Freedom Law

DFRDB, MSBS and ADF Super

DFRDB, MSBS and ADF Superannuation

Key points:

  1. DFRDB super closed to new members as of 1 October 1991;
  2. MSBS super closed to new members as of 1 July 2016;
  3. The new super for ADF members is ADF Super.

Unlike the previous super schemes (DFRDB and MSBS), the new ADF Super scheme is an accumulation benefit.

The previous super schemes were defined benefit.

There is a big difference between an accumulation benefit and a defined benefit, most notably, a defined benefit has to be valued by an actuary and the result of that valuation is that the actual benefit is usually higher than what is stated in the annual benefit statement.

If you or your partner have a defined benefit, it will need to be valued for family law purposes in the event of relationship breakdown.

Like all superannuation schemes, military schemes can be flagged or split between members of the scheme and non-member partners.

Superannuation is a complex topic and many considerations come into play, including preserved and non-preserved amounts and taxation issues.

It is important to obtain legal advice about your rights when it comes to superannuation and relationship breakdown.

If you need representation or advice about superannuation issues in family law, contact us at Freedom Law, The Family Law Specialist today for clarity about your situation.

http://www.defence.gov.au/PayAndConditions/ADF/Resources/Super_ADF_FAQ.pdf

Queensland / New South Wales / Victoria / South Australia

Western Australia / Northern Territory / ACT

 

Baptism Order found to be “procedurally unfair”

Baptism Order found to be “procedurally unfair”

Was the order for the baptism of the child procedurally unfair? (Ground 3)

  1. As we have seen, the appellant submits that she was not given any reasonable warning of the possibility of the order requiring baptism being made and that, in making the order, the primary judge therefore failed to accord her procedural fairness.
  2. The appellant submitted the order for baptism was one “which none of the parties contemplated and to which evidence and argument was not directed”.
  3. The ICL accepted this to be so, saying in her Summary of Argument:
    1. The ICL accepts that the parties were not informed that the primary judge was contemplating making an order requiring [X] to be baptised. Whilst there was evidence received in relation to the common intention of the parties to expose [X] to religion (as part of one family unit, and [X] being educated at a Roman Catholic school), they were unaware that when his Honour was forming the view that “it is very important for [X] to have an identity”, and “[X] must understand why it was that he was called into this world”, and that “[X] was born so that he could be educated in the Catholic tradition”, that his Honour was minded to ensure that [X]’s obtained salvation by way of baptism. There has been a disconnect between the evidence, and what his Honour has used the evidence to order.
    2. The parties have not been afforded an opportunity to be heard on the issue of baptism. This order should be set aside for that reason alone, quite apart from the constitutional issue traversed above in this summary of argument.

(Footnotes omitted)

  1. The respondent sought to maintain the order, submitting:

The Respondent submits that His Honour commented to the Report Writer at trial that with the child potentially going to [G Catholic Primary School] and [G Catholic High School], “there may be a necessity for him to be baptized as a Catholic”. The child’s religious and cultural upbringing was an issue in dispute. The parties were then provided with leave to file written submissions regarding issues in dispute. The Appellant failed to address such religious and cultural issues, but her failure is not an error of law or fact.

(Respondent’s Summary of Argument, p.8) (Footnotes omitted)

  1. In effect, the respondent submitted that as the child was to go to a Catholic primary school it was obvious or likely that, given her evidence, the child would have to be baptised. Thus, she submitted the order was within reasonable contemplation and there was not procedural unfairness.
  2. It is axiomatic that a person is entitled to know the case that is being made against them and which they must meet: Kioa v West [1985] HCA 81(1985) 159 CLR 550 at 582.
  3. The rule was explained in this manner by Gibbs CJ in National Companies and Securities Commission v News Corp Ltd [1984] HCA 29(1984) 156 CLR 296 at 312:

The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.

