Mother allowed to travel with child to non-convention country for legitimate purpose of attending court proceedings there – No basis for father’s suspicion that she might not return – Mother had previously returned – Mother to pay $5,000 security into court

In Bose & Mehra [2010] FMCAfam 353 (20 April 2010) Scarlett FM made an order allowing overseas travel to India for 19 days with the parties’ 17 month old child for the purpose of attending court proceedings there subject to payment of $5,000 security.

The applicant’s case had been that the child – who was still breastfeeding -was too young to be left in the care of the father for that length of time. She had offered to pay the security ordered. The respondent had expressed concerns that the applicant may not return to Australia.

Scarlett FM concluded at paras 27-32:

“In considering the degree of risk that child would not be returned to Australia, I take into account the reasons given by the mother for wishing to visit India. It is a legitimate reason for the mother to travel to India for the purposes of those court proceedings, noting that the other parties have brought applications for discharge or dismissal on the basis that the mother has not attended Court. Whilst the father has characterised the mother’s taking court proceedings in India as evidence of her lack of connection with this country, I note that one matter has actually been brought by the Indian Police and the matters claimed arise out of incidents said to have occurred in that country. 

It is significant, to my mind, that the mother did return to Australia from India in 2009, after the separation from the father. Ha[d] she been planning to remain in India, that would have been an opportune time to do so, notwithstanding that she was engaged in study for a Master’s degree in Australia. 

The father’s case appears to be based on suspicion that the mother might change her mind whilst in India and decided to stay away. There is no evidence that would lead to the inference that she has any plans to do so. At most, the father’s case appears to be based on a possibility, rather than a probability. 

Again, the father’s claim that the standard of medical care in India is not as high as in Australia appears to be based on the possibility that the child might become ill whilst she is away. I note from the evidence that the mother plans to stay with her family in Mumbai, which is a large city in India. If the mother were planning to stay in a remote rural village it would be more of a concern. 

The young age of the child suggests strongly that the child should remain in the care of the mother, especially as she is still being breast fed. The father has not had the child stay overnight on the orders in this matter, and to go from time with the father for 6 hours during the day to all day for 19 days straight is a major change for the child. The evidence from the mother’s paediatrician indicates that the child is in good enough health to travel with the mother on the proposed trip. 

I am satisfied that, whilst there is a possibility that the mother would not return the child to Australia, the degree of risk is relatively low. The mother should be permitted to take the child temporarily to India, provided that proper arrangements are made, including a security deposit.”

De facto relationship between solicitor and client – Monies owed by the client to the solicitor’s private company – Rule 37 of the NSW Solicitors’ Rules as to conducting another business – Solicitor restrained from acting in interests of the integrity of the justice system 

In Bosgard [2013] FamCA 308 (8 May 2013) the wife brought an interim application before Fowler J to restrain the husband’s solicitor from acting, alleging that the solicitor was in a de facto relationship with the husband (ie. her client) and further that the solicitor’s company had lent money to the husband to the extent that the wife sought to join the solicitor’s company to the proceedings.

After noting (at para 16) that it “appears … that the solicitor and the husband are currently cohabiting in a de facto marriage relationship” Fowler J also noted (at para 18) that the solicitor’s private company had “made advances to [the husband] … of $184,821.88” which the husband said he had applied towards his business and some debts. The husband said that he would “not be able to engage another solicitor on a deferred payment basis, as he apparently has done with his present solicitor” (at para 19).

In its analysis of the law, the Court referred to Rule 19 of the New South Wales Revised Professional Conduct and Practice Rules as well as Rule 27 of the Australian Solicitor’s Conduct Rules, as to the withdrawal of solicitors in circumstances where they would be a material witness in the case.

With respect to the de facto relationship, Fowler J said at paras 34-36:

“The authorities make it clear that the priority, in any conflict of fulfilment of duties owed by a solicitor, must be the fulfilment by the solicitor of their duty to the Court.

