Discharge of parenting order – Absent father

In Bassler & Norton (No. 2) [2010] FMCAfam 840 (30 July 2010) Scarlett FM vacated a consent parenting order on the application of the father, an overseas resident, who applied for time with his 10-year-old child whom he had not seen since 2004. The mother gave evidence that she had remarried and that the child had formed a good relationship with her current husband. 

Scarlett FM at para 25 said this:

“Clearly, if the father wishes to play any role in this child’s life he must take steps to reintroduce himself over a graduated period of time, but that arrangement should take place within Australia in circumstances and surroundings [with which] this child is familiar. Taking this child away from familiar surroundings to meet an unfamiliar person would not be of benefit to any child, and particularly not to a child who has the condition of autism because it is well-known that children with this condition need predictability and routine in their lives and react unfavourably if those conditions are removed.”

An order was made for the father to see the child twice a year for two one- hour periods in the presence of the mother a week apart, during school holidays on three months notice. It was a condition of that time that the child be assessed by the child’s treating specialists as to the impact of the visits on the child and whether they should occur again, the father to abide by their decision.

Doctor granted discharge of spousal maintenance order – Applicant adduced evidence from a medical practitioner, a recruitment consultant and “Westpac-AFSA Retirement Standard for ‘a comfortable lifestyle’ for a single female in Tasmania” annexed to husband’s affidavit  

In Bastow [2009] FMCAfam 21 (21 January 2009) Roberts FM granted a doctor’s application for the discharge of a spousal maintenance order made at the time of the parties’ property settlement. The applicant called a medical practitioner and a recruitment consultant to counter the wife’s case, also annexing to his affidavit the “Westpac-AFSA Retirement Standard for ‘a comfortable lifestyle’ for a single female in Tasmania”, of which the court found the wife’s claimed expenses were “well in excess”.

Which party should retain the family home – Wife’s proposal for retention (including financing of house and husband’s property settlement) found to be less uncertain than that of husband

In Bateman & Gaffney [2010] FMCAfam 103 (12 February 2010) both parties wanted to retain the family home. The husband proposed to finance his retention of it by his mother selling her home, he borrowing money and the proceeds used to refinance the existing mortgage and pay out the wife. The wife proposed refinancing so as to pay out the husband.

Phipps FM said at paras 30-33 said:

“The husband’s proposal has more uncertainties than the wife’s. His proposal depends upon a bank…accepting the wife’s child support payments as part of his income. It depends upon his mother selling her home and investing all the proceeds with the husband in the former matrimonial home. Neither the husband nor his mother gave evidence of how they intended to hold the title to the property and in what proportions. There is no evidence that the husband’s mother has received independent legal advice. The husband and his mother might not reach agreement on important details.

The wife has an established and secure income [in the healthcare industry]. Her income is about $150,000 a year and she can increase it by working longer hours. I can readily accept that she would be able to raise sufficient funds to pay the husband. I cannot say the same thing about the husband. The husband’s proposal has the added uncertainty around his mother’s involvement. The just and equitable way to deal with the matrimonial home is to adopt the proposal with the more certainty.

If the husband received a cash payment he and his mother could still carry out their scheme to provide a home for both the husband’s mother and the children.”

Primary school preferred to home-schooling by mother – Opportunity for father to be involved in child’s education

In Bates & Churchill [2012] FMCAfam 1495 (20 December 2012) the parties were in conflict as to whether their five year old child should be home-schooled by the mother or attend a primary school. At the time of the hearing the child was enrolled at a Montessori school on the Central Coast for two and a half days a week in the “3 to 6 program”. The school did not offer a primary school program and the child could only remain at the school until the middle of 2013. The proposal of the mother (who was not a trained teacher) was that “depending on [X]’s progress she might home school her throughout her primary school years and even into her secondary school years” (para 5). The father proposed that the child attend a state primary school from the beginning of 2013.

