they were both drinking at a party. He said that she bent one of his fingers back until it hurt, so he shoved her away, causing her to fall over and that she ‘cracked her head on the concrete’. He says that on another occasion he grabbed Ms W on the couch as she had been ‘nagging at [him] and [he] had been ignoring [her]’, following which he says she grabbed the television remote. On another occasion he says that ‘the wife got a slap on the face in the car from me’. He says that they were having a water fight in the car and that as Ms W ended up with both bottles of water he slapped her on the cheek, but then ‘apologised straight away for this.’
When Ms W was in P, despite an intervention order, Mr W went to P and sat outside her home in a car. This caused Ms W extreme distress. She arrived home and noticed him when A was opening a gate. She and the children then fled to the local police station.
Mr W has also left a text message telling her that she couldn’t ‘watch her back forever’, which he explained as meaning that she couldn’t refuse him time with the children, or at least C. Mr W denied threatening to kill Ms W if she left him, saying that they had an understanding that if she didn’t take C away he wouldn’t stop her leaving. It is interesting to note that the explanation implies a sense of control over Ms W: husbands have no power to stop wives from leaving them - Mr W couldn’t stop her from leaving unless he held her there by fear or other duress.
Some level of self reflection by Mr W is demonstrated in his text messages to Ms W in late 2005, for example:
Starting to ring home so what I prepose is I start putting you and the kids first get off the grog and have a good look at my life cause I don’t like what I see.
and
Just spoke to mum we will be right im gunna put the kids first and change for the better and not be self centred and more cause I can’t be a prick all my life.
Mr W also alleged that the Ms W suffered depression, as an explanation for some of the difficulties that they suffered. Ms W provided a report from her general practitioner who says that from August 2004 until she left Victoria in December 2005 there was no evidence of depression or problems with parenting or coping.
There is also the evidence of Mr L. Mr L had, in the past brought proceedings seeking to restrain the physical discipline of the children by Mr W. At that time Ms W denied that Mr W was violent. It seems clear that complaints by Mr L to the police also reduced the extent of striking of the children. Whilst this weakens Ms W’s evidence, I must see it in the context of a potentially violent relationship. Behaviours of the victims of domestic violence are often difficult to rationalise. Nonetheless it is clear that the violence directed at the children has been a cause of concern for Mr L for some time.
I am satisfied that the relationship between Ms W and Mr W was a violent one, with violence directed at Ms W and the children. It was characterised by fear on the part of Ms W and the children. The children not only experienced violence, but were aware of the violence toward Ms W. I also find that the nature of the relationship was characterised by a sense of control on the part of Mr W and powerlessness on the part of Ms W. The controlling nature of the relationship is exemplified by Mr W not a permitted Ms W to have D at the home from December 2000 onward.
I therefore find that Mr W has engaged in family violence directed at Ms W, Mr L, and the children within the meaning of the term as used in the Family Law Act. They are all members of a family for the purpose of the extended definitions relating to family violence. Due to the lack of particularity, and bearing in mind the standard of proof, I do not feel able to make a finding of child abuse on the basis of physical violence directed at the children other than with respect to the incident where A was held by the throat. With respect to that incident, there is evidence of both children, and there can be no argument that this is outside of any reasonable disciple defence in the criminal law.
Allegations of family violence against Mr L
Ms W raises concerns as to family violence by Mr L during the time that they were together. Specific events are not referred to in detail. The children, in their interviews with the family report writer expressed no reservations about Mr L. Rather, they respectively describe that they ‘like it at dad’s’ and ‘its really fun’.
In the time leading up to trial, after Ms W returned from Perth, Mr L and D had an altercation. Mr L physically removed D from the house. D has lived with Ms W since then.
Mr L says that D came home intoxicated, that D (who is now physically larger than Mr L) was challenging him. Mr L says that his current wife was home, pregnant, and upset by the behaviour. He says that he grabbed D by the shirt and shoved him out the back door. Mr L said that his current wife grew up in Northern Ireland and hates violence of any type, and he is therefore quite protective of her. Interestingly, he said that in hindsight he would probably still eject D from the home if the events occurred again.
Mr L’s relationship with D was fractured by the event: D left that home and lives with the mother. However, D has been back to visit in recent times.
I am not satisfied that there is a real risk of family violence on the part of Mr L, nor that there has been family violence directed at Ms W or A or B. I accept that the incident with D was an isolated event that occurred in the circumstances described by Mr L.
