Small pool – Wife’s superior marital and post-separation contributions (including her six years of primary care of the parties’ disabled child) undervalued by trial judge– Adjustment made for wife under s 75(2) (to take account of the cost of future care) was also inadequate

In Causey [2018] FamCAFC 81 (19 April 2018) Murphy J, sitting in the appellate jurisdiction of the Family Court of Australia, heard the wife’s appeal against a 70:30 property division made by Judge Turner at an undefended hearing in respect of a 22 year marriage. The parties had four children, the youngest of whom (who was still living with the wife) suffered from autism spectrum disorder, attention deficit hyperactivity disorder and an intellectual impairment.

Judge Turner determined the case at an undefended hearing, the husband having filed no material. While the husband had made no disclosure the Court found the net pool to be $266,160 including superannuation. It ordered that the wife retain the home but pay the husband $21,613. The parties were to retain their personal possessions of which the husband’s super was $58,236 (22 per cent of the pool). The wife’s marital and six years of post-separation contributions were assessed as an adjustment in her favour of 10 per cent, a further 10 per cent adjustment being made for her under s 75(2).

On appeal, Murphy J said (from [34]):

“It bears reiteration that the husband did not provide even the most basic of information required by the Act and Rules. There remains the possibility that he retains property that has not been disclosed and which he retains independent of the wife.

[35]   Secondly, the uncontested evidence – which could not in any way be described as inherently improbable or not otherwise capable of being accepted was that:

  • Both parties had contributed income to the family;
  • The wife contributed in two roles as a homemaker and parent and as an income earner;
  • The contributions by the wife as a homemaker and parent were … significantly greater than those of the husband; and
  • The contributions made by the wife were made in difficult circumstances; the wife made allegations of family violence and there were four children, one with significant disabilities.

( … )

[37]   Leaving aside the issue of contributions being ‘adjusted’ from some unspecified position … I … consider that her Honour’s finding … that ‘there is no evidence to support an adjustment in favour of either party, as the contributions of the parties were equal’, with respect to the period up to separation, was not reasonably open on the evidence … There was … ample uncontested evidence of an imbalance in favour of the wife.

[38]   The period between separation and trial was approximately six years and as a consequence bore significance in assessing contributions over the whole of the 28 year period between cohabitation and the hearing. On any view of the contributions of the parties, based on the unchallenged evidence of the wife not otherwise impugned by her Honour, the contributions of the wife were significantly greater than those of the husband:

  • The wife made significant capital contributions to the home (notably the sole realisable asset the subject of the proceedings) while the husband made none;
  • The wife made significant indirect contributions to the preservation of the home while the husband made none;
  • The husband provided minimal child support and owed arrears of the same. The wife was left to support herself and the parties’ child with special needs from her own resources;
  • The wife contributed to the day-to-day care of the parties’ child with special needs while the husband’s day to day involvement in his care was minimal at best; and
  • The wife accessed superannuation funds that would otherwise be available to her upon retirement to not only improve the parties’ only realisable asset;
  • The wife provided financial assistance to the husband to establish himself post-separation; and
  • The wife continued in two roles; one as a modest income-earner, the other as, effectively, a full-time carer for the disabled child.

[39]   Her Honour assessed that evidence as requiring an adjustment of10 per cent – that is about $26,600. In my … opinion that assessment markedly undervalued the wife’s contributions in the post-separation period.

[40]   Looking at the totality of the contributions across the entire period of approximately 28 years from the date of marriage to the date of trial, the wife’s contributions of all types were very significantly greater than those of the husband and all the more so by reference to the dollar value of the same in this very small asset and superannuation pool. The disparity of 20 per cent as assessed by her Honour equates to approximately $53,000. That markedly undervalues the disparity in contributions in this marriage.

( … )

[43]   The ‘adjustment’ for the factors taken into account pursuant to s 75(2) … being assessed at 10 per cent, has a dollar value of about $26,600. …

[44]   That adjustment and amount fails … to take account of the cost and arduous nature of the ongoing care of the parties’ child which will continue long into the future. That care impedes the wife from obtaining full-time work. That in turn impedes the wife from earning her way out of the financial difficulties inherent in the breakdown of this relationship.”

As to the potential for a splitting order for the husband’s superannuation, Murphy J said at [51]-[53]:

“ … [The husband’s retention of]his superannuation interest [by which] he receives about 22 per cent of the [total pool] … might be seen as generous to him. …

… [However] the wife acknowledges [that] … cooperation from the husband is likely to be non-existent … [and] effectively concedes that an order requiring the husband to facilitate a … splitting order would require … enforcement orders …

I am acutely conscious of the mandate in s 81 of the Act. ( … )”

Discretion was re-exercised, the wife to receive the home and the husband to receive no payment. The husband’s retention of his super meant an overall division of 78:22 in favour of the wife.