  1. Consequently, it is necessary to look closely at the conduct of the proceedings to see whether the order had been reasonably foreshadowed and whether the making of the order involved any unfairness.
  2. We begin by observing that neither of the parties, nor the ICL, expressly sought an order requiring the baptism of the child.
  3. The appellant’s position prior to and during the hearing before the primary judge was that she should have sole parental responsibility for the child. It follows that, if this order was made, all issues of religion and schooling would be left to her. She had enrolled the child at D School without consulting the respondent. It was evident that she would not willingly abide to the arrangement made when the child was conceived to send him to G Catholic Primary School (“G Primary School”) and G Catholic High School (“G High School”). Indeed, she proposed moving to another suburb that would make travel to and from those schools very inconvenient if not impossible.
  4. The respondent’s case outline indicated that she sought an order for equal shared parental responsibility which means that decisions as to religion and schooling would have to be agreed between her and the appellant (s 65DAC of the Act).
  5. Her position shifted during the course of the hearing. In her written submissions she accepted that if “the court makes orders for the health service that is to support [X] and for his schooling, there is no need to make an order for [equal shared parental responsibility]”.
  6. In her submission the ICL proposed that the appellant have sole parental responsibility but that specific orders dealing with health and schooling be made. The submissions dealt with religion as follows:
    1. However, the importance of the Catholicism [sic] religion to the [respondent] should be taken into account and reflected in the orders. Both the [respondent] and the [appellant] acknowledged the importance in their lives of the Catholicism [sic] religion and the orders as proposed by the Independent Children’s Lawyer take into account this importance on account of the choice of both primary and high schools being Catholic schools, as agreed to by the parties prior to separation. The [appellant] reaffirmed this agreement at trial.

(Footnotes omitted)

  1. This, with respect, somewhat overstates the evidence to which we shall refer in a moment.
  2. The appellant’s reference to religion in her affidavits was simply to say: “[d]uring my teens I realised I was a lesbian. I went to a Catholic school and was not able to express who I truly was so I turned to marijuana”. She proposed that the child attend a local non-faith based school. That evidence cannot support a finding that the Catholic religion was of importance in her life.
  3. In cross-examination of the appellant by counsel for the respondent, the following exchange took place:

[COUNSEL FOR THE RESPONDENT]: You’re aware from the material that has been filed in these proceedings that my client is proposing a particular school for your son, aren’t you?

[THE APPELLANT]: Yes.

[COUNSEL FOR THE RESPONDENT]: That school is a school that the two of you agreed when you were together.

[COUNSEL FOR THE RESPONDENT]: Correct?

[THE APPELLANT]: We spoke about it and [the respondent] had high intentions of doing it, so – and I agreed.

[COUNSEL FOR THE RESPONDENT]: Yes. And that’s the school that [Y] goes to?

[THE APPELLANT]: Yes.

[COUNSEL FOR THE RESPONDENT]: And you’ve got a Catholic background?

[THE APPELLANT]: Yes.

[COUNSEL FOR THE RESPONDENT]: And she has got a Catholic background?

[THE APPELLANT]: Mmm.

[COUNSEL FOR THE RESPONDENT]: If I suggested to you that moving to [J Town] is an effective way to stop your son from going to the school that [the respondent] proposes because of distance, would you agree or disagree with that proposition?

[THE APPELLANT]: I agree with what you have suggested.

(Transcript 19 July 2018, p.83 lines 19–34)

  1. That evidence falls well short of a desire on the part of the appellant to raise the child as a Roman Catholic or for him to attend a Catholic school.
  2. The respondent gave the following evidence:

[X]’S PRIMARY AND HIGH-SCHOOLING

  1. I am seeking that an Order be made that unless otherwise agreed, that [X] complete his education at [G Primary School] and [G High School].
  2. My eldest son, [Y], is currently in Year 2 at [G Primary School] and will be moving through to [G High School] for his high school.
  3. [The appellant] and I had discussed [X]’s schooling prior to separation and it was always agreed that the children would attend the same school.
  4. Both [the appellant] and I live closer to [G Primary School] now than we did when we were cohabitating.
  5. [The appellant]’s father and grandmother are both Catholic. [The appellant] received a Catholic education.
  6. My family are Catholics, I was baptised Catholic and I received a mostly Catholic education.

