Family Law Archives - Goldman Law

11 February 2025in Family Law

New Family Court Case on Relationship between Family Law Parenting and Intervention Orders

Keywords

Children – Relationship between family violence order and parenting order– Family Court of WA determines whether text messages sent by father to mother contravened violence restraining order or were sent in “an emergency” pursuant to its contact order.

In Monaco & Daniels [2016] FCWA 35 (27 May 2016) Walters J considered whether the father Mr Monaco had contravened a violence restraining order (“VRO”) by sending text messages to the mother Ms Daniels. Family violence orders are generally made under a prescribed law of a state or territory to protect a person or persons from family violence. When parenting orders are drafted, the court is made aware of any family violence orders, parenting orders can be made taking those into account, for example by having handovers in a public place.

Background

Ms Daniels and Mr Monaco began a relationship in 2003 and married the following year. They were the parents of Child A born in 2006. They finally separated in April 2011. Their relationship was described by the court as “volatile”. In November 2011, a VRO was made in a Magistrates Court, pursuant to the provisions of the Restraining Orders Act 1997 (WA). The “person protected” was Ms Daniels, and the “person bound by this order” was Mr Monaco. The VRO did not permit any contact between the parties “save and except” as provided for in a parenting order. The parenting order, made in 2013, stipulated that the parties would “only communicate with each other in relation to issues concerning [Child A’s] welfare by writing either in a communication book to be provided by [Ms Daniels] or by email and, in the event of an emergency, by SMS text message”.

The Communications between the Parties

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.

Family Violence Orders and Family Law Orders

Although the VRO prohibited Mr Monaco from communicating or attempting to communicate “by whatever means” with Ms Daniels, it had been made subject to the parenting orders.

In those circumstances, His Honour felt there should not have been any inconsistencies in the duties/obligations between the two documents. And although section 68P(2)(a) of the Family Law Act 1975 (Cth)(“the Act”), required that inconsistency between these orders be specified,

His Honour felt that in this case, it was not strictly necessary as these obligations had been set out in the VRO. Correspondingly, explanations are set out in sections 68P(2)(b) and (c) did not apply. And pursuant to section 68P(4) any failure to abide by the VRO did not invalidate the parenting orders. Additionally, section 68Q(1) of the Act provided for the invalidity of the VRO insofar as it was inconsistent with the parenting orders.

Definition of “Emergency”

The Court then considered whether Mr Monaco’s text messages fell into the category of an emergency as allowed for by the family orders.

Walters J examined three dictionary definitions of the word. In the Macquarie Dictionary “emergency” means “an unforeseen occurrence; a sudden and urgent occasion for action”. The Oxford English Dictionary defines it as “the arising, sudden or unexpected occurrence (of a state of things, an event, etc.) a juncture that arises or ‘turns up’, esp a state of things unexpectedly arising, and urgently demanding immediate action”. The Merriam-Webster Dictionary also defines it as requiring “immediate action”.

The Alleged Breaches

In Walter J’s opinion, under the circumstances, Mr Monaco’s first text message “10 am!!” was authorised by the parenting orders as it was sent in a context that could be described as “a state of things unexpectedly arising and urgently demanding immediate action”. Walter J found that Ms Daniels had evidently been running late for the handover, which was to be the first overnight visit since the orders. She had not advised him she was delayed, and Mr Monaco was understandably anxious.

He received a call from her phone, which he did not answer, but upon listening to the message, found that Child A had called to clarify the handover time. It was at that point that he sent the first message.

Walters J accepted that Mr Monaco had not intended to communicate directly with Ms Daniels, although he would have been aware that his message would have been passed on to her. In fact, the intended recipient had been Child A. His Honour did not place any weight on the two exclamation marks, noting that “they indicate no more than a degree of frustration on Mr Monaco’s part”.

The second message, however, His Honour conceded could not be described as having been sent in an emergency, but was on the part of the father an attempt to alter arrangements, and was directed at Ms Daniels, and not Child A. His Honour was equally not convinced that the third text message “Where??” could be described “as having been sent in the event of or as a result of an emergency.”

His Honour determined that the alleged breach of the VRO resulted from these three short SMS messages, of which two were “innocuous”. He concluded that:

“with the exception of Mr Monaco’s text message commencing “You will need to drop her …”, the communications between Mr Monaco and Ms Daniels on the morning of 18 May 2013 were authorised, justified or excused by the provisions of para 9 of the parenting orders.

His Honour concluded that, on the morning in question, the communications between the parties “were authorised, justified or excused” by provisions in the parenting orders. “The first text occurred as a result of or in the event of an emergency, and the third text message was sent after Ms Daniels had effectively given permission to Mr Monaco to contact her on her mobile phone on that occasion.”

11 February 2025in Family Law

Full Court of Family Court Considers Treatment of Allegations of Family Violence

Keywords

Children – Treatment of untested allegations of family violence at the interim hearing – Allegations should not be ignored because they are contested – Mother successfully appeals interim order discharging earlier order for supervision of father’s time – Trial judge also did not consider father’s consent to prior order
Allegations of family violence are increasingly common in parenting proceedings. And, these allegations of family violence are often in dispute, making it challenging for courts to make decisions on the matter without the benefit of a trial. In interim proceedings, courts tend to proceed with caution where any safety concerns for the children have been raised.

