Assisted reproduction – Declaration that child conceived when parties were de facto partners and that the child was a child of the applicant

In Baker & Landon [2010] FMCAfam 280 (25 March 2010) Riethmuller FM heard an application for a declaration as to the paternity of a child conceived as a result of assisted reproductive technology, where the respondent was the biological parent but the applicant was not. The issue was whether the applicant was a “parent” within the meaning of Part VII of the Family Law Act.

The court examined the “two possible routes” by which a child will be taken to be a child of a person under the Family Law Act, being s 60H of the Act and (in the State where this case was heard) ss 10A and 10D of the Status of Children Act 1974 (Vic), for the purpose of which the only issue in dispute was whether the parties were de facto partners at the time the procedure was carried out.

Riethmuller FM examined the evidence of the parties’ relationship and the authorities as to the existence of a de facto relationship. His Honour at para 29 also made the point that if the parties “[fell] within the definition of de facto partners under the FLA, s 60H [would result] in the child being a child of the parties, and the donor of genetic material would no longer be one of the child’s parents: Re Michael: Surrogacy Arrangements [2009] FamCA 691”.

The court was ultimately satisfied in the circumstances of the case that the applicant was a de facto partner of the respondent within the meaning of s 60H on the date of conception of the child and that, by operation of law, the child was a child of the applicant for the purposes of the Family Law Act.

Husband’s non-disclosure of his interest in his brother’s taxi business – Weir applied – In the absence of a valuation the interest was ascribed a significant value 

In Baldachino & Hanas [2010] FamCA 234 (24 March 2010) Faulks ACJ at para 74 applied the Full Court’s ruling in Weir (1993) FLC 92-338 at pp 79,593-4 in respect of the husband’s non-disclosure of his interest in his brother’s taxi business, saying:

“The failure by the husband to make an initial disclosure about U Pty Ltd, the improbability of his involvement in carrying out what is an extensive administrative management task (management of 60 taxis) alone would lead me to conclude that the husband’s evidence in relation to this matter has been somewhat less than frank.

In default of any proper figures and in the context of the vague, hazy and unhelpful evidence of the husband about these matters, it is reasonable to find (and I do find) that this company represents to him a far more significant resource than he is prepared to acknowledge. I am, however, left without enough evidence to enable me to include any figure for it as an asset in the list of assets and liabilities of the parties.

Accordingly, it is a factor which I will take into account under s 75(2) of the Family Law Act 1975 (Cth) and in the circumstances of the husband’s initial non-disclosure, his vagueness about the matter, the improbability of his evidence and my finding of his lack of credit in relation to this matter, I am prepared to ascribe to it a significant value as a resource in the overall balancing of other matters between the parties.”

Reversal of care – Mother’s application for discharge of final parenting order made at an undefended hearing in her absence dismissed – Prior failures to appear by her and no reasonable explanation of her failure to attend hearing – Inadequate evidence filed by her and no submissions made as to the family consultant’s concerns (about mother’s mental health and parenting capacity) which substantially informed the order

In Ballan & Sandford [2018] FCCA 2436 (13 September 2018) the mother applied under FCCR 16.05 for the discharge of a final parenting order made by Judge Altobelli at an undefended hearing in her absence. Orders had been made for equal shared parental responsibility and for the parties’ 9 year old son [X] to live with the father in Queensland (rather than with the mother in New South Wales). The mother submitted that she had not been given procedural fairness, particularly where the effect of the order was a change in primary residence for the child and, in effect, a relocation.

Judge Altobelli said (from [28]):

“The Court clearly has a discretion in a rule 16.05 application, but a discretion that must be exercised judicially and bearing in mind the public interest in there being an end to litigation. In this case, the litigation was brought to an end after nearly two years of litigation. The prior litigation between the parents which resulted in the making of consent orders on 12 June 2013 in fact commenced in 2012. A not inconsiderable part of [X]’s life has involved him being the centre of the litigation between his parents. It is both in the public interest and in [X]’s interest that the litigation be brought to an end, subject, of course, to the orders being in his best interests. The mother has been a party to proceedings relating to her son for over two years now, with an attendance and participation rate that is hardly acceptable. … It is hardly in the public interest to accord a litigant who appears to choose, selectively, whether and if so when she participates in a court case to which she is a party, the privilege to then seek to reopen proceedings that were concluded because she did not attend.

[29]   The applicant was required to demonstrate to the Court that she had a reasonable explanation for her absence at the hearing. … The mother explains that she was representing herself in the proceedings.   She found it difficult. She sought counselling, but provides no detail as to dates. She asserts that she felt overwhelmed by the process.

( … )

[36]   The effect of the mother’s evidence is that because she didn’t attend on 30 April 2018 she was unaware of the adjournment to 31 May 2018 and thus unaware of the listing of the matter for undefended hearing on 20 June 2018.

[37]   A significant problem for the mother, however, is the correspondence from the independent children’s lawyer … The first letter from the independent children’s lawyer … reports about what happened in Court on 30 April 2018. Specifically, it refers to the release of the family report and how exactly the mother might gain access to it. It specifically refers to the mention on 31 May 2018 and states ‘ … at which time orders might be made in your absence in the event that you do not appear’.