Terry FM heard the evidence of both parties and considered 60CC(2) and (3) matters, saying as to s 60CC(3)(d) (likely effect of change in child’s circumstances) at para 49-52:

“Home-schooling would represent a significant change for [X]. She would cease going out of the home each week to go to school and would be at home all day every day of the school week with her mother.

The mother intends to take [X] to some cultural events but it would become a situation where the school week was very much a mother-and-daughter world: no peers, or very few peers; mother and daughter together. In Spencer & Spencer [[2010] FMCAfam 640] Jarrett FM observed that in those circumstances a parent becomes:

‘ … everything to [the child] – a parent, a disciplinarian, a teacher, and somebody with whom [she] is spending fun times as well. There [would be] essentially no break.’

I cannot predict what the effect of that change would be. I cannot say that it would necessarily be bad, but it would be a significant change, and I cannot predict the effect of it.

If [X] is home-schooled the father’s capacity to be involved in her education will be almost non-existent. There will be no assemblies, no sports days, no parent-teacher nights. There will be no reader sent home that the father can read with her and then initial the box. He will not be able to pick her up and drop her off from school and have her friends see that this was her Dad.”

It was ordered that the parties do all acts and things necessary to enrol the child in [W] Public School from the beginning of the 2013 school year.

Child support – Mother unsuccessfully appeals decision of the Administrative Appeals Tribunal – Tribunal did not err in preferring evidence of father as to the parties’ separation date where that evidence was corroborated by Centrelink documents

In Batson & Batson & Anor [2016] FCCA 2631 (delivered 12 October 2016 but published 30 May 2017) Judge Street heard the mother’s appeal in a case where she had applied for a child support assessment on 24 November 2006. The father obtained an extension of time to object to the child support registrar’s decision accepting the mother’s application but his objection otherwise failed. The father then successfully appealed to the Administrative Appeals Tribunal (AAT) which found that the mother’s application for an assessment should not have been accepted by the Registrar as the mother and father were living together on a genuine domestic basis at the time of the application. 

The mother then appealed the AAT’s decision to the Federal Circuit Court, arguing that the Registrar’s decision was corroborated by recitals to a financial agreement which recited that the parties separated in April 2005. 

Summarising the AAT’s decision, the Court said (from [7]):

“[The documents considered by the AAT] … included a transcript relating to a domestic violence dispute heard before a magistrate in the Local Court on 4 June 2013, as well as communications between the parties which included submissions by the solicitor on behalf of the applicant … Those submissions made clear that the applicant appreciated that a critical issue in the present case for the determination by the Tribunal was whether the applicant and the respondent were living together on a genuine domestic basis at the time of application.  

[8]       The submissions sought to advance largely based on recitals to a binding financial agreement dated 20 October 2006, as giving rise to an issue estoppel and res judicata. The Tribunal correctly rejected those submissions and determined on the evidence before it to give the binding financial agreement little weight and preferred the evidence of the first respondent to the evidence of the applicant.  

[9]       That adverse credibility finding was one in part based on a document that was a Family Tax Benefit lodged at Centrelink on 14 September 2005 and signed by both the applicant and the first respondent on 30 August 2005. Those signatures appear beneath a statement that relevantly included, acknowledging the importance of false or misleading information being an offence in relation to the relevant document. In the relevant document, there was a question at 30 which relevantly said ‘your marital status changed, you gained a partner or separated’ to which the answer ‘no’ was completed. 

( … )

[11]     Also before the Tribunal following the hearing, was the tendering of information obtained from Centrelink … The Tribunal provided those documents to the parties for comment. The significance of the documents was obvious in relation to the issue between the parties as to whether they were living together on a genuine domestic basis. Both parties were given a genuine opportunity to respond to the information that had been obtained from Centrelink. It was not necessary for the Tribunal to conduct a further hearing having given the parties an opportunity to comment on that material.