In the recent case of Salah & Salah [2016] FamCAFC 100 (17 June 2016) the Full Court of the Family Court (May, Ainslie-Wallace and Cronin JJ) heard the mother’s appeal against a Federal Circuit Court decision in a matter involving allegations of family violence. There were three children concerned, aged five, four and three, the youngest of whom suffered from epilepsy, seizures and a developmental delay. The mother had been the primary carer of the children since separating from the father.

Background

Shortly after the mother had filed her application for parenting orders, which contained allegations of family violence by the father, an order was made by consent that “either one of the children’s paternal grandparents and/or the paternal aunt … [would] be present during the father’s time with the children …”

Subsequently, at a contested interim hearing a few weeks later in the Federal Circuit Court, Dunkley J discharged the consent orders and instead made an order that the father’s time with the children is unsupervised. The mother appealed the decision, on the grounds that Dunkley J had not addressed the family violence issues correctly, and should also have had regard to the consent orders agreed to by both parties.

The Appeal

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.

11 February 2025in Family Law

Family Court Gives Common Sense Meaning to Ambiguous Term in Binding Financial Agreement

Keywords

Binding Financial Agreement – Ambiguous recital (purporting to define when the parties would be deemed to have separated) construed as referring to their actual separation date; determination by way of construction; section 90DA Family Law Act

The case of Cuo & Ming and Ors [2016] FamCA 495 (12 May 2016) concerned a complex property matter between Ms Cuo, “the wife” and Mr Ming, “the husband”. The husband and wife sought equitable relief in terms of determining ownership of quite substantial property holdings. The husband’s parents “the interveners”, intervened in the proceedings, and were seeking equitable remedies. Benjamin J made a preliminary determination as to the meaning of a recital in a Binding Financial Agreement that set out the circumstances in which the parties would be considered to have separated.

Background

The couple started living together in 2005. Whist still in a de facto relationship, they made a Binding Financial Agreement (“the Agreement”) in 2009 pursuant to s90UC and s90B of the Family Law Act 1975 (Cth)(the “Act”). The Agreement was intended to deal with property matters should the couple separate either prior to or after marriage. Recital “G” set out the circumstances that would determine the couple had separated. They married in February 2011 and separated on 7 June 2013. Under the Agreement, the husband would pay the wife half the net value of the assets of a particular trust within thirty days of the separation. The date that the couple had separated would affect the settlement amount the wife would receive from the husband.

What was the date of ‘separation’?

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.

Construction Principles

In considering how to construct the Recital, His Honour looked at the High Court decision in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37, which sets out the governing principles for interpreting contract terms. It is an objective test, and the rights and liabilities of the parties to a contract “are determined objectively, by reference to its text, context … and purpose.” Another important consideration in determining how to construe a contract was that the parties “intended to produce a commercial result”, it, therefore, should be construed “so as to avoid it ‘making commercial nonsense’”. A similar approach had been adopted earlier by the Full Court in Sanger & Sanger [2012] FamCAFC 210.

Section 90DA

His Honour considered: “the issue of construction is whether Recital G is facilitative as asserted by the husband and the interveners or whether it constructs another date, perhaps more akin to the application of s 90DA in terms of a declaration.”

The wife’s senior counsel adopted a narrow construction of the Recital. He argued that the application of the provisions of s 90DA of the Act, specifically s 90DA(4) applied to the Recital. He claimed that the most logical construction of the document would require recognising that the Agreement should begin to operate from the same time as the Act gave it “force and effect”. Thus, the provision in the Agreement was activated when either party issued a separation declaration, in this case, the wife. He further argued that this approach would avert any controversy as to the operation of s 90DA(1).

Section 90B

His Honour instead found favour with the construction of the Recital that was put forward by the counsel for the interveners. The senior counsel argued that the wife’s interpretation of the Recital “flies in the face of common sense”, for, among other things, it would allow the actual separation to be “disconnected and temporally remote from the breakdown of the marriage” as required in s90B(2) of the Act.

Moreover, His Honour acknowledged that such a construction would also entail that the distribution of property, that follows the breakdown of a marriage, pursuant to s 90B(2) would only occur if one of the parties were to sign a document that fulfilled the requirements as set out in Recital G.

He went on to say that were such a literal interpretation of the Recital to be applied, then it would follow that separation could arguably occur through the issuing of a declaration, to satisfy the requirements of the Recital, but presumably without necessarily informing the other party. His Honour felt that objectively, that could not have been the intention of the parties. He accepted the arguments put forward by counsel for the husband and the interveners. The document had been prepared as a Binding Financial Agreement to comply with s 90B(2) of the Act.

Ultimate Decision

The Agreement had been drafted to particularise the financial rights and liabilities of the husband and wife, in contract form, with conditions that applied if the parties separated. Therefore it was intended to come into force after the actual separation. In order to determine the meaning of the Agreement, His Honour also needed to consider objectively “what a reasonable party to such an agreement would have understood the recital to mean”. It was to function in the context of the breakdown of the parties’ relationship. Although some of the terms in the recital were ambiguous, His Honour felt that the “context and nature of the agreement was a relevant consideration”. He, therefore, found that the parties had separated on 7 June 2013.

11 February 2025in Family Law

Court Looks At Meaning of “Public” In Relation To Publication of Proceedings

Keywords

Publication of proceedings – Meaning of “the public” in s 121(1) of the Family Law Act – Court allows the father to use family consultant’s report under s 11F in domestic violence proceedings – Child’s representations in the report differed from mother’s evidence in those proceedings
In Miller & Murphy [2016] FCCA 974 (2 May 2016), Brown J heard Mr Miller’s application to release the report of a family consultant (“Ms B”) for the purpose of domestic violence proceedings being heard in a separate action before a Magistrates Court.

