Property unchanged by parenting change
Coventry & McNamee  FCCA 495 (9 March 2016)
The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/495.html?stem=0&synonyms=0&query=family%20law%20act
- In Gavin & Garden (supra) final orders were made by consent on 5 May 2004 in regards to settlement of property and children’s issues. The parties had two children who, at the time the order was made, were aged approximately 11 years and 8 years respectively. The orders provided for the children to live primarily with the wife and spend time with husband for five nights per fortnight.
- Seven months after the final orders were made the children left their mother’s home and went to live with their father. On 4 February 2005 interim parenting orders were made providing for the children to live with the father, for the older child to spend time with the mother for four nights each alternate week and for the younger child to spend time with the mother for six nights each alternate week.
- On 22 August 2005, following a trial, orders were made providing for both children to live primarily with the father and to spend time with the mother for four days per fortnight.
- On 28 June 2007 there were further parenting orders providing for both children to continue living with the father and for the younger child only to spend time with the mother each alternate weekend.
- On 10 May 2006 the husband filed an application to set aside or vary the consent orders relating to property settlement. On 18 October 2007 the husband succeeded in obtaining such an order. The matter was then set for hearing with respect to the question of settlement of property.
- On 18 September 2009 property settlement orders were made in the absence of the wife, in respect of which the wife appealed. On 2 July 2010 the wife succeeded on appeal with respect to both the order setting aside the consent order and the fresh order for settlement of property. Such an outcome resulted in the original consent order dated 5 May 2004 for settlement of property being reinstated. The matter was remitted for rehearing before Mushin J, who was then required to determine the husband’s application to set aside the original consent order.
- His Honour found, at paragraph 48 of his judgment: “That the husband has not established an exceptional circumstance in accordance with the meaning of that term in the legislation.”
- In the case of Sandrk & Sandrk (1991) FLC 92-260, His Honour Justice Gee determined that the circumstances of that case constituted “exceptional circumstances.” In that case, at the time of the making of the order for settlement of property, the children were living with the mother and spending no time with their father. The evidence did not suggest that there would be any change in the circumstances but within about a month after the order was made the children began seeing their father and within three or four months had moved to live with their father and spent no time with their mother.
- His Honour found that the events in that case were exceptional in that neither party had contemplated such a change of circumstance nor did it appear that either party had consciously created the situation.
- The facts in this case are not significantly in dispute. The order for settlement of property made on 24 February 2010 was not a consent order but followed upon a judgment of the court in respect of which reasons were delivered on 23 December 2009. The order was not able to be made until 24 February 2010 because of the requirement of affording procedural fairness to the husband’s superannuation trustees.
- At the time the order was made in respect of which the husband appealed the children were aged 14 ½, 13 and 10 ¾. It was common ground that at the time the children were living primarily in the care of the wife and spending approximately 15% of their time with the husband. The parties had been separated for approximately eight years at the time of trial in September 2009.
- It was common ground at that time that Z was exhibiting significant behavioural problems as described by the wife in paragraphs 101 and 102 of her trial affidavit filed 27 August 2009 and paragraphs 110 to 113 of that same affidavit.
- In the husbands trial affidavit filed 4 September 2009 he disputed being aware of the more recent psychological report for Z which he saw when he read the wife’s trial affidavit but he said he hadn’t been attending any of the meetings at school regarding Z’s behaviour because he hadn’t been aware of any of them. He did however acknowledge that he did have a copy of Z’s psychological assessment from August of 2003 arising from behaviours exhibited by Z at kindergarten and he confirmed that he had attended at parent teacher interviews as publicised on the school website.
- The husband referred in paragraph 16 to his wish to make a greater parenting contribution outside of alternate weekend time and wanting to encourage all of the children to strive to achieve their best. He said that that was his motivation and underpinned his recent attempts, at that time, to negotiate increasing his level of care for the children. In the eight years post separation prior to the husband filing his application for settlement of property, which did not include any application with respect to parenting orders, he had not sought any formal orders with respect to the children’s parenting arrangements.
- At trial he did not seek parenting orders. The court found in an assessment of the parties post separation contributions that there should be an adjustment in favour of the wife on account what I described as “the over whelming responsibility for the care of the parties children since separation in 2001” (paragraph 57). The evidence at trial therefore amounted to an expression on the part of the husband to either negotiate or to seek orders in respect to an increase in the time the children spent with him but that was not pursued by him at that time.