( … )

[40]   … If the mother’s non-attendance at court events were merely one or two occasions the Court might be prepared to extend to the mother the benefit of the doubt. The facts are, however, that the mother did not attend her court case once from December 2016.

[41]   The totality of the evidence leads the Court to conclude that the applicant has not discharged the onus on her of providing a reasonable explanation for her absence at the hearing.

[42]   The mother must also establish that she has material arguments that might reasonably lead to the making of an order different to that sought to be set aside. ( … )

( … )

[46]   The problem for the mother in this regard, however, is the family report of Ms O, dated 10 April 2018, which was in evidence before the Court when it made orders on 20 June 2018 and, indeed, substantially informed those orders. There is no doubt that the mother had access to this report because she through her solicitor made reference to it in submissions. It is important to note that both parents made serious allegations against the other. … Both parents raised concerns about the other’s capacity to adequately care for [X]. The father raised issues about the mother’s mental health, including mood, instability and anger. The family consultant’s approach to the report was balanced, and comprehensive.

[47]   One would have thought … that they would have made some attempt to deal with the quite serious concerns raised by the family consultant surrounding the mother’s mental health, and capacity for [X]. Instead, these concerns were merely glossed over. There was no attempt to provide any reassurance to the Court about the concerns addressed by the family consultant.

[48]   The Court concludes, therefore, that the applicant has not satisfied the Court that she has material arguments available to her that might reasonably lead to the making of an order different to that sought to be    set aside. The fact is that the order was made in the mother’s absence, but was nonetheless an order that the Court considered to be in the best interests of [X]. The mother has not established in the evidence that she has filed that the orders she proposes are in [X]’s best interests.

( … )

[54]   The Court accepts that the orders that it made brought about a significant change in [X]’s circumstances, both physical and emotional. It was convinced at the time, and remains convinced, that there were issues of concern in the mother’s household which, coupled with her non-participation in the proceedings, warranted the reversal of a long-standing care arrangement. To make that change, again, as the mother proposes, is not something the Court would consider in the absence of clear reassuring evidence from the mother that the concerns so clearly articulated by the family consultant have no basis, or have been, addressed. The Court is thus not convinced that it is in [X]’s best interests to revisit the order it has made.”

The mother’s application was dismissed. 

Adult child maintenance – Backdated order for father to pay $230 per week for the maintenance of a disabled adult child despite child’s bank savings of $85,000 – Order made for three years 


In Ballantyne [2015] FCCA 500 (16 April 2015, but published 25 February 2016) Judge O’Sullivan heard the mother’s application for adult child maintenance of $4,274 per month. The mother argued that the father earned a fixed remuneration package of $250,000. The father agreed that the child (“X”) was disabled (born with Down Syndrome) and could not work but opposed the application, arguing that the mother had not established that the expenses she claimed were necessary and the child had a bank account of $85,000 being the parents’ savings from the child’s disability support pension and mobility allowance ([29]). The mother argued that the savings were controlled by a VCAT-appointed administrator so that the funds were not available to her in respect of the child’s day to day needs.

The Court said (at [9]):

“As well as a disability support pension, X is eligible for disability funding administered by the Victorian Department of Human Services under an Individual Support Package Funding (ISP) of $41,122 per year. This funding covers the cost of formal programs and additional development support. This latter benefit is not an income tested person, allowance or benefit for the purposes of Division 7 of Part VII of the Family Law Act 1975 (“the Act”).”

When considering the mother’s evidence, the Court noted the wife’s acknowledgment during cross-examination that her claim included amounts which she did not pay, saying (from [39]):

“        … in cross examination the best the applicant could say was ‘maybe I jumped the gun’. Indicative in my view of the applicant’s attitude to this matter was her admission in cross examination that whilst she wasn’t paying for many of the amounts sought, she just thought money equivalent to the amounts sought for those things should be paid to her by the respondent.

[40]    … In relation to expenses claimed to be living costs or basic expenses, the applicant acknowledged household rates shouldn’t be claimed, nor should house repairs and maintenance, child minding, pool maintenance, gardening and house insurance costs be included despite having made an application which included those.

[41]    The applicant acknowledged even if all of the living expenses she claimed were accepted (and added to this was the shortfall for programs not covered by ISP of around $13,000) her claim of $4,274 per month was still way in excess of the amount required.”

The Court said (from [73]):

“…     The approach the Court must take in assessing an adult child maintenance order is set out in section 66H of the Act. It is essentially a two-step process. The Court must consider the level of financial support necessary for the maintenance of the child concerned.

[74]    The relevant matters to be considered are set out in specific detail in section 66J of the Act. In particular, the Court must consider the proper needs of the child concerned, bearing in mind the age of the child; the manner in which the child is being (and in which the parents expect the child to be) educated or trained; and any special needs of the child concerned.

[75]    In addition, the Court must have regard to the capacity of the child to earn or derive an income but it must specifically disregard ‘any entitlement of the child or any other person to an income tested pension, allowance or benefit’ [section 66J(3)(b)(ii)].

