Case note: Trevi and Trevi  FamCAFC 173 (Add backs)
The case involved a substantial property pool of about $9.5 million dollars and a lengthy hearing over 13 days. The legal fees the parties incurred were significant, with the wife incurring fees of about $437,000, paid from an interim distribution to her from the sale of the former matrimonial home.
At trial the husband argued unsuccessfully that the wife’s $437,000 spent on her lawyers ought to be notionally “added back”. The husband appealed.
- For matters involving discretionary remedies “guidelines” are distinguished over established principles of law.
- The status of “add backs” or “notional property” following the High Court decision in Stanford (2012) 247 CLR 108.
- Situations when discretion to add back notional property ought to be considered.
- How expenditure on legal fees is treated.
Guidelines and binding principles of law:
At 33 The word “guidelines” is used advisedly so as to distinguish the same from “binding principles of law” (Browne and Green). The distinction is important because failure to follow a binding principle of law is an error of law. By contrast, the failure of a trial judge to follow a guideline…does not of itself amount to error, for it may appear that the case is one in which it is inappropriate to invoke the guideline or that, notwithstanding the failure to apply it, the decision is the product of sound discretionary judgment…however…the failure to apply a legitimate guideline to a situation to which it is applicable may throw a question mark over the trial judge’s decision…
Concerning the status of add backs:
At 46: In Stanford v Stanford, the High Court emphasised as fundamental that a consideration of whether it is just and equitable to make a property settlement order begins by “identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property”.
At 47: The essence of a claim for addbacks is that the asserted sum/s should be added to the value of the existing property interests of the parties and, subsequent to the assessment of contributions, credited to the spending party as part of the value of their assessed entitlements. Doing so does not offend what was emphasised by the High Court. Adding back does not seek to create property interests that do not exist. Rather, doing so emphasises that satisfying the respective requirements of ss 79(2) and (4) of the Act to do justice and equity can require an “accounting” or “balance sheet” exercise for the purposes of s 79(2) and (4), so as to include the value of the dissipated property or expended sums within the total value of the parties’ existing interests in property, and to credit the value of same against the assessed entitlement of the dissipating or spending party. (my emphasis)
Situations when discretion to add back notional property mighty be exercised:
At 27: The Full Court held in Omacini and Omacini that addbacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets (Townsend); and “waste” or wanton, negligent, or reckless dissipation of assets (Kowaliw).
At 28 and 29: Add backs are the exception not the rule (Cerini). The fundamental precept that addbacks are exceptional …is also reflected in… “the Family Court must take the property of a party to the marriage as it finds it” at trial (Ascot Investments v Harper). An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation (Marker). Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
At 30: Two fundamental premises emerge from Omacini…First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is … in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.
Guidelines for the treatment of legal fees:
At 31 from Chorn v Hopkins: …while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
If the funds used existed at separation and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
If funds used to pay legal fees have been generated by a party post separation from his or her own endeavors or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post separation income or acquisitions.
At 36 and 37: …legal fees occupy a particular position in the consideration of addbacks by reason of s 117(1) Family Law Act 1975 (prima facie parties bear their own costs) …An order failing to addback legal costs is a pre-emptive decision about one party paying the other’s legal costs. The statutorily prescribed default position is that neither party pays all or some of the other party’s costs.
Accusations of Coercion and Change of Surname – Darley and Darley  FamCAFC 10 (4 February 2016)
The self-represented appellant mother (“the mother”) appealed orders made by Howard J with the primary grounds being summarised as follows:
- She sought to adduce further evidence in the appeal;
- She appealed against consent orders made on day 3 of the final hearing on the basis she been coerced by His Honour into agreeing;
- She appealed against a decision made by His Honour that the child’s surname remain as recorded on the child’s Birth Certificate.
Held per Strickland, Murphy and Forrest JJ:
Adduce further evidence
The mother sought to rely on further evidence in the form of a 200 page affidavit and transcript of hearing before Judge Howard. The court referred to section 93A(2) Family Law Act 1975 and the High Court in CDJ v VAJ  HCA 67. The relevant passage being:
“Its principle purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.”
The High Court went on to say:
“…nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. …Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial…”
Having regard to the above the Court admitted the transcript of the hearing.
The Court did not admit the 200 page affidavit noting much of the substantive parts of the affidavit contained submission, and failed to meet the above test.