Abuse allegations against Mr W
Ms W raised concerns that Mr W may have engaged in sexualized behaviours with C. She told the Family Report writer that C had said that ‘daddy sometimes shows me his winkie’. This was investigated by the police and not taken further.
This was not actively pursued at trial. Mr W denies any impropriety of this type. No disclosures were made to the Family Report Writer. C has had time with Mr W since then.
I am not satisfied that there is an unacceptable risk of any from of sexual abuse by Mr W against C.
Alleged Offer to abandon children’s proceedings for property
Ms W alleges that Mr W made an offer before the trial to abandon his children’s case if the wife conceded her property claims. In support she filed an affidavit of her solicitor who received these offers in whilst waiting for a conciliation conference. The offer was then referred to in later correspondence. At the hearing I determined that the offer, when outside of the conciliation conference, was an offer to settle.
Whilst an offer to settle is prima facie inadmissible under s.131 of the Evidence Act, an offer in these terms in a children’s case may fall within the exception contained in s.131(2)(g) which provides for:
(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence;
Evidence as to the quality of the relationship with and commitment to a child by a parent, particularly leading to inferences under s.60cc(2)(a) relating to a meaningful relationship and s.60cc(3)(i) the relating to the attitudes to parenthood and the responsibilities of parenthood would be likely to mislead the court if evidence of a preparedness to bargain property for time with the child were not admitted.
In this case the proposal seems to have been encouraged by the wife’s solicitors. It was not pursued in correspondence, except by the wife’s solicitors. Mr L says that he took the offer to be flippant when he heard it, although his evidence was that the only time he heard it was during the conference, and therefore his evidence is inadmissible as a result of s.10j of the Family Law Act.
Ultimately I accept that the offer was canvassed. I am not convinced that it was seriously pursued by Mr W. That it was raised is relevant, although it must be taken in the context of a difficult dispute where
Mr W was despondent about his prospects.
I have reflected for some time upon the level of attachment that Mr W has for C, particularly in light of his offer about property and his conduct with respect to D. Ultimately I find that he has a strong attachment to C, and the events since separation show the many difficult emotional responses that he has suffered, ranging from considering the possibility of severing entirely his connections with
Ms W, to fighting to maintain his relationship with his daughter. However, there is also evidence of C’s joy in seeing Mr W, running to him calling out ‘daddy, daddy’.
Medical Needs of the children
A suffers from cystic fibrosis, and B from Turner’s syndrome. It was pressed on the part of Mr L that their medical needs are well catered for in M where they have access to world class specialists. Ms W says that they can obtain adequate health care in Perth.
On the limited material before me I have difficulty in accepting that the children could not obtain suitable medical care in Perth, nor that Y where the mother proposes to live is so far from Perth as to impede appropriate access to those services as required. This is not a case where a parent is proposing to relocate to a centre hundreds of kilometres from a major metropolitan hospital. I do not find that this is a significant issue in this case.
However, an issue to be considered is the extent to which either Mr L or Mr W could have any real involvement in medical issues if the children are in Western Australia. I have real doubts about the preparedness of Ms W to involve Mr L in the children’s medical decisions if she were in Western Australia.
Contact with D
At Christmas 2000 Mr W refused to have D in the home with Ms W. Ms W says that she was pregnant at the time, and that D was lying to them about various things. Ms W explains her loss of relationship with D at that time as simply losing contact after that. This appears to me to be a rationalisation of her failure to maintain a relationship with D, who even now craves a relationship with her.
Property proceedings
The law
Section 79 of the Family Law Act 1975 (‘the Act’) enables the Court to make such orders as the Court considers appropriate altering the interests of parties in the property. Section 79 of the Act sets out a number of significant matters that must be considered in order to determine what orders would be appropriate.
In Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC ¶93-143 the Full Court of the Family Court conveniently summarised the preferred approach as follows:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC ¶91-626; Ferraro and Ferraro (1993) FLC ¶92-335; Davut and Raif (1994) FLC ¶92-503; Prpic and Prpic (1995) FLC ¶92-574; Clauson and Clauson (1995) FLC ¶92-595; Townsend and Townsend (1995) FLC ¶92-569; Biltoft and Biltoft (1995) FLC ¶92-614; McLay and McLay (1996) FLC ¶92-667; JEJ and DDF (2001) FLC ¶93-075 and Phillips and Phillips (2002) FLC ¶93-104.