[76]    The Court must also determine what contribution each parent should make to providing that financial support. The matters to be considered specifically in regards to this second step are set out in section 66K of the Act.

[77]    The Court must consider the income, earning capacity, property and financial resources of the parents concerned and his or her necessary expenses. Again, the Court must disregard any entitlement of the child concerned, or the person with whom the child lives, to receive an income tested pension, allowance or benefit [section 66K(4)].

( … )

[87]    It wasn’t disputed that X had over $80,000 in savings. The applicant in her first affidavit had deposed this hadn’t been able to be accessed to cover the costs of X’s care. 

( … )

[88]    The respondent maintained (in argument at least) that X’s savings of over $80,000 and the other sources of financial support (aside from the income tested pension) were matters that should be taken into account and taken together, told against the applicant’s claim of meeting the requisite standard of demonstrating that adult child maintenance was necessary because of X’s disability.

[89]    In Janine & Janine and Anor (No.2) [2011] FamCA 843 (‘Janine’) Cronin J dealt with a similar argument in the context of an adult child maintenance claim … In that case, whilst taking into account savings of $20,000 (accumulated from pension payments for the adult child in that case) it was the husband’s own evidence in that case that convinced His Honour to ignore the interest the adult child in that case had in property worth about $500,000 which had been argued was standing in the way of a finding that maintenance was necessary because of the disability.

[90]    As in Janine … the evidence in this case is that X’s savings have been accrued from inter alia his pension payments which are required to be ignored. However like in Janine … to simply ignore it or ‘pretend it is still a pension and does not exist would do an injustice’.

[91]    It is timely to recall that the Full Court in Cosgrove [Cosgrove (No. 2) (1996) FLC 92-701] held:

‘The guiding principle in an application for maintenance of an adult child was what in all the circumstances was reasonable. The principle did not require an adult child to divest himself or herself of all assets and capital so as to qualify for an order for maintenance.’

[92]    Given this and on the evidence before the Court, I am not satisfied the savings of over $80,000 which from the evidence are controlled by State Trustees means that the adult child maintenance is not necessary because of X’s disability. This is the case particularly having regard to the position of both parties in their evidence before the Court they had previously agreed this should be put aside for when they (either individually or collectively) could no longer provide for X.

[93]    There are however other sources of financial support that should be taken into account and they are the ISP [State government] funding, mobility and carers allowances and all up those total $47,111 per annum.

( … )

[97]    To meet X’s indirect costs there is available $2,317 by way of mobility allowance $3,673 by way of carers allowance and $41,122 being the funds available through the ISP. The evidence is the ISP funding would cover the cost of X attending courses each week day and I find ‘the picture of overwhelming need’ created by the applicant’s most recent affidavit reflected the choices she had made about particular courses rather than demonstrating those necessary because of X’s disability.

( … )

[108]  The respondent’s calculations (which I accept as an admission against interest) otherwise differed from those of the applicant in quantum by just under $11,000 per annum. Given on either parties case, there was a fair degree of estimation, in the circumstances I find the shortfall to be $350.00 per week.

( … )

[113]  The applicant had sought that the respondent pay 2/3 of the costs due to the difference in earning and income capacities and allowing for costs ‘already incurred’ by the respondent. Given the findings made earlier I am prepared to accept the costs should be shared on that basis. Accordingly, taking into account that X spends some time with the respondent it would be proper to require the respondent to contribute just under $12,000 per year or $230 per week towards X’s financial support. Given the evidence regarding the respondent’s earning capacity I am satisfied he has the capacity to make that payment.”

The Court held that the $230 payment should be in place for 3 years, saying (at [121]):

“Ultimately I am persuaded an order limited to a maximum of 3 years is fair, appropriate and proper given the limited evidence as to what is necessary for X because of his disability and the evidence such as it was as to the situation of the parties at the present time and the proceedings before VCAT appear to be ongoing and will be reviewed again there later this year.”

The Court also ordered that the order be backdated to the date of the application, saying (at [124]):

“ … having weighted the applicant’s obligation to support X financially and that she has done so without financial support from the respondent since the end of 2012; the time between the filing of the application; and orders made as a result of these reasons and that on the evidence the Court accepts (not all) the applicant has expended was necessary because of X’s disability, I am persuaded it is nonetheless proper and necessary for an order backdated to the date of filing the application. I am satisfied the amount found as necessary above and capitalised is an appropriate order. Accordingly there will be a separate order to that effect. The order for the provision of adult child maintenance for X will be backdated to the filing date of the application.”


Disability pension super interest in the payment phase that would be commuted to a lump sum upon a splitting order being made was included in the pool, not dealt with via asset by asset approach – DFRDB cases distinguishable as such pensions in the payment phase are not commutable

In Balzano [2014] FCCA 615 (3 April 2014) Judge Bender considered a 39 year marriage where each party had retired and the husband sought to “retain the total benefit of his [E] Superannuation indexed pension from which he currently receives $42,384.68 per annum” (para 2), his arguing that the pension should be “dealt with differently to the parties’ realisable assets” with the wife to receive “a greater portion of the parties’ realisable assets” (para 3).

