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The Court's Power to Reject Affidavits When the Maker is Called to Give Evidence & The Consequence of Non-Disclosure in Property Matters

Held: in dismissing the appeal

 

(per Kay and Dawe JJ, Finn J agreeing)

 

• Moore J had a discretion under Order 16 Rule 10 of the Family Law Rules which allowed her to exclude affidavits from witnesses who were not available for cross-examination. There is no inconsistency between Order 16 Rule 10 and the Evidence Act 1995 (Cth). There was no reason shown for the Full Court to interfere with her Honour's exercise of that discretion.

• In circumstances where there has not been full and frank disclosure of financial circumstances by a party, it is open to a Court to find that an indeterminate undisclosed amount is held by one of the parties and to make property orders without reference to an overall pool.

Posted in: Derek Legal Blog at 28 April 20

Principles for Lump Sum Spousal Maintenance

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA
PAC 5587 of 2017
MR BARTLETT

Applicant
And
MS DENNY
Respondent

REASONS FOR JUDGMENT
Introduction

1. These are the Reasons for Judgment in relation to the wife’s interim applications for lump sum spousal maintenance and interim property provision.  She also made an interim application that the husband pay, by way of spousal maintenance, 50 per cent of mortgage loan instalments with A Bank.
2. Ultimately, during the course of the interim hearing held on 18 February 2020, the wife sought $50,000, to pay legal fees, by way of interim property provision, and a further sum of $50,000 representing lump sum spousal maintenance.
3. She also maintained her interim application that the husband pay, by way of further spousal maintenance, 50 per cent of mortgage loan instalments with A Bank.
4. As to the sum of $50,000 sought for lump sum spousal maintenance, the wife contended that this lump sum was made up of the children’s estimated 2020 school fees, $5,000, the need to purchase a musical instrument, $5,000 to $7,000, and to meet her weekly shortfall of expenditure over income of $262 until the final hearing of the property proceeding.
5. The husband opposed the making of the above orders.  
6. The wife is aged 43 years.  The husband is aged 54 years.
7. The wife works full time on a permanent basis as a manager at the Employer B at Town C, where she has been employed for about 20 years.  
8. The husband works as a health professional for Employer D at Town C, where he has been employed for 20 years.  
9. The parties married in 2001 and separated in about September 2016.  There are two children of the relationship:  X aged nine years and Y aged seven years.
Materials
10. The parties’ materials relied upon in this interim hearing were:  
(a) The wife relied upon her Amended Application in a Case filed 17 February 2020 (although, ultimately, the wife’s proposed orders at this interim hearing were as set out above); her affidavit filed 11 October 2019; her affidavit filed 17 February 2020; and her Financial Statement filed the same date.
(b) The husband relied upon his Response to Application in a Case filed 31 January 2020; his Financial Statement filed 17 February 2020; and his affidavit filed 31 January 2020.
11. The parties also relied upon a joint balance sheet dated 22 January 2020, marked exhibit A;  Notice of Orders made in Court Es dated 28 January 2020;  and A Bank home loan statement of account for the period from 3 June 2019 to 2 December 2019.
The wife’s spousal maintenance application 
Legal principles