Given the history of the relationship between the husband and the solicitor and the proclamation of the love attendant upon it, it is not hard to see how that priority might well be revered and the solicitor place the love she has for her partner above the duty that she owes to the Court.

In relation to the solicitor’s duty to her client, it might likewise suffer from a lack of objectivity, independence and calm rationality in relation to the issues which arise in these proceedings.”

As to the debt, Fowler J said at paras 41-44:

“The solicitor has a clear direct stake in the proceedings as the sole director and shareholder of a creditor of the husband. The extent of the debt due, its purpose and by whom it should be borne are all potentially live issues in the proceedings, particularly where the husband alleges that the property available for division is small and the debt is significant.

It was suggested by Counsel for the husband that the stake of the solicitor in the proceedings is no different to that of a solicitor acting on the basis that they have a lien over the fruits of the litigation as security for payment.

That however is in the Court’s view quite different. The position of a lien holder does not necessarily entitle its holder to apply the fruits of the litigation to the payment of an alleged debt. All it does is entitle the holder of the lien to a charge over those fruits until paid.

In this case it is asserted that the solicitor has a present debt. Her interests as a creditor procuring a favourable result for her client could well conflict with her duty as advisor to her client on settlement and, perhaps, impede her ability to independently act in the matter and fulfil her duty to the Court.”

Fowler J (at para 45) cited Rule 37 of the NSW Solicitors’ Rules as to the duty of solicitors to not conduct another business of a nature that would conflict with the practitioner’s duties to a client, saying at para 46:

“In this case the Court concludes that it is reasonably likely that the solicitor’s interest in the recovery of her company’s debt may well affect her ability to independently service her client’s interest and also to discharge her duty to the Court”.

The Court concluded at para 49:

“Whilst the power of the Court to restrain a solicitor from acting is one in which it should exercise with caution ( … ) In the interests of maintaining the integrity of the justice system it is inappropriate for this solicitor to continue to act for the husband. The Court is satisfied that a fair-minded lay observer would conclude that the proper administration of justice and the appearance of justice requires the practitioner to be prevented from acting.” 

Security for costs – Court granted mother’s application for order that father (an impecunious litigant who had filed an application alleging  mother’s contravention of a parenting order) pay security for costs of $10,000 – Father’s application stayed until payment 

In Botsman & Amundson (No. 2) [2010] FamCA 412 (17 May 2010) Dawe J allowed a mother’s application for an order that the father, an impecunious litigant who had filed an application alleging the mother’s contravention of a parenting order, pay security for costs in the sum of $10,000, his application to be stayed until payment. The court applied Family Law Rule 19.05 and the Full Court’s ruling in Luadaka (1998) FLC 92-830 which led to the introduction of that rule.

Dawe J at para 31 said:

“There is evidence to suggest that if the contravention application is dismissed the father may not have the ability to pay or will not readily pay any costs order made against him. The mother has already incurred substantial legal costs in the litigation in this Court. Although her financial circumstances are better than those of the father this should not be determinative. The complaints raised by the father as the basis for the allegations about alleged contraventions when seen in context are not significant contraventions and call into question the merits of the father’s application.”

Transaction to defeat claim – Husband’s transfer of property to corporate third party (the director of which was husband’s close friend) set aside – No sham or fraud but transfer was likely to defeat anticipated order – Whether third party was bona fide purchaser for value considered

In Bourke and Anor (Final Hearing Costs) [2010] FamCA 199 (17 March 2010) Murphy J set aside a transfer of property to a third party S Finance Pty Ltd effecetd by the husband, the director of which company (“Mr O”) was a close friend of his (the husband was Mr O’s best man at his wedding. The transfer was alleged by the husband to be pursuant to a joint venture to develop the land.

Murphy J said at para 131 that there was “much justification for a view that the disposition between the husband and the third party has about it an aura of collusion and concoction” but held that “the evidence [was not] sufficient to convert suspicion into proof [of fraud] to the requisite standard” (para 34). The Court nevertheless held that as a non-fraudulent disposition the transfer could be set aside under s 106B, being one that was likely to defeat the anticipated property order in favour of the wife within the meaning of the section (para 149).