The rules of the pension (para 14) were such that there was “no provision to create a separate interest for the non member spouse and/or for the non member spouse to receive on-going pension payments” (Court’s emphasis) and a splitting order would mean “the non member spouse will be entitled to be paid as a lump sum”. The superannuation benefit had been valued in accordance with the regulations at $455,761.02 (para 15).

The Court said (from para 28):

“…       Counsel for the husband referred the Court to a number of ‘superannuation pension’ cases in which it was submitted the principle expounded by the Full Court in C v C [C & C [2005] FamCA 429 also known as Coghlan] that the preferred approach by the Court when determining a property matter where there was an entitlement to a superannuation pension was to deal with that entitlement separately to the parties other assets was upheld (T & T [2006] FamCA 207).

[29]     The cases to which the husband’s counsel referred the Court were all dealing with a Defence Force Retirement and Death Benefits Scheme (DFRDB) pension in its payment phase. A DFRDB pension in its payment phase cannot be commuted to a capital sum.

( … )

[32]     In Craig v Rowlands [Craig & Rowlands [2013] FamCAFC 45] the Full Court cited with approval Coleman J in McKinnon v McKinnon [2005] FamCA 1245; (2005) FLC 93-242 where His Honour having confirmed the preferred approach of the Court when dealing with a DFRDP pension was an asset by asset approach rather than a global approach stated at paragraph 5:

‘The reasons the court prefers this approach are essentially that the evidence establishes that the husband’s DFRDB pension is and will in future continue to be a fortnightly pension benefit which can never be commuted or otherwise converted to a lump sum.’

[33]     As noted, the cases to which the Court has been referred by Counsel for the husband where the Full Court preferred an entitlement to a superannuation pension in the payment phase be dealt with separately to the parties other ‘realisable assets’ are matters in which the pension could not be commuted to a lump sum in the event the Court made a splitting order.

[34]     By contrast to the DFRDB entitlement at the centre of the cases to which reference has been made, the husband’s [E] pension can, and must, be commuted to a lump sum in the event a splitting order is made.

[35]     It is common ground that if the whole of the husband’s [E] pension was commuted to a lump sum, the lump sum payable is $455,761.02.

[36]     This Court has a discretion as to whether it takes an asset by asset approach or a global approach in the manner in which it determines how to divide the parties assets when making orders pursuant to s 79 of the Act.

[37]     In this matter the wife has a current entitlement to a lump sum superannuation payment of $247,212.00. The parties are in agreement that the wife’s superannuation should be dealt with as part of the realisable pool of assets for division between the parties.

[38]     As the husband’s superannuation is able to be commuted to a known lump sum for division between the parties, I am of the view that this distinguishes it from those cases where the Full Court held that an asset by asset approach was the preferable approach when dealing with matters where a parties superannuation is a pension in the payment phase.

[39]     Accordingly I intend to adopt a global approach when determining the pool of assets for division between the parties and include the husband’s [E] superannuation settlement in the pool of assets at its agreed lump sum value.”

As to a just and equitable division, the Court said (from para 67):

“…      Unlike the wife in the matter of Winn [[2011] FamCA 501] the wife in this matter is not in a well-paid position or considerably younger than the husband. The wife is 67 years old, retired and in poor health. She is currently living on a very meagre Centrelink payment of $17,000.00 per annum.

[68]     Whilst I am sympathetic to the husband’s wish to retain the totality of his guaranteed income stream, unlike the parties in the matter of Winn (supra), the parties in this matter do not have sufficient assets to enable the husband to retain the entirety of his superannuation and achieve a just and equitable division of property between the parties, particularly given the husband wishes to also retain the former matrimonial home.

[69]     Accordingly orders will be made for an equal division of the parties’ assets. Given the husband wishes to retain the former matrimonial home such order will need to include a splitting order in relation to the husband’s superannuation to enable that equal division of the parties’ assets.” 

Financial agreement under s 90B “in contemplation of marriage” but made a day after parties married (when a s 90C agreement should have been used) declared invalid  

In Balzia & Covich [2009] FamCA 1357 (27 August 2009) Collier J declared that an agreement under s 90B of the Family Law Act  “in contemplation of marriage” but made a day after the parties married (when a s 90C agreement should have been used) was not a valid financial agreement. 

Collier J at para 22 said:

“Section 90G sets out that a financial agreement is binding on the parties…if and only if certain things apply.  Those are words that have been dealt with by…the Full Court in Black (2008) FLC 93-357.  Their Honours have indicated that compliance in a strict sense is required…”

Collier J at para 33 concluded:

“I am of the view that sections 90B and 90C do not involve the same concept.  I am satisfied that to properly advise their clients, the solicitors giving the advice and completing the certificates would need to approach the agreement to be made under one such section differently from the approach to be taken and the advice to be given (which is the subject of the certificate), if the agreement is to be made under a different section.  I do not know what the advice given was.  It seems to me, however, fundamental that the Act draws a distinction between the two sections. 