[12]     The Tribunal correctly identified that it had to determine whether to accept the application for a child support assessment made on 24 November 2006. The Tribunal correctly identified that involved a determination of whether or not the applicant and the first respondent were living together as partners on a genuine domestic basis at that time. The Tribunal identified the relevant legislative provision of the Child Support Assessment Act 1989 and set out the relevant criteria under s 25(2) of the Act. 

[13]     ( … ) The Tribunal had evidence from the first respondent contending that the applicant and the first respondent have lived together as a married couple until April 2013. 

[14]     The first respondent contended that the binding financial agreement was entered into in order to defeat creditors. …

[15]     The Tribunal found the explanation of the first respondent to be plausible and provided cogent reasons for not placing weight on the statement in the binding financial agreement that purported to assert that the parties had separated on 28 April 2005. ( … )

[16]     The Tribunal made reference to the information provided to Centrelink on 14 September 2005 and found it was more likely than not to be correct, and that the applicant and the first respondent were not separated on that date. The Tribunal found that cast significant doubt on the credibility of the applicant who has steadfastly maintained that she had separated in April 2005 and did not reconcile until December 2012.”

The Court concluded (from [23]):

“… [T]here was no procedural unfairness by the tribunal in providing the documents received from Centrelink to the parties for comment. It was not necessary for the Tribunal to engage in directing or advancing the parties attention to particular documents. The significance of the documents was obvious. ( … ) 

( … )

[28]     … [I]t is apparent that the Tribunal did have regard to the binding financial agreement and it was a matter for the Tribunal to determine what weight to give that agreement. The Tribunal was not bound by ss.90G and 90K of the Family Law Act 1975 (Cth) to accept the facts in the recital to the binding financial agreement as incontrovertible facts for the determination of the application that was before it.

[29]     … [I]t is apparent that the Tribunal understood the argument being advanced by the applicant’s solicitor as to the weight and force that the applicant’s solicitor contended should be given to the binding financial agreement. The Tribunal did not fail to have regard to any relevant consideration …

[30]     … [T]hese were administrative proceedings. There is no estoppel that bound the Tribunal in relation to the facts that gave rise to the question of whether the criteria for the application were satisfied. …

[31]     … [T]he evidence adduced before the Tribunal was a matter in which it was proper for the Tribunal to evaluate what weight to give to that evidence. The assertion of it being improper to give no weight to the binding financial agreement was completely lacking in substance. The adverse findings by the Tribunal were open. …

[32]     … It was open to the Tribunal for the reasons given to determine what weight to give the document. This is not a case of the Tribunal being in a position where there was uncorroborated evidence from the first respondent. There was a contemporaneous record entirely consistent with the first respondent’s evidence in relation to the contradiction of the applicant’s evidence that the parties had separated in April 2005. There was no failure by the Tribunal to take into account a relevant consideration as alleged …”

The appeal was dismissed with costs fixed in the sum of $5,600. 

Property – Inconsistency of pool approach – s 75(2) adjustment only as to non-super assets also in error

In Baxter [2010] FamCAFC 183 (17 September 2010), an appeal from a decision of Neville FM involving both superannuation interests
(H $158,000 half of which accrued before marriage, and W $38,000) and non-superannuation assets (house), the Full Court (Bryant CJ, Finn and Boland JJ) said at para 31 “that his Honour does appear to have moved from a one pool approach … to a two pool approach”.

The Full Court said at paras 34-35 that although it was correct to recognise the husband’s greater contributions to the parties’ superannuation entitlements overall “given the much longer period for which the husband had through his employment been contributing to his superannuation” his Honour’s reasoning (in assessing contributions to the non-super assets at 60% to the husband, each party to keep their own super “untouched by the other party” (para 17)) was held to be “not sufficiently clear”, adding at para 35:

“Indeed the following calculation by counsel for the wife indicates that the ultimate result may well not have been just and equitable to the wife:

‘… The wife received 55% of the non superannuation assets and just 19% of the superannuation interests. The husband received 45% of the non superannuation assets and 81% of the superannuation interests. As a result the value of the property and superannuation received by the wife was about 33% of the total net asset pool of $317,214.00 …’”

The Full Court also found error in the s 75(2) adjustment (15% to the wife) “which was only made in relation to the non-superannuation assets”, saying at paras 45-46:

“ So far as the pool comprising the superannuation interests is concerned, it can simply be said that in the circumstances of this relatively short marriage, where both were working for much of the time, it is artificial … to regard either party as having made any indirect contribution of any real worth to the other’s superannuation interest. Both should be regarded as having made the sole contribution to his or her own superannuation interest. That does not, of course, mean that those interests should then be overlooked (as his Honour appears to have done) for purposes either of considering whether a s 75(2) adjustment is required, or assessing the justice and equity of the ultimate orders. The disparity in their respective superannuation interests is itself a matter for consideration under s 75(2).

However, given that neither party ultimately sought a splitting order in relation to the other’s superannuation interest, it is unnecessary to attempt to make any adjustment of either party’s superannuation interest on the basis of the matters in s 75(2). Rather any s 75(2) entitlement or adjustment in relation to either’s superannuation interest is more appropriately satisfied out of the non-superannuation assets.”

The Full Court added at para 47:

“While it may well be possible in the case of a relatively short marriage [5 years in this case plus a year of pre-marital cohabitation] to demonstrate more effectively than in the case of a longer marriage, the superiority of the financial contributions of one party …, non-financial and homemaker contributions must also in relatively short marriages be given appropriate, and not just token weight (Mallet v Mallet (1984) 156 CLR 605).”

The Full Court proceeded to reassess the parties’ contributions to the non-super as equal (net assets to each of about $60,000) and s 75(2) factors, being the wife’s health concerns, her more limited capacity to earn income and to increase her super, and the husband’s greater existing super, as 20% (of the net non-super assets of $120,000), resulting in the net non-super being divided 70/30 in favour of the wife with no division of their super interests.

As to retention of the home, the Full Court at para 53 said:

“If the wife wishes to retain the home she will need to pay the husband 30 per cent of the net value of the non-superannuation assets (of $120,722.00), being $36,217.00. If she cannot raise this amount, the home will have to be sold and its net proceeds shared in the proportions of 70 per cent to the wife and 30 per cent to the husband.”

 

Family violence – No time granted to father – Sole parental responsibility  

In Bayer & Imhoff [2010] FamCA 532 (2 July 2010) Austin J granted the mother sole parental responsibility, the children to spend no time with the father, where he had been severely violent towards the mother, the children had witnessed his violence and he had also been violent towards the children. 

Divorce – Court not persuaded that Australia was a clearly inappropriate forum despite the entire marriage occurring in Israel – Husband (an Australian citizen) intended to move to Australia to remarry

In Bayfield [2013] FCCA 975 (29 November 2013) Judge Riethmuller considered in divorce proceedings filed by the husband an application by the wife that the Court “decline to exercise jurisdiction on the basis that the Australian jurisdiction is an inappropriate one in the circumstances of this case” (para 17). The parties were both Jewish, they were married and lived together in Israel; and the wife “had no connection with Australia at all” (para 23) while the husband’s only real connection with Australia was that he “is an Australian citizen and intends to return here to marry and live … in the future” (para 23).

The wife argued that “the Greater Rabbinical Court in Jerusalem [had held on appeal by the wife] that the divorce should be granted after the wife received fair compensation … ” (para 6) but that when the case returned to the court at first instance the husband “discontinued his proceedings” for a divorce in Israel. The wife also argued that if the husband were to obtain a divorce in Australia and not in Israel, “he would be considered to have committed an act of bigamy under the laws of Israel” (para 8).

In considering whether Australia was a “clearly inappropriate forum” per Henry v Henry [1996] HCA 51, the Court said (from para 18):

“…     In this case there are no longer proceedings in the Israeli courts. Had the Respondent wife wished to pursue divorce proceedings or claims for ancillary relief in the Israeli courts, she has had adequate time to file such proceedings.