As to the third party’s interest, the Court said at paras 166-168:

“Citing Heath & Westpac Banking Corporation (1984) FLC 91-517 at 79,195, Dickey Family Law 5th Edition, at 645 says:

‘The test of whether a purchaser has acted in good faith is whether at the time of the transaction, he or she was aware, or should have been aware by making due enquiry, that the transaction would affect a claim under the Act. The test is thus objective, and not subjective” (as to the latter proposition citing … Halabi & Artillaga (1994) FLC 92-470 at 8,886).

I have made adverse credit findings in respect of Mr O. Whilst the findings fall short of what is required to found fraud, they provide a sufficient foundation to conclude that the disposition cannot be described as an arms-length commercial transaction.

On no view of it can the third party be said to be a disinterested purchaser of the unit. I have grave doubts about the calculations and other evidence of Mr O said to found the alleged debt owing by the husband which, in turn, is said to found the consideration for the transfer of the subject lot. I have grave doubts that any such debt existed, or exists, as alleged.”

The transfer was set aside and an order made that the third party transfer to the wife unencumbered title to the property.

 

Relocation – Mother successfully appeals dismissal of her application to relocate for 2-4 years overseas where her partner had been posted – Trial judge erred by elevating her “fall-back” position as a proposal and by determining at which location the child could maintain a “meaningful relationship” with both parents rather than which arrangement was in the children’s best interests – Parental conflict, mother’s legitimate wish and children’s views considered


In Boyle & Zahur and Anor (No. 2) [2017] FamCAFC 263 (14 December 2017) the Full Court (Thackray, Murphy & Carew JJ) heard the mother’s appeal against Justice Gill’s dismissal of her application to relocate overseas with the parties’ two daughters (aged 12 and 11) temporarily. When her partner, who was employed by a government agency, was posted to Country “H” for between 2 to 4 years the mother sought to relocate the girls for the duration of that posting. The father’s opposition to that application was upheld at first instance. The children had been in the mother’s primary care in the past and since separation, spending alternate Friday, Saturday and Wednesday nights in the father’s care pursuant to an earlier consent order.

The Full Court said (from [21]):

“ … [A]gainst the background of … conflict and the parents’ manifest inability to communicate in any meaningful way, his Honour ordered the parties to have equal shared parental responsibility. His Honour said … that ‘[w]hile there are significant communication problems between the parents’ they had agreed to the making of such an order. ( … )

[22]   It is, respectfully, not at all clear how a finding could have been made (implicitly) that the parties could or would comply with s 65DAC’s mandatory requirements in light of that same lack of cooperation and conflict which his Honour found. ( … )

( … )

[24]   The order for equal shared parental responsibility led mandatorily to a consideration of s 65DAA. That consideration led to a finding … which conveniently encapsulates the findings leading to his Honour’s ultimate conclusion and orders. That paragraph of the reasons contains the following findings:

‘[E]ach of the parents has exposed and involved the children in [their] conflict’;

There was a ‘lack of cooperation’ between the parents;

There was a ‘likelihood of further conflict being generated by that lack of cooperation’;

There was a ‘likelihood of the children being involved in that [further] conflict’;

The girls have different relationships with each of their parents;

‘At present the girls feel emotionally safe and understood with their mother’;

‘The family report demonstrates a high degree of connection between the girls and their mother”;

‘At the same time, there are difficulties in [the children’s] relationship with their father and in the way that they perceive him’; and

‘The present state of the relationship between the father and the girls is not such as to support an equal sharing of time’.

( … )

[26]   … [I]mportant premises for his Honour’s conclusions as to the children’s best interests are the predomination of the role of the mother as the children’s historical and current primary carer; the differing nature of the relationship between the children and their respective parents; and the need for minimisation of interaction and cooperation between the parties.