Accordingly, I am of the view that it would be essential to require anyone giving proper advice, to give that advice in respect of the document being executed, and the situation that would be created by the execution of that document, and thus to make particular and accurate reference to the section under which the document was created and to have effect.”

Mother found to have “orchestrated” father’s exclusion from child’s life – Need to protect child from mother’s neglect and harm – Trial judge erred by giving insufficient weight to independent evidence of mother’s exposure of child to violence between her and her new partner – Such evidence was also not considered by family report writer yet court relied on report writer’s recommendation

In Bangi & Belov [2017] FamCAFC 5 (3 February 2017) the Full Court (Ainslie-Wallace, Murphy & Cronin JJ) heard the father’s appeal against a final parenting order made by Hannam J in respect of a 10 year old child after a nine day trial. The mother attended the first five days but not the rest of the hearing and did not participate in the appeal. The father had sought orders that the child live with him and that the mother have weekend time, his case being “that the child was at risk of harm in the mother’s care, principally because when she had been drinking, she was violent” ([2])”.

The trial judge made an order for equal shared parental responsibility and that the child live with the mother and spend time with the father for five nights a fortnight and half of school holidays. The father argued on appeal that the order was based on inconsistent findings, particularly as to the mother’s parenting capacity and that the family consultant’s findings as to the mother being the child’s primary attachment figure were improperly elevated where the family consultant was unaware of other evidence before the Court, particularly as to violence in the mother’s household.

The Full Court said (from [6]):

“Subsequent to the parties’ separation in August 2011, the father had been excluded from the child’s life for two years. The trial judge found that the mother orchestrated that exclusion. In 2012, after proceedings had been commenced in the Federal Magistrates Court, and in an effort to resurrect the relationship of father and son, an order was made for the mother to take the child to a psychologist, Dr V, for therapy. The mother was not cooperative in that process and at times did not comply at all.

( … )

[17]   … The trial judge rejected the mother’s assertions about the father which included that he had been violent to her and the child, but also that the child was at risk of sexual abuse by the father.

[18]   … [H]er Honour found the father to be a competent parent. Significantly, her Honour found that the mother lacked credibility and that she had been violent to both the father and the child. It was the father’s case that when the mother had consumed alcohol, she was aggressive. The mother denied the allegation but her Honour accepted that there was evidence of both aggression and assaults by the mother during the parties’ relationship.

[19]   The father also produced cogent and accepted evidence concerning the period after separation, to the effect that the mother had begun a new relationship within which the child was living, where he was exposed to incidents of drunkenness on the part of the mother’s partner, lack of parental responsibility by the mother, and also violence between the mother and her partner.

( … )

[22]   Against the background of those important findings, her Honour accepted that removal of the child from the mother would be traumatic for him and that in any event, in her Honour’s view, the proceedings and orders had given rise to a change of attitude by the mother such that the mother would permit (or perhaps would no longer thwart) the father having a relationship with the child.

( … )

[41]   … [A]ll charges against the father were dismissed as were the domestic violence orders. Her Honour found that the mother’s actions and ‘timing’ were strategically designed to thwart the father’s relationship with the child. As would seem obvious, her Honour found that her actions in this respect reflected badly on the mother’s credibility.

[42]   We observe that those same actions, and the resolution of the proceedings in the state courts are directly relevant to the primary considerations found in s 60CC of the Family Law Act 1975 (Cth) (‘the Act’), but also, significant additional considerations including, for example, ‘the attitude to the child’ (s 60CC(3)(i)) and the mother’s ‘capacity to provide for the … needs of the child, including emotional … needs’ (s 60CC(3)(f)). We also observe that the s 60CC considerations should be applied with the Act’s objects which prioritise both ‘the benefit of both … parents having a meaningful involvement’ with the child consistent with their best interests and also ‘ensuring that parents fulfil their duties, and meet their responsibilities’ towards the child.

( … )

[81]   Based on the evidence of [a witness] Mr JJ, at the time when the mother was participating in the court hearing and swearing to a picture of harmony and an absence of violence in her household, a number of incidents of violence to which Mr JJ referred had occurred. ( … )

( … )

[102]  With all respect to her Honour, there was cogent evidence, accepted by her Honour, from a person unconnected with the proceedings (Mr JJ) of a significant lack of parental care and the exercise of parental responsibilities and risk from, at least, exposure to regular family violence between the mother and [her new partner]. That evidence was entirely supportive of the father’s evidence of what had occurred during the relationship. That evidence was central to his case and was evidence which her Honour accepted – and accepted despite it being directly contrary to evidence of the mother which her Honour rejected. … The evidence which her Honour accepted starkly contradicted the sworn evidence given by the mother (and Mr GG) in July.

[103]  Expressed in terms of weight, her Honour appears to have given very little weight to evidence which her Honour accepted and very significant weight to evidence from the mother who was a witness found by her Honour to be wanting in credibility and whose evidence about important s 60CC considerations must be seen, on her Honour’s own findings, as false.