(Respondent’s affidavit filed 21 June 2018) (Emphasis removed)

  1. This evidence establishes that there was no agreement as to a Catholic upbringing for the child. It follows that there was no evidence of discussion, let alone agreement, about baptism. As there was no mutual commitment to a religious upbringing that would necessarily involve baptism, it cannot be said that a baptism was an obvious aspect of the child’s upbringing.
  2. The respondent submitted that it could easily be inferred that the order for baptism was ancillary to the order for the child to attend G Primary School because baptism would be required before enrolment could take place. She relied on the following passage in the family consultant’s report:
    1. [Ms T Lysons] indicated a further dispute about which school [X] should attend. She reported a belief that the parents had previously agreed to for [X] to attend the [G] Primary School, in order that he would attend the same school as [Y]. She reported a belief that [X] would need to be baptised in order to attend the [G] Primary School.
  3. The basis of the respondent’s belief was not explained.
  4. When this issue was raised with the appellant, she informed the family consultant that she was opposed to baptism:
    1. [Ms B Lysons] identified that religion is a further issue in dispute between the parents. She reported that [Ms T Lysons] wants [X] baptised Catholic in order that he may attend the same school as [Y]. [Ms B Lysons] reported that she is not in support of [X] being baptised Catholic, and would prefer [X] to attend a local school, rather than having to endure the long commute required for him to attend [Y]’s school.
  5. It is reasonable to deduce that if the respondent had sought an order for baptism it most likely would have been opposed.
  6. Finally, the primary judge asked the family consultant questions on this issue as follows:

[HIS HONOUR]: All right. And if we look at, though – if it were that – because [the respondent] has made certain requests of me to make specific orders and that be a specific order as to where [X] goes to school, in effect now, during kindergarten, where he goes to prep to grade 6 and then where he goes to high school. With regard to health, that he be going to this particular health centre with a particular GP but obviously if that GP isn’t around, others within the practice will have access to the records so that that practice becomes the GP for [X]. And that if [X] is going to the particular school that he’s going to, it may be a – there may be a necessity for him to be baptised as a Catholic, which apparently both [Ms Lysons] have been baptised as Catholics themselves. So that if those specific orders were made and put in place, I’m just sort of wondering would that be some sort of way in which, “Well, you know, there you go, those are your main important things that have already been ordered, the two of you try and sort it out.” What’s your take on that?

[THE FAMILY CONSULTANT]: Yes, look, I certainly think that that would narrow the amount of topics that – that would be available for further conflict, I suppose. But from – from what I’ve read and what you’ve told me in terms of what you’ve heard so far, while it might narrow them – or, I guess, maybe not even narrow them – while it might take those three decisions out of the – the vast amount of things there would be to argue about, I suspect if the conflict is to the degree that we’re talking about at the moment, that there’s just an infinite number of other topics that people can find to argue about.

(Transcript 19 July 2018, p.97 lines 20 – 39) (Emphasis added)

  1. The respondent submitted that the two passages in the Family Report and the above exchange sufficiently raised the issue of baptism, at least in the context of it being required for entry to G Primary School and that it was open to the primary judge to make an order for baptism without expressly raising it with the parties.
  2. We do not accept this submission.
  3. First, we do not think the evidence established the premises set out in the submission, namely that baptism was essential if the child was to attend G Primary School. The source of the respondent’s belief that the child would need to be baptised was not revealed. Further, the evidence falls short of establishing that the child would need to be baptised into the Catholic faith, which was the order that was made as opposed to being baptised into any Christian faith.
  4. Secondly, and more importantly, we do not consider that the discussions with the family consultant and the question posed by his Honour reasonably raised the issue of baptism. After all, the words were “there may be a necessity” for baptism. That is hardly an indication that such an order was within active contemplation.
  5. Attitudes towards baptism and how or whether it should be undertaken range as widely as people’s views on religion. It cannot therefore be assumed that baptism can be easily regarded as merely a step ancillary to enrolment in a school, not unlike the purchase of a uniform or enrolment in particular activities. In short, we are not prepared to accept that an order requiring a child to attend a Catholic school, for example, necessarily involves baptism or that an order for baptism can be seen as being merely ancillary to such an order. The considerations range much more widely and involve the parties’ approaches to religion. Furthermore, education and religious upbringing are defined as discrete aspects of “major long-term issues” under the Act (s 4(1)). It follows that although in a given case it might be established that the two are interrelated, one is not automatically ancillary to the other.
  6. The appellant’s evidence, as best it can be gleaned, was that she opposed baptism. This is of some significance because under the orders that were ultimately made she had sole parental responsibility for the religious upbringing of the child. There was no evidence as to how she proposed to do that or as to how baptism as a Catholic might fit with those plans.
  7. We consider that the issue was of sufficient significance, especially for the appellant, that the prospect of an order being made for baptism should have been expressly raised before it was made. The oblique references to it in the evidence were insufficient to raise it as an issue under active consideration.
  8. In a different context, in White v Overland [2001] FCA 1333 at [4] Allsop J (as his Honour then was) referred to the need for the parties to ensure that all parties are cognisant of the issues in dispute. In a commonly repeated passage, his Honour then said:

Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly.