Background

Mr Miller and Ms Murphy were married in 2003 and were the parents of two children, X and Y. They separated in April 2015 following an incident that occurred in their home. As a result, proceedings for an intervention order commenced in the Magistrates Court. In those proceedings Ms Murphy, the mother deposed in a statutory declaration that during that incident, her husband “had her by the arm” and “pulled her back into the house” while their child Y was “cowering in the corner”. She also deposed that “there is a Police Incident Report” in relation to Y being assaulted by Mr Miller when he pulled their daughter away from her.

After parenting proceedings were underway, Ms B, the family consultant provided the Court with a family report. In that report, child Y had been aware that her father had been arrested after a fight, but her disclosures to Ms B indicated that she had not witnessed the dispute between her parents escalate, and was unable to comment on what had transpired. These facts differed from the account deposed by Ms Murphy in the intervention order application. The husband then filed his current application to have the report released and made available to defend the intervention order.

The Family Report

The report was prepared by Ms B, pursuant to section 11C(1) of the Family Law Act 1975 (“the Act”). Any admissions made by parties involved with a family consultant are admissible in proceedings under the Act, as long as the parties had been informed. The order made on 31 August 2015 for the parties to participate in counselling under s11F of the Act, was sufficient His Honour felt, to infer that the parties would have been informed that any admissions made to Ms B were not confidential and would in all likelihood be disclosed to the court.

Public Policy Considerations

There were also public policy considerations to ensure the protection of family consultants engaged in child-related proceedings. The interests of the community are best served if parents, engaged in proceedings concerning their children, can trust that child dispute resolution conferences are not disseminated beyond the associated court proceedings.

His Honour also stated that there is the added consideration that children may be reluctant to “unburden themselves to a family consultant” if they sensed that their disclosures could be used in any further proceedings between their parents.

Section 121(1) of the Family Law Act 1975

Section 121(1) of the Act prohibits the publication or dissemination of details of family law proceedings to the public or a section of the public. In the present case, the Court considered that: “[t]he question arising is, if the report is released … will this represent dissemination to the public”. The Court considered Re Edelsten; Ex parte Donnelly [(1998) 18 FCR 434] where Morling J held that the definition of “the public” should be read widely and refer to “widespread communication with the aim of reaching a wide audience.”

In this matter, Brown J held that if Ms B’s report were released, it would at most be “scrutinised by… defence counsel for Mr Miller; the police prosecutor; and the presiding magistrate. In my view, this cannot be considered to be a wide audience. …” And there is also the provision under section 121(9)(a) permitting the release of family law documents for proceedings in any other court.

In deciding whether the intervention application against Mr Miller would qualify, Brown J referred to R v Howe [(1978) 4 FamLR 166 which had considered the term “any court”, giving it a wide interpretation “to be entirely general and so wide to include any criminal court and any civil court in Australia”.

His Honour, therefore, found that: ‘Accordingly, I do not consider that Ms B’s report is captured within the strictures provided by section 121(1)’.

Special Circumstances

Finally, Brown J considered one last issue. Was the family report subject to any ‘implied … undertaking’ which would require leave of the court in order to release the parties from any obligations? Were there special circumstances in this case?

His Honour considered two cases where criminal proceedings ensued from family law proceedings in which allegedly false statements had been made.

It was held in Banks & Loffler [[2015] FamCA 380] that special circumstances had been established that justified the release of affidavit material produced by one of the parents in family law proceedings that the other parent wished to rely upon to defend significant criminal proceedings. In Zarins Y Mylne (No 3) (2013) Fama 737, Berman J had taken a similar approach.

Counsel for Mr Miller submitted that the report was being requested solely for use in his client’s criminal proceedings, and the Court was not required to make any determination as to its substantive value. His Honour concurred and acknowledged that he was not permitted to seek information as to how Mr Miller wished to conduct his defence and that Mr Miller had the right to challenge the intervention order against him.

In conclusion, His Honour stated: “In my view, this is the factor which tips a finely balanced case in Mr Miller’s favour. I have come to the conclusion that it is in the interests of justice that Mr Miller is released from the implied undertaking regarding the use of Ms B’s report because special circumstances have been established.”

31 January 2025in Family Law

High Court Upholds Appeal Court Ruling That Wife Not Entitled To Spousal Maintenance

Keywords

family law, spousal maintenance, interim spousal maintenance, appeal, financial resources, section 72, 72(1), section 75, section 75(2)(b), section 75(2)(o), spousal maintenance considerations, justice of the case.

The case of Hall & Hall [2016] HCA 23 (8 June 2016) was a family law hearing heard in the High Court of Australia. The matter was brought to the High Court on appeal from a decision of the Full Court of the Family Court of Australia.

Background

This matter concerned a separated Husband and Wife after the Wife commenced proceedings in the Family Court. The Wife asked the Family Court to consider the parties’ property and financial circumstances and decide how the property between them should be divided. The parties were married in 2001 and separated 26 September 2013. There were 2 children from their relationship together.

The Wife asked the Family Court to consider an application for interim spousal maintenance while the court proceedings were underway. The court granted the Wife’s request. The Husband disagreed with the Family Court’s decision and lodged an appeal with the Full Court of the Family Court (“Full Court”). The Full Court reversed the Family Court’s decision thereby stopping the Husband from having to pay interim spousal maintenance to the Wife. The Wife disagreed with the Full Court’s decision and then appealed to the High Court of Australia (“High Court). The Wife’s appeal was dismissed by the High Court.