[104]  Her Honour’s finding that there was a low risk of the mother thwarting the child’s time or relationship with the father was based on an assumption that the substantial and significant time ordered would be implemented. Her Honour’s optimism about the reluctance of the mother to thwart the father’s relationship because of orders being in place and because of an established relationship (about which the family consultant was uncertain) does not sit comfortably with other findings made by her Honour ( … )

( … )

[106]  Here, there were findings by her Honour of the wilful exclusion of the father by the mother from the child’s life based on her false allegations of serious misconduct which saw the father not participating in the life of his young child for about two years, including in the latter part of that time, despite court orders. It was … open to her Honour to find that the mother had changed if there was a proper evidentiary basis for so finding. We are unable to see what that basis was in this case, either as her Honour explained it or by reference to the record.

[107]  As against the profoundly disturbing history of the mother’s behaviour as found by her Honour, the mother gave false evidence before the court in July; did not participate in the trial thereafter; and maintained even during the trial that the child remained at risk from his father. Perhaps most troubling of all, the mother herself told her Honour in July immediately prior to her further non-participation that if the orders of the court did not accord with her wishes, she would not obey them …

( … )

[109]  … [T]he family consultant said removal of the child was an option if her Honour found the mother had significant deficits in her direct parenting including exposing the child to physically and emotionally abusive relationships. Her Honour made findings about the lengths to which the mother went to exclude the father. There was the evidence, accepted by her Honour, of what was happening in her home environment. That spoke ill of the mother’s parental capacity; her exposure of the child to family violence in her household; and the abdication of important aspects of the responsibilities of parenthood to strangers.

( … )

[112]  … [I]n terms of appealable error, her Honour’s findings in that respect are based upon the evidence of the family consultant. His (important) evidence was based on his observations and interviews. In respect of the latter, in the absence of other reliable evidence or indications he accepted … what he had been told by the parties (and Mr GG). He was not made aware of the evidence of Mr JJ.

[113] The parties before us were unable to explain why the family consultant was not recalled so as to put to him the evidence of Mr JJ. This is a significant omission. Again, it should be recalled that removal of the child from his mother’s care was flagged by the family consultant as potentially being in the child’s best interests if there were deficits in the mother’s care and, of course, if there was good reason to conclude that he might be at physical or emotional risk in her care. The evidence of Mr JJ (which, again, her Honour accepted and which in turn in effect corroborated much of what the father alleged) raised precisely issues of this type which, again, were exacerbated in our view by the mother’s failure to participate in the balance of the trial.

[114]  The failure to have the family consultant express opinions postulated upon the trial judge’s acceptance of Mr JJ’s evidence (and the father’s evidence seen in its light) is in our view a significant omission from the evidence. It was in our view not open to her Honour to give predominant weight to the family consultant’s evidence in light of the absence of opinions informed by what turned out to be her Honour’s acceptance of the additional evidence.”

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

Valuation principle “highest and best use” – To exclude value of development potential from post-separation purchase of adjoining land was in error 

In Bania & Jacopo (No. 2) [2011] FamCAFC 139 (29 June 2011) the parties’ asset pool included a block of land (Lot 10) where they lived in a caravan. Six years after separation the husband bought the adjoining block (Lot 11), moving the caravan and a bathroom block there from Lot 10. Lots 10 and 11 were individually valued at $20,000 and $35,000 respectively but, together, at $150,000 having regard to their development potential. The parties agreed to an asset by asset approach. Donald FM held that only Lot 10 should be included in the pool, accepting the husband’s submission that Lot 11 had been bought by him many years after separation, using funds borrowed by him and without any contribution by the wife as to Lot 11 or as to the greater value of the combined properties (which the husband had been given provisional approval to develop).

Upholding the wife’s appeal, Ainslie-Wallace J said at paras 40-41:

“A helpful exposition of the law relating to valuation of land is found in GWR and VAR [2006] FamCA 894 in which the Full Court (Bryant CJ, Finn and Coleman JJ) said at paragraph 54 and following (citations and footnotes omitted):

‘The principle of “highest and best use” finds repeated expression throughout the authorities relevant to the valuation of real property … The principle was succinctly stated in Pullin J in Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor (2003) 129 LGERA 65 at paragraphs 18 and 19:

18.   The test of market value is well known. It is what the hypothetical purchaser desiring to purchase the land would have had to pay for it on the date of resumption to a hypothetical vendor willing to sell it for a fair price but not desirous to sell.

19.   Regard must be had to every element of value which the land possess. Every such element must be taken into consideration insofar as they increase the value to the owner of the land. In short regard should be had to the highest and best use of the subject land, meaning the most advantageous use of the subject and having regard to planning and all other relevant factors affecting its present and future potential.’

It is to be observed that Mr T’s valuation makes direct reference to this principle in determining the value of the land to be $150,000.”

Ainslie-Wallace J concluded at paras 43-46:

“The argument by the husband that the value of the parcel of land of $150,000 is solely attributable to the husband’s efforts in buying the adjacent property misunderstands the effect of the valuation evidence which is that without the other, each property has only ‘nominal value’ because neither is suitable for residential development without the other.