Rehabilitated alcoholic mother was granted her application for 7 year old daughter to move from paternal grandmother’s care in Perth to hers in Sydney

In Causey & McCaig [2017] FCWA 154 (14 November 2017) Duncanson J considered the living arrangements for a 7 year old child (“L”). The parents separated soon after L’s birth, the child living with the mother until early 2014 when the mother’s health began deteriorating. She deposed that due to the stress of her mother’s death, her father’s cancer diagnosis and lack of support from the father (a fly-in/fly-out worker) she succumbed to an addiction to alcohol. She was supported by the paternal grandmother with whom she and L began living.

The mother’s alcohol dependency worsened, she was severely sexually assaulted while intoxicated, she associated with strange men, at times went missing, police were called, she refused to take medication and had several admissions to hospital. The paternal grandmother became L’s primary carer. In late 2014 the mother was persuaded by her future partner Mr A to move to Sydney for alcohol addiction treatment at a hospital’s detox unit from where she was transferred to a treatment centre.

The father filed parenting proceedings. L spent time with him but remained living with his mother in Perth. The mother spent occasional time with the child in Perth. She last consumed alcohol in mid-2015. Arguing that she was rehabilitated and in a supportive relationship, the mother sought an order that L live with her in Sydney. She would not move back to Perth as doing so could jeopardise her recovery. The paternal grandmother argued that the mother’s care involved an ongoing welfare risk.

The Court said (from [64]):

“The mother was not convincing when she spoke of her behaviour in 2014. She minimised her behaviour. It is likely she cannot remember much of it. ( … )

( … )

[68]   The mother described L as a smart child who loves challenges.  She acknowledged that L’s school reports were favourable, indicating that the paternal grandmother had looked after L well. The mother gave her credit for that.

( … )

[85]   Ms H [the family report writer who was a psychologist and psychotherapist, reported that the mother had made considerable ground in her treatment and recovery. …

[86]   Ms H reported that the mother had demonstrated a successful recovery and as she had been sober for two years the likelihood of a relapse decreased. Her professional support systems were extensive and Ms H recommended that if the court agreed with her risk assessment, L should be returned to the mother’s care in Sydney at the completion of the 2017 school year. …

( … )

[108]  The mother moved to Sydney for rehabilitation in early 2015. She completed residential rehabilitation between 13 April and 3 July 2015 in New South Wales at the rehabilitation centre. After that she attended upon Ms I to whom she was referred by her general practitioner. The mother continued to see Ms I until mid-2016 when she was told there was no further need to do so.

[109]  After the mother completed residential rehabilitation in July 2015 she engaged with [a substance abuse outreach organisation] which she described as her main source of support. She received weekly counselling. She has successfully completed four 12-session treatment episodes.

[110]  The mother completed a facilitator course in November 2016 and she now facilitates and co-facilitates courses for groups of people recovering from addiction. She explained that her own recovery was based on the program and she now facilitates meetings for others.

[111]  The mother works at [the clinic] where her role is to speak to girls who are in the process of recovery. Once a month she facilitates a mother and baby group at the clinic.

[112]  The mother takes part in a hospital speaker program working with inpatients.

( … )

[115]  In answer to questions by [the ICL] … the mother [said] … she was recovered ‘to the point that [she] would not even take a cough drop if it has alcohol in it’. The mother considers herself 100% safe. ( … )

( … )

[120]  I consider the mother has demonstrated considerable insight into her own difficulties. With help and support she has addressed those difficulties and I was impressed by her acknowledgement that she will always remain in recovery. To resume the care of L has been a strong motivation which has sustained her recovery. Until trial she was a self-represented litigant and has maintained her recovery notwithstanding the stress of ongoing court proceedings.”

The Court concluded (at [160]-[162]):

“The presumption that it is in L’s best interests that her parents have equal shared parental responsibility for her is rebutted in the circumstances of this case. The mother and the father have not communicated for about two years. … I intend to make an order that L live with the mother and I consider it to be in her best interests that the parent with whom she lives primarily should make decisions about long-term issues involving her care. …

( … )

L has a close and loving relationship with both of her parents and her paternal grandmother. She is happy in the care of each, but she strongly desires to live with her mother who is her primary attachment. Pivotal in the circumstances of this case is my finding that L is not at risk of harm in the care of the mother, who is able to provide for her needs. The mother has the committed support of Mr A and his family. She has her life on track, which in turn enables her to provide well for L. Such an order will provide certainty in L’s arrangements. L will continue to spend significant periods of time with her father and the paternal grandmother during school holidays and be able to maintain her close relationship with both of them in that way. She will also be able to have electronic communication with them.”

Mother’s unilateral relocation with child to a location an “hour and a half away” (and in breach of an existing order) – Interim order to return child pending final hearing

In Cavanagh & Kennedy [2013] FCCA 345 a mother had unilaterally relocated with the parties 7 year old daughter to a place an “hour and a half away” despite an earlier final order providing for equal shared parental responsibility and that each “parent is restrained from relocating outside the… district unless agreed in writing between the parties”.

In support of her position, the mother contended that due to the consent orders she had entered into in respect of the parties’ property settlement, she was effectively “forced from her home”, that “she had to move because she could not afford to stay” and lacked financial capacity to “rent a house in the area within which she was living… or effectively anywhere close by…”. She also contended that she had “invited the father to attend dispute resolution and the father did not attend”.