Spousal Maintenance

Spousal maintenance is payable under section 72 of the Family Law Act 1975 (Cth) where one of the parties is unable to adequately support herself or himself as a result of:

caring for a child or children under the age of 18;
age, physical or mental incapacity which hinders employment; or
for any other adequate reason.

A court must consider section 75 of the Act when determining whether there is an adequate reason to justify spousal maintenance. These factors include but are not limited to:

the age and health of a party;
the income, property and financial resources of a party;
the earning capacity of a party and any affect the relationship had on the party’s earning capacity;
the commitments of each party to support himself or herself, any children or another person;
the eligibility of a party for a pension, allowance or benefit;
the eligibility for payments from superannuation;
the standard of living that is reasonable in the circumstances;
the period of the relationship and the contributions made by a party to the relationship;
child support being paid or that a party might be liable to pay for a child of the marriage;
whether a party is cohabitating with another person and the effect this cohabitation has on the financial circumstances of that party; and
any other fact or circumstances that in the opinion of the court would be just to take into account.

Wife’s Spousal Maintenance Application

The Wife made an application to the Family Court for an order that the Husband pay interim spousal maintenance for $10,833 per month. The Wife asked that this be paid until determination of the property proceedings between the Husband and Wife.

The Family Court granted the interim spousal maintenance application. The Husband disagreed with the Family Court’s decision and filed an application to discharge the interim spousal maintenance order. To support the Husband’s case he investigated the Wife’s financial circumstances. The Wife’s father had passed away in 2009. The Husband discovered that the Wife might have an entitlement under the father’s Will. One of the Wife’s brothers was administering the father’s estate as the Executor. The Husband attempted to subpoena the father’s will. The Executor refused to provide a copy of the Will. Instead, a solicitor on behalf of the brother provided an affidavit outlining the potential entitlements that the Wife may be entitled to under the Will as:

$16,500,000 if she divorced; and
An annual payment of $150,000 if the Wife did not divorce.

In the father’s Will he stated that the payments were to be paid by a group of companies that the father controlled when he was alive. The group of companies (the V Group) were left to the Wife’s 3 brothers. The solicitor on behalf of the brother claimed it was unlikely that the Wife could force the V Group to make the payments. The Wife claimed she was unaware of the contents of the father’s Will.

The Family Court heard the Husband’s application to discharge the interim spousal maintenance order and dismissed the Husband’s application. The Husband disagreed with the court’s ruling and appealed to the Full Court.

Husband’s Appeal to the Full Court of the Family Court

The Husband claimed the Primary Judge from the Family Court was wrong in dismissing his application to discharge the interim spousal maintenance order. The Husband claimed he provided sufficient evidence to show the Wife did not need spousal maintenance to support her.

On the other hand, the Wife provided a letter from her brother who was administering the father’s estate. The letter explained that the payments to the Wife in the father’s Will were voluntary. The letter stated that the payments could only be made by the V Group by choice of the Directors.

The Full Court concluded that the Family Court had failed to consider all of the evidence from the Husband in the original interim spousal maintenance hearing.

The question before the Full Court was whether there was sufficient evidence that demonstrated that the Wife could adequately support herself. The Full Court inferred from the evidence available that the Wife could receive a payment from the V Group of $150,000 annually if she requested it. Based on this the Full Court found the Wife could adequately support herself and dismissed the interim spousal maintenance order.

The Wife disagreed with the Full Court’s decision and appealed to the High Court.

Wife’s Appeal to the High Court of Australia

The High Court determined that the Wife’s claim that the annual payment of $150,000 could not be included as a financial resource under section 75(2)(b) and section 75(2)(o) of the Act was wrong. The High Court stated that section 75(2)(b) of the Act concerned the practical ability of a party to support himself or herself. The High Court confirmed the correct interpretation under section 75(2)(b) of “financial resources” as being a source of financial support that a party can reasonable expect to be available. This must be something more than benevolence but the party need not control the financial source. Accordingly, the High Court dismissed the Wife’s appeal and upheld the Full Court’s decision.

31 January 2025in Family Law

Mother’s Relocation from North Queensland to Brisbane Considered in Disabled Child’s Best Interests

Introduction

Keywords: family law, parenting, child, relocation, special needs, autism, severely disabled, opposition, parenting capacity, best interest of the child, best interest of the children, s 60B, s 60CA, s 60CC, s 61DA Family Law Act.

The case of Wright & Watson [2016] FCAA 127 (11 March 2016) was a family law hearing in the Federal Circuit Court of Australia. The matter involved property and parenting. The parties settled property matters leaving the parenting matters to be determined by the Court.

In this case, the mother requested the Court’s permission to relocate with the children from North Queensland to Brisbane. The father asked that the court make orders requiring the children to remain in North Queensland. A major issue, in this case, was that the parties’ youngest child was disabled. The mother was the primary carer for the children and wanted to move to Brisbane to gain the support of family members who lived there.

Background

The mother and father separated in June 2011. They both lived in North Queensland. The mother is the primary carer of the party’s three children. John was born in 2003, Sue was born in 2007, and Daisy was born in 2008. Daisy has autism and is severely disabled.

The mother had the children in her care the vast majority of the time. Due to Daisy’s disability, the Court accepted that caring for Daisy is a full-time job. The mother claimed she was “at the end of her tether” in being able to look after the children. As a result, the mother wished to relocate to Brisbane where she claimed she would receive support in caring for Daisy from family members.