The evidence of the valuer, Mr T, was that individually, both blocks had ‘nominal value’ and he ascribed a value of $20,000 to Lot 10 and $35,000 to Lot 11. The valuation of the parcel was reflective of the lots being together because he said (at p 14 of his report), ‘individually, the blocks are considered to have a nominal value as they cannot be utilised for residential purposes’.

Thus, although it was the husband who purchased the second lot, it was not in accordance with Mr T’s evidence to find that the value of the two lots resulted from the husband’s efforts alone because it ignores the evidence of the obvious impact of Lot 10 in increasing the size of the parcel to make it suitable for residential purposes. The thrust of this can be readily seen in Mr T’s evidence that the value of Lot 11 was $35,000, $15,000 of which related to the ‘improvements’ on it. As to those improvements, the caravan and bathroom facilities were those in which the parties lived in J and were moved by the husband to the B lot.

His Honour’s attribution of the value of the whole of the land as accepted by him solely to the husband’s efforts in purchasing the second lot was not open to him on the evidence. I accept the argument that his Honour’s reasoning was in this respect flawed and that he erred in failing to take into account or properly into account the value of the combined lots.”

Full Court allows mother’s appeal against interim parenting order – Mother living in Thailand with child but visiting Australia for weeks at a time for employment – Interim order that she live in Australia and injunctions requiring her to cause the child to be brought here from Thailand and restraining her from leaving the country all discharged 

In Banks [2015] FamCAFC 36 (12 March 2015) the Full Court (Thackray, Murphy & Kent JJ) heard the mother’s appeal against an interim parenting order made by Cleary J. The case involved a 5 year old son of an Australian father and Thai national mother. The parents were married in Australia but travelled to Thailand before the child’s birth so that the mother could have the support of her family. The child was born in Thailand, the parties moving to Australia when the child was 8 months old. In May 2013 the parties and child went to Thailand “to visit the maternal family” but when the father returned, the mother and child did not (para 6).

The mother came to Australia to work in the adult entertainment industry for weeks at a time without the knowledge of the father (and without the child) but when the mother told the father she was in Australia he applied for and was granted an ex parte injunction that the mother “forthwith cause the delivery of the child … to the father” and that she “be restrained from leaving Australia pending ‘delivery’ of the child” (para 13).

It was also ordered at first instance that “the child live with the mother in Australia” (an order “neither party sought” where “the primary judge did not give notice of her intention to make such an order”). The father’s solicitor conceded that the mother “had not been afforded natural justice” and that the appeal should succeed, the Full Court to re-exercise discretion (paras 21-22).

After citing Goode [2006] FamCA 1346 as to how an interim parenting application should be determined (para 23) the Full Court said (from para 24):

“…       … We note … that it is the making of an order for equal shared parental responsibility that triggers the requirement to consider making orders for equal time or substantial and significant time.

[25]      It is fundamental in every parenting case that the parties’ proposals be clearly identified. This is so, because it is an essential requirement that each proposal be the subject of separate evaluation: AMS v AIF (1999) 199 CLR 160 at 191 [95] per Gaudron J, at 226 [196] per Kirby J, at 232 [218]-[219] per Hayne J; U v U (2002) 211 CLR 238 at 248 [37] per Gaudron J.

[26]      With respect to the primary judge, the failure to identify the competing proposals was the likely cause of the error that led to the appeal being conceded. …

[27]      The father sought equal shared parental responsibility. … the father conceded that … he has not had physical contact with the child for almost two years. … the father sought that the child live with the mother in Australia, and that the child spend time with him …

[28]      The father sought the continuation of the injunction restraining the mother from leaving Australia, even if we did not require the child to be brought to Australia.

[29]      The mother sought that each parent have parental responsibility. She proposed that the injunction be discharged so she could return to Thailand to live with the child. She was agreeable to the father having unsupervised time with the child whenever he visits Thailand ( … )

( … )

[33]      The threshold issue concerns the allocation of parental responsibility, which will determine whether we are obliged to consider making an order for the child to spend equal time or substantial and significant time with his parents.

[34]      The primary question, however, is whether it would be in the child’s best interests to continue to reside in Thailand pending a final hearing, or whether he should reside with his mother in Australia, so as to allow him to spend regular time with his father for the first time in almost two years.

[35]      The secondary, although very important, question is whether the mother should be obliged to remain in Australia if the child remains in Thailand.”

The Full Court then reviewed the “agreed or uncontested relevant facts” that the father had had no contact with the child, save via Skype, for two years; the mother had been the child’s primary carer for much of his life; the father accepted that the mother was an appropriate carer; the child was born in Thailand, lived there for the first five months of his life, visited there in 2012, lived there for the last two years; and the child had been diagnosed as having autistic spectrum disorder requiring behaviour modification and speech therapy and had recently commenced school in Thailand (para 37).

The Full Court continued (from para 38):

“Allocation of parental responsibility

…        The way in which parental responsibility is allocated impacts on the range of options that the Court must consider in determining a parenting order dispute (see s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) and our recitation from Goode).