Judge Willis described Morgan & Miles [2007] FamCA 1230 as having “remarkably similar circumstances to this matter in that the mother in that case moved 144 kilometers with the children… [and the Court]… ordered the mother on an interim basis to return… pending the final hearing”. Judge Willis noted Boland J’s reference in that case to “the artificiality of determining a parenting application involving relocation on the basis of distance”.

The Court analysed the means of both parents and said “the mother … failed to properly explore what rental properties are really available in and around” the area from which she moved; that the “risk of having to break her lease was always a risk once the mother up and moved out of … [the area]… without the written agreement of the father”; that not moving would save costs associated with travel such as petrol; and then at para 146 cited (with approval) Warnick J’s statement in C & S [1998] FamCA 66:

“ … the issue of relocation is a matter in which the case law makes it very clear that it is a significant matter and it is not a matter which ought to be determined on hastily prepared material. It is not for one party to relocate and to unilaterally decide where a child is living. Relocation decisions are difficult decisions and they are best made after a considered hearing and hearing all of the evidence.”

Child support – SSAT appeal – Irrational finding of fact is an error of law

In Cazet & Faulkner & Anor (SSAT Appeal) [2011] FMCAfam 1157 (27 October 2011) the Social Security Appeals Tribunal found that the appellant had received $91,093 from his late father’s estate, not reflected by the trust account ledger produced by the estate’s solicitor.

Halligan FM at paras 20-22 reviewed case law relevant to “when a finding of fact may be challenged in an appeal on a question of law”, concluding that the question was whether there was “any evidence rationally and legally capable of supporting the finding of fact”. Halligan FM said at paras 28-30:

“Where –

a.      the SSAT has not explained how it arrived at the figure of $91,093, other than asserting the trust account ledger shows this figure;

b.      the total distributions from the estate over the relevant year, apart from a payment to a local council for subdivision expenses, are in fact less than the amount the SSAT found to have been distributed to the father; and

c.      there is no identifiable basis on which any part of the payment to the local council could be regarded as a distribution to the father;

I am satisfied there was no evidence on which the SSAT could have made the finding it made.

This amounts to a finding of error on a question of law. This does not automatically mean the SSAT’s decision should be disturbed. However, the SSAT added the figure it erroneously found to have been distributed to the father from the estate in the 2009/2010 tax year to his taxable income for that year of $13,370 … arriving at the figure of $104,463, which it found was what the evidence showed the father’s total income for that year to be … That figure was the amount the SSAT then found should be the father’s adjusted taxable income for child support purposes for the [relevant] period …

Thus, the error the SSAT made is directly reflected in its ultimate decision, and as such, that decision cannot stand.”

While it was unnecessary to determine a further question of law (as to treating capital as income) Halligan FM proceeded to do so as the matter was to be remitted for rehearing, saying at para 35:

“ … the whole of a parent’s financial circumstances, and in particular both income and capital assets, are relevant when it comes to quantifying parents’ obligations to support their children in a change of assessment case.

To treat the periodic receipt of payments of capital as income is an error [of] law (Manchester & Manchester (SSAT Appeal) [2010] FMCAfam 947).

However, I am not satisfied that receipts a parent categorises as capital can never be treated as income. If there is evidence to support a finding that the receipts are in fact income, they can be treated as such.

The fact a parent meets their day to day living expenses from capital does not change the nature or character of the funds expended from capital to income. If it did, the SSAT in this case would fairly have had to treat the mother’s depletion of her capital to meet living expenses (see Reasons, [31]) as income, and it did not.

Simply and simplistically equating capital with income ignores the fact that once expended, capital is gone. Income usually has some element of continuity about it, so that income received in one period may be spent, but there may be further income received in subsequent periods. And if not, then as a general rule the former income cannot be taken into account in calculating child support for later periods when it will not be received (subject inter alia to 117(7B) of the Assessment Act).

If the calculation of a proper level of child support in a change of assessment case is to be based in whole or part on a parent’s property and resources (including ‘capital’), the decision maker must explain how and why the property and resources are used to support a departure determination. It may be that actual or imputed income from capital assets is included in arriving at a parent’s proper income figure on which to base the calculation of periodic child support. It may be that the level of capital assets compared to actual or imputed income from them, together with any other income, is such that the calculation of a proper level of child support that ensures ‘that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents’ requires that the capital directly influence the quantification of the amount of child support.

The observations by the SSAT at [31] of its reasons, quoted above, may provide a basis for having regard to the father’s past and likely future capital receipts in arriving at a just and equitable determination of his child support. But treating capital receipts as income, in the absence of a basis on which to find that the receipts are in fact income and not capital, is likely to obscure the fundamental difference between income and capital, and lead to error, not least when considering any hardship any proposed departure may cause to either parent or the child (Assessment Act, s.117(4)(g)).”

Child of mixed Indigenous and non-Indigenous heritage – Appointment of family consultant with relevant expertise

In Cerny & Fink (No. 2) [2012] FMCAfam 1394 (20 December 2012) Monahan FM received submissions in a parenting case as to whether a family report should be ordered, saying at para 8(iii):

“While there was no disagreement between the parties that the receipt of an early family report would indeed benefit the matter, the ICL raised an issue as to whether the expert to be engaged should have expertise in issues relevant to the child being of Indigenous and non-Indigenous background. The mother questioned whether such a family report should be prepared by a family consultant who identifies as Aboriginal. The father supports the ICL’s submission.”