The primary allegation the mother made with respect to coercion stemmed from an exchange between His Honour and Counsel for the ICL.
The context of the exchange was that an agreement had been reached on day 3 of the Trial at 5:30pm with respect to detailed parenting orders; however no agreement was reached on the issue of the child’s surname.
Counsel for the ICL made submissions to the effect that the parties would not allow the disagreement in relation to surname to de-rail the agreements made on the larger parenting issues. To this His Honour commented “Well, not only that, well, I won’t let it…I would not allow that to happen…”
The Court referred to Robinson and Willis (1982) FLC 91-215 with respect to principles concerning appeals from consent orders:
The fact that an order is made by consent does not make that order of any different nature from an order made otherwise … The order derives its force from the circumstance that it is a valid order made by the court in question, not from the agreement of the parties.
Amongst other conclusions which follow from that is that such an order may, subject to important qualification, be the subject of appeal in the same way as any other order. The important qualification is that as a consent order is made as a consequence of the consent of the parties to the court making that order, and not an adjudication by the court, the order may not be challenged by an appeal which is directed to the correctness of that order, that is, it cannot be appealed against on the merits. However, other grounds of appeal remain available as for example, fraud, mistake, fresh evidence, absence of jurisdiction…”
The Full Court also referred to the High Court in Johnson and Johnson  HCA 48 in relation to what may be appropriate interjection from the Bench:
“At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx….Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue and counsel is usually assisted by hearing those opinions, and being given an opportunity to deal with them.”
The Court said the above applied equally to a Judge expressing a view in relation to the desirability for parents to come to parenting agreements.
Specifically in relation to parenting cases the Court said:
“Division 12A of the Act now underscores the same points by its stated principles and mandatory obligations cast upon judges when hearing parenting matters. … The proper encouragement by a judge to have parties agree is no more or less than the encouragement to do that which the Act contemplates and that which is consistent with the judge’s duties.”
Further, the Court said the same would apply to comments regarding a range of potential outcomes.
The Court analysed the mother’s conduct before, during and after the orders were made and found there was no coercion, duress or undue influence.
The surname issue was not determined by consent.
The mother’s grounds of appeal were somewhat vague with some examples being:
- [His Honour] “making irrational decisions and the reasoning is so flawed that it robs the decision of logic;
- Cases cited in the reasons are old/not in touch with modern times.
- Failing to consider relevant social science/research papers social science research;
- Failed to properly exercise the test in Chapman and Palmer.
The Court noted in exercising his discretion, His Honour took into account, among other things:
- That the children’s birth certificates contained the surname Darley in each case;
- Each of the parties confirmed that the children identify with the name “Darley”;
- His Honour found as a fact that the father is not likely to be capable of keeping his resentment from the children’s perception if their names were changed;
- His Honour found that “the mother was not able to confirm that she had ever met any relative with the surname ‘Mackenzie’”, nor was she able to name “any relative of hers with” that surname;
- The children’s birth certificates note the mother’s surname as “Darley”;
- The mother has used the surname “Darley” in relation to all official documentation including, for example, bank accounts, home loans, drivers licenses and school registration for the children, since the date of the marriage;
- The children have not at any stage been known by the surname “Mackenzie” and the mother has, at all times, been known as “Mrs Darley” to the children’s school;
- The children do not identify with the surname “Mackenzie”; their name is and always has been “Darley”;
- There is no evidence that the children have or will be likely to suffer discrimination at a Catholic school because of the fact that their surname may be different to the surname of their mother;
- There is no evidence that the children would suffer any embarrassment in the event that their surname is different to the surname of the mother.
The Court found each and all of the findings were open to his Honour on the evidence before him; and all of the matters considered by his Honour in the exercise of his discretion were relevant to the exercise of that discretion.
Notes compiled by Brisbane Family Law Specialists Pty Ltd t/as Hooper Family Lawyers are Brisbane Family Lawyers specialising in all aspects of family law and de facto relationship law.
Parenting (The role of the objects and principles of the Family Law Act in determining parenting Orders) – MALDERA & ORBEL  Fam CAFC 135
At first instance this was an application by the father for parenting orders that the child aged 12 live with him. The child had lived with the maternal grandmother from the age of 4.
The trial judge found that while the best interest factors indicated the children would be fine in either household; Her Honour had regard to section 60B to determine that an order the child live with the father would best advance the objects and principles.
