Mother Opposes Final Parenting and Property Orders

Northup & Peat [2021] FedCFamC1A 63 (12 November 2021)

The primary judge made orders for equal shared parental responsibility as the children ought to have a meaningful relationship with their father.  The wife appeals orders for equal shared parental responsibility as well as the final property settlement orders.  The Court, in making its orders, assessed the primary's judge's treatment of interest the husband held in the family trust and the evidence of the Family Consultant. 

Facts:

The parties began living together in 2005, married in October 2008 and separated in December 2016.  During the marriage the parties lived in Suburb F.  At separation they agreed that the wife and children should move to City P while the husband remained in Suburb F.  Before the husband moved back to City P, he and the wife agreed on the time the children would spend with him and she travelled to City P each fortnight to spend time with the children at his sister’s house.  The wife’s evidence was that the younger child became upset and although she said she did all she could to encourage the children to spend time with the husband, by March 2018, the younger child did not want to attend.

On 19 June 2018 orders were made that from 29 June 2018 the children spend overnight time with the husband each alternate weekend.  By April 2019, both children were objecting to spending time with the husband, and this coincided with the husband’s marriage to his new partner.  Except for a period of several hours on 30 October 2019 when the husband and the children were assessed together for the preparation of a Family Report, the husband did not see the children from 31 March 2019.  Some attempts at reconciling the children’s relationship with their father were made through what the primary judge described as “reunification therapy” but were not met with signal success.

On 24 December 2020 a judge of the Family Court of Australia (as it then was) made final orders determining parenting and property adjustment proceedings between the parties.  Orders provide that the parties have shared parental responsibility for their children X and Y.  The wife is to have sole parental responsibility for matters affecting the health and education of the children, provided that the parties consult to reach a consensus, but in the event of there being no agreement, the wife is to make the final determination as to these matters.  Further orders were made for the children to spend time with the husband commencing with four hours per week and, over a period of nine months, increasing to each alternate week and such other times as may be agreed between the parties.

The primary judge assessed the parties’ contributions as 70 per cent to the husband and 30 per cent to the wife but then adjusted the wife’s entitlement by 20 per cent, arriving at an equal apportionment between the parties.  The wife sought an order for sole parental responsibility but the primary judge declined to order that the wife have sole parental responsibility because, he noted the Family Consultant’s concerns as to the implied effect on the children of the importance of the father in their lives.  The primary judge thus found that there was a benefit to the children in maintaining a relationship with their father. 

Issue:

Whether or not the appeal should be allowed.  

Applicable law:

Family Law Act 1975 (Cth) s 65DAA - requires the judge to undertake the mandatory statutory analysis before making parenting orders. 

Family Law Act 1975 (Cth) s 75(2) - matters herein were taken into account by the primary judge in making adjustments to the wife’s entitlement by 20 per cent, arriving at an equal apportionment between the parties.  

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 - held that the question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so.

Analysis:

Ground 1 of the grounds of challenge to the orders challenged Order 10 which restrains the parties from engaging the children in psychiatric intervention.  It alleged that such order was inconsistent with the order that the mother have sole parental responsibility in relation to the children’s health.  The thrust of the argument is two-fold, first, that in this particular case (excepting health and education) no other decision in relation to major long term decisions was likely to arise and so the wife should have sole parental responsibility.  Secondly, it was argued that in light of the primary judge’s findings about the parties’ attitudes to each other and their inability to communicate, it was not in the children’s interests for there to be shared parental responsibility.  

There is no basis for the contention that in the lives of two young adolescent boys, no long term major decision will arise in the future save for health and education.  Notwithstanding that lack of communication between the parties, to order that the mother have sole parental responsibility would reduce the importance of the father in the children’s lives to being “tangential”. 

The children would benefit from a continuation of the meaningful relationship they previously enjoyed with him, and would not be in their best interests.  Contrary to the wife's assertion that the judge's finding concluded that the children's relationship with the father was capable of being restored, his Honour did not conclude that the children’s relationship could be restored but it is clear that he considered that an attempt should be made to reinstate it.

In dispute between the parties was the husband’s interest in a family trust and how or to what extent his interest ought to be taken into account in determining the property of the parties.  It was alleged that the learned Judge erred in his finding that there was no evidence to support a contention that the Husband, in concert with third parties, caused the premature distribution of assets.  It was argued that the primary judge erred in not taking any future distributions from the trust into account.  However, given that there was no evidence on which the primary judge could possibly attribute a value to the future distributions, he was correct not to attempt to quantify the value to the husband of any future distributions. 

Conclusion:

The appeal is allowed in part.  Order 10 is set aside and the parties are instead restrained from engaging the children or each of them in any therapeutic intervention by a psychologist, psychiatrist or counsellor that relates to or arises from the relationship of the father with the children.  The balance of the appeal is dismissed.  The wife should pay the husband’s costs fixed in the sum of $30,000.