Monahan FM at paras 40-42 examined the relevant law, being FMCR 21.01A (as to matters the court may consider when deciding to order a report); s 11B FLA (as to reports being prepared by family consultants); FLReg 7 (allowing external family consultants to be appointed when an in-house family consultant is not available); and FMCR 15.09 (as to the appointment of a court expert). Monahan FM continued at para 43:

“In respect to the issue of whether the family report should be conducted by a person with knowledge or expertise relevant to indigenous Australians, I note that the Full Court … considered the issue of the particular expertise needed for assessment of familial relationships and the interests of a child in an Indigenous Australian context in the case of Donnell & Dovey [2010] FamCAFC 15. The Full Court was considering an appeal from this Court involving a father of Torres Strait Islander heritage and the subject child’s half-sister, who was of [omitted] Aboriginal descent, who had raised the child following the death of the mother. The matter had received the benefit of a family report by a family consultant who had, prior to writing her report, visited the father’s home in the Torres Strait but had not visited the home of the half-sister. The report writer had also made extensive reference to the father’s cultural heritage but little or no reference to that of the maternal family and its importance for the child. In addition, the report writer had relied on social science research that might be of greater applicability to children from a European or Anglo-Saxon Australian cultural background than to children from Indigenous cultures. In overturning the trial judge’s decision, the Full Court made the following comments (at paras 321-323) which bear strongly on the Court’s consideration in the present case:

‘ … [W]e consider that an Australian court exercising family law jurisdiction in the twenty first century must take judicial notice of the fact that there are marked differences between indigenous and non-indigenous people relating to the concept of family. This is not to say that the practices and beliefs of indigenous people are uniform, since it is well known that they are not. However, it cannot ever be safely assumed that research findings based on studies of European/white Australian children apply with equal force to indigenous children, even those who may have been raised in an urban setting.

In our view, judicial officers dealing with cases involving an indigenous child should be expected to have a basic level of understanding of indigenous culture, at least to the extent that this can be found in what the Full Court in B and R [and the Separate Representative (1995) FLC 92-636] called ‘readily accessible public information’. It should not be expected that parties must approach the court on the basis that the presiding judicial officer comes to the case with a ‘blank canvas’.

It is also to be expected, in our view, that judicial officers will be familiar with the reported decisions of the Full Court dealing with indigenous children, as well as the policy considerations that have informed the significant changes made to the legislation pertaining to indigenous children.

Accordingly, judicial officers should be aware of (or remind themselves of) the matters set out in the extracts [which followed in the judgment] from the article by Professor John Dewar (former Chair of the Family Law Council) entitled ‘Indigenous Children and Family Law’ published in (1997) 19(2) Adelaide Law Review 217.’”

Monahan FM concluded at para 44:

“Given the Full Court’s comments as to the matters which a Court considering parenting issues in relation to a child with Indigenous heritage must have regard, and given, particularly, the specific expertise that would be required of any expert assisting the Court in its determination, the Court is firmly of the view that the matter would benefit from a family report by a family consultant who is experienced in addressing Indigenous cultural issues.”

Disputed allegations that father accessed child pornography – Court rejects father’s objections to admissibility of images and websites tendered by mother as father had already responded to same in his material – Interim supervision of contact by father’s parents with whom father lived – Injunction as to pornography on “without admission basis”

In Chakroun & Bilel [2015] FCCA 1505 (5 June 2015) Judge Kemp heard the father’s interim application for time with his three and a half year old child, where the mother in her Response sought an order that the father have supervised time for 2 hours each Saturday at a contact centre. The mother made “no assertion as against the father in relation to his conduct towards the child, save the issue as to his accessing child pornography” ([62]). The mother deposed that she had “seen ‘porn’ subscriptions on the husband’s email”, checked and opened them and had “seen numerous websites and images of ‘underage’ girls that looked between the ages of 10 to 16 years” although the names of the sites suggested otherwise. Copies of the images and websites were tendered to the Court in a sealed envelope.

There were objections to the mother’s evidence, the Court saying (from [11]):

“…     The father objects to the admissibility of paragraph 53 of the mother’s … affidavit including the tender of documents placed in a sealed envelope (Exhibit ‘1’) pursuant to s 135 and/or s 136 of the Evidence Act 1995.

( … )

[15]    Pursuant to s 135 of the Evidence Act, the Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might (a) be unfairly prejudicial to a party, or (b) being misleading or confusing, or (c) cause or result in undue waste of time.

[16]    Evidence is not unfairly prejudicial to a party merely because it tends to damage the case of the party or support the case of an opponent. See Ainsworth v Burden (2005) NSWCA 174 per Hunt AJA (Handley & McColl JJA agreeing). The risk of an unfair prejudice is that there is a danger that the fact finder may use such evidence to make decisions on an improper, perhaps emotional basis, logically unconnected with the issues in the case.

