The trial judge decided that the mother had “behaved in a way that showed a serious disregard of her obligations under the primary order”.  The trial judge found that the mother had contravened section 70NFA(2)(b) of the Act.  As a result of the contravention, the trial judge ordered that:

1. The mother was to enter into a bond with the Court pursuant to section 70NEB of the Family Law Act 1975 (Cth) (“the Act”).
2. The mother was to attend upon family consultant pursuant to section 70NFB(2)(b) of the Act.

The Court has a broad power under s 79 of the Act to alter the interests of parties to a marriage in relation to property. Notably, s 79(2) forbids the making of an order unless the Court is satisfied that in all the circumstances it is just and equitable to do so.

Section 79(8) of the Act addresses circumstances where one party to the marriage dies before property settlement proceedings are completed. Judge Wilson’s path of reasoning was based on the High Court’s judgment in Stanford, and particularly their Honours approach to s 79(8)(b)(ii).

Ultimately, his Honour considered whether, had the husband not died, it would have been just and equitable to make an order and whether, following the husband’s death, it was still just and equitable to make an order. Judge Wilson rejected Mr Paxton’s premise that the husband (or Mr Paxton) had the right to have the matrimonial asset divided between the wife and the estate. His Honour found, that even if the husband had not died, it was similarly not just and equitable for a property settlement order to be made.

The application on behalf of the husband’s estate was dismissed with costs against the estate. His Honour found it wholly inappropriate for Mr Paxton to pursue the proceedings knowing the hardship that was likely to have been occasioned to the wife and her dependent children.

The court agreed the law recognises a distinction between a clause which provides an incentive for prompt payment and a clause where the applicable rate of interest is increased upon failing to make a prompt payment.

The court further recognised that provisions which operate prospectively when the increased interest rate applied only to outstanding payable amounts post the event of default is seen not as a punishment for default, if they constitute a genuine pre-estimate of compensation to the bank for late payment.

Ultimately the court considered the imposition of the penalty rate for a minor

Arab Bank provided a loan to a property developer and included in the documents a 2% default interest rate and the question was whether this 2% default interest rate was a penalty? The borrower repaid the whole of the loan but had to repay a significant extra amount

The court came to the conclusion that this default interest rate (which was added to the existing interest rate) was not a penalty because it was not seen to be punishing the borrower, it was not extravagant or unconscionable and it was not out of all proportion compared to the maximum conceivable loss that the lender could incur.

Was it more detrimental to these children to remain in Sydney under the care of their father without their mother or move to a new city with the adjustment of making new friends, a new school but still being under the care of their mother?

If they were to remain in Sydney under the care of their father full time, which has never occurred, he would also have needed the assistance of his parents due to the nature of his work. The children had never been cared for full time by their grandparents and the longest they had been with their father is 10 days. Allowing the children to move to Perth would cause the children to change schools, make new friends, miss out on usual activities and miss seeing their father. The mother had always been the children’s constant, their primary caregiver.

The parties commenced their de facto relationship in 2004, with the parties separating in 2011. The birth mother of the child, Ms Clarence, the Applicant, alleged that her former partner, Ms Crisp, the Respondent, had vacated the joint dwelling in March 2011, 4 months before the procedure.

The Respondent was of a different opinion, as she believed the separation date to be one month after the conception of the child. Ms Crisp had donated her eggs because she knew the importance of motherhood to the other party and had hoped for the parties to reconcile after implantation. The presiding judge was of the opinion that:

“If the parties were in a de facto relationship on that day [of conception] then they were both the child’s ‘parents’ for the purposes of [s 60H of] the Family Law Act 1975 … ”

In addition the court considered evidence of 850 text messages between the parties whom had exchanged their love and commitment up to the implantation of the Respondent’s eggs. Despite the parties living separately at the date of conception, they were deemed to be in a de facto relationship. Further evidence suggested that the parties remained romantic, with the respondent arguing that she continued to spend overnight stays weekly at the birth mother’s home.

On the morning of 18 May 2013, Mr Monaco alleged that he was at the police station at 9.45 am where the handover was due to occur at 10 am. He received a call from the mother’s phone at 10.23 am. He did not answer it but listened to the message left by child A asking what time they were meant to arrive.