[27]   His Honour’s ultimate conclusion and orders are also shaped by a number of findings, the effect of which is that the mother would not support a relationship between the children and their father. His Honour found that if the relationship was ‘reliant upon Skype and a single visit per year, [the relationship] is at risk of diminishing further’. ( … )

( … )

[35]   His Honour determined that the parents should share equally parental responsibility for the girls. Consequently, as … his Honour correctly apprehended, it was mandatory for his Honour to apply s 65DAA of the Act. In respect of that section’s requirements, where a relocation is proposed, the High Court held in MRR v GR [[2010] HCA 4] … that s 65DAA(1) ‘is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent’. The Court held further that s 65DAA(1)(b) ‘requires a practical assessment of whether equal time parenting is feasible’.

[36]   … [T]he same is equally true of a consideration of ‘substantial and significant time’ if an equal time order is rejected as not being in the children’s best interests or not reasonably practicable (s 65DAA(2)).

( … )

[38]   ( … ) Ultimately, the mother’s ‘minutes of proposed orders’ contended for an order that the children spend time with their father ‘[o]nce a year in Australia during the children’s school holidays’; otherwise ‘[a]s agreed between the parties should the respondent father wish to visit the children in [Country H]’ and … communication ‘by Skype twice a week’.

( … )

[40]   The mother did not at any time contend, in respect of the four year period under consideration, that it was in the children’s best interests to live with her in Australia for that period and there spend the regular time with their father that the existing orders permitted. Her sole contention was that the children’s best interests were served by the temporary move to Country H and the (necessarily restricted) face to face time with their father that would entail.

( … )

[42]   … [B]y the end of the trial … the father had abandoned his proposal that the children live with him … pursu[ing] in lieu the proposal … that the children live week about between the mother and him. ( … )

[43]   … The mother’s ‘fall back’ position, as it was described in Heaton [(2012) 48 Fam LR 349], that she would stay in Australia if the children could not move to Country H for four years, was not a proposal advocated by her and should not have been elevated as such.

[44]   Conversely, the father’s proposal assumed that he could not and would not himself move to Country H. ( … )

[45]   No proposal put forward by the father contended for the children to spend any time with him if they lived with their mother in Country H for that four year period. His proposals countenanced no arrangement in the best interests of the children that did not see them living with him. The father’s sole contention was that the children’s best interests were served by them remaining in Australia and living with him, or living with the mother and him week about.

( … )

[59]   We consider with respect that his Honour elevated to the status of a proposal by the mother something which was never a proposal by her.

[60]   Further we consider that his Honour erred in the manner described in Jurchenko [Jurchenko & Foster (2014) FLC 93-598] … Respectfully adapting what the Full Court said in that case, in our view, the error lies in his Honour approaching the matter:

‘ … with a mindset in which it was assumed that the outcome needed to be one which would ensure a meaningful relationship with both parents – which according to his Honour could be achieved only if both parents lived in the same location. Having posed the question in this way, there then became only one available answer when the father’s professed inability to move to or visit [Country H or elsewhere] was accepted as beyond criticism, and the mother was treated as having made a concession she would stay in [City K] … ’

[61]   Earlier in those reasons … the Full Court framed the error in this way:

‘ … [His Honour] was diverted to determination of the location in which the child could maintain a ‘meaningful relationship’ with both parents, rather than determining which of the proposals was better for the child…

[62]   We consider, with respect, that his Honour erred in the same manner.

( … )

[67]   The father made no proposal and adduced no evidence to show why he could not, or would not, facilitate time with the children by means of visits outside of Australia. … (Nor, indeed, did he make any such proposals for time in Australia predicated upon the children being in Country H).