[17]    As the Court understands the matter, the mother’s objection to the father spending unsupervised time with the child was primarily based on him accessing the websites, upon which copies of various images have been placed in Exhibit ‘1’.

[18]    From the mother’s perspective it would be important for the Court to have regard to the evidentiary basis for that position, given her asserted concerns. ( … )

[19]    The father is not procedurally prejudiced given that he has been able, himself, to access the material and, indeed, has comprehensively responded to it in terms of his affidavit and, further, he has gone on to explain a number of matters relevant to that material. The Court accepts, in that regard, that he has not been unfairly prejudiced by its receipt from raising issues as to its reliability and, indeed, as to the weight which the Court should afford such material. To that extent, he has explained why the material might be misleading or confusing. Its receipt would not cause or result in any undue waste of time in the circumstances.

[20]    In terms of s 136 of the Evidence Act, the Court may limit the use of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party or be misleading or confusing. … The Court is of the view that it should not exercise a general discretion to exclude the material, as it considers the importance of the material, given the mother’s asserted concerns, outweighs any particular damage so identified. The Court is of the view that, without receipt of the documents as tendered by the mother, the father’s documents and his explanation as to that material would make little or no sense. As said, the fact that the father has been able to deal with the evidence in a comprehensive manner, as set out in his affidavit, persuades the Court that any discretion to exclude should not be exercised.”

As to the presumption of equal shared parental responsibility, Judge Kemp said (at [36]):

“The Court finds that, given that these are interim proceedings and given the untested nature of the allegations against the father (considered further below), in accordance with s 61DA(3) of the Act, it would be inappropriate, in the circumstances, for the presumption to be applied.”

The Court continued (from para 39):

“…     The basis for a supervision order was described by Carmody J in Murphy & Murphy [2007] FamCA 795 as follows:

‘Time with a dangerous or deficient parent may have to be regulated by the court for the child’s own protection but only to the extent necessary to avert or manage perceived risks while at the same time supporting worthwhile parent-child relationships. This may involve reducing the amount or nominating the place of contact eg, limited day time only supervised at a contact centre or by a designated person.’

[40]    As to the issue as to whether the father’s time with the child would need to be supervised, the father says that it does not but, nevertheless, he proposes that his mother and his sister supervise. Both of those persons have provided affidavits indicating that they are aware of the allegations made by the mother and express to the Court their understanding of their obligations to ensure that the child is not exposed to any inappropriate behaviour or content by the father. The Court accepts those persons as being appropriate supervisors.

( … )

[48]    ( … ) [Counsel for the father] states that he concedes that the mother was the child’s primary carer but says that he still had a substantial and significant involvement in the child’s care, subject to his work commitments. ( … )

[49]    It is a disputed fact as to the amount of time that the father says he spent with the child in the post-separation period. An aide-memoire as to the father’s affidavit material has been extracted, which shows that the father spend some 20 days with the child in October/November 2014 and some 10 days with the child in the period March, April, May of 2015. The 10 days with the child in 2015 are not disputed as they are pursuant to the current interim orders. The mother disputes the days set out in 2014. ( … ) As …[the father’s counsel] said, that agreement prior to the commencement of proceedings is a good indicator as to how the parties had agreed the child’s level of maturity would allow her to continue a relationship with the father while living primarily with the mother. Weight is attached to that.

( … )

[52]    The mother’s position in requiring supervised time was on the basis that she believed that the child was exposed to an unacceptable risk in the father’s care by virtue of her concerns that the father has accessed child pornography. The father denies that he viewed or attempted to view child pornography, at any time.

[53]    The mother has reported her concerns to the police. The police have investigated those matters and the Court has received evidence in the form of the documents tendered from the police records which indicate that the documents examined by the police refer to pictures of persons disclaimed as being over the age of 18 years. … No child pornography was located and all websites had clear disclaimers that none of the content depicted underage females. … The police record that no further action and no offence has been established. ( … )

( … )

[55]    The father says that the material extracted by the mother is misleading in that it has removed disclaimers (being that the participants were over the age of 18 years) and is selective in its content. The father says that there are no ‘porn’ subscriptions on his email … ( … )

( … )

[76]    The Court accepts that the issue of ongoing supervision in respect of the mother’s concerns, namely the father accessing inappropriate pornographic material, is somewhat problematic. Such supervision could occur in a contact centre or under close personal supervision of the father. However, that type of supervision would become somewhat problematic for extensive daytime hours. The Court is of the view that if the father’s time was expanded to include overnight time at his parents’ home (where he lives in any event), such supervision could be practically implemented.

[77]    The Court has to balance the benefit of supervision as against the detriment to that in terms of building up and maintaining a relationship between the child and the father. The Court is of the view that the issues raised by the mother can be appropriately dealt with by orders in relation to restraints concerning the father’s conduct … in relation to daytime. The Court is of the view that on an interim basis, there should be some ongoing supervision for overnight time between the child and the father at his parents’ home, with such overnight time not to commence until the father’s parents have filed an undertaking in the usual form as to such supervision.”