[19]    The Full Court of the Family Court of Australia in Navarro & Jurado [2010] FamCAFC 210 considered the application of the High Court authorities with respect to determining whether or not Australia is a clearly inappropriate forum. In that decision it was clear that a desire of a party to re-marry in Australia is a relevant factor that should be taken into account. ( … )

[21]    It is relevant that the proceedings in Israel have finished, and on the evidence before me were frustrated by the inability of the parties to agree upon an amount to be paid to the wife and the refusal of the Rabbinical Court to adjudicate upon the question. Consequently the husband abandoned the proceedings, and the wife had not continued to pursue those proceedings.

( … )

[25]    It appears that on a practical level the husband was simply unable to obtain a divorce in Israel unless he met the wife’s demands, and was unable to obtain a ruling from the Court as to the appropriate amount of compensation to enable the divorce to be finalised.

( … )

[28]    In this case the husband has openly stated that he is prepared to grant the wife a Gett [‘to allow her to be divorced in accordance with her religion’: para 27] and indeed even place one in escrow if required. The wife’s opposition does not flow from the concern that she would not receive a Rabbinical divorce because of a lack of cooperation by the husband to effect a religious divorce. On the material before me there is no real issue remaining between the parties relating to children or property settlement or maintenance. Rather the issue is whether or not the Applicant ought to pay compensation to the Respondent for a divorce, and whether that compensation should be more than a token amount (on the evidence it was said to be commonly 2 Shekels). It also appears clear that the wife is not seeking to litigate the issue in Israel …

( … )

[33]    This is not a case where the husband has commenced proceedings in Australia in order to be the first in time to a court, to thereby impinge upon the wife’s rights. Rather, this is a case where it appears … that the husband is unable to obtain a divorce in Israel without the cooperation of the wife, which has not been forthcoming (save on conditions that he does not accept, and which he has not been able to obtain a ruling upon by the Courts in Israel).”

The Court was not persuaded that Australia was a clearly inappropriate forum and granted a divorce order. 

Father unsuccessfully appeals SSAT decision which found that his monthly receipt of business loan repayments of $1,500 per month were a financial resource for child support purposes – Consideration of “Wednesbury unreasonableness” 

In Baylden & Anor [2015] FCCA 2886 (29 October 2015) Judge Scarlett heard the father’s appeal against an SSAT decision on a number of grounds, one of which was that the SSAT had made an erroneous finding of such magnitude that “its decision [was] unreasonable and/or an offence to logic” ([35]). The Child Support Registrar contended that this ground was not an error of law but an impermissible attack on the merits of the decision. The father was self-employed and received $15,000 a month by way of repayment of loans to him under a loan agreement, the Child Support Registrar setting the father’s income to reflect the father’s receipt of loans as a departure from the child support assessment, which was upheld by the SSAT.

The Court said (at [23]):

“The Tribunal found at paragraph [20] of its decision:

‘Given the terms of the loan agreement the Tribunal finds that Mr Baylden has an annual resource under the terms of that loan of $180,000 per annum tax free, or $287,000 grossed up (that is net income of $180,000, taxes of $107,002 including the Medicare levy of $4,305 […]Whilst the Tribunal appreciates that Mr Baylden does not receive $287,000 he does get a net financial benefit from his association with (business omitted) which would require gross earnings of $287,000. While the loan agreement may be acceptable for the Commissioner of Taxation, the benefits under that loan have a different treatment for the purposes of the child support. It cannot be ignored that Mr Baylden is receiving $15,000 per month under a “loan” yet not receiving wages, despite being responsible for the day to day operation of (business omitted), a company that has grown from 2 employees to now over 10 in less than 12 months. The evidence that Mr Baylden cannot be paid a salary from (business omitted) whilst it is in its growth stages is unconvincing, especially given that he now employs 10 staff, that the turnover of the company as evidenced by its GST liability appears to be in the vicinity of $2 million per annum, and further the company is able to make payments to Mr Baylden under the loan with no pressure to repay.’