12. The Court refers to the helpful recitation of legal principle relating to spousal maintenance applications by McCelland J in Uzunlar & Uzunlar [2017] FamCA 111.
Is the wife unable to support herself adequately as contemplated by section 72 (1) of the Family Law Act 1975 (Cth) (the Act)?
13. The following discussion takes into account relevant criteria under section 75(2) of the Act.  
14. The wife’s Financial Statement filed 30 October 2019 indicates that the wife’s total average weekly income is about $2,333 and her total weekly personal expenditure is about $2,595, resulting in an excess of weekly expenditure over weekly income of some $262.
15. The Court observes that the wife’s affidavit filed 11 October 2019 (paragraph 52 and 53) refers to total weekly expenditure of $1528 for the wife and children which matches the wife’s weekly credit card payments of $500 (item 30 in her Financial Statement) and item 32 in her Financial Statement, being $1,028 per week for “total of all other expenditure.”
16. Whilst the wife’s nil balance for her credit card (item 51 of the wife’s Financial Statement) and her assertion in item 30 of her Financial Statement that she spends an estimated $500 per week on her visa credit card are arguably inconsistent, the Court observes that the wife’s Visa account balance, as per annexure K of her affidavit filed 11 October 2019 (page 96), is stated to be $2,080.94 as at the date of that affidavit (see paragraph 49).
17. In this context of shortfall, the Court observes that, from the wife’s Financial Statement filed 11 October 2019, she had bank savings of about $31,066, whereas by the date of the parties’ joint balance sheet, 22 January 2020, exhibit A, the wife’s bank account savings had reduced to some $19,530, carrying the significant suggestion that the wife has had resort to such funds to meet her weekly shortfall.
18. Nevertheless, the wife’s total bank balances of some $19,530 are available for her to resort to meet the shortfall of $262 per week for some time; $19,530 divided by $262 per week would permit about 74 weeks of $262 being met. In this context, the Court observes that there could well be a waiting period for a final property hearing of 18 months (78 weeks).
19. Accordingly, the wife’s application for lump sum spousal maintenance based on the $262 per week shortfall is not made out.  
20. The wife is and has been the primary carer of the children.  
21. The husband spends one night a fortnight with the children on alternate weekends.
22. The parties’ health appears to be reasonable. 
23. At paragraph 48 of the wife’s affidavit filed 11 October 2019, she states under the heading, “My Financial Needs”, that she estimates that she needs an amount of $100,000 by way of interim spousal maintenance for her to pay:
(a) Children’s estimated 2020 school fees payable in January 2020; $5,000.
(b) Eight-day cruise with the children during summer holidays; $9,202.
(c) Church donation during Christmas; $2,000.
(d) Musical instrument; $7,000.
(e) Khalil Family Lawyers’ estimated legal fees; $60,000.
(f) Harb Lawyers amount outstanding $38,938 (the Court interpolates here that exhibit B indicates that Harb Lawyers are owed $27,539 pursuant to a judgment in Court E).
24. The Court was informed by the wife’s counsel that the eight-day cruise was paid by the wife’s extended family; accordingly, that sum falls away as it were.
25. The proposed church donation during Christmas 2019 falls away, as it were, as it cannot be stated by the wife that she is unable to support herself adequately by reason of such proposed payment.
26. As to the school fees owing of $5,000, this is a reasonable financial need of the wife, and quarantining, as it were, the wife’s bank funds of $19,530 for the shortfall of $262 per week, the wife is unable to adequately support herself by reason of this required payment pursuant to section 72(1) of the Act.  
27. As to the musical instrument, the wife asserts that she is a member of a musical group and regularly plays at events. She states that in order to continue performing at these events, she has to practice on a musical instrument. She asserts she intends to purchase a musical instrument to assist her with her performances.
28. Under section 75(2) of the Act, the Court, inter alia, is required to take into account, where the parties have separated, a standard of living that, in all the circumstances, is reasonable.  The wife asserts, above, being a member of a musical group that she needs a musical instrument to continue performing at events.  The wife’s participation in such events would appear to be part of her usual standard of living.  Further, and in this context, it is reasonable to take into account the husband’s payment of $53,000 for his vehicle post-separation.  
29. As to the musical instrument, allowing $6,000 for its prospective purchase, the Court is of the view that the cost of the musical instrument is a reasonable financial need of the wife and she is unable to adequately support herself by reason of such proposed payment pursuant to section 72(1) of the Act.  (Again, the Court would quarantine, as it were, the wife’s bank funds of $19,530 for the shortfall of $262 per week).
30. The wife maintained her interim application that the husband pay, by way of further spousal maintenance, 50 per cent of mortgage loan instalments with A Bank. In this context, the wife is presently paying a sum of $351.50 each week to A Bank by way of interest-only payments. This weekly payment is reflected in the $262 per week shortfall previously discussed in these reasons; again, quarantining, as it were, the wife’s bank account balances of some $19,530 to meet the shortfall of $262 per week over the next approximate 74 weeks, the wife is not unable to adequately support herself by reason of meeting this payment pursuant to section 72(1) of the Act.
Husband’s capacity to pay spousal maintenance
31. The Court has considered relevant section 75(2) criteria. 
32. The husband’s Financial Statement indicates that his weekly income exceeds his weekly personal expenditure.
33. As to both the 2020 school fees and musical instrument cost, it is reasonable and appropriate that the cost of these items be met by way of lump sum payments by the husband.  The total figure for these amounts of school fees, $5,000, and musical instrument costs, $6,000, are $11,000. 
34. By reference to item 37 in the husband’s Financial Statement, his bank balances, he has the capacity to pay the sum of $11,000.
35. The husband has the capacity to meet the wife’s reasonable need to pay school fees and purchase a musical instrument with the total cost being $11,000.
Interim property provisions
36. The wife sought $50,000 to pay legal fees, by way of interim property provision.  This application was opposed.
37. The wife’s Financial Statement and the joint balance sheet both indicate the wife’s legal fees at $40,000.  (The Court observes that the joint balance sheet was dated 22 January 2020.  This is considerably later than the wife’s affidavit of 11 October 2019 where she asserted estimated legal fees to her current lawyers of $60,000, and an amount owing to Harb Lawyers being some $38,938, with the Court noting that the below-mentioned judgment debt against the wife in favour of Harb Lawyers for $27,539 is dated 28 January 2020.
38. By reference to the Court’s previous Reasons, the Court is not satisfied that the wife has an ongoing ability to save funds as contended by the husband;  again, there is a significant suggestion that the wife has been eating into, as it were, her bank savings, resulting in her bank balances reducing from about $31,066 to, presently, $19,530.
39. The Court refers to relevant legal principle in Strahan & Strahan [2009] FamCAFC 166; see the helpful reference to Strahan’s decision and relevant principle in the decision of Foster J in Gillim & Gillim [2019] FamCA 897 at paragraphs 33 to 40 in particular.
40. The parties’ property pool is set out in the joint balance sheet, exhibit A (with the Court noting that the husband’s counsel informed the Court that item 5 in exhibit A, being one of the husband’s Westpac Bank accounts, now has a bank balance of some $135,000).
41. The wife has a judgment debt against her for past legal fees owed to Harb Lawyers in the sum of $27,539.  The Court would assess, having regard to its above Reasons, again quarantining, as it were, the bank balance funds of the wife presently in the sum of about $19,530 to meet her weekly shortfall of expenditure over income of $262, that presently she is unable to meet such judgment debt.
42. The Court is of the view that it will be appropriate and in the interests of justice that there be interim property provision in favour of the wife to meet such judgment debt.
43. Again, the wife seeks interim property provision for legal fees of $50,000; deducting $27,539 from $50,000, the sum of $22,461 is reached and, in the view of the Court, it will be appropriate and in the interests of justice to make an order for interim property provision to the wife for this sum.
44. In the view of the Court, it is not necessary for the wife to adduce evidence that her estimated legal fees payable to her present lawyers are presently “due and payable”; it is sufficient for her to adduce evidence that she has engaged lawyers and who have provided her with a cost disclosure and costs agreement estimating legal fees payable prospectively. There is no contention made by the husband that the wife’s solicitors’ legal fees estimate of almost $60,000 is unreasonable.
45. The Court is of the view, by reference to the parties’ evidence relating to relevant contributions under section 79 of the Act, and by reference to the property pool in exhibit A, that interim property provision to the wife of $50,000 will not prejudice the parties’ respective property applications.
46. Accordingly, the Court will order:
1. That by way of interim lump sum spousal maintenance pursuant to section 72 of the Family Law Act 1975 (Cth), within seven days, the husband shall pay or cause to be paid to the wife the sum of $11,000, by way of direct deposit into a bank account nominated by the wife forthwith in writing to the husband’s solicitors.
2. That by way of interim property provision, within seven days, the husband shall pay to the wife the sum of $50,000 by way of direct deposit into a bank account nominated by the wife forthwith in writing to the husband’s solicitors.
I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:  
Date:  25 March 2020