One of the grounds of appeal was that Her Honour erred in applying section 60B as justification of the orders made by her.
On the issue of section 60B the following points were made:
- At 71 – The proper approach to the role of preambles was considered in Wacando v The Commonwealth HCA 60; (1981) 148 CLR 1. At page 23, Mason J (as he then was) said:
“It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object.”
- At 74 – With Wacando and the cases which follow it in mind, we must respectfully disagree with B & B: Family Law Reform Act 1995 to the extent that that decision held that s 60B does more than provide context, indicate the legislative purpose of the Part and operate as an aid to construction of the Act. Thus, we do not agree that in deciding a parenting case it was necessary to discuss the significance and weight of relevant s 60B factors or that where the outcome of s 60CC deliberations did not enable the court to determine a parenting order, s 60B may be decisive.
- At 79 – It follows that the primary judge could not attach greater weight to the factors referred to in s 60B than she did to the outcome of her s 60CC deliberations. As would be apparent from our summary of the primary judge’s reasons,
her Honour’s findings made pursuant to s 60CC as to the father’s application to change where the child lives were predominately neutral or weighed heavily against change. They certainly did not culminate in findings that supported a change in where the child lives. Against this background, her Honour could not permissibly use the provisions in s 60B to order the child lives with the father because, contrary to the application of s 60CC…In other words, an order that the child lives with the father had to be driven by the application of s 60CC and not her Honour’s mistaken analysis of the role and scope of s 60B.
- At 80 – It follows that we are in full agreement with their Honours in Aldridge v Keatonat :
“…that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.”
- At 81 – Nor do we cavil with the well settled jurisprudence which establishes that in a parenting case undertaken between a parent and another person interested in the welfare of a child, the fact of parenthood requires careful consideration (Aldridge v Keaton). However, s 60B cannot be used to establish a hierarchy as to outcome in which parents sit at the apex. In our view, it is abundantly clear that the comparative significance for a particular child of the fact of parenthood (which may in an individual case be decisive) is to be considered and weighed along with the other matters identified in s 60CC (and if relevant s 65DAA). But not on the basis that the factors referred to in s 60B can be used in favour of a parent to deliver an outcome inconsistent with the proper application of s 60CC.
Family Lawyers in Brisbane
Brisbane Family Law Specialists Pty Ltd t/as Hooper Family Lawyers are Brisbane Family Lawyers specialising in all aspects of family law and de facto relationship law.
Parenting (False Allegations of Sexual Abuse) – Newberry & Newberry (No. 2)  FamCA 462 (14 June 2013)
Peter Hooper accredited family law specialist is a Brisbane Family Lawyer and Director of Hooper Family Lawyers, a family law firm in Brisbane practicing exclusively in Family and Relationship Law. Peter analyses the Family Court decision in Newberry.
This is a decision involving parenting orders, unacceptable risk of harm and serious false allegations of sexual abuse. This decision further contains a useful summary of the logical and practical approach to applying the statutory frame work in parenting matters.
The matter relates to parenting orders for 3 children aged 6, 5 and 3 at the time of judgment. The mother also had a child aged 14 from another relationship and an adoptive sister was 15.
The father was aged 41 years and operated his own small business affording him flexibility with his time. He resided in a 5 bedroom home, he spend 2 to 3 days per week at his office and also worked from home.
The mother was aged 35 and at the time of hearing, not working, and living in temporary accommodation with friends.
The relationship between the mother and father was “on again off again” between December 2005 and about June 2009.
- Family violence. The mother applied for a protection order against the father however the temporary order was later dismissed. The family violence allegation related to the father retaining the children based on his fear the mother would abscond to the USA (her country of origin).
- The matter went before the FMC due to the father concerns about relocation, and consent orders were made in 2012. Later an incident occurred where a child was injured in the mother’s care after being kicked by a horse. The mother had left the children unsupervised.
- DOCS investigated the horse incident and while they were interviewing the mother she made allegation of sexual abuse against the father, and that the children had made disclosures. The adopted sister also made disclosures against the father.
- Police and DOCS investigated and did not substantiate the allegations.
- At trial the mother did not pursue the case that the father presented an unacceptable risk of sexual abuse of the children or of the adopted sister.