  1. The same may be said of footprints scattered in the evidence.
  2. We accept, of course, that in parenting cases, parties’ cases shift and turn as the hearing progresses and as the evidence develops along with, sometimes, the parties’ understanding of what may be in the child’s best interests. During the course of the proceedings, some issues may fall away and new ones may arise. Nonetheless, the question remains the same: namely, whether the person against whom a particular order is sought is sufficiently aware of the possibility of that order being made so that they are able to marshal a case against it.
  3. In many parenting cases the field of dispute is quite clear and many orders that can be made are obviously in contemplation from the orders proposed by the parties, the evidence and their submissions. In the present case, however, we do not consider that the footprints about baptism that have been left in the evidence sufficiently raised the possibility of an order for baptism being made.
  4. It follows that the appellant was denied procedural fairness and the order must be set aside. The respondent asked that the issue of baptism be remitted for rehearing. We are unable to do so because no application for such an order was made and, accordingly, there is nothing to remit.

All states of Australia

1300 365 108

Jones v Dunkel Rule – what does it mean?

Jones v Dunkel Rule – what does it mean?

After the judge had finished summing up a juryman asked a direct question seeking further guidance upon the significance of the fact that the defendant Hegedus could have given evidence and did not. His question was: “Rightly or wrongly I have it in my mind that the defendant could have come here today and given evidence. Am I entitled to regard that in my mind as a weakness in the case of the defendants, that he did not?” The judge said: “Counsel for the defendant has the responsibility for the conduct of the defence. Counsel decided not to call evidence, and having directed you already with regard to that matter I do not propose to say anything more to you.” Counsel for the plaintiff then intervened and in the course of doing so referred to what Jordan C.J. had said in De Gioia v. Darling Island Stevedoring and Lighterage Co. Ltd. (1941) 42 SR (NSW) 1; 59 WN 22 , and submitted “when the matter goes to the jury then I do submit that the jury are entitled to take into consideration that here was a case where on the merits there was one person who could have told them the facts and they have no answer from that person”. Counsel for the defendants then submitted that the plaintiff had the onus of proof “and the fact that the defendant does not call any evidence does not absolve the plaintiff from proving her case”. The trial judge then gave a further direction as follows: “This is the position, the defendant having called no evidence it is a matter of common sense that you should accept the plaintiff’s evidence with respect to the facts as being accurate. The fact that the defendant Hegedus has not gone into the box and offered any explanation leaves you in this position, that you can accept the facts given by the plaintiff as proved, but the question then is whether you should find negligence against him as a matter of inference to be drawn from those facts, and that is the question for you, whether you think from the proved facts an inference of negligence ought to be drawn. If you think so, the plaintiff is entitled to your verdict. If, on the other hand, you think no such inference can be drawn then the verdict must go against the plaintiff and in favour of the defendant.” (at p312)

8. I regard this direction as incomplete and because the trial judge gave it as part of his answer to the juryman’s question and after counsel for the plaintiff had objected to the earlier part of that answer, I think O. XXII, r. 15, does not prevent the misdirection being taken as a ground of appeal. (at p312)

9. In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. (at p312)

10. Taking the summing-up as a whole I think the first and second matters to which I have referred were covered adequately but I do not think that the third was referred to at all and in giving the guidance that the juryman sought not only was no reference made to it but the distinction made in the course of the summing-up between “proved facts” and “inferences” was emphasised and the impression was conveyed that once the jury came to the point of drawing inferences the defendant’s absence from the witness-box could have no significance. To use the words of Smith J. in Black v. Tung [1953] VicLawRp 84; (1953) VLR 629 : “The charge therefore withdrew from their consideration a matter which, if there was evidence proper to be submitted to them, they were entitled to regard as rendering more probable the inferences as to negligence and causation contended for by the plaintiffs” (1953) VLR, at pp 634, 635 . In my opinion this entitled the plaintiff to a new trial. (at p313)