Mother’s Proposed Relocation

The primary grounds of the mother’s relocation request were the care requirements of Daisy; the lack of support from the father in caring for the children, and that the mother’s family in Brisbane could assist her to care for the children.

The Court received evidence from the mother’s family members including the maternal grandmother, mother, uncle, aunty, brother, niece, and cousin. The uncle claimed that he could assist with providing handyman services and assisting the mother generally. The grandmother stated she could provide some assistance and would be available in emergencies. The cousin stated she would be available to help with Daisy but that she also studied on a full-time basis. The aunt claimed that she would be available for ongoing assistance to the mother.

Current Parenting Arrangements

The mother discussed the circumstances of the children including that Daisy was very demanding and would have “meltdowns”. As a result of this, John and Sue received little attention. John was a demanding child and as a result, Sue received the least amount of attention.

The father, through his own admission, favoured John over the other children and would often do activities with John while excluding the girls. After the parties’ separation, the father had little involvement with the children. The father’s only attempt to have greater contact with the children was when proceedings were commenced by the mother. The father used excuses as to why he did not want more contact with the children including due to an incident at Daisy’s special needs school.

The Court noted that the father had not sought the assistance of the government or other services to assist with the care of Daisy nor assisted the mother in this regard. The Court also noted that the father often called on other family members to look after the children when they were in his care.

The Court concluded that the father puts himself first over the parenting, behavioral and educational needs of the children.

Assessing the Mother’s Relocation Request

The court referred to the case of Lansa & Clovelly [2010] FamCA 80 at paragraphs 136 to 152 for guidance. This requires that a court apply section 60CA of the Act which states that a child’s best interests is the paramount consideration when making parenting orders. The court in Lansa & Clovelly stated that “parents of children each have, by the fact of parenthood alone, parental responsibility”. Section 61B of the Act states that parental responsibility includes “all the duties, powers, responsibilities and authority” that the law provides to parents to parent children.

The Court also referred to the case of Heath & Hemming (No 2) [2011] FamCA 749. This case discussed the law regarding relocating parents in parenting matters. According to the case, a court must consider relocation matters under section 60CA of the Act with the best interests of the child as the primary consideration. A court should then consider section 60CC which provides guidance in determining what is in the best interests of a child; the primary considerations being:

a child has a meaningful relationship with both parents; and
the child be protected from physical or psychological harm.

The court determined in Heath & Hemming, that a court must consider both the current and previous parenting arrangements. Further, the court must determine a child’s best interests while contrasting a parent’s right to choose where to live.

The Court then considered the case of Sigley v Evor [2011] FamCAFC 22 as to the determination of a meaningful relationship between a child and parent. This included that:

under section 60CC(2)(a) of the Act, the benefit of the child having a meaningful relationship should be considered at the time of the hearing;
under section 60CC(3)(b) the existing relationship between a child and parents should be considered; and
that the Act promotes a “meaningful relationship” but this need not be optimal.

In Sigley v Evor, the court determined that factors determining what is in a child’s best interests in a relocation case may include a parent’s:

better economic prospects through employment;
better housing and facilities; and
enhanced economic circumstances through a provident partnership.

Conversely, limited employment opportunities or financial circumstances may be considered.

The Court’s Decision

In determining this matter, the Court stated that each child needed to be considered separately. The Court determined that John did not want to move and it would be a detriment for him to move away from the father. The Court considered that Sue received little attention from both parents due to the special needs of Daisy and the father favouring John. The Court considered it would be in the best interests of Sue to allow the relocation. The Court considered Daisy’s needs and determined that she was likely to receive more support and assistance in Brisbane and that relocation would be in her best interests.

In determining the matter, the Court considered that the mother lived in a rural location and was struggling to cope with providing care of the children especially as one child has a severe disability. The rural location reduced the services available to the mother and placed her in hardship. On the other hand, the father chose to live a liberal lifestyle and only had the care of the children as it suited him.

The Court considered that if the mother was allowed to relocate to Brisbane, it was highly likely that she would receive support from family members. It was likely that this support would result in the children receiving more attention from the mother and that all the children would enjoy better support overall. This was in the best interests of the children.

Based on these factors, the Court made orders that the mother is allowed to relocate from North Queensland to Brisbane.

31 January 2025in Family Law

Mother Granted Recovery Order for Children after Father Unilaterally Relocated to US in Shared Parental Responsibility Matter

Introduction

In the case of Bondelmonte [2016] FamCAFC 48 (8 April 2016) the Full Court consisting of Ryan, Aldridge and Le Poer Trench JJ heard a father’s appeal against orders made by Watts J in a relocation case involving two boys. The matter considered what should be regarded as the ‘primary’ and ‘additional considerations’ of the children are pursuant to s 60 CC (2) and (3) of the Family Law Act 1975 (Cth) (“the Act”).

Background

This case involved a unilateral relocation to the US sought by the father while on holiday with his two sons of almost 17 and 15 years of age. The two boys wished to reside with their father whilst their 12-year-old siblings continued to reside in Australia with their mother. The existing orders made in 2014 were for equal shared parental responsibility and the three children were to live with the mother and father as agreed between the parties or at the children’s own election.

The family lived in Australia until January 2016 when the father took both sons for a holiday to New York with the mother’s consent. During the course of the holiday, the father expressed to the mother his intentions of remaining in New York indefinitely with the two sons.

The father gave evidence under oath that the boys expressed their wish to remain in New York with their father. The children claimed they had an estranged relationship with their mother, therefore, did not wish to return. The mother was granted a recovery order and the father’s appeal was dismissed. The Court reinforced in relation to a child’s view that “context is critical”.