- It is not in dispute that some four months after the delivery of judgment and slightly less than two months after the making of the final order for settlement of property, the husband filed an application for parenting orders seeking an increase in the children’s time with him.
- In the husband’s affidavit in support of that application he said, in paragraph 14, that the wife had refused to attend mediation about that issue when approached the relationships centre at (omitted) in June of 2009.
- This preceded the trial with respect to property settlement issues by some three months but the husband did not take any steps to seek to amend his application to include parenting issues.
- There is no doubt that at the time the order for settlement of property was made the husband was contemplating a change to the parenting arrangements for the children and the wife was aware of the husband’s wish for the children to spend more time with him.
- The husband’s application for parenting orders was made returnable for 21 June 2010. The husband’s application effectively sought a doubling of the amount of time the children spent with him each fortnight. The wife’s response proposed an increase of one night. The parties and the children attended on a family consultant on 29 June 2010. Arising from those discussions final parenting orders were made by consent providing for the children to spend time with their father for five nights in each alternate week, which was in accordance with his application. It was clearly the position of both parties, as evidenced by the advice to the court from the family consultant, that they were listening to and taking into account the views of the children.
- At the time of the filing of the husband’s application in April of 2010 his appeal against the order for settlement of property was pending. The appeal was heard on 20 September 2010, being approximately six weeks after the parenting orders were made. On 9 June 2011 the appeal was dismissed. Three weeks later the husband filed a further application for parenting orders. In that application he sought that the children live with each party on a week about basis.
- He deposed to the basis of his application being spontaneously expressed wishes on the part of each of the children to live with their parents on a week on week off basis, in circumstances where he said he understood each of the children to think that would be “a fair arrangement.” The mother did not file any responding documents, nor did she attend at the first return date of 15 August 2011 and on that day orders were made in terms of the husband’s application. Accordingly, as from that time, the children commenced living with their parents on a week about basis.
- On 9 December 2011 W, who was by then 16 years old decided to live with the husband full-time. The wife did not dispute W deciding to live with the husband on a full-time basis. The husband simply deposed in paragraph 9 of his affidavit filed 25 April 2014 that:
“On 9 December 2011, the eldest child of the marriage, X born (omitted) 1995 decided herself to reside with me on a full-time basis. On 18 January 2012, Ms McNamee acknowledged in writing that W was no longer living with her. I have provided full-time care for W ever since.”
- The wife said in paragraph 15 of her affidavit filed 12 June 2014 that W did go to live with the husband on a full-time basis on 9 December 2011 in circumstances where Z’s behaviour was causing difficulties in the household and where she required help from her father for her maths studies. The father had referred to that issue himself in paragraph 19 of his affidavit filed 13 April 2010 in support of his initial application for parenting orders.
- On 29 April 2012, some four and a half months later, the wife determined that she was no longer capable of providing full-time care for Z. In paragraphs 13 to 15 of the husband’s affidavit filed 25 April 2014 he deposed to the significant behavioural problems demonstrated by Z. Those issues were referred to by the wife in paragraphs 17 to 20 inclusive of her affidavit filed 12 June 2014. I have already referred to the parties’ knowledge of Z’s behavioural difficulties at least since 2003, although in paragraphs 14 of his affidavit with respect to the property settlement trial filed 4 September 2009 the husband disputed the level to which he had been involved in dealing with those behavioural issues over the years.
- Z was nearly 13 years old when he went to live with the father on a full-time basis. By that time he had been living with each of his parents on a week about basis for about eight months. The husband became aware that he would be transferred to Canberra in or about August of 2013. By that time both W and Z were living with the husband on a full-time basis with Z spending little if any time with the mother. Y was still living with each of his parents on a week about basis until 7 January 2014. On or about 3rd January 2014 Y advised his mother that he was going to move out of her home and into a house that the husband had bought for he and W.
- Neither party suggests that the issue of Y living with the husband full-time was addressed with the other of them or with Y until, according to the mother, Y told her he was doing so on 3 January 2014 and, according to the father, Y deciding to do so on 7 January 2014.
- It was common ground that the wife had declined to participate in mediation with the husband in relation to arrangements with regards to his transfer to Canberra and that such notice of the proposed mediation was received by her in the latter part of August 2013. The wife said in paragraph 24 of her affidavit filed 12 June 2014 that it was her belief the reason Y decided to leave her home was because of the prospect of living with his sister without parental supervision in a house provided by the husband.