In undertaking the first step the various items of property should be identified with reasonable precision and value. However in the subsequent steps it is not possible to make an adjustment for each relevant factor with mathematical precision. This is clearly stated by Nygh J in G & G (1984) FLC ¶91-582 (at page 79,697), where his Honour said that:
It cannot be required of the Family Court that it assesses contributions with mathematical precision with respect to each item.
This observation was approved by Mason and Deane JJ in Norbis & Norbis (1986) 161 CLR 513; (1986) FLC 91-712. This observation has regularly been repeated by the authorities: see for example Brandt & Brandt (1997) FLC 92-758 and Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060. Of course, ‘Judges [and Federal Magistrates] are obliged to exercise their discretion Judicially and should explain the broad nature of their reasoning that leads to their conclusion’: see Figgins & Figgins [2002] FamCA 688; (2002) FLC 93-122.
With respect to the final step it is important to note that it is the justice and equity of the actual orders that the Court must consider: see Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877.
Little time was devoted to this aspect of the case at trial. Mr W did not prepare an outline in accordance with directions made well before the trial. Doing the best that I can on the material presented I make the following findings.
Determining the Pool of property and value of any superannuation
The parties are agreed that the pool consists of the following property at the values listed (save for a dispute as to the value of the home). As there is no proper valuation of the property it must be sold. I propose to adopt an average of the estimates of the parties ($385,000 and $450,000) for the purpose of assigning an estimated value for the home for the purpose of assessing the property pool. The property is therefore as follows:
a)Matrimonial home E$417,500
b)Nissan Patrol $42,000
c)Mitsubishi Mirage $6,000
d)Toyota Hilux $500
e)Wife’s CBA account $400
f)Chattels in home $10,000
g)Cattle $3,500
h)Tractor $1,500
Total $484,400
In HDM & MM and SJM [2006] FamCA 47 the Full Court recently approved the statement in Omanici & Omanici [2005] FamCA 195; (2005) FLC ¶93-218 that:
30. To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC ¶92-816 the Full Court said at 85,262:
“11.6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.”
(b) Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC ¶92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
“In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.”
(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644:
“As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec.75(2)(o) to applications for settlement of property instituted under the provisions of sec.79.”
The cattle and tractor were sold by the husband after separation. Whilst Mr W says that he applied the monies to a joint overdraft, no documents have been forthcoming, nor event details of the account. Counsel for Ms W made submissions that there had not been full disclosure, and this should be taken into account, relying upon Weir and Weir [1993] FamCA unrep469; (1993) FLC 92-338 (which has recently been approved in Zalewski & Zalewski [2005] FamCA 996; (2005) FLC 93-241). In this case I have not formed a favourable view about the credit of Mr W. The documents should have been readily available. Indeed, even the home mortgage documents were not produced until after the submissions in the trial. In the circumstances I am not satisfied that the funds received by Mr W were applied to a joint purpose. Therefore, this falls within the second category in Omanici, and should be added to the pool as a premature distribution to Mr W.
Having regard to the time that has past since the payment of the damages claim by Mr L, it appears more appropriate to consider this issue under s.75(2)(o) (as suggested by Baker J in Kowaliw) than as an add-back to the pool.
The liabilities appear to be only the mortgage on the home. Ms W gave evidence she believed it to be only $250,000 at the time of separation, but Mr W said it was around $290,000. Whilst there had been non-disclosure of the loan account statements, they were ultimately produced on affidavit, and no further hearing time sought. The statements show a debt of $287,851.66 at 08/12/05, which has increased to $300,053.83 by December 2006.
Ms W received $6,000 to fund her return from Perth, which must have been part of the reasons for the increase in the mortgage. However, I also have regard to the fact that she left the matrimonial home and had to incur expenses to establish a new household. In Omacini the Full Court makes the point that monies used for legitimate self support should not be added back to the pool. On the evidence I am not satisfied that the money was not reasonably applied to establishing a household for Ms W and the children. I do not propose to add this sum back to the pool in the circumstances.
The husband appears to have superannuation interests of $4267.57 with CBUS and $59,029.38 with AustralianSuper, a total of $63,296.95. Ms W has no superannuation. However, shortly before trial APRA approved Mr W withdrawing $17,205.27 to pay outstanding payments on the home loan, thus the superannuation figure will reduce to $46,091.68 and the home loan reduce by a corresponding amount.