Central Issue in the Case

The central issue in this matter was whether the children’s views should be taken into consideration. In this case “context was considered to be critical”. The Court ruled that the children be returned to their mother and that a report was required that dealt with more than simply the boys’ views.

The Court ruled the report was required to assess the dynamics of the sibling relationships and their respective relationships with their parents.

Considerations

Ryan and Aldridge JJ in the majority held that the primary judge was satisfied it was in the best interests of the two boys to return to Australia pending a determination about whether, in the long-term, they would continue to reside in Australia or relocate to the United States.

If the father decided to return to Australia with the two boys, they were to continue living with him, however, if he remained in New York, the boys would live with the mother in Australia. As the boys had a strained relationship with their mother, the Orders provided that the mother and boys could make arrangements for the boys to stay with nominated third parties without the father’s approval.

His Honour mandated that a report which dealt with more than simply the boys’ views was necessary as the Court would not examine such factors as to the dynamic of the sibling relationship and also each sibling relationship with their parents. The report was ordered to take place in Australia where all family members were able to participate.

His Honour expressed disdain in the father’s breach of the orders and in doing so the father demonstrated poor judgement as a parent and ‘as a role model to the boys’. For the Court to agree with the father’s behaviour would fail to acknowledge what might be considered appropriate parental behaviour.

Conclusion

Section 60CC(2) and (3) of the Act requires consideration of the following:

· the boys’ expressed views as against the damage currently done to the mother’s relationship with both sons;

· the father and daughter relationship; and

· the daughter’s relationship with her brothers by the unilateral action of the father.

These factors need to be considered alongside the history and family dynamics and any identified risk factors.

If not for the mandated order to return both children to Australia, the Court raised concern that the above relationships will be irretrievably damaged. Therefore, the Court found it in the best interests of all three children to make the orders for the return of the boys to Australia.

Father’s Grounds for Appeal

As there was an order for equal shared parental responsibility pursuant to s 65DAA, the father relied on the ground of appeal that the Court was obliged to consider whether or not an order for an equal or substantial and significant time was in the best interests of the children and reasonably practicable prior to ordering the return of the boys to Australia. However, the Court did not accept that an application for an order that a child lives exclusively with one or another parent is an application for a substantial and significant time.

Section 65DAA (2)(b) of the Act requires that the Court consider whether the child spending time with each parent would be in the child’s best interests. The father also contended that sufficient weight was not given to the children’s views.

However, in the case of Maldera, it was found that it is not a requirement for a judge in his Honour’s position to make orders consistent with a child’s stated views. Instead, a primary judge is required to consider the weight to be given to such views.

Factors Giving Weight to a Child’s Expressed Views

The Court stated there is a range of factors that may affect the weight given to a child’s expressed view which include age and level of maturity of the child in question. Therefore, context is critical as it is a matter for the judge to determine how giving effect to a child’s stated view aligns with the best interests of the child.

The case of R & R (Children’s Wishes) [2002] FamCA 383 illustrates this point. The parties and the Court were satisfied that each child could choose who they would live within Australia. The children, however, were not permitted to make other significant long-term decisions as that power remained vested in the parties jointly. The majority dismissed the father’s appeal and ordered that the father pay the independent children’s lawyer’s costs.

Allowing the Appeal

Le Poer Trench J allowed the appeal on the basis that the hearing should have been adjourned with the mother required to provide additional information about the proposal for the children to live with the volunteers.

Furthermore, the independent children’s lawyer should have been given an opportunity to investigate the proposal in the usual way that it is carried out. The father should have also been required to notify the Court of his intentions to accompany the boys on the trip back to Australia in the event the order sought by the mother is granted.

Le Poer Trench J also believed the father should have been given an opportunity to put forward a proposal to house the boys in Australia pending the determination of the mother’s parenting application and any simultaneous parenting application he would be entitled to make. Le Poer Trench J believed there was no urgency in the matter that should have disregarded these requirements.

31 January 2025in Family Law

Family Court Finds No Error in Treating Husband’s Lottery Winnings as Soul Contribution of the Husband

Keywords: Property settlement; section 79 of the Family Law Act; lottery winnings; contributions;

Introduction

In the matter of Elford [2016] FamCAFC45 (29 March 2016) the Full Court of the Family Court consisting of Bryant CJ, Murphy CJ, Murphy & Cronin JJ, heard the wife’s appeal against a property order made by Judge Roberts that the husband must pay the wife a sum of $51,000, an amount which, combined with the net value of a mortgaged home purchased by the wife after separation equalled approximately 10% of the $1.4 million asset pool.

Facts

The husband was 22 years older than the wife and had three children from a previous relationship. He won $622,842 in lottery 12 months into their 10-year relationship. The husband invested his winnings, along with his savings, into a term deposit account consisting of $650,000 in his own name. Both the husband and wife led largely separate financial lives. The husband inherited $190,000 from his mother’s estate which he also kept separate.

The Full Court said that the judge correctly considered the husband’s savings and investments as contributions on his part. The first point of appeal by the wife, however, was that the lottery win of $622,822 was incorrectly treated as a contribution by the husband. The wife argued that the lottery win should be treated as a joint contribution by the parties.