An injunction was made “on a without admission basis” restraining the husband from accessing pornography while caring for the child, and requiring him to ensure that the child did not have access to any computer, tablet or phone from which the husband might receive such material. 

Child sexual abuse allegation – Parenting trial settled after cross-examination of mother – Mother and her lawyer failed to comply with prior order for inspection of documents produced under subpoena – Her inspection of them during retrial prompted a concession that her allegation was mistaken – Parties who “believe their child” in truth believe their own interpretation of what a child says 

In Challis [2018] FamCA 773 (27 September 2018) a parenting case relating to children of 15 and 10 was reheard by Carew J after the father won an appeal from another judge’s positive finding at a previous trial of sexual abuse against the father, a finding which the Full Court said was “neither sought by the parties nor was it open on the evidence” ([5]).

Until the rehearing the mother alleged that there was an unacceptable risk of harm to the children spending unsupervised time with the father, based on allegations of sexual abuse made by the mother’s daughter of a previous relationship (“Ms D” now 19) against the father.

At the rehearing the content of subpoenaed documents were put to the mother who said she had not seen the documents, despite a previous order requiring each party to inspect them ([4]). After reading the documents the mother conceded that her allegations were mistaken.

The Court said (from [4]):

“One particular order that I made required each party to arrange a time with the Registry to inspect all documents produced to Court pursuant to subpoena as soon as reasonably practicable. This is a standard order made by me as I have become somewhat dismayed by parties maintaining positions at trial that may not be sustainable when full knowledge of all evidence becomes apparent and regularly parties do not seem to be aware of all relevant evidence or it might be they have closed their minds to all but evidence that supports their point of view.

[5] In any event and despite this very clear requirement the mother conceded during cross-examination that she had not done so. Her solicitor accepts responsibility for this failure but, however it occurred, it was most unfortunate and frankly alarming that not only one trial but a second trial proceeded with the mother being apparently oblivious to significant relevant evidence.

( … )

[11]   I stood the matter down at 4.15 pm yesterday afternoon and directed the mother to review the subpoenaed material which had been tendered by consent into evidence yesterday.

[12]   Today the parties asked for time to have discussions and reached an agreement.

[13]   What no doubt became apparent to the mother and prompted her concession for the first time that her allegations against the father may have been mistaken was that Ms D was experiencing significant personal issues relating to underage sex with a boyfriend, bullying at school, extreme stress as a result of being caught in the middle of the dispute between her mother and step-father, truancy, risk taking behaviour etc at the time the allegations were first raised by the mother.

( … )

[25]   While only the mother’s evidence has been tested before me, I have had the advantage of reviewing the material relied upon by each party including subpoenaed records. It is telling in my view that while the mother found the experience of cross examination difficult it gave her pause for thought about her stated beliefs up to this point in time and her attitudes to the father.

[26]   It is dismaying that adults repeatedly present to this Court stating that they make allegations against their former husband or wife or partner because ‘they believe their child’ but in truth it is their own interpretation of what a child says that they ‘believe’.

[27]   Sexual abuse of a child is an abhorrent crime but the mere making of an allegation should not impose on children a lifetime of supervision. It is necessary to carefully consider the evidence, assess it and evaluate it, which the mother has now done in the full knowledge that she finally has all the bits of the puzzle. To her credit she has made the concession that her children do not face an unacceptable risk of harm from their father and I can only hope that both parents can move on to make the best possible decisions for their children into the future.”

The Court was satisfied that the proposed consent orders for equal shared parental responsibility and equal time were in the best interests of the children.

Consent order for mutual overseas holidays

In Chan & Phu [2010] FMCAfam 1084 (15 October 2010) the parties consented to an order that each parent be permitted to travel overseas with their child when the child is in that parent’s care, without seeking permission from the other parent. Scarlett FM amended their proviso regarding “any war torn areas” by imposing a restraint against taking the child to any country about which the Department of Foreign Affairs and Trade had issued a travel advice on the www.smartraveller.gov.au website in any of the categories “high degree of caution”, “reconsider your need to travel” or “do not travel”.

De facto thresholds – Full Court upholds decision that it was not just and equitable to make a property order after a 27 year same sex relationship

In Chancellor & McCoy [2016] FamCAFC 256 (2 December 2016) the Full Court (Bryant CJ, Thackray & Strickland JJ) heard Ms Chancellor’s appeal of Judge Turner’s dismissal of her application for alteration of property interests (in Chancellor & McCoy [2016] FCCA 53, a summary of which is at our archived “case notes – property” under “no property order (or provision) made”.

Judge Turner dismissed the appellant’s application on the ground that it was not just and equitable to make an order, after considering Stanford [2012] HCA 52, Bevan [2013] FamCAFC 116 and Fielding & Nichol [2014] FCWA 77 and finding that while the parties had a 27 year same sex de facto relationship they maintained separate property.