- There were significant issues at to the mother’s credit. At paragraph 59 Justice Kent said, “I find the mother to be a witness devoid of credit. I find her to be untruthful not simply in relation to minor issues of detail or issues at the periphery of importance; I find her to be a witness who will manufacture lies of even a gross king in terms of the potential impact of those lies whenever it suits the mother’s purpose and no matter how important the subject matter.”
- At 122 “in stark contrast” the father was found to be credible and reliable.
Then court ordered the children live with the father and that the father has sole parental responsibility. The mother was at liberty to spend time with the children on alternate weekends.
The father submitted at 171 “the making and maintaining of these allegations and the mother’s historical position and conduct in relation to them, as evidencing the mother’s preparedness to undermine the father’s parental relationship and as resonating with a number of s 60CC considerations”.
A relevant section of the Magellan report referred to at 174 identified “It is clear that the children continue to be chronically exposed to and involved in their parents’ conflict including being questioned repeatedly about sexual abuse allegations and given the lengthy and ongoing family court proceedings, the children are at an unacceptable risk of suffering significant emotional harm as a result of parental behaviours, particularly in relation to [the mother’s] relentless questioning and insistence regarding [M] making disclosures of sexual harm by her father.”
Of the mother’s decision not to press the allegations at trial, His Honour concluded that some genuine belief by the mother that the abuse had occurred might explain why she relentlessly pursued the sexual abuse case. But by not pressing the allegations at trial “absent an explanation from the Mother (which was not forthcoming) as to how she has resolved her concerns; or the factors which now exist, absent previously, that lead her to such a profoundly different position” this was irreconcilable with the mother having any genuine belief (at 176).
At 210 His Honour reviewed the authorities and set out the “logical and practical” approach to be taken by the Court in meeting the statutory imperatives in a parenting case:
- Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U  HCA 36; (2002) 211 CLR 238)
- Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo  FamCAFC 53 (25 March 2010))
- Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 and s 4AB(1) of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
- In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo  FamCAFC 53 (25 March 2010) at  cited with approval in Sigley & Evor  FamCAFC 22; (2011) 44 Fam LR 439 at ).
- Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
- If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
- If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
i. Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
ii. Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
- The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
- To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA (5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR  HCA 4; (2010) 240 CLR 461, s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
His Honour applied the evidence to the various section 60CC factors and statutory considerations:
- Section 60CC(2)(a) – the children would benefit from having a meaningful relationship with both parents;
- Section 60CC(2)(b) – His Honour observed:
o The mother’s conduct in making the sexual abuse allegations raised a “serious question” about the benefit for the children of a relationship with the Mother including that component and an allied potential risk of harm to them.
o His Honour considered the Magellan Report evidence “…if it were found that the mother had fabricated or encouraged [M] to make allegations of abuse against the father, then it would be appropriate to call into question her ability to facilitate the children’s relationships with their father. If this were the case, it would be regarded as an active attempt to destroy the children’s relationship with the father. In that circumstance, the Court could, in my view, appropriately consider a change of residence for the children.”…in considering the report His Honour said at 217 “Certainly, if it is found that the mother is prepared to destroy the children’s relationships with their father, or at least not encourage those relationships, it would again point to the father as the more appropriate parent for the children to live with.”
o At 218: “It must be observed that aside from the sexual abuse allegations there is ample evidence to support the conclusion that the mother has readily engaged the children in the parental conflict. In contrast, there is little to suggest that the father has so done.”
o His Honour concluded that despite the mother’s interference with the children’s relationship with the father, the children’s bond to the father remained strong and the mother presented a risk of physical harm based on the incident with the horse, lack of supervision and laxity in such matters.
- Section 60CC(3)(a) – The children demonstrates positive views about each parent.
- Section 60CC(3)(b) – The children shared a strong bond with the older half sibling but the grandparents living in the USA had limited opportunities to enhance their relationships.
- Section 60CC(3)(c) – The father had limited opportunity to participate in decision making due to the circumstances of the allegations. His Honour considered it “troubling” how the allegations had placed limitations on the parent’s relationship.
- Section 60CC(3)(ca) – Both parties provided for the children financially.
- Section 60CC(3)(e) – The father’s and ICL proposal involved the children changing residence and less time with the half sibling. The mother’s domestic situation was turbulent.
- Section 60CC(3)(i) – Apart from the sexual abuse allegations the mother had a “chaotic lifestyle”, poor attitude towards the children’s education and had encouraged the half-sister to pursue relationships with wealthy men for financial benefit.