11. The Full Court was, it appears, inclined to think that there was no case to go to the jury and being of that view it rejected the argument that the failure of Hegedus to give evidence could be relied upon to supply the deficiency of evidence. I agree with the Full Court that the failure of Hegedus to give evidence could not be used to fill gaps or to convert suspicion into inference but I treat this as a case where the failure to give evidence could be used to assist the jury in deciding which of the inferences open to them they should draw. (at p313)

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Freedom Law The Family Law Specialist

1300 365 108

Overseas divorce – property settlement time limit does not apply

Overseas divorce – property settlement time limit does not apply

CONCLUSIONS

  1. In my view, the legislation is clear. “Divorce order” relates to a divorce obtained pursuant to the Family Law Act. The statutory limitation in relation to property settlement applies only to parties to a divorce order.
  2. No part of the legislation, including the definition of “matrimonial cause”, would lead to the conclusion that the term “divorce order” should apply to a divorce obtained overseas by order or otherwise. The term “divorce order” is used consistently throughout the legislation – pertaining to Australian divorces exclusively.
  3. It may seem to be an anomaly, that foreign divorces recognised under Australian law do not have the same temporal limitations imposed where the parties seek a property settlement in this country. There is no doubt that a divorce may be obtained in another country with different administration and different limitation periods. The Act clearly has provided a limitation period only for Australian divorces.
  4. For these reasons it cannot be accepted that, on an ordinary construction of the relevant sections of the Act, an application for property settlement in circumstances where there is a foreign divorce recognised pursuant to s 104, requires leave after the expiration of the time provided by s 44(3).
  5. The appeal should be dismissed.

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Was Leave Pursuant to s 44(3) Required?

  1. His Honour’s findings with respect to s 44(3) are premised on leave pursuant to that section being required where parties are divorced by the law of a country other than Australia (at [185]-[193]). No ground of appeal challenges, in terms, that premise, nor do any submissions made by the wife or on her behalf.
  2. His Honour’s premise was based on one view – possibly the then predominant view – of then existing authority. Subsequently, this Court has decided in Anderson & McIntosh (2013) FLC 93-568, after considering existing authority and careful arguments in respect of the provisions of the Act and their meaning, that leave pursuant to s 44(3) is not required in respect of a divorce obtained overseas.
  3. On an appeal by way of rehearing, this Court is bound to apply the law as at the date of the hearing of the appeal (see, Coulton v Holcombe [1986] HCA 33(1986) 162 CLR 1 at 7). This appeal was heard on 2 December 2013 and the decision in Anderson was handed down on 13 December 2013. However, the effect of the decision in that case is to determine the meaning of the terms of the Act applicable on, relevantly, 2 December 2013 (when the appeal was heard), and on 27 July 2011 when his Honour heard the proceedings; 13 March 2012 when his Honour delivered judgment; and, indeed, on 26 May 2000 when the wife filed her application for settlement of property in the Family Court.
  4. As a result, his Honour was in error in determining that the wife required leave pursuant to s 44(3) of the Act to institute her proceedings for settlement of property.
  5. Although no ground of appeal asserts, in terms, an error of law in this respect and although no submissions were made to that effect, “if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it” (Warren v Coombes [1979] HCA 9(1979) 142 CLR 531 at 553, per Gibbs ACJ, Jacob and Murphy JJ).
  6. As a result, the appeal, insofar as it challenges the alternative order made by his Honour in respect of leave pursuant to s 44(3), must succeed.

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Siblings reunited to live with their father

Siblings reunited – although siblings living separately to each other at time of final hearing, their best interests lay in living together with their father who was better able to regulate his own and the childrens’ emotions compared to the mother

Exton & Fahey 

 