- It was common ground that neither W nor Y wanted to go to Canberra with their father. The father said in paragraph 18 of his affidavit filed 25 April 2014 that his expectation until 7 January 2014 was that Y would return to the mother’s full-time care. He said in circumstances where W decided that she did not want to return to her mother’s house from January 2014 but wanted to complete her year 12 studies in Adelaide that he had no choice but to find somewhere else for her to go. Those matters are set out in paragraph 18 of the husband’s affidavit filed 25 April 2014. He did not offer any evidence as to why W did not want to return to the mother’s home, such that he had no alternative but to find somewhere else for W to live. There is no evidence from either party as to a dysfunctional relationship between W and the mother.
- By the time the husband moved to Canberra to live, in January of 2014, W had completed her year 12 schooling, had turned 18 years of age and had elected to try and improve her year 12 results by doing two subjects in 2014. She was working part-time at (employer omitted).
- The husband’s evidence as contained in paragraph 19 of his affidavit filed 25 April 2014 was that in late 2013 “with a less than likely possibility of finding a land lord willing to rent a house to two teenagers in Adelaide, I had little choice but to buy a property for W and Y to live in at a time when I was least prepared to do so.” On the husband’s own evidence, Y did not decide to live with him on a full-time basis until 7 January 2014. His evidence was, as contained in paragraph 18 of his affidavit, that he had no choice but to find somewhere for W to live but had an expectation that Y would return to the mother’s full-time care in circumstances where he didn’t wish to move to Canberra with his father.
- The husband gave no evidence as to the date upon which he signed a contract to purchase the property at Property M in which W and Y went to live, or the date upon which the purchase settled.
- On the husband’s own evidence his decision to buy the Property M property predated his knowledge of Y deciding to want to live away from the mother’s home. It is of course the costs associated with the purchase of the Property M property, the payment of household expenses for both the Property M property and his rented property in Canberra and the cost of supporting Z that form the basis of the husband’s argument that the circumstances that have occurred since the making of the order are exceptional circumstances that have caused hardship.
- I am not satisfied that the husband has on his own evidence at its highest made out a case that the change in circumstances with respect to the living arrangements of the parties three children post the making of the order for settlement of property is one of “exceptional circumstances.” As the Full Court said in paragraph 40 of its judgment in the matter of Christian & Donald  FamCAFC 44 in discussing the decision of the Full Court in Simpson & Hamlin (supra):
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“…the judgment reiterated that the legislature has placed a relatively high onus on an applicant who seeks relief pursuant to section 79A(1)(d). The plain words of the subsection indicate that it was not intended to cover, per se, a situation where children leave a parent who has received the benefit of an adjustment pursuant to section 75(2) on account of their future care. The successful applicant must establish “exceptional circumstances” relating to the care, welfare and development of a child of the marriage.”
- When X went to live with the husband full-time in December of 2011 she had, as a result of applications filed by the husband and not ultimately contested by the wife, been spending increased time with her father from August 2010 (five nights per fortnight) and from August 2011 (equal time) such that the move to living with him on a full-time basis was not a dramatic change in circumstances. Neither party disputed the fact that W chose to live with the father on a full-time basis, the move was not opposed by either of the parties and it was common ground that at the very least the husband was better placed to be better able to assist W with her maths studies.
- In addition, by at least the time of the wife filing her affidavit for the property settlement trial in August of 2009, the husband was aware of the significant behavioural difficulties being exhibited by Z which the wife said created difficulties for W in the household.
- By the time the wife determined that Z would have to live with the husband on a full-time basis in April of 2012 he was nearly 13 years old, the extent of his behavioural difficulties had been apparent to the husband for at least two and half to three years and Z was already living with him a week about basis arising from his parenting order applications.
- Y’s decision to move out of the mother’s home in January of 2014 did not equate of course to a choice to live with the husband because by that time the parties and the children were aware that the husband was moving to Canberra. Y had already indicated he was not prepared to move to Canberra with his father. On the husband’s own case Y’s decision was made after the husband had purchased a house in Property M. Y told his mother, who was clearly surprised by his decision, that he intended on living in that house with his sister.
- I am satisfied that in all of the circumstances of the husband’s case the changes in the children’s parenting arrangements, commenced by way of the husband’s applications for parenting orders shortly after the delivery of judgment with respect to property settlement issues, were in no way exceptional but could properly be described as:
“the ordinary vicissitudes of life coupled with the difficulties that parties to a marriage often experience in the task of restricting their lives following the dissolution of their marriage and the division of their assets, and their obligations to the support of each other and the support, care and control of their children, (which) frequently creates situations in which it is desirable having regard to the children’s welfare that such change occurs.”
