In the case of Rosa, the parties were married in 1992 and had a daughter in 2002. In 2007 the parties moved from Sydney to Mt Isa where the father took up a position as a mechanical engineer. In August 2007 the parties returned to Sydney for the husband’s graduation awards ceremony. Shortly afterwards the husband went back to Mt Isa and informed the wife that he did not wish for her to return.

An interim arrangement was implemented prior to the trial pursuant to which a week-about arrangement was facilitated in Mt Isa.

Pending the hearing the wife was living in a caravan park, she was unable to get employment, she felt isolated having regard to her family all residing in Sydney and she was suffering from depression. Nonetheless her evidence indicated that she would live wherever the child was living.

By contrast the husband said that he wouldn’t relocate even if the child was ordered to reside in Sydney with the mother.

Both parties sought an order for equal shared parental responsibility and the Court at first instance made orders for equal shared parental responsibility and orders that the child live with each parent on a week-about basis.

The mother appealed the decision and argued that Section 65DAA(5), which refers to the court giving consideration to the ‘reasonable practicability’ of any proposed arrangement, had not been adequately addressed.

The Appeal Court supported the mother’s view that Section 65DAA(5) had not expressly been addressed, however the Court took the view that his Honour had extensively considered section 60CC, which deals with how the bests interests of children are determined, so that the best interest of the child issue had sufficiently been taken up during this extensive consideration.

It was this issue that lead to an Appeal to the High Court.

In determining whether to grant a shared care arrangement, the High Court held that “finding an equal time arrangement is reasonably practicable is a statutory condition which must be fulfilled before the Court has the power to make a parenting order of that kind.”

So this case appears to mandate that in order for a court to make an order for equal shared parental responsibility and equal time it must determine that it is reasonably practical. Generally it cannot be reasonably practical if the parties live a long way apart.  In light of the Judgment in Rosa’s case, it seems reasonable to conclude that in determining relocation cases, the Court will need to consider the reasonable practicality of equal time or substantial and significant time having regard to wider family and social benefits of the child residing with a primary parent, albeit in another state.

In some cases, there is considerable disparity in the initial contributions made by each party.  In many instances with short marriages, later contributions made by one party do not offset the initial contribution made by the other.

In Millard’s case, the parties cohabited for two and a half years. At the commencement of the relationship the husband had $1,000,000.00 in assets and the wife $12,000.00. At the end, he was awarded 92.5% of the asset pool and the wife 7.5%.

On the other hand, in Turnbull’s case, a marriage of two years resulted in the wife receiving 5% of what was a very large asset pool.

In the case of GBT and BJT, on appeal, the Full Court reduced from 17.5% to 5% the outcome in favour of the wife where there was a $3,000,000.00 asset pool and a six year relationship with no children. The Court indicated that even though there had been homemaker contributions, it was found that these were only of “marginal significance”.

In Kennon, the parties were in a relationship for five years, there were no children, and there was a pool of $8,500,000.00 at the beginning and at the end of the relationship. All of the assets could be traced to what the husband had had prior to the relationship. His income throughout the relationship had been around $1,000,000.00 and the wife had worked in the husband’s company. At the trial, the wife was still working, although earning less than she had been, but her assets had doubled in value.

Initially, the trial Judge said that she had made no financial contribution and that she had received substantial benefits from her relationship with the husband.  On appeal, the Full Court found that the wife’s capital entitlement had increased to 8% of the pool, that more reliance should have been placed on “future needs” factors, and that the wife had added “qualities” which appealed to the husband. The Court noted that the parties had had a housekeeper during the relationship but felt that the wife’s contribution to the welfare of the household had not been diminished by this. Each party had contributed to the best they could and whilst the wife’s qualities were less tangible than the husband’s, they were still worthy of consideration.

In the case of Carrigan and Fredericks, the Father left Australia to take up employment in the Middle East in January, 2008.  He had been assessed to pay child support for his two children prior to that.

His obligation to pay child support was initially ordered to continue until 15 June, 2009, on the basis that it was determined that it was not until this date that a child support terminating event was said to have occurred.

The judge had to work out when the Father ceased to be a resident in Australia, as this would be the date that his child support obligation effectively ceased, in circumstances where the Middle East was not a jurisdiction where child support was able to be enforced.

The judge found that the father ceased to be a resident when he left in January, 2008, because:-

* He started to live and work in the Middle East at that time.

* His employment contract was indefinite.

* He had no assets in Australia

* His residential address was an address in the Middle East

* His passport indicated him as a resident of the Middle East from 2008 to 2012.

* His intention was to remain in the Middle East indefinitely

Although the Mother was not able to secure child support, it was then open to her to seek a maintenance order, which doesn’t require an Australian residential nexus as a precondition.

In that case, Orders had initially been made for the husband to pay to his wife $25,000.00, simultaneously with which, she was to transfer her interest in a property to him.  The Orders also provided that in the event that the money was not paid to the wife, she could force a sale of the property, and would be paid interest on the $25,000.00 at 18% per annum until she received her payment.