( … )

[90]   We have earlier made reference to the central premises for the orders which his Honour made. The mother’s lack of support for the children’s relationship with their father would likely result in nothing ‘more than a marginal role for the father in his daughters’ lives over the next four years’ … Thus, it is concluded, ‘a proposal for the Skype time and yearly visit’ would not be sufficient to sustain the relationship between the father and the girls … There was, his Honour found, ‘a significant risk’ that the move would ‘see a further degradation of [the children’s] relationship with their father’ … What his Honour saw as the benefits of a move to Country H ‘do not rise to the same level of significance as the consideration of the benefits of relationship with the father’ …

[91]   There was and is no issue that the children should have a relationship with their father. There was and is no issue that the children love their father and want a relationship with him and, indeed, that they would miss their father if they moved to Country H. Equally, there was and is no issue that the reduction in face to face time with their father (noting, again, that the proposed move was temporary) was not ideal. These matters are the axioms upon which the vast majority of so-called ‘relocation cases’ proceed. Yet, the task is to fashion orders which best meet the best interests of the children by reference to the proposals of the parties or those fashioned by the Court (subject to procedural fairness considerations) by reference to ‘the reality of the situation’.

[92]   As a consequence, orders that contemplate a continuation of the existing orders which thwart the legitimate desire of the mother and are contrary to the wishes of relatively mature children, involves a conclusion that those orders are more in the best interests of the children than other available alternatives.

[93]   A central inescapable fact in this case is that parental hostility and conflict to which the children were exposed and the impact upon the children … arose during the currency of the existing orders which his Honour’s judgment and orders would see continued.

[94]   The premises for his Honour’s orders are prefaced by an apparent finding that ‘[o]nce the litigation is resolved and the question of a move to [Country H] is resolved … there might be some degree of dissipation of conflict’ (at [83]). Yet, in the same sentence, his Honour says that ‘it cannot be concluded that there will be a resolution of the underlying hostility that has been exposed in the litigation’.

[95]   As to the last sentiment we respectfully consider that no other conclusion could reasonably have been reached on the evidence before his Honour. However … we find it difficult to understand how it can be inferred that the conflict ‘might’ dissipate to some degree by the making of orders that deny both the mother and the children what they each seek. Indeed, all of the evidence points to the contrary conclusion.

[96]   Similarly we cannot … see how it was open to conclude on the evidence … that the conflict would, or would be likely to, dissipate upon the end of the litigation. All of the evidence before his Honour points to the conflict being bitter, entrenched and rooted in mutual disrespect by one parent for the other.

[97]   The last point is important. His Honour’s central premises focus upon findings as to the mother not supporting the relationship between the father and the children if they move to Country H. Yet, other important findings … are plainly to the effect that the father does not support the role of the mother and that he criticises and undermines her in significant ways. That degradation of the mother occurs, it should be noted, in the context of orders which have pertained for over two years and which are the very orders which his Honour finds should continue in the children’s best interests.”

The appeal was allowed and the case remitted for re-hearing.

Parenting order inconsistent with family violence order

In Brainard & Wahlen and Anor  [2011] FamCA 610 (5 August 2011) Austin J heard parenting proceedings in a Magellan case where parenting orders would be inconsistent with the terms of family violence orders each party had obtained against the other. Austin J determined the matter at paras 106-114:

“ … family violence orders are in existence. One protects the father from the mother, and the other protects the mother from the father. The child is protected under both orders.

One part of each family violence order is inconsistent with the existing interim parenting orders, the current informal parenting arrangement reached by the parties, and also the final parenting orders proposed by the parties and the Independent Children’s Lawyer in these proceedings.

Paragraph 5 of both family violence orders provides as follows:

The defendant must not approach, contact or telephone the protected person(s) by any means whatsoever except through the defendant’s legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975, as to counselling, conciliation, or mediation.

The ‘defendant’ is of course the party respectively bound by the order.

The ‘protected persons’ are, in each case, the party protected by the operation of the order and the child.

The family violence orders preclude the parties from contacting one another to discuss issues relevant to the child because they are only permitted to contact one another at all via their legal representatives. Although the orders permit the parties to communicate directly pursuant to orders made under the Act that is only for the limited purpose of ‘counselling, conciliation, or mediation’. The parties can communicate directly in writing, but only by agreement, and the parties would breach the family violence orders by contacting one another in order to try to reach such agreement.