It was also found that Ms McCoy (the respondent) acquired a property in her sole name the year after the relationship began; that the parties lived in and renovated that property, Ms McCoy funded the renovations while Ms Chancellor assisted with the labour; that Ms Chancellor paid “$100 to $120 a fortnight to Ms McCoy” during “most of the relationship” ([52]); and that Ms Chancellor bought a property in 2002 in her sole name, renovations then being carried out to that property, funded by Ms Chancellor while Ms McCoy assisted with the labour. At the time of trial, Ms Chancellor was 59, employed and owned net assets worth $720,391. Ms McCoy was 55, retired and owned net assets worth $1,698,664.

The trial judge took into account that there had been “no intermingling of … finances”; the parties did not have a joint bank account; each acquired property in their own name; each remained responsible for their own debts; each could use their net wages as they chose without explanation; and a “complete lack of joint financial decision making”, sharing of financial information or provision for the other in the event of their death; and that at the time of separation, each was unaware of the worth of assets acquired by the other ([27]).

The Full Court said (at para 16):

“Relying on the High Court’s decision in Stanford ... the trial judge accepted that she could only make an order altering existing property interests if she was persuaded that it was ‘just and equitable’ to do so. This proposition and the other legal principles that her Honour discussed are not the subject of any controversy in this appeal.”

The Full Court continued (from [35]):

“It was … submitted that the absence of ‘future plans or goals’ was not a relevant consideration … Although her Honour did not say so expressly, we understand her reference to the absence of ‘future plans or goals’ to be part and parcel of her findings about how the parties kept their affairs separate and conducted their financial lives without being accountable in any way to the other party. The somewhat unusual manner in which the parties arranged their affairs can be seen as distinguishing the present case from the ‘many cases’ referred to in Stanford at [42] where there is ‘common use of property’ and ‘express and implicit assumptions that underpinned the existing property arrangements’.

[36]     There was, of course, ‘common use’ of the homes owned by the respondent, but there was also a modest periodic payment by the appellant referable to her occupation of those homes. Furthermore, her Honour made no findings that would point to any ‘express and implicit assumptions’ that the parties would ultimately share in the other’s property. On the contrary, her Honour properly placed significance on the fact that neither had taken any steps to ensure that the other would receive their property or superannuation in the event of death, and indeed the respondent had executed a will giving her entire estate to her parents. In the absence of evidence of any assumption by the parties that one would benefit on the death of the other, it would not have been open to her Honour to conclude, without evidence, that there was any assumption that there would be some redistribution of wealth upon termination of the relationship by means other than death.

[37]     Counsel for the appellant further argued that it is not uncommon for one party in a relationship to lack knowledge of the financial situation of the other party, and he submitted that this has never been seen as a relevant consideration in resolving disputes between de facto couples. While we accept the premise in this proposition, it is clear that her Honour’s reliance upon this aspect of the evidence was in the context of a wider finding that the parties kept their financial affairs entirely separate and were not accountable to the other party relating to their use of property or expenditure of funds. It was therefore, in our opinion, a relevant consideration.

( … )

[42]     In adopting the approach she did, her Honour proceeded in accordance with what the Full Court said in both Bevan [above] and Chapman [[2014] FamCAFC 91], namely that it is open to a trial judge to take into account the matters stated in s 79(4) (or s 90SM) of the Family Law Act 1975 … when determining whether it is ‘just and equitable’ to adjust existing property interests. However, consistent with Stanford, her Honour also recognised that it was not open to her to decide that issue merely by reference to those matters.”

The Full Court also disagreed that Her Honour had impermissibly used the decision of Fielding & Nichol as a “reference point” and while the Fielding case was described as “nothing more than a first instance decision” ([48]) the Full Court held that Her Honour permissibly “relied upon [the case] only for its statement of the law” ([52]).

The appeal was dismissed with costs.

De facto property application dismissed – Not just and equitable to make an order – Stanford and Bevan applied – Same sex relationship of 27 years but parties maintained separate property 

In Chancellor & McCoy [2016] FCCA 53 (25 January 2016) Judge Turner considered a 27 year de facto relationship between a childless, same sex couple, Ms Chancellor (the applicant) and Ms McCoy (the respondent). The Court found that Ms McCoy acquired a property in her sole name the year after the relationship began; that the parties lived in and renovated that property, Ms McCoy funding the renovations and Ms Chancellor “assisting with the labour”; that Ms Chancellor paid “$100 to $120 a fortnight to Ms McCoy” during “most of the relationship” ([52]); and that Ms Chancellor bought a property in 2002 in her sole name, renovations then being carried out to that property, funded by Ms Chancellor and Ms McCoy “assisting with the labour” ([11]). At the time of trial, Ms Chancellor was 59, employed and owned net assets worth $720,391. Ms McCoy was 55, retired and owned net assets worth $1,698,664.

After citing Stanford (2012) 293 ALR 70 and Bevan [2013] FamCAFC 116 the Court said (from [25]):

“…     In the first instant decision of Fielding & Nichol [2014] FCWA 77 Thackray J provides a thorough analysis of the case law since Stanford and Bevan (which I do not intend to repeat) as what must be taken into account in determining what is just and equitable.

[26]    After much discussion in essence His Honour concluded at [51] citing the Full Court decision of Chapman & Chapman (2014) FLC 93- 592 that whilst a judge is not ‘obliged to take into account the matters in s 79(4)’ then a judge is at ‘mere liberty’ to do so in determining whether it is just and equitable to make any order altering property interests.