Posted in: Derek Legal Blog at 22 April 20

Obligations to Try and Settle Matters

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELMERE & DAYTON [2020] FCCA 379

 

Applicant: MR DELMERE

Respondent: MS DAYTON

File Number: BRC 11298 of 2016

Judgment of: Judge Egan

Hearing date: 11 February 2020

Date of Last Submission: 11 February 2020

Delivered at: Brisbane

Delivered on: 11 February 2020

 

REPRESENTATION

Solicitors for the Applicant: Simonidis Steel Lawyers

Counsel for the Respondent: Mr B. Blond

Solicitors for the Respondent: Stockley Pagano Lawyers

Solicitors for the Independent Children’s Lawyer: Dooley Solicitors

 

ORDERS

(1) That the parties attend a mediation in relation to the matters to which the proceedings relate and make a bona fide endeavour to reach agreement on relevant matters in issue between them, such conference to be held in Brisbane.
(2) That such mediation be conducted by a mediator as agreed between the parties and failing agreement as follows:

(a) That within seven days of the date of these orders, the applicant provide a panel of three experts to the respondent, with a list of their fees, relevant experience and availability;
(b) That within a further seven days the respondent is to select one expert from the panel; and
(c) In the event that the respondent fails to choose within the specified timeframe then the applicant may so choose the mediator.