  1. The Family Consultant was strongly supportive of the children being reunited in their father’s care. She described the two boys as having been an absolute pleasure to meet and that it had been a mutually enjoyable interview. She explained that she had not seen the different side of either child described by the parents.
  2. The Family Consultant was very firm to say that the boys should be together, that they were physically affectionate with each other and showed a really good connection on each occasion she saw them. Significantly she said that in her view each child felt a burden of guilt about their separation and that there could be long lasting repercussions if they were separated.
  3. The Family Consultant stressed the significance of the sibling relationship, “They won’t have shared experience; they will grow apart. If one parent can meet their needs, then they should be together”.
  4. The mother cross-examined Ms R. The Family Consultant stood firm about the level of time with the mother she considered appropriate in the event that the younger child went to live with his father. She challenged the mother on her proposition that it would not be fair for the child if he spent as little as one weekend per term with her.
  5. The Family Consultant explained that none of what had happened to the children had been fair for them but they had a great need to lead a settled and predictable life. She also explained to the mother that in her professional opinion the mother’s behaviour provoked the older child to behave in a certain way; that his father’s behaviour did not provoke the same response.
  6. The Family Consultant also explained that she had heard of evidence given in the trial that concerned the mother, that the mother struggled physically with the older child. In the view of the Family Consultant there needs to be someone present during all periods of time for the time to be a benefit.
  7. Having read the report of the speech therapist for the younger child the Family Consultant agreed with the mother that the child was doing very well. She went on to say that if he was doing well then he would be likely to continue to do well in the care of his father.
  8. The Family Consultant also identified that the mother treated the two children very differently and that the boys were aware of the differential treatment and that posed difficulties for their relationship. That evidence resonated with the evidence of the mother and the maternal grandfather that the younger child was a good child with no behavioural problems and that the older child was a naughty and difficult child.
  9. Finally, the Family Consultant explained to the mother that it was her inability to regulate her own emotions that was the issue, “You are responsible for your behaviour and controlling your emotions. If you can’t control yourself and help them regulate their emotions then it’s a problem”. At that time the mother appeared to understand that the Family Consultant was not directing her recommendations to fairness between adults but the fundamental needs of the children and which of the parents could meet those needs.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

  1. For the past 15 months the children have been separated from each other. The orders providing for the children to spend time with each other and the parent with whom they were not living have required the children to do extensive travel, more importantly they have not been complied with by the mother in more than one respect. The mother failed to return the older child after the 2015/2016 school holiday period. The mother did not comply with the orders for her time with the older child to be supervised by her father. The mother has not ensured that the father spends time with the younger child.
  2. The change for the children which will most stabilise their situation is for them to be re-united with each other. The evidence strongly supports a finding that the father at this stage of their lives is better equipped to meet their needs and on that basis an order will be made that the younger child B moves to live in the father’s household.
  3. Although the younger child has made good progress especially with his speech and has enjoyed the greater calm of the mother’s household, he has asked his father about living with him and his brother. To maintain the status quo, of separation of the children, would inevitably lead to further applications, most particularly if the mother chose to move to a new location with her partner.

Making decisions for your children when you separate

Making decisions for your children when you separate

Sometimes parents feel that it is best for children to make up their own minds about where they want to live. Young children are not usually ready for this responsibility as they are not generally mature enough to make this important decision. Having to make such a decision places a heavy burden on them and having to choose between their parents can lead them to feel guilty about the parent they have not chosen. Usually the best decisions about where and how the children live are those made together by the parents. However, parents should consider the feelings of their children and be willing to listen to them. Children should not be required to express a view when to do so would mean reprisal from a disappointed parent. Parents normally know their children’s needs and are usually in a better position than anyone else to make decisions about their children’s future. If parents are unable to make these decisions themselves because of conflict, family and child mediators and counsellors can help them to negotiate with each other. Mediators and counsellors can be contacted through the Family Court of Australia Mediation Service and through groups such as Relationships Australia, Centacare and Anglicare. They may assist parents who wish their children to be involved in decisions and they can help parents assess the needs of their children. If an agreement is still not possible at the talks, it then becomes necessary for the Family Court judges to make a decision. The judges will make decisions which they believe are in your children’s best interests, whether you agree with those decision or not. The Family Law Act guides judges as to what facts they need to consider when determining what is in a child’s best interests.

Messy separations – how to avoid hurting the children

Messy separations – how to avoid hurting the children

Things to avoid

Children are usually very loyal and trusting so it is important to look at the ways in which you behave with them to make sure you are not abusing their loyalty and trust. Set out here are some of the subtle ways in which parents can take advantage of their children in the midst of a messy separation.

‘Messenger’

– using your children as messengers between the two of you teaches children that adults cannot talk honestly or directly to each other.