The Court continued (from [53]):

“…     [Counsel for the Child Support Registrar] submitted that Ground 2(a) should be dismissed because the Tribunal was entitled to find from the Appellant’s evidence at the hearing that he received $15,000 per month from (business omitted). ( … )

( … )

[57]    [Counsel for the Child Support Registrar] argued that it was reasonable for the Tribunal to find that the money received under the Agreement was a financial resource, as it was clearly a financial benefit that enhanced the Appellant’s capacity to provide a proper level of financial support for his children.”

When concluding as to whether the SSAT’s decision was “unreasonable” to the extent of being an error of law, the Court said (from [97]):

“…     This ground is clearly based on one of the grounds set out in Tasman & Tisdall (SSAT Appeal) [[2010] FMCAfam 425] … However, as Counsel for the Child Support Registrar submitted, there is no error of law in making a wrong finding of fact, nor will a perverse finding of fact vitiate a decision of the Tribunal in an appeal on a question of law.

[98]    [Counsel for the Child Support Registrar] also submitted that in Baranski v Comcare [(2013) 296 ALR 438] the Federal Court has cast doubt as to whether ‘unreasonableness’ has any room to operate in appeals on questions of law.

[99]    In Baranski, the third ground of appeal was based on unreasonableness:

‘3.    Was the tribunal’s decision reviewable for Wednesbury unreasonableness, that is, was the decision so unreasonable that no reasonable decision-maker could have reached it (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 230)? ‘

[100] In dealing with that ground, Katzmann J, with whom Allsop CJ and Tracey J agreed, held at [19]

‘It follows that the third and final ground of appeal must also fail. Even if Wednesbury unreasonableness has any application in an appeal limited to a question of law and one which is not concerned with the exercise of a discretion…the error is not of this kind. The tribunal’s decision was not unreasonable, let alone so unreasonable that no reasonable decision-maker could have reached it…Even if the decision were perverse, the argument would face the hurdle imposed by cases such as Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139.’

[101] I am satisfied that Ground 2 does not rise to a question of law. I am not of the view that the Tribunal decision was unreasonable, let alone Wednesbury unreasonable. I agree with the submission that the Tribunal was entitled to find from the Appellant’s evidence at the hearing that he received $15,000.00 per month from (business omitted).

[102] Grounds 2(b) and 2(c) are, to my mind, a cavilling at the Tribunal’s assessment of the Appellant’s financial resources. ( … )

[103] I am not satisfied that it was unreasonable of the Tribunal to make the finding that it did, which was that the Appellant’s annual income and financial resources should be used in the child support formula set out in the Child Support (Assessment) Act until 31 December 2014.”

The father’s appeal was dismissed.

Use of research as to shared care being contra-indicated in cases of parental conflict – Order for father’s graduating time with child (including overnight time) instead of equal time sought – Mother’s interstate relocation refused as being likely to undermine father’s relationship with child

In Beadle [2009] FMCAfam 1147 (2 November 2009) at paras 25-30 and 103-109 Altobelli FM relied on research findings that ongoing parental conflict predicted poor outcomes for a shared care arrangement in refusing the father’s application for equal time. An order was made for the parties’ four year old child to spend graduating amounts of time with the father, including overnight time.  The mother’s application to relocate from Sydney to Adelaide was dismissed as being likely to undermine the relationship between children and father.

As to the commencement of overnight time sought by the father, the Court said (at [114]):

“Whilst I accept that [X] is certainly ready for overnight time, the fact is that she has not spent a considerable period of overnight time with her father. Accordingly, overnights should clearly be introduced but I intend to make orders that introduce that time over a more generous timeframe than that suggested by the father or the independent children’s lawyer, but certainly not nearly as conservative as that proposed by the mother.”