In Coghlan & Coghlan [2005] FamCA 429; (2005) FLC 93-220 the Full Court set out that superannuation interests, whilst an asset or resource, may be a different species to that of ‘property’ as defined by section 4 of the Family Law Act. However, as C & C makes clear, all of the usual s.79 steps should still be undertaken with respect to the superannuation. Whether particular superannuation interests are property within the meaning of the s.4 definition of property is a difficult question, particularly having regard to the changes to superannuation law and Family Law Act in recent years. In this case the parties have not placed enough information before me to satisfy me that the interests are within the meaning of ‘property’ as defined under s.4 of the Act. As such, I do not find that the superannuation interests in this case are ‘property’ for the purpose of s.79 of the Act, however, s.90ms provides for power to make orders in relation to superannuation interests, when making property orders under s.79.
I therefore assess the net value of the pool of property to be as follows:
a)Property Pool $484,400.00
b)
Mortgage
(adjusted for superannuation payment) $282,848.56
c)Net Pool $201,551.44
I therefore assess the superannuation entitlements of Mr W as $46,091.68.
Contributions of the parties
At the commencement of the relationship Mr W owned land at CP, that he had paid $28,000 for in 1996. He had borrowed $90,000 to build a home on the block. The construction was completed during the relationship. There is no evidence as to the value of the property in 1998. However, this must have been a significant contribution to the present pool. As the Full Court said in Pierce and Pierce [1998] FamCA 74; (1998) FLC ¶92-644:
28. In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: See also Campo and Campo (unreported, Full Court (Ellis, Lindenmayer and Finn JJ), Sydney, delivered 19 May 1995 at pages 21 and 22 of the joint judgment) and Zahra and Zahra (unreported, Full Court Sydney, delivered 3 October 1996, per Ellis J. at page 10).
During the relationship the parties bought a property at G and sold it at a profit, which was applied to the mortgage. The CP property was sold in 2005 realising net proceeds of around $150,000, used to purchase the currently owned property.
During the course of the relationship Mr W worked as a manager at a milk factory. His current salary is around $73,000 per annum in this employment.
Ms W was not in paid employment during the relationship and is currently in receipt of government benefits.
It is clear that Ms W made a contribution as homemaker and carer of C. It is submitted that the homemaker contributions of Ms W were significantly more arduous as a result of the violence of Mr W. Reliance is placed upon Kennon v. Kennon (1997) FLC ¶92-757. In Kennon v Kennon the Full Court said (at 84,295-6):
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).
A distinction can be drawn between conduct that would be likely to attract an adjustment, and conduct of the type relied upon in Doherty and Doherty (1996) FLC 92-652 which was doubted in Kennon. In Doherty’s case the conduct was ‘domestic violence … related to a relatively small period of time at the end of the marriage.’
An adjustment on this basis is not to be undertaken lightly. It is important to find a specific evidentiary foundation. In this case there appears to have been a long history of violence in the relationship, as set out above. In the Family Report the mother describes life in the household like ‘walking on eggshells’. She exhibits an ongoing fear of Mr W. Her relationship with D was effectively severed during this time. The children A and B were subject to family violence. I am satisfied that there is sufficient evidence of specific violence, and that it shows that her task of homemaker and provider of a nurturing environment was made far more difficult. In this case this is a relevant consideration.
Having regard to all of the contributions factors I assess contributions to the property pool at 60/40 in favour of Mr W.
Since separation Ms W has cared for the children with little access to financial resources.
It is clear that Ms W made no contribution to the CBUS fund. As to the AustraliaSuper fund, the only evidence is that the fund commenced on 19/06/96. The parties commenced their relationship in late 1998 and separated at the end of 2005.
The approach to assessing contributions to superannuation described in West and Green (1993) FLC ¶92-395, was disapproved by the Full Court in M & M [2006] FamCA 913; (2006) FLC 93-281. No evidence has been provided as to the contributions at various times, nor growth rates of the fund. I must therefore assess contributions to the superannuation component on a global basis.
The non-financial contributions of Ms W must be taken into account in considering contributions to superannuation.
I assess contributions to superannuation at 60/40 in favour of Mr W.
Adjustment factors (s.75(2))
There is a considerable disparity in income of the parties that is unlikely to change into the future. Ms W has been engaged in furniture making in recent times, although there is no evidence of any income, nor does it seem likely that she would generate an income of significance.