(3) That the trial hearing dates of 9, 10, and 11 March 2020 be vacated.
(4) That the Independent Children’s Lawyer be granted leave to inspect and copy all subpoenaed documents.
(5) That the proceeding be otherwise adjourned to the Registrar for case management in the family law list of this court by a judge other than Judge Egan.
(6) That the costs of and incidental to today’s hearing be reserved.

 

IT IS NOTED that publication of this judgment under the pseudonym Delmere & Dayton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

 

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT BRISBANE

BRC 11298 of 2016

MR DELMERE

Applicant

And

MS DAYTON

Respondent

 

REASONS FOR JUDGMENT

1. This matter has been before the court on a number of occasions as follows:

a) On 8 March 2019, the matter first was heard by the court. After a one day hearing, it was adjourned for a further hearing to 16 April 2019.
b) On 16 April 2019, the matter was unable to proceed due to judicial illness, and the matter was further adjourned to 9 May 2019.
c) On 9 May 2019, the matter was adjourned after a short hearing. Various orders were made, which orders needed to be the subject of consideration by the parties. The matter was further adjourned for another two day hearing to 14 October 2019.
d) On 14 October 2019, the court was concerned that the previous and most recent family report, dated 20 October 2018, was out of date. The court ordered that a further report from Ms A, social worker, be prepared, and that the parties attend before Ms A for the purpose of such report’s preparation. The matter was listed for hearing for three days on 9, 10 and 11 March 2020.

2. On or about 6 February 2020, Mr Dooley, the independent children's lawyer in this matter, filed an affidavit, which affidavit relevantly annexed the updated report of Ms A, dated 4 February 2020.
3. The court had the opportunity to read the report of Ms A, which, it is conceded by all parties, made clear recommendations as to who the child, the subject of the dispute, should live with.
4. This jurisdiction is one where parties must recognise that they have an obligation to try to sensibly settle matters out of court if at all possible. This is a matter which is eminently able to be so settled. It was noted that a previously held position of the respondent, that she was intending to press allegations of sexual misconduct on the part of the applicant father, have today been withdrawn. In those circumstances, the path for a mediation is clearly open, and it is one which the court intends to facilitate.
5. It is the case that this matter has been before this court as presently constituted on a number of occasions. If it is the case that after mediation the matter is unable to be the subject of a settlement, it is considered that the matter should best go back into the family law list of this court for further case management.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Egan

 

Date: 24 February 2020

Posted in: Derek Legal Blog at 14 April 20

Applicable Principles for the Awarding of Costs

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT MELBOURNE

 

MLC 10467 of 2018

 

MS YIM

Applicant

 

And

 

MR ZIETH

Respondent

 

Applicable principles

4. The applicable principles are settled.  In general, parties to a proceeding under the Family Law Act 1975 (Cth) (Act), should bear their own costs: Act, s 117(1).  However, power is conferred on the court to make such order as to costs as it considers just where it is of the opinion that circumstances justify it in doing so: s 117(2).  The power is subject to a number of provisions, including s 117(2A) and the Rules of Court.
5. In s 117(2A) of the Act, a number of factors are listed which the court must consider in deciding what order for costs (if any) should be made.  I address those factors below.  Further, the Federal Circuit Court Rules 2001 (Cth) confer power when making an order for costs, to either: set the amount of costs; set the method by which such costs are to be calculated or to refer the matter for taxation in the manner there provided.  In addition, the court may set the time for payment of costs: r 22.01(2).
6. The power to make an order for costs is constrained by the requirement that the court has formed the opinion that circumstances exist to justify making an order for costs.  Where that opinion has been formed, s 117(2A) provides that the court shall have regard to the matters enumerated in that provision in considering what order (if any) should be made in relation to costs. 
7. Properly construed, there is nothing in s 117 which prescribes that more than one factor must be present before an order for costs may be made, or that a comparative evaluation of the weight of each such factor must be undertaken in the exercise of the discretion to award costs.[1] 
8. In Fitzgerald (as child representative for AF (Legal Aid Commission of Tasmania) v Fish,[2] the Full Court stated:

Nowhere in subsection (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in sub-s (2A).As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.