The family violence orders even preclude the child from living, spending time, or communicating, with the parties. That is because the child is designated as a protected person under each of the orders, and the parties are bound by the same restrictions upon their interaction with the child as they are with one another.

The literal terms of the family violence orders are untenable in the face of the proper parenting orders that this Court is enjoined to make. The orders made by the Court specify the inconsistency with the family violence orders and explain how those parenting orders will operate, as required by s 68P(2)(a), (b) of the Act.

Consequently, the following explanation is given to the parties pursuant to the Court’s obligations under s 68P(2)(c), (d) of the Act:

a)      The parenting orders are inconsistent with paragraph 5 of the family violence orders because they require the mother and father to contact and approach one another, and for the child to approach and contact each parent.

b)      It is necessary to make parenting orders which are inconsistent with paragraph 5 of the family violence orders in order to promote the child’s best interests.

c)      The child’s best interests are promoted by her living, spending time, and communicating, with the parties. That will be aided by the mother and father having contact with one another, in person, by telephone, and in writing, to ensure that occurs.

d)      The parenting orders set out how the child is to live, spend time, and communicate with, the parties.

e)      The parenting orders do not require breach of paragraphs 1(a), 1(b), 1(c), 3, 11, or 12 of the two family violence orders, which paragraphs are consistent with the parenting orders. The parenting orders and those paragraphs of the family violence orders may be consistently obeyed.

f)       Contravention, variation, or revocation of the family violence orders will be dealt with by prosecution or application in the Local Court of NSW.

g)      Contravention or variation of the parenting orders will be dealt with under the terms of the Act.”

Initial contributions – A review of contributions based adjustments made by the Full Court in cases dealing with “short or reasonably short marriages” (between four and seven years) and pools of between $2m and $8.7m 

In Brandow [2010] FMCAfam 1026 (24 September 2010) Brewster FM reviews some case law as to the courts’ approach to property division after a short marriage. 

Child support – Transitional child support agreement – No “exceptional circumstances” for setting it aside

In Brash [2012] FCWAM 13 (7 February 2012) the husband applied to set aside a child agreement made in 2007, which had been accepted by the CSA prior to 1 July 2008. The wife sought a departure order increasing the monthly child support payments from $200 to $300 per month. The husband’s case was that he had stopped working in 2010 due to ill health and was in arrears of child support. The wife disputed the husband’s alleged ill health as to which no medical evidence had been adduced, arguing that he should be assessed on the basis of his earning capacity. She deposed that he had “chosen” not to work but to be a “house husband” and “rely upon his current wife to support him”, and that “he is attempting to avoid his legal obligation to support his children” (para 9). 

Kaeser AM said at para 10:

“A child support agreement cannot be varied, only set aside or terminated pursuant to s 80CA and 80F of the [CSAA]. The court therefore has no power to make a departure order under s 117 if it considers the terms of the agreement should be varied.”

Kaeser AM said (para 14) that the power to terminate or set aside a child support agreement is set out in s 136(2) of the Act. The applicant said “that the agreement was appropriate at the time but [that] his circumstances ha[d] changed since then”. Kaeser AM then examined whether the agreement in question was a limited or a binding child support agreement as different grounds apply for setting aside such agreements, saying at paras 24-31:

“This agreement satisfies the definition of a limited child support agreement.

A binding child support agreement is one in which legal advice has been obtained beforehand and that is clearly noted on the agreement itself.

This agreement does not have the appearance of a binding agreement. Transitional arrangements were, however, put in place when the child support legislation was amended (with effect from 1 July 2008). Transitional agreements are those agreements that were made and accepted by the Child Support Agency prior to 1 July 2008. The process adopted by the Child Support Agency was that each such agreement was reviewed as to whether it should continue or be terminated. The agreements that continue (such as this one) took effect as if they were binding agreements. I consider that this agreement would have been deemed to continue as it has no clause that provides for termination of child support until each child reaches the age of 18.