In arguing that the husband’s lottery was a joint contribution, the wife acknowledged that the husband bought the ticket and deposited the money into his account. The wife believed that the lottery winnings should have been considered as a joint contribution on the basis that they were also in a relationship. Despite being in a relationship, however, the wife said that they each maintained separate bank accounts as this is what the husband wanted. The wife argued that the trial judge incorrectly applied the decisions of Zyk v Zyk (1995) FLC 92-644 and Eufrosin & Eufrosin [2014] FamCAFC 191 by giving undue weight to the financial aspects of the purchase of the ticket and the financial relationship of the parties rather than the “joint endeavour” (being that the ticket was purchased during the parties’ relationship).

Finding at First Instance

The Court held at first instance that in addition to noting that the lottery money had been retained separately along with the $190,000 that the husband inherited in 2007 from his mother’s estate, it was clear that the parties kept their assets and finances separate from each other. They each had separate bank accounts and the wife attested to this when she responded that it was always her husband’s request that their respective accounts be kept separate and that the husband never wanted a joint account. The Court found that the husband’s weekly lottery purchase was not intended to be a “joint matrimonial purchase”. Further, the wife did not have practical control of the family finances.

The Full Court

According to the Full Court, it was better to approach the issue as one of a ‘contribution’ rather than a ‘windfall’ for the simple reason that the latter isolates the asset into a special category outside the traditional approach family law property proceedings (applying section 79 of the Family Law Act) dealing with the contribution of the parties.

The Full Court perceived the critical question in such cases to be ‘who is the contribution made by’. In ordinary marriages, the ticket would be purchased by one of the parties to the marriage with money that he or she happens to have at that particular time. Therefore, it is widely acknowledged that irrespective of the parties’ financial positions or otherwise, the purchase of a ticket would be regarded as a purchase from joint funds in the same way as any other purchase within that context and would be treated accordingly. It would equally apply if one party was working and the other was not as it is the type of partnership selected by the parties.

The Court explained that generally this approach would be adopted, however, there are times and situations where this is not the practicality of the matter at hand. The Full Court in Eufrosin & Eufrosin [2014] FamCAFC 191 adopted a similar approach. In this case the wife had purchased a winning lottery ticket six months after the parties had separated. The winnings were $6,000,000 of which the wife gave her sister $1,000,000 and kept the remaining $5,000,000.

According to the Court, the origin of the funds should not determine the issue of how a lottery win should be treated for the purposes of section 79 of the Family Law Act (which deals with contributions of the parties). What is critical here is the nature of the parties’ relationship at the time the lottery ticket was purchased.

Conclusion

The Full Court found that the purchase was initiated by the husband independently of the wife, consistent with a lengthy practice of the husband’s alone that pre-dated the relationship by about eight years. Rather than share or utilise any of the proceeds with the wife, the husband continued to treat his property as his solely. The wife accepted that this was the husband’s intention even if she was dissatisfied with this.

The wife’s appeal was dismissed with the contribution being recognised as one by the husband and not a joint contribution.

27 January 2025in Family Law

WA Family Court Orders Curative Treatment for Child with Cancer

Keywords: children; sick; cancer; brain tumour; medical treatment; medical intervention; alternative therapies; naturopathy; parental power; parent’s wishes; parens patriae; best interests of a child; Marion’s case; the good prospect of long term cure; palliative care; airport watch list.

The highly publicised case of Director Clinical Services, Child & Adolescent Health Services and Kisko & Anor [2016] FCWA 19 (24 March 2016) was heard in the Family Court of Western Australia.

The matter was heard by Chief Judge Thackray on an urgent basis, and revolved around a sick child (“Oshin”) who had a brain tumour. With standard medical intervention the child had a 50% chance of survival after 5 years. Without treatment, it was certain that he would die in a matter of months. The parents, however, objected to treatment based on an underlying belief that the child would suffer. Princess Margaret Hospital believed it was in the best interests of the child that he have the standard treatment and applied to the Court to make this order.

Background

5-year-old Oshin became ill sometime in November 2015. The parents took Oshin to the doctors on several occasions and were referred to the Princess Margaret Hospital (“PMH”). Oshin was severely ill and medical tests revealed that he had a brain tumour.

The medical advice to the parents was that Oshin required urgent surgery to attempt to remove the brain tumour. The parents accepted this advice and consented to surgery. On 3 December 2015 Oshin underwent surgery to remove the brain tumour. The surgery removed the bulk of the brain tumour but there were side effects. The parent’s found the side effects and impact of the surgery on Oshin to be very troubling and they had concerns about the amount of time it took for Oshin to recover.

Parents Refusal for Standard Treatment

During Oshin’s recovery from the surgery, it was recommended that he receive treatment including both chemotherapy and radiotherapy. However, Oshin’s parents disagreed with this course of action based on Oshin’s reaction to the surgery. The PMH referred the matter to an Ethics Committee for further consideration and direction.

The Ethics Committee advised that its decision had to reflect what was in the best interests of the child. It concluded that at times it might be necessary to limit parental autonomy to act in the best interests of the child. To assist in considering what was in the best interest of a child, the committee proposed that decisions should be based on the burdens and benefits of treatment to the child.

On 16 February 2016 and 17 March 2016 Oshin underwent medical resonant imaging. The observations from these procedures revealed that the brain tumour was proceeding in a linear path rather than spreading in an explosive like pattern. Based on this information, the doctors involved in Oshin’s treatment concluded a standard approach to treatment was appropriate rather than a palliative approach. Without this treatment, the Committee thought that Oshin would die.

Based on this advice and the parents continuing refusal to consent for Oshin to receive treatment, the PMH commenced proceedings for a court to determine what is in the best interests of the Oshin.