9. While the weight to be given to any of the particular factors prescribed by s 117(2A) calls for the exercise of discretion, those factors, so far as they are relevant to that exercise, must be taken into account.[3]  Further, the authorities recognise that there may be one factor which so dominates the particular facts and circumstances of the case under consideration that it alone may sufficiently provide the sole basis for the conclusion that the discretion ought to be exercised in favour of, or against, an order for costs.  I address those matters in turn.

Parties’ financial circumstances – par 117(2A)(a)

10. The requirement to consider the parties’ financial circumstances draws attention to the need to address whether there is a disparity in the parties’ financial position.  However, the court is authorised to adopt a broad brushed approach.  The underlying objective is to enable the court to have some appreciation of the relative financial positions of the parties.[4]

Legal aid – par 117(2A)(b)

11. This factor has significance as requiring that the court cannot disregard legal aid as consideration where it applies.  Further, it draws attention to the need to reflect upon the general principle that a party cannot recover costs which he or she is subject to a liability to pay such costs.[5]

Parties’ conduct – par 117(2A)(c)

12. The court is required to consider the parties’ conduct:

. . . including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters.

13. Where the particular conduct of a party has caused an additional burden resulting in costs to be incurred by their opponent, this will commonly constitute a consideration which may engage the power to award costs. 
14. This consideration is not confined to non-cooperation or obstructiveness but may involve unjustifiable conduct of any kind which has caused costs to be incurred that ought not to have been incurred.[6]  Notably, In the Marriage of Greedy,[7] the Full Court recognised that the refusal to negotiate or to put forward an alternative appropriate order may be a factor which warrants the favourable exercise of discretion.  An infinite array of circumstances may constitute conduct that warrants attention under par 117(2D)(c).

Compliance with orders – par 117(2A)(d)

15. The court is required to consider “whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court.”  While it may be relevant, it is not necessary to establish that the party’s failure to comply with previous court orders entailed any culpable conduct (whether by act or omission).

Whether wholly unsuccessful – par 117(2A)(e)

16. The prescribed conduct to which par 117(2A)(e) draws attention is whether any party to the proceedings has been wholly unsuccessful in the proceedings.  In this connection, the authorities recognise that although a party’s submissions may have been wholly unsuccessful, they may not have been without merit.[8]  The Full Court endorsed the statement in Hawkins & Roe,[9] that “even a meritorious case can be ‘unsuccessful’ when the other case is found to have greater merit.”

Written offer to settle – par 117(2A)(f)

17. The court must also consider whether either party to the proceeding made a written offer to settle, the terms of the offer and their precision.
18. This requirement reflects policies of the Act including to encourage conciliation, the very real public interest to incentivise settlement, lighten the court’s workload and the drain on scarce judicial resources.[10]  In Browne v Green, the Full Court underlined the importance of proper consideration being given to the making of an offer, its terms, the time at which it had been made and that it be contrasted with the result which was achieved instead by judgment:

The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it proper consideration, is something to which very significant weight indeed ought normally be given.[11]

19. It follows that parties may proceed at their peril in rejecting a reasonable offer of settlement.  At the same time, the court should be slow to approach the evaluation of the question of costs from a backwards looking perspective by simply asking whether the result achieved had been worse than that which had been offered at an earlier time.  The reasonableness of the offer and the context in which it was made remain important ‘forward looking’ considerations.[12]
20. Equally, the context in which an offer was made includes that there are “cases where the contents of the offer are themselves [the] subject of disputed value and [they are the] legitimate subject matter for determination”.[13]  That is to say, the surrounding context may support a conclusion that a backwards looking evaluation of an offer may pay insufficient attention to the circumstances which obtained at the time that the offer was made and that the issue in dispute was one which a litigant was reasonably entitled to press for determination at trial. 