This agreement is therefore a transitional agreement and the court must treat it as a binding child support agreement.

Section 136(2) then allows the court to consider setting aside such an agreement where, because of exceptional circumstances relating to a party or a child, that have arisen since the agreement was made, the applicant or the child would suffer hardship.

‘Exceptional circumstances’ is a fairly stringent test. In Daley and Daley (2009) FLC 98-039, Brown FM reviewed the existing authorities in relation to ‘exceptional’. I accept that for something to be ‘exceptional’ it must be unusual or out of the ordinary or special.

Firstly then, have any exceptional circumstances arisen since this agreement was made?

Mr Brash was working at the time the agreement was signed. He is not working now. That on its own is a significant change in circumstances, although not necessarily exceptional.”

Kaeser AM reviewed the alleged financial circumstances of the applicant, observing that he gave “no evidence however of any efforts to gain perhaps some sedentary employment that might not aggravate his condition” (para 35), nor was any up-to-date medical evidence provided. Kaeser AM also noted “a history of non-compliance” with his child support obligations, requiring enforcement action. In dismissing the husband’s application, Kaeser AM concluded at paras 38-40:

“There has clearly been a change in circumstances since the agreement was signed. Mr Brash has voluntarily decided to terminate his usual employment, for what he says are valid reasons. There is no evidence that he has even looked for another job. He has a pre-existing condition that he had when he signed the agreement. By setting aside the agreement I would stop any chance of Mrs Brash recovering any child support for the current period. That would be unjust to her and to the children.

In addition, paragraph 7(e) of the agreement provides that the agreed level of child support is not to be varied if the payer is unemployed during the term of the agreement.

This is Mr Brash’s application and he must satisfy the test as described above. I consider he has failed to prove his case. The change in Mr Brash’s circumstances is not exceptional. In addition, I am not satisfied that Mr Brash will suffer hardship at all let alone as a result of any exceptional circumstances.”

Contributions adjustment made for husband’s disability insurance payment

In Bray [2011] FMCAfam 906 (16 September 2011) $428,000 out of a $1.4m asset pool represented a disability insurance payment to the husband who was diagnosed post-separation with mantel cell lymphoma. 

Cole FM did not accept the husband’s argument that the payment should be excluded from the pool and at para 236 said:

“Some credit must be given for the contributions made to the insurance policies by the parties over the years. It was the husband however, who was diagnosed with mantel cell lymphoma and had the trauma of the illness and the treatment associated with it.”

Cole FM continued at paras 238-240:

“The High Court in the matter of Williams [1985] HCA 52 held that:

‘There is no general presumption that an award for damages for pain suffering and loss of amenity should be left out of account in determining what orders should be made under section 79.’

In Aleksovski [(1996) FLC 92-705] the court considered the damages award received by the wife in the context of the parties contributions. In their joint judgment Baker and Rowlands JJ said at 83,347:

‘In our opinion in most cases, a damages verdict arising from a personal injury claim is a contribution by a party who suffered the injury. It should not be considered in isolation, for the reason that each and every contribution, which each of the parties makes to the relationship must be weighed and considered at the same time.’

This policy would not be in place unless the parties had made the decision to contribute to the premiums. There is … a history of payment of insurance premiums [by both parties] for income/disability insurance.”

Cole FM continued at paras 248-251:

“Counsel for the wife submits that any consideration of this matter should include the fact that the husband was unable to work for ten months, during which time the business hired an additional employee. The increased expenses directly affected the financial benefits available to the parties.

That expense he says is ongoing in the continued employment of another person in the business resulting in a current cost to the business of $90,000.00 per annum. The husband was cross-examined on this point and his evidence was that the staff are essential to the successful operation of the business. I accept that evidence.

The issue of the loss to the business due to the ill health of the husband is as previously mentioned mitigated by the income disability policy payments received.