( … )

[41]      Although arguing against an order for equal shared parental responsibility, the mother’s counsel said each parent should have parental responsibility. As we understand her position, counsel was proposing that we make no order dealing with parental responsibility (since the combined effect of s 61C and s 61D is that each parent has parental responsibility unless an order provides otherwise).

[42]      Although consideration will need to be given at trial as to whether an order for equal shared parental responsibility will be in the child’s best interests if the parents live in different countries, we reject the mother’s proposal on an interim basis for the simple reason that her Notice of Appeal did not challenge the order providing for the parents to have equal shared parental responsibility.

Equal time and substantial and significant time

[43]      Given that we do not intend to interfere with the interim order for equal shared parental responsibility, we are obliged by s 65DAA to consider whether it would be in the child’s best interests and reasonably practicable for him to spend equal time or substantial and significant time with each parent.

[44]      Neither parent seeks an order for equal time, and the father now acknowledges that the child’s best interests will be served by him primarily living with his mother pending trial. Clearly, therefore, equal time is not a viable option.

[45]      The father proposes instead that the child spend regular time with him. … the issue of how much time the father should spend with the child must turn on whether it is in the child’s best interests to remain living in Thailand. …

Consideration of the s 60CC factors that are relevant

( … )

[50]      When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

[51]      In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. …

( … )

The only relevant primary consideration – s 60CC(2)(a)

( … )

[54]      The mother does not dispute that it would be in the child’s best interests for him to have a meaningful relationship with his father. However, her complaint was that the primary judge allowed this factor to overwhelm all others, and in particular the impact upon the child of being required to leave the settled environment in which he has been living.

( … )

The most relevant additional considerations – s 60CC(3)

( … )

[62]      There was no evidence at all concerning the care arrangements that the mother could make if the child was made to live with her in Australia. …

…

[64]      … there was ample evidence of the mother’s proposals for the care of the child in Thailand. ( … )

( … )

[66]      Significant weight must be placed on the fact that the child appears to be well settled in Thailand. This is of special importance because of his developmental delay. …

[68]      This evidence implies that the child has been receiving regular and beneficial treatment to assist in overcoming his developmental delay. There is no evidence to indicate that a major disruption to his routine (involving removal from his home, relatives, school, friends and medical treatment) would have anything other than a deleterious effect.

( … )

[70]      ( … ) Assuming Australia was the child’s place of habitual residence, and assuming the father can satisfy all the other requirements of the Convention, the fact is that this Full Court of the Family Court of Australia is now deciding the child’s living arrangements. Once we have done so, we see no role for the Hague Convention [which the father hoped to pursue] (save if the mother fails to comply with our orders).

( … )

Conclusion regarding the child’s residence pending trial

[72]      As the father’s solicitor observed, the Court is faced with a ‘dire’ choice in a ‘dreadful’ case. While we do not suggest the outcome is entirely satisfactory we consider the child’s best interests will be better served by remaining in Thailand pending trial, rather than being uprooted and brought to Australia.”

The injunctions were discharged and it was ordered that the mother’s name be removed from the AFP’s watch list, that until further order the child live with the mother or her nominee and have unsupervised time with the father as agreed in Thailand and via Skype 5 times per week.

Equal time sought by father who was already spending five nights in 14 with child – Court disagreed with family consultant’s view that the parties were unable to cooperate – Order for father’s time to graduate towards equal time

In Banning & Wylie [2009] FMCAfam 1049 (9 October 2009) the father, who spent five nights in every 14 with the parties’ child of 3 years and 10 months, applied for equal time once the child began school and until then an extra night each fortnight. Lapthorn FM (at [62]) disagreed with the family consultant’s view that the parties were unable to “cooperate and be respectful in their parenting relationship”. 

The Court concluded (at [64]-[67]):

“Save for the young age of the child I am satisfied that it will be in the his best interests to live in an equal shared care arrangement with his parents and that it will be reasonably practicable for him to do so. The father’s proposal was to move to a week about arrangement once the child commences school. Starting school sees a number of changes for children, especially in their routine. I am of the view that the child should have an opportunity to adjust to his new school environment prior to any change in his home arrangements. For that reason I propose to order that the shared care arrangement commence at the beginning of the second term of his 2011 school year.

The father would like to see the child spend an extra night a fortnight with him until the implementation of the equal shared care arrangement. The mother is opposed to the extra night for two reasons. Firstly she does not believe it’s in the child’s best interests to spend an extra night with the father but secondly if he was to she is concerned about having him returned too early the next morning because of the father’s work commitments.

I am of the view that it would assist the child and the parents move towards the equal shared care arrangement if the child’s time with the father was increased incrementally. This was partly the basis of the father’s proposal. The father was also frustrated in having to return the child to the mother on Sunday evenings, which effectively compromised a whole weekend experience for him and the child.

The mother’s concern about an early return is a valid one however I am satisfied that as between the father and his partner or with the assistance of his parents it will not be necessary for [X] to be delivered any earlier than 8.00am [on Monday] to the mother. I am satisfied that the child would benefit by spending Sunday evenings with this father but to assist in the transition to the increased time that should commence after his fourth birthday which is this December.”