Court’s Jurisdiction

In order to decide upon the matter before it, the court must have jurisdiction. Oshin’s parents were not married and were in a de facto relationship. In the WA jurisdiction, de facto matters are dealt with under the Family Court Act 1997 (the “Act”) of Western Australia and not the Commonwealth Family Law Act 1975.

Section 132 of the Act provides that a court has jurisdiction under the Act to make orders relating to the welfare of the child and that regard must be had to the best interests of the child as the paramount consideration. The judge continued on to say these provision confer the parens patriae (parent of the nation) jurisdiction of the Western Australia Supreme Court on the Family Court of Western Australia.

Who Make Bring an Action in the Best Interests of a Child?

According to section 185(2) of the Act, the following people may apply to the court for it to exercise its jurisdiction to act in the best interests of the child:

either or both parents;
the child;
a grandparent; or
any other person concerned with the care, welfare or development of the child.

Court’s Approach to Order Treatment for Child with Life-Threatening Cancer

The evidence provided to the court based on expert medical opinion was that Oshin’s chances of survival if immediate curative treatment was provided could be:

If only chemotherapy was provided, 30% after five years; and
If both chemotherapy and radiotherapy were provided, 50% after five years.

The Court referred to the High Court case of Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s Case”) for assistance in its determination. This case found that parents have an implicit power to consent to medical treatment for a child incapable of providing consent.

The Court also referred to the case of Minister for Health v AS (2004) 29 WAR 517, and the decision in that case that “protection of the child should be evaluated above all other interests, although those other interests should not be disregarded” and that the court’s power should be exercised “with great caution”.

The Court considered that while parents almost always act in the best interests of a child, they may face great difficulty is seeing beyond the immediate circumstances of the child to the long term future especially when faced with such difficult circumstances.

In this case, Oshin faced certain death if he did not receive treatment. If he did receive the treatment he had a 50% chance of surviving the past 5 years and potentially being cured. The Court determined that it would be in the best interests of Oshin that he undertake the standard curative approach of treatment. The Court found that “the prospect of the long-term cure is the matter that must most heavily weigh in the decision”.

26 January 2025in Family Law

New Zealand Found by Australian Family Court to be “Appropriate Forum” to Determine Trans-Tasman Family Law Property Dispute

In the recent decision of the Full Court of the Family Court in Nevill [2016] FamCAFC 41 (17 March 2016) May, Ryan & Murphy JJ upheld an order made by Kent J staying the wife’s property proceedings, initially brought in the Federal Circuit Court in Australia. Kent J imposed the stay due to holding, on the facts, that the High Court of New Zealand was “the more appropriate court” for the purposes of s 19 of the Trans-Tasman Proceedings Act 2010 (Cth) (“the TTP Act”).

Section 17 of the TTP Act relevantly provides that: “(1) A defendant in a civil proceeding in an Australian court may apply to the court for an order staying the proceeding on the grounds that a New Zealand court is the more appropriate court to determine the matters in issue”. Section 19(1) provides: “on application under section 17, the Australian court may, by order, stay the proceeding if it is satisfied that a New Zealand court:

(a) has jurisdiction to determine the matters in issue between the parties to the proceeding; and

(b) is the more appropriate court to determine those matters.”

Section 19(2) provides n determining whether a New Zealand court is the more appropriate court to determine those matters, the Australian court must take into account matters, including:

(e) the law that it would be most appropriate to apply in the proceeding;

(f) whether a related or similar proceeding has been commenced against the defendant or another person in a court in New Zealand;

(g) the financial circumstances of the parties so far as the Australian court are aware of them;

(i) any other matter that the Australian court considers relevant;
and must not take into account the fact that the proceeding was commenced in Australia.

In considering the relevant provisions of the TTP Act and the facts, the Full Court commented that: “We are unable to see any uncertainty, ambiguity or difficulty in the text of the TTP Act. It sits within a broader context of seeking to streamline and simplify the law and processes applicable to disputes with a trans-Tasman element … The TTP Act seeks to harmonise the test for establishing whether a court in New Zealand or Australia should be the forum for determining civil proceedings as defined. The means by which the TTP Act does so is equally unremarkable; it accords to the Australian court a broad discretion exercised within, but not confined to, mandatory considerations.”

Further, the Full Court said:

“Stripped to its bare essentials, the submission made before his Honour, mirrored in the assertion of error before us, is that there was a juridical disadvantage for the wife in proceeding in New Zealand which his Honour did not take into account in considering s 19(2)(e) of the TPP Act … That juridical advantage is said to derive from the different system in New Zealand by which settlements of property consequent upon the breakdown of marriage are decided, which, in turn, the wife contends might result in her receiving less by way of settlement of property than what she might receive from an Australian court.

…

His Honour determined that the requisite question should be answered not by reference to juridical advantage … but to the connecting factors with the law of New Zealand as compared to the law of Australia.
[40] The legitimate juridical advantage gained absent statutory provision by filing regularly in the forum, is specifically excluded by s 19(2) of the TTP Act. Neither s 19(2)(e), nor s 19(2) more broadly, make mention of ‘juridical advantage’ (or, indeed, ‘juridical disadvantage’) as a factor that must be considered in the exercise of discretion. What s 19(2)(e) requires is an assessment of the ‘law that it would be most appropriate to apply – a concept plainly consistent with the overall test of the most appropriate forum.

His Honour determined that question by reference to what might conveniently be called ‘connecting factors’ with the law of each forum. We consider his Honour was entirely correct in doing so.”

Accordingly, the wife’s appeal was dismissed with costs.

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