Any other matter– par 117(2A)(g)

21. While there is evident overlap between this provision and the various factors prescribed by pars 117(2A)(a)-(f), it is settled that the terms of par 117(2A)(g) could hardly be expressed in wider terms.[14]
22. In contrast with the special provision made by s 117(1) of the Act, in other civil litigation, a party who has succeeded is generally entitled to a favourable exercise of discretion to an award of costs: cf Latoudis v Casey.[15]  The decision affirms the settled principle that an award of costs is compensatory and not punitive and is intended to indemnify the successful party against the expense to which they have been put by reason of the proceeding.[16]  As Mason CJ observed, it is fundamental to the exercise of the discretionary power respecting costs that the issue be considered from the perspective of the successful party.
23. Equally, it is clear that an order for costs is not intended to operate by way of a complete indemnity.  To the contrary, an order for costs is confined to legal costs and expenses which are properly incurred by a successful party.[17]  The entitlement to costs, so understood, is then confined to costs of the kind for which the relevant rules of court provide.  The entitlement is not at large.  This general principle is explained in part by the circumstance that in most jurisdictions, the court is given a statutory discretion which is not constrained by the prescription of relevant considerations or criteria as is found in s 117 of the Act.[18]  The position is quite different under s 117 which recognises that proceedings under the Act are not the same as civil litigation in many respects.  As concerns parenting applications under the Act, the proceeding is not strictly inter partes because it entails the consideration of a child or children who are not parties to the litigation and whose best interests are under consideration.  As concerns property, the parties are treated as owing fundamental mutual obligations respecting their financial affairs in a way where each is to be expected not to erode those interests.

 

[1]                 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123, [41]; Eldred & Eldred (No.2) [2015] FamCA 188, [22]. 

[2]                                              (2005) 33 Fam LR 123, [41].

[3]                                              I & I (1995) FLC 92-625;

[4]                                              Browne v Green (2002) FLC 93-115.

[5]                                              In the Marriage of Conroy (1976) 2 Fam LR 11, 223.

[6]                                              In the Marriage of Fisher (1990) 13 Fam LR 806.

[7]                                              (1982) 8 Fam LR 669.

[8]                                              Wrensted v Eades [2016] FamCAFC 46, [85]-[87].

[9]                                              [2012] FamCAFC 77.

[10]                Cf In the Marriage of Greedy; Robinson & Higginbotham (1991) 14 Fam LR 559, 561; see also s 117C.

[11]                                             Browne v Green (2002) FLC 93-115, [57].

[12]                                             JEL v DDF (Repayment on Appeal, and Costs) (2001) 28 Fam LR 119.

[13]                                             Pennisi & Pennisi (1997) FLC 92-774.

[14]                                             Parke & the Estate of the Late A Parke [2016] FamCAFC 248, [36].

[15]                                             (1990) 170 CLR 534.

[16]                                             Latoudis 170 CLR 534, 542-543.

[17]                                             Cachia v Hanes (1994) 179 CLR 403, 410.

[18]                                             Latoudis v Casey (1990) 170 CLR 534, 541.

Posted in: Derek Legal Blog at 01 April 20

Principles Followed by the Court When Making Parenting Orders

Keith v Keith

 

Legislation Considered

Family Law Act 1975  (Cth), ss 4AB, 60CC

 

Cases Cited

Goode v Goode [2006] FamCA 1346

Rice v Asplund (1979) FLC 90-725

U & U [2002] HCA 36

IT IS NOTED that publication of this judgment under the pseudonymKeith & Keithis approved pursuant to s.121(9)(g) of theFamily Law Act 1975(Cth).

 

Judge Burchardt

 

The statutory pathway

55

Against this background, I turn to the statutory pathway set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:

 

“Summary

[65] In summary, the amendments to Pt VII have the following effect:

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child's parents has parental responsibility for the child. ‘Parental responsibility’ means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child's parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

6. The Act provides guidance as to the meaning of ‘substantial and significant time’ (s 65DAA(3) and (4)) and as to the meaning of ‘reasonable practicability’ (s 65DAA(5)).

7. The concept of ‘substantial and significant’ time is defined in s 65DAA to mean:

(a) the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii) days that do not fall on weekends and holidays; and

(b) the time the child spends with the parent allows the parent to be involved in:

(i) the child's daily routine; and

(ii) occasions and events that are of particular significance to the child; and

(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child's best interests, then the issue is at large and to be determined in accordance with the child's best interests.

9. The child's best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child's best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

11. The child's best interests remain the overriding consideration.”

Posted in: Derek Legal Blog at 25 March 20

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