[27]    Section 79(4) (which refers to alteration of property interests in matrimonial matters) is the equivalent to section 90SM (which refers to alteration of property interests in de facto property matters).

[28]    Thackray J concluded in Fielding & Nichol that it would not be just and equitable to make any order altering property interests and subsequently ordered that the application for property settlement be dismissed.

( … )

[31]    I will now consider the distinguishing features and the commonalities between the facts in this matter and that of Fielding.

[32]    The distinguishing features are as follows:

a)    In Fielding the relationship lasted 12 years whereas in this matter the relationship lasted in excess of 27 years.

b)    In Fielding the parties were older (74 and 66) whereas in this matter the parties are younger and of similar ages (59 and 55)

c)    ( … )

d)    In Fielding the parties had a joint account for some of the expenses whereas in this the parties did not have a joint account.

e)    In Fielding there was an absence of direct financial contributions made by the de facto husband to the de facto wife’s real property whereas in this matter Ms Chancellor maintains that direct financial contributions were made.

[33]    The common features are as follows:

a)    Each couple were involved in a de facto relationship.

b)    Neither couple had children.

c)    When the parties commenced cohabitation the parties lived in a house owned and in the name of one party only.

d)    In both cases the parties owned real property in their names only and were responsible for any expenditure on their own real properties.

e)    In both cases the parties maintained their finances almost entirely separately.

f)     In both cases the parties contributed almost equally to household bills and groceries.

g)    In both cases the parties did not execute wills leaving their estate to the other party.

h)    In both cases the parties made non-financial contributions to the other’s party’s property.

i)     In both cases the parties lived together post separation.

j)     In both cases the parties at separation divided up those few items that had been acquired jointly.

[34]    Having considered the similarities and differences between Fielding and this matter, I find that the case of Fielding & Nichol is an authority which must be given consideration in the determination of this matter.”

After separately considering the nature of the parties, their acquisition of property, the direct and indirect contributions to the other’s real property, the sharing of day to day living expenses, the separation of finances and the “lack of future plans or goals” ([55]) the Court concluded (from [58]):

“…     I find, having considered the evidence and in particular the factors as discussed above, that it would not be just and equitable to make an order altering the property interests in this matter.

[59]    I make this finding based on the following:

a)    The parties conducted their affairs in such a way that neither party would or could have acquired an interest in the property owned by the other because:

i.      There was no intermingling of their respective finances.

ii.     The parties did not have a joint bank account.

iii.    Each party acquired property in their own name with there being little exchange of the detail of these acquisitions to the other party.

iv.    Each party remained responsible for their own debts.

v.     Each party was able to use the remainder of their wages as they chose without explanation or accountability to the other party.

vi.    There was a complete lack of joint financial decision making.

vii.    There was the absence of sharing of any information with each other as to their financial situation or individual decision making.

viii.   Neither party made provision for the other party in the event of their death either by way of will, beneficiary to superannuation funds or beneficiary to life insurance policies.

ix.    The parties at the time of separation were unaware as to the worth of the assets acquired by each of the parties during the relationship and the decisions that had been made in respect to the acquisition of these assets.

b)    Whether this separation of finances was initially a conscious decision by one party or both parties is irrelevant; what is relevant is that the parties continued to conduct their relationship without intertwining their finances consistently for some 27 years.

c)    The payment of monies by Ms Chancellor to Ms McCoy of $100 to $120 per fortnight for most of the relationship, whether classified as mortgage repayment (Ms Chancellor’s terminology) or rent or board (Ms McCoy’s terminology), I find, given the small amount of payment in respect to the overall size of the pool accumulated by Ms McCoy, cannot be viewed as financial intermingling, but as financial assistance to the other party as the home owner who provided housing for the parties to live in during the entirety of the relationship.

d)    As there is no evidence that the financial and non-financial contributions made by Ms Chancellor to the Property M property and the Property A property improved the value of these properties, then no equitable interest by Ms Chancellor in the properties has been established.

e)    Each party had the opportunity during the relationship to financially plan for their future given their profession and employment histories.

f)     There was no evidence to support that either party was hindered in their individual financial decision making during the relationship.

g)    For many years Ms Chancellor appeared to be in a more advantageous position as Ms Chancellor did not own real estate or gave evidence of servicing debts; but this is not reflected in the pool of assets each party has retained since separation.

h)    It is unfair for Ms McCoy, who has taken steps to maximise her future wealth, to have to share that wealth with Ms Chancellor who did not invest as wisely; especially in regard to maximising her superannuation benefits.

i)     ( … )

j)     Although the alteration of property interests has been denied due to it not being just and equitable for such an alteration to take place, Ms Chancellor has still been left with the significant assets accumulated by her during the relationship, consisting of two houses, several motor vehicles and superannuation.

k)    Further, Ms Chancellor has the capacity, unlike Ms McCoy, to accumulate more assets, with her ability to work and her ability to contribute to her superannuation fund.

[60]    I therefore order that Ms Chancellor’s application for de facto property division be dismissed.”