In addition, the wife’s submission does not address the fact that despite his prognosis, the husband did not walk away from the business. Steps were taken to ensure that the business continued to operate thereby resulting in the preservation of the asset. Some credit needs to be allowed for this.”

The parties’ contributions, considered otherwise equal after a 26 year marriage and the raising of four children, were found to be 60 per cent in the husband’s favour having regard to the court’s assessment of contributions in respect of his disability payment. An adjustment was made in the wife’s favour under s 75(2) of 15 per cent having regard to a disparity of earning capacity.

 

An order that father relocate if he obstructed grandparent’s time with the children was not enforced on grandparent’s application – Interests of the children not the same as those of the half-sibling in grandparent’s care – Order for time with grandparent varied

In Brecht & James (No. 2) [2013] FamCA 751 (8 October 2013) Thornton J considered a case involving two children, aged 8 and 7, who had lived with their father in Adelaide “for about two years” (para 1). The children’s mother died in “Town X in June 2010” where she, the father, the children and the mother’s daughter of a previous relationship lived at that time.

The mother’s daughter of a previous relationship, aged 13 (“B”) lived with the maternal grandfather and continued living there when the father and children moved to Adelaide.

The Court said at paras 4-5:

“The child B and the maternal grandfather have had a close relationship with the children since they were born. However they have not spent regular time with the children since August 2012 despite orders providing for the maternal grandfather to spend time with the children at weekends and during school holidays. The father has not co-operated in facilitating regular contact between the children and the maternal grandfather in Town X pursuant to previous court orders.

For this reason and because B has become very upset with her lack of contact with her half-siblings, the maternal grandfather sought to enforce a conditional order of the Federal Circuit Court made on 12 September 2011 [which] provided for the maternal grandfather to spend time with the children in Town X and included a conditional order … that if the father defaulted on two consecutive … weekends, the father would, on application by the maternal grandfather, relocate to Town X with the children”.

Thornton J continued at para 28-29:

“The maternal grandfather effectively sought an order for a positive injunction to relocate the children to Town X to give effect to the orders made by consent on 12 September ( … )

Accordingly, the case was not a typical case about relocation of a parent because the children had already been relocated to Adelaide and court orders made to reflect this.”

The Court said there had been previous incidents where “the father attended the changeovers with an aggressive and negative attitude” and where “the children appeared to be under pressure from the father and were not prepared” for time to proceed (para 37). To remedy such incidents, the Independent Children’s Lawyer and the maternal grandfather sought a number of orders “that the father cause the children T and M to relocate their permanent place of residence to the Town X district” but continue to live with the father and spend time with the maternal grandfather (para 44). The father sought an order that “the children live with him in Adelaide”.

Thornton J said at para 60:

“The evidence relied upon by the applicant maternal grandfather was focused on the alleviation of B’s grief at separation from the children and the convenience for the maternal family of having the children in close proximity to participate in weekly family gatherings and celebrations. This overlooked the best interests of the children T and M in the ties that the children have made with their friends, activities and school in Adelaide over the last two years. It also overlooked the impact of any change of living upon their relationship with their father should they be separated from him and the practical financial and emotional impact upon their father given the history of conflict between the parties. Any forced relocation of the father would obviously intensify that conflict and would be unlikely to improve the relationship. This would undoubtedly adversely impact upon the children and may also adversely affect their relationship with their maternal grandfather.”

The Court continued at paras 69-70:

“The family consultant said that any relocation of the children to Town X with their father could be a third traumatic experience even though it was a familiar place … The family consultant noted that the success of any relocation would depend on how the father was affected, his attitude and how he managed the relocation. ( … )

I accept the evidence of the family consultant that there should be no change to the residence of the children with their father in Adelaide. I find that it would not be in the best interests of the children to return to live in Town X.”

Orders were made that the children live with the father in Adelaide and spend weekend and holiday time with the maternal grandfather in Town X.