- Section 60CC(3)(j) – Family violence proceedings were permanently stayed.
After examining the various best interest factors His Honour concluded at 279 and 280:
“Having regard to the conclusions and findings expressed above and in particular emphasising the stability the Father can provide the children and the capacity the Father has to provide for their physical, emotional and intellectual needs, I am satisfied that it is in the children’s best interests that they reside primarily with the Father.
Further, by reference to my findings and conclusions, I am satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them. Past medical treatment for L and therapy is but one example of where there has been dispute between the parents and given all that has occurred between them, I am not satisfied that the nature of their relationship currently or their capacities to communicate with each other would be workable in terms of them consulting upon decisions in the exercise equally of parental responsibility.”
Relocation – Redwin & Redwin  FCCA 1379 (6 September 2013)
Relocation matter involving 2 children aged 15 and 12. The relocating parent was not credible with respect to employment prospects flowing from the move; the children expressed views against the move.
The mother was not permitted to relocate the children’s residences.
The court summed up the post 2006 relocation authorities:
- Caravaggio the learned Judge said as follSince the 2006 amendments to Part VII there have been a number of cases in which the Full Court of the Family Court has discussed the approach to relocation cases. In particular,; (2007) FLC 93-345, Sealey & Archer  FamCAFC 142, Starr & Duggan  FamCAFC 115,; (2009) FLC 93-405 and Hepburn & Noble  FamCAFC 111; (2010) FLC 93-438.
- In Taylor & Barker  Fam CA 1236 their Honours in the majority (Bryant CJ and Finn J) referred to Goode & Goode where the Full Court set out the pathway to be followed in parenting cases… “a relocation proposal should continue to be considered and evaluated, as far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however… such a proposal now also needs to be considered in the context of s 65DAA…”
- In McCall & Clark  FamCAFC 92 the Full Court discussed and incorporated the matters of principle from Sealey & Archer  FamCAFC 142 . Relevantly their Honours said at paragraph 63:
“While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker  Fam CA 1236; (2007) FLC 93-345 at ), the legislation does require in s.61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s.65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.”
- At paragraphs 66 and 67:
“Again as was recognised in Taylor & Barker in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s.65DAA, and particularly s.65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s.65DAA(5) in the context of its consideration of relevant s 60CC matters.”
- We should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…No doubt frequently the non-relocating parent’s proposal will be for an equal shared care arrangement, facilitating the consideration of matters under s.65DAA as one of the proposals.
- In our view, it is inevitable, given the provisions of the legislation, that the exercise to be undertaken will, on its face, involve dual consideration of some matters. For example, consideration of matters under s 60CC(3)(d) (the likely effect of any change in the child’s circumstances) and matters in s 65DAA(5)(a) and (b) and s 60CC(3)(e) (practical difficulty and expense of a child spending time with a parent) and s 65DAA(5)(a), (b) and (c) involve examination of similar criteria.
Thus relocation cases are to be approached as follows:
- They are parenting cases to be determined in accordance with Part VII;
- The child’s best interests is the paramount but not the only consideration;
- A relocation proposal should be considered and evaluated in the context of making necessary findings in relation to the relevant s 60CC matters and, where relevant, s 65DAA;
- In its application of s 65DAA, and particularly s 65DAA(5), it is appropriate to canvass the advantages and disadvantages of a proposal to re-locate the child;
- It is still the case that neither party bears an onus to establish that a proposed change or the continuation of an existing arrangement will best promote the best interests of a child (AMS v AIF (1999) 199 CLR 160).
- Notwithstanding a parent’s right of freedom of movement, this must defer to the child’s best interests. As with any parenting case subject to affording the parties procedural fairness, the Court is not restricted to their proposals (U & U  HCA 36; (2002) FLC 93-112).
- More recently, the High Court published MRR v GR  HCA 4; (2010) 240 CLR 461.
s. 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant…”
At par 13 the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order… A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered.
And at par 15 the High Court explained:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
Interim Order for Legal Costs – Lovett & Xavier and Anor  FamCA 49
The wife commenced an application in a case seeking the sum of $100,000 for, inter alia, her ongoing legal fees.
The relationship was about 16 year’s duration with the parties having been married in 1998, separating briefly in 2009; with final separation occurring in 2012.
The parties had an 11 year old daughter with whom they shared time equally between households.