Ms W will have the ongoing primary care of C, however, I also take into account that Ms W can expect a reasonable contribution by way of child support, certainly at a far greater rate than that paid for A or B. However, in Clauson& Clauson (1995) FLC 92-595 the Full Court said (at page 81,911):
... It should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction on an independent lifestyle which the obligation to care for children usually entails.
There is no significant difference in the age of the parties.
Ms W has no health issues that impinge on her future. Whilst Mr W had an operation that led to time of work recently it is not suggested that he has future health needs that will impact upon him.
The support for A and B by Mr W, must be considered. In Robb & Robb (1995) FLC 92-555 the Full Court said:
… just as the husband's contribution to the welfare (including the financial support) of the wife's children of her former marriage, … could not be taken into account as a contribution by him under s. 79(4)(c), so too the wife's contribution to the welfare of those children could not be taken into account on that basis. However, as his Honour did (in our view correctly) take the husband's contribution to those children into account under s. 75(2)(o), the question arises whether he should have taken the wife's contribution to the welfare of those children into account also, under that paragraph of s. 75(2). This raises the question whether the fact that a party to a marriage contributes during that marriage to the welfare of his or her own children of a prior marriage is a fact or circumstance which the justice of the case requires to be taken into account in that party's favour, at least, in circumstances where the other party's contribution to that welfare has been taken into account as a fact or circumstance in that party's favour.
In considering whether the justice of a case requires some act done by a party to be taken into account under s. 75(2)(o), the Court should, we think, have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act, and also, perhaps, to ordinary notions of justice and equity between the parties.
In this case, the wife had a legal duty to maintain the children of her prior marriage, which duty had primacy over the duty of any other person, other than the children's father, to so maintain them: ss. 66A and 66B of the Act. The husband, on the other hand, had no legal duty to maintain these children at any time during the marriage because, by s. 66G, a step-parent has such a duty only if he or she is a guardian of the child, or has custody of the child by an order of a court, or a court having jurisdiction under Part VII of the Act by order determines that it is proper for the step-parent to have that duty. None of those preconditions existed in this case.
Accordingly, in contributing to the support of these children the wife was merely honouring a legal obligation which she owed to the children, whilst the husband, in making his contribution, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations. Upon that basis, whilst we consider the justice of the case clearly required the husband's contribution to be taken into account under s. 75(2)(o), the same cannot be said of the wife's contribution. In making that contribution the wife was in no way discharging or assisting to discharge any legal obligation of the husband.
Turning, then, to ordinary notions of justice and equity, we are of the view that such notions do not call for any allowance to be made in the wife's favour, in the property proceedings between the husband and wife, because she honoured her legal obligation to maintain her own children of a prior marriage. We believe that a failure to make such an allowance would not offend the ordinary reasonable man or woman's notions of justice.
In our view, therefore, his Honour did not err in failing to give any weight to the wife's contributions to the welfare of her own pre-marital children.
During the relationship Mr W contributed significant financial support for A and B, when Ms W received very little child support from Mr L. Following separation Mr W continued to pay school fees for all three children at a catholic school.
Mr W was required to pay damages to Mr L in the sum of around $11,000 as a result of his assault of Mr L. This is conduct that was, at best, reckless, and should be taken into account pursuant to s.75(2)(o).
Ms W seeks a superannuation splitting order in her outline of case document. The documents from Australian Super show that the fund can be split if it exceeds $5,000, although this incurs a fee of $70. The fund is not subject to a payment split or flag. In the circumstances it appears to be open to the court to order a split of superannuation.
I find that an adjustment of 10% on each of the property pool and superannuation is warranted in the circumstances of this case, to 50/50.
Fourth step
The final step requires the court to consider how this will alter the position of the parties.
Mr W will retain the benefit of the Nissan, Toyota, chattels, money from the sale of the cattle and the tractor. This comes to a total of $57,500.
Ms W has retained the Mitsubishi motor vehicle valued at $6,000 and $400 in her bank account. She should therefore receive the first $51,100 from the sale proceeds of the home less and the balance of the proceeds be divided equally between the parties.
Mr W will also retain superannuation of around $24,500 and Ms W receive a split of that amount.
I find that this is a just and equitable division of the property.
I certify that the preceding two hundred and seventeen (217) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: J.McLean
Date: 29 June 2007
0
21
2