‘I Spy’

– asking a child to report on the other parent is destructive – it is using a child for your own ends.

‘Your father is a slob’ ‘Your mother is a fool’

– anger between parents has a destructive effect on children.

‘Disneyland daddy’ ‘Mummy Santa’

– when visits are used just to give the child a good time, or outings and gifts take the place of normal parenting.

‘I still love him but he doesn’t love me’ ‘I want to keep the house for the kids but she wants to sell it’

– this puts pressure on your children to take sides.

‘You can go if you like … but we are going on a picnic’

– don’t set up competing activities, it spoils children’s pleasure in being with either parent.

Relocation order sought by Father that Mother and children move from Queensland where they have been living for 12 months to New South Wales

Relocation order sought by Father that Mother and children move from Queensland where they have been living for 12 months to New South Wales

Relocation 

  1. On any view of the evidence the fact is that the father has had virtually no relationship with Y and his relationship with X has been significantly strained due to the distance between he and the child post separation.
  2. The father himself created some distance by moving to the (omitted) in February 2016, shortly after separation.
  3. The mother has added to that distance by relocation to Queensland.
  1. In assessing the evidence at this interim stage, I am satisfied that it is more probable than not that the mother and the children have been living in Queensland since relocation in June 2016.
  2. These are interim proceedings. It is clearly the mother’s intention that she continue to reside in Queensland since her relocation. That will no doubt be her application on a final basis.
  3. If I caused the children to be returned to New South Wales this will cause a disruption to their life. A life that on my findings has been settled for approximately 12 months in Queensland following relocation. This has the potential to be disadvantageous to the children.
  4. Of course a move to New South Wales might place them closer to their father. The disadvantage of the move must be weighed against any advantage to be gained in having a meaningful relationship with the father.
  5. It is not the father’s application that the children should reside with him in the (omitted) area. It is his application that the children reside with the mother in the (omitted) area.
  6. I would therefore need to make a coercive order as to where the mother was to live.
  7. In Oswald & Karrington[5] the Full Court said that the court’s power to make a coercive order should be exercised only in rare and extreme circumstances.
  8. The Full Court in Sampson & Hartnett [6] said that there is an imperative for the court to explore and consider alternative to restricting freedom of movement particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary care giver undertaking that role in a place not of that parents choosing.
  9. There is no evidence before me to suggest that the father does not have freedom of movement. That is, the father does not say he cannot afford to travel to Queensland nor does he say that work commitments prevent him from travelling to Queensland.
  10. He will need to establish a relationship with Y and reconnect with X. This will require shorter visits and perhaps more frequent visits however I am not persuaded that based on the evidence currently before me that the father cannot or would not travel to Queensland for the benefit of his children.
  11. Furthermore, I am not persuaded that there are rare or extreme factors that warrant me exercising my discretion to make a coercive order. There has been too much water under the bridge. These children and their mother have resided in Queensland for approximately 12 months.
  12. In those circumstances, weighing the two competing proposals with regards to the disadvantages to the children, I am satisfied that it would be more disadvantageous to remove them from Queensland at this time.

Relocation cases are determined according to children’s best interests

Relocation cases are determined according to children’s best interests

Relocation cases:

  1. Parenting proceedings involving relocation are to be determined in the same manner in which all parenting proceedings are determined. That is, by following the legislative framework set out in the Family Law Act 1975 (Cth) (“the Act”) with a view to determining what orders, if any, are in the best interests of the children.
  2. In Zahawi & Rayne,[3] the Full Court noted:

47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:

…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.

48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.

  1. In short, there are no special tests that apply to such cases and each case must therefore be determined on its own facts. While the Full Court noted that, as a result of the consequences of a proposed relocation, the burdens rendered on the parties may be more acute, it is not the case that the party desiring to relocate needs to establish “compelling reasons” for the relocation.[4]

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Brisbane/ Gold Coast/ Sunshine Coast / Townsville

Family Contact Service evidence assists father gaining more time with children

FAMILY CONTACT SERVICE EVIDENCE ASSISTS FATHER IN GAINING MORE TIME WITH CHILDREN

REASONS FOR JUDGMENT

(delivered ex tempore)