- I am satisfied that these words accurately describe the situation that arose with respect to the children W and Z. It is unclear why Y decided to leave the mother’s household and there was no evidence adduced by the father as to any basis for Y making such a decision. Y knew however at the time of making that decision that there was a home available for him to live in without full-time parental supervision.
- In Youseff & Youseff (1995) Fam CA 102 the Full Court said, when referring to the support of the Full Court of the approach taken by the primary Judge in Simpson & Hamlin:
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“We do not think the Full Court intended to limit the test of exceptional circumstances to circumstances which cannot be reasonably expected to arise. This was made clear when the court said: “what amounts to exceptional circumstances is very much a question of fact and degree.” With respect, we agree. The court should not limit itself to matters relevant only to expectations. It should consider all relevant facts and matters when deciding whether there have been circumstances of an exceptional nature.”
- There is no evidence that would suggest that any of the changes that occurred in the living arrangements of W, Y and Z could be described as “exceptional”. There is no explanation at all proffered for Y’s decision to move out his mother’s household, or to support any assertion on the part of the husband that he had no option but to provide accommodation and living costs for Y.
- It is a grave matter to dismiss a matter summarily. In Rule & Rule  FCCA 3191 Judge Harland discussed in paragraphs 12 to 14 inclusive significant authorities with respect to the issue of summary dismissal. Her Honour said:
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“12. There are several authorities which have addressed the matters the Court must consider when determining whether or not to summarily dismiss a matter. Kirby J’s comments at paragraph 14 of Lindon v the Commonwealth of Australia (No.2)  HCA 14 are often quoted. In that paragraph he said:
“The approach to be taken by the Court to the Commonwealth’s application for summary relief is not in doubt:
- It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;
- To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
- An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
- Summary relief of the kind provided for by O 26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
- If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26 r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth’s attack was upon the entirety of Mr Lindon’s statement of claim; and
- The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit”.
13. In the Family Court decision of Gitane & Velacruz  FamCA 183 Kay J summarised the position well at paragraph 25 where he said:
“I paraphrase the salient points as follows:
(1) that relief for summary dismissal is rarely and sparingly provided;
(2) that it is only available if it is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action or that it is a frivolous or vexatious one;
(3) that it is not enough to attain summary dismissal to show that it is a weak case;
(4) that there is a defect in the pleading and it appears that the party still has a reasonable cause of action, the Court will allow the party to reframe its pleading; and
(5) that one only summarily dismisses if it is clear that the case is doomed to fail”.
14. It is clear from s.17A and from the authorities that the bar for being able to successfully have an application summarily dismissed is a high one. It is appropriate that it be so because it is depriving a litigant of an opportunity to pursue his or her claim.”
- I find that the evidence relied on by the husband in support of his application to set aside part of the order for settlement of property made herein on 24 February 2010 falls significantly short of that required to satisfy the court that the changes in the children’s living arrangements have been “circumstances of an exceptional nature” as required by the legislation.
- There is no doubt the children’s living arrangements changed significantly over the months and years following upon the making of the order for settlement of property such that within four years all of the children were the financial responsibility of the husband in circumstances where he earns a significantly greater income than the wife and where her child support liability was modest and in arrears. The changes in the children’s living circumstances came about as a result of applications made by the husband and the children’s changing needs.
- The Oxford English Dictionary defines the word exceptional as “unusual” or “not typical”. The Merriam Webster Dictionary defines the word exceptional as “not usual”, “unusual” or“uncommon.” I am not satisfied that any of the circumstances described by the husband in relation to the children’s parenting arrangements could be described as exceptional. In those circumstances I do not intend to turn my mind to the issue of whether or not hardship was caused.
- I am satisfied that, using the words of Justice Kay in Gitane & Velacruz (supra): “It is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action.”
- This is a matter where the parties engaged in litigation in 2009 with respect to financial matters, in 2010 and 2011 in relation to parenting issues and in 2014 again with respect to property issues. In addition the husband appealed the original order for settlement of property and further was ordered to pay $7,000 towards the wife’s costs of that application.
- I have found that the husband has not made out a case for “exceptional circumstances” at the highest point of the evidence on which he relies. The power to order summary dismissal of a matter is a discretionary power. I find that it is in the interests of both parties to:
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“dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.”
- For these reasons I make the following order.