In the substantive proceedings the wife joined the husband’s brother (who was also the husband’s business partner) as the second respondent alleging the husband had engaged in transactions designed to divest the matrimonial pool of property in 2009, in the context of the first separation. The wife applied for final orders to reverse the dispositions pursuant to section 106B Family Law Act 1975 (“FLA”).
At the interim hearing it was not controversial that the property available for distribution was at least $1,180,081.37 on the husband’s case; and the husband made a concession in affidavit material that the wife would receive an overall adjustment in a range between 50% and 55%.
The wife’s application was that the $100,000 be paid either by way of an interim costs order pursuant to section 117 FLA; or as an interim property settlement pursuant to section 79 FLA and section 80(1) (h) FLA.
The wife’s counsel also referred to spousal maintenance as being a potential source of power but this was not pursued.[i]
In any event, the wife’s position was regardless of the source of power, having regard to Zschokke (1996) FLC 92-693 and Strahan (Interim Property Orders) 2011 FLC 93-466 the relevant considerations in ordering a payment with respect to legal costs were the same. That is:
- The respondent being in a relative position of strength;
- Respondent’s capacity to meet their own costs; and
- Applicant’s inability to meet their own costs.
A further submission was made with respect to complexity of the litigation being a factor, but not a precondition, for making an order under any of the possible heads of power (Zschokke).
The husband did not take issue with the legal principles raised by the wife but argued that any payment ordered ought to be characterised as a part property settlement under section 79 and section 80(1)(h) FLA. The husband also referred to Gabel v Yardley (2008) FLC 93-386 as authority for the proposition that any interim property order must be capable of reversal without report to section 79A FLA or appeal.
With respect to the power being exercised pursuant to section 117 FLA the court made a number of points at 49 to 55:
- The general (and primary) proposition in section 117 FLA is that each party bears their own costs;
- However, section 117(2A) FLA allows the court to make an order for costs (including an interim order) if the circumstances justify to do so, as the court considers just;
- Section 117(2A) mandates the factors which the court must consider which justify an order with the weight attached to each factor wholly discretionary;
- If the litigation funding is ordered pursuant to section 117 then some form of assessment of the amount required should be made.
In relation to the last point the court referred to Paris King Investments Pty Ltd v Rayhill  NSWSC 578 where it was said funds for litigation expenses ought to be applied for that purpose only, and the court might require records to be maintained to permit review.
Justice Thornton determined that having regard to the submissions by both parties, it was appropriate and in the interests of justice to exercise the power under section 79 FLA.
At 77 Her Honour said:
“I accept the submissions on behalf of the husband in respect of the issues he raised surrounding s 117 of the Act. This is largely because one of the issues in the substantive proceedings will be whether the husband has divested himself of property in favour of his brother and if so, whether any transactions should be reversed under s 106B of the Act by way of a final order. It will not be possible until the conclusion of the substantive hearing to make any findings about the conduct of the parties which might have implications as to costs under s 117. I cannot identify matters in isolation or cumulatively which would justify an order for costs against the husband. It would be inappropriate for this reason to characterise any payment to the wife at this stage of the proceedings as a payment for costs under s 117.“
With respect to interim property order pursuant to section 79 the court referred to the 2 steps from Strahan, that is, the procedural or “adjectival” step; and then the substantive step.
The first step requires the court to identify the circumstances that make it appropriate to consider using the power. Here it was satisfied because of the complexity of the litigation, the wife’s expectation that she would receive at least $100,000 at the final hearing was conceded, the funds being sought for costs were not at an unreasonable level, and the purpose for which the wife required the funds was well set out.
The court considered the substantive step taking into account post Stanford and Bevan considerations.
In finding that the proposed interim settlement was just and equitable within the meaning of section 79(2) the court had regard to the relatively long marriage, it was common ground the pool was at least $1,180,081.37 on the husband’s case, the husband conceded the wife will ultimately be entitled to 50% to 55% of the net pool, and the court was satisfied the interim property settlement of $100,000 sought by the wife was capable of being adjusted and taken into account at the final alternation of property interests without resort to section 79A.
[i] Another potential source of power is injunction section 114 – Poletti and Poletti (Unreported, Family Court of Australia, Nygh J, 2 March 1990); Zschokke and Zschokke (1996) FLC 92-693; Strahan & Strahan (Interim Property Orders)  FamCA 116 at 84.