  1. Orders were made by consent on 21 September 2017, which include, by order 6, that the father spend each Wednesday from 4:00pm to 6:00pm and each Saturday from 8:00am to 10:00am in supervised time with the children at a Family Contact Service for the first six occasions that he spends that time with them.
  2. Order 7(c) of those orders provided that the father obtain and meet the costs of a report from the professional supervisor at the Family Contact Service at the conclusion of the six supervised occasions of contact and that provided that the report does not raise any significant concerns about the time spent, the requirement for supervision cease.
  3. The Court has been provided with a report from the Family Contact Service, Ms J, and that gives a detailed account of the interaction between the father and the children on Saturday 30 September, Saturday 7 October, Saturday 13 October, Wednesday 18 October and Saturday 21 October 2017.
  4. Without quoting from it, on my reading of that account from the Family Contact Service, the time that has been spent between the father and the children has gone extremely well. There is a sense of joyousness about the interaction, the children seeming relaxed and comfortable with the father and the father is behaving appropriately with the children. There is nothing in that report indicating that there has been any behaviour which would suggest the children have not enjoyed their time with their father.
  5. This is contrary to what is said by the mother in paragraph [21] of her affidavit affirmed 1 November 2017, wherein she states:
    The children have been upset and difficult to settle after their time with the applicant. They are having real difficulty with the time with their father at present.
  6. Having regard to the fact that Ms J is an experienced supervisor, she has provided a detailed and comprehensive account of the time that the children have spent with the father and that she is non-partisan, I accept her account of how the children spend time with the father. There is no evidence that the children are having real difficulty with their time with the father at present. Notwithstanding this, the mother has not allowed the father to have time on, I understand, two occasions since the supervised time finished.
  7. The issue is what occurs between now and the time for obtaining a family report. Orders have been made for the parties to attend an appointment for that purpose on 31 January 2018.
  8. In my view, there should be some variation of the orders that were made on 21 September 2017. There have been competing proposals in relation to the time that the father spends with the children:
    1. the father proposed that the Saturday time for the next four weeks be extended from 10:00am to 6:00pm and the Wednesday arrangement remain in place. After four weeks, he proposed that the time be extended from Friday evening to Sunday evening each alternative weekend and the Wednesday arrangements remain in place.
    2. the mother proposed increasing the Saturday time by two hours so instead of time being from 8:00am to 10:00am it run from 8:00am to 12:00pm and the Wednesday remain the same.
  9. The orders that I have made are in effect a compromise between the competing positions and provide an opportunity for the father to spend meaningful time with his children but on a more limited basis than that which he proposed. Given that there are clearly ongoing tensions between the parents regarding arrangements for the children, in my view the graduated approach which is reflected in the orders is one that is likely to lead to less tension. In view of the extremely positive account of the time that the father spent with the children in a supervised setting, in my view the children will benefit from spending a longer period of time with their father.
  10. The mother filed an affidavit sworn 1 November 2017 which detailed what she regarded as breaches of an intervention order which occurred in the period up to 9 September 2017. These include allegations of telephone calls made by the father to the mother and instances where the mother saw the father drive past and then pause and look into the window of the business operated by the mother in (omitted) Street.
  11. The affidavit also sets out a translated Facebook message from the father’s new partner to the mother which was highly derogatory of the mother (particularly her appearance). That text message was sent in May 2017. The message was plainly inappropriate and was accepted as such by counsel for the father and I expect that no further similar communications will be made by the father’s new partner. Text messages between the mother and the father which were tendered to the court indicate that they both have a poor approach to communicating with one another.
  12. The allegations made by the mother in her most recent affidavit relate to events which are alleged to have occurred prior to the orders made on 21 September 2017. There is no evidence of any allegation of further incidents since those orders were made. I do not believe the allegations of family violence are such to affect the father’s capacity to parent or to put the children at risk whilst in his care.
  13. The mother made allegations of drug use in her affidavit, in particular marijuana use. The allegations are vague and I note that the mother has not sought orders that the father submit to drug tests. The evidence does not establish on an interim basis that the children are at risk because of the father’s alleged drug use.
  14. In my view, these orders are appropriate and are in the best interests of the children. They were formulated by the Court following discussion with the party’s representatives in open Court. I have made these orders having regard to the principles stated in Goode v Goode [2006] FamCAFC 1346(2006) 36 Fam LR 422 at [82].