In reply, the father sent the following SMS: “10 am!!” He received a second call which he let ring through to his voicemail. The message was from Child A saying that she was on her way. Shortly thereafter, the mother sent an SMS: “do not text me …”

The father left the station and sent a further SMS: “You will need to drop her off to me at Woolworths …” The mother responded: “No – I don’t feel safe doing that”.

The mother texted the father at 10.51 am saying: “Child A is waiting”. The father replied: “Where??” and received a text from the mother saying they were at the police station. Ms Daniels argued that these messages breached the VRO whilst it was Mr Monaco’s contention that the messages were sent in an emergency, permissible under the parenting orders.

The Full Court held that pursuant to section 60CG of the Family Law Act 1975 (Cth) (“the Act”) when the Court is preparing to draft parenting orders, it is obliged to consider that any orders made will not place a person at risk of family violence. The Full Court of the Family Court was of the view that had Dunkley J referred to section 61DA(3) that pertains to the presumption of equal shared parental responsibility as applying at interim hearings unless the court considers that the presumption is not appropriate in the circumstances, His Honour would have taken a more cautious approach in making interim orders.

Notwithstanding the fact that the allegations of family violence were both disputed and untested, His Honour would have, as a precautionary measure, applied section 60CG.

In interim proceedings, courts are often presented with conflicting facts, the veracity of which cannot be ascertained prior to a trial. The Full Court acknowledged that Dunkley J did consider this and he also referred to the legislative pathway as set out in Goode & Goode (2006) FLC 93-286. Nevertheless, they stated that findings in interim proceedings “should be couched with great circumspection”.

They referred to an earlier decision in SS & AH [2010] FamCAFC 13, where the majority of the Full Court had said: “… It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue”. Dunkley J had been faced with a similar dilemma in the present case. When presented with quite serious allegations of family violence, his Honour was obliged to do more than ‘merely note the contention’ and should not ‘simply ignore an assertion because its accuracy had been put in issue’.

The problem in this case, is that although Dunkley J rightly noted that he could not, at that stage of the proceedings, make findings on the disputed allegations, he then went on to say that under those circumstances, the presumption for equal shared parental responsibility nevertheless still applied.

Dunkley J in making this inference had found that there was ‘no other evidence available to him, implying that there needed to be corroboration of the mother’s allegations, and therefore the presumption was not rebutted. The Full Court felt this was an error, as family violence often occurs in the home, in private, and without witnesses. Furthermore, Dinkley J had also erred when he had stated that findings could not be made ‘as to whether either party perpetrated family violence at an interim stage given conflicted evidence’ and therefore he concluded that “the civil standard of proof is met by neither”.

The Full Court regarded this conclusion as incorrect, and inappropriate in circumstances where disputed allegations of serious family violence are put forward at interim hearings. His Honour erred, by neglecting to take note of allegations that he had previously considered ‘significant’, and by refusing to consider them at interim proceedings.

His Honour should have considered section 61DA(3) which sets out how the Court should approach the presumption of equal parental responsibility in interim orders, and that the presumption applies unless the Court believes it would be inappropriate. The Full Court also felt that by discharging the consent orders, Dinkley J had effectively found that the allegations of family violence had not been proven at that stage and that the risk of family violence did not need to be taken into account at the interim hearing. The Full Court said that His Honour had ‘ignored the allegations of family violence. To do so was to perpetuate the error which has already been established”.

Accordingly, the appeal was allowed, and the orders were set aside.

The recital stipulated that “the parties shall separate if either or both of them sign a statement to the effect that they have separated; are living separately and apart…” It was, according to Benjamin J, “not clear and … capable of more than one construction.”

Both parties agreed that they had separated on 7 June 2013; which is when they started living apart. This date was not in dispute and was corroborated in both their affidavits. The husband applied for a divorce and the order was granted on 3 February 2015, taking effect on 4 March 2015. Whilst the husband did not provide a separation declaration, the wife effected one on 23 March 2015, which was served on the husband’s solicitors three days later. At court, the husband and wife both provided different dates of separation – the wife sought to have the date the declaration was served as the date of the separation, pursuant to the Recital.