The husband did not pay his wife, and this resulted in the wife bringing enforcement proceedings before the Court some eighteen years later.

By the date of the hearing, the wife had died.  The husband opposed the enforcement application and also asked the Court to vary the Orders in relation to the interest provision.  By this time, his health had deteriorated and he had no means to pay his Wife’s estate $25,000.00 plus interest, which amounted to almost $88,500.00.

The Court ordered that the house be sold but that the sale be deferred to allow the husband to find alternate accommodation.  It was ordered that the wife’s estate be paid $25,000.00 plus interest at 18% per annum, with the balance of sale proceeds paid to the husband.

Most mediators will ask both parties at the commencement of mediation to talk about why they have come to mediation and what they hope to gain from it.  Clients should feel as though they have the opportunity to tell their side of the story, and raise issues that are of concern to them in an environment which enables them to feel safe.

Your mediator should establish trust and rapport with both parties.  They should present as neutral and not in favour of either side.

Your mediator should give consideration to any safety concerns.  Are the clients comfortable to be in the same room together?  How should seating be arranged?

Another decision to be made is whether or not lawyers are present.  The presence of your lawyer means you can obtain advice from them at any stage and they can make you feel more comfortable about making decisions to resolve your case.

In many cases, FDR practitioners are only able to assist with disputes relating to children.  If you want to be able to discuss and resolve matters pertaining to property settlement, you will usually need to find a Practitioner who is a qualified lawyer with experience in family law.

At Rachel Stubbs & Associates, our principal Solicitor Rachel is a qualified and registered FDR Practitioner and an accredited specialist in family law.  She is able to conduct mediation in relation to parenting matters and property matters.  Feel free to contact our office if you would like to discuss mediation as an option to resolve your case.

There are several advantages to participating in mediation:

*Time efficiency.  In most instances, mediation can be arranged in a matter of a few weeks, while it can be months before an Application filed with the Court is listed.  Often, the first return date in Court is not an opportunity to resolve the case, whereas the purpose of mediation is to give each person the opportunity to present, discuss and resolve all of the issues of concern and contention between them, often in the course of one meeting.

*Cost.  Mediation is a far less expensive process than court proceedings.

*Control.  Clients have the opportunity to have a say in the outcome of their dispute.  Reaching agreement usually involves both parties having to compromise on their positions, but they end up with a result they have agreed to and can work with.  Court proceedings result in a third party determining and imposing an outcome, which may not satisfy either person.

Rachel Stubbs is a qualified Family Dispute Resolution Practitioner, who can assist with mediation for both parenting and property matters.  If you would like further information about this service, please either go to our website www.stubbslaw.com.au or telephone our office on 4655 5366.

In such a case, mediation is definitely the preferred route because it allows the parties to craft their own agreement. The parties are permitted to explore the issues that might create difficulty both at the moment and on an ongoing basis. Additionally, they are able to develop communication strategies and methodologies to deal with those issues. Mediation assists parties develop a post-separation communication strategy, which is essential if they have children or on-going spousal support obligations and will be in contact for several years into the future.

When a mediator is dealing with parents who do not have equal bargaining power or are not of equal sophistication with regards to their respective financial situations, the mediator can make sure that both parties are equally and completely involved with legal counsel throughout the mediation process. If the lawyer feels that his client may be intimidated by the stronger party, the mediation can be conducted in separate rooms with one party in each room, so that those intimidation tactics are minimized.

The mediator’s role is primarily to develop a separation agreement that will stand the test of independent legal scrutiny. Only in a very rare situation, when the mediator feels that the discrepancy between the parties’ respective bargaining positions and bargaining capacities are too great, will he decide that mediation is not appropriate.

The costs to the client for mediation vary depending upon the situation. But mediation is still the most cost-effective dispute resolution mechanism available, because the client deals only with one lawyer for most of the time and cost of mediation overall is shared between the two parties.

Unconfirmed reports yesterday said the 35-year-old had left for Italy and had no plans to continue his fight.

He has been in Australia since May, using the Hague Convention in his bid to have the courts send his daughters back to Italy.

He claimed the girls’ Australian mother had kidnapped them before bringing them to live on the Sunshine Coast two years ago.

At first it was thought the father, who cannot be named for legal reasons, would return from Italy next month to continue the legal tug-o-war but reports yesterday said he contacted his supporters from Dubai to tell them he had “had enough”.

It is believed he was upset after a Family Court judge agreed on Thursday to hear an appeal to dismiss his original order that the girls – aged nine, 10, 13 and 15 – be sent back to Italy.

The application to discharge his ruling will be heard on September 27.

The judge also ordered the girls be interviewed again by an independent consultant to ensure their wishes were understood.

At one stage the girls were in foster care but they were recently allowed to return to live with their mother and their father given weekly access.

The family has been banned from talking to the media but a close friend said they had told her that they believed the media reports were accurate.

“They are stunned – relieved and thrilled – but they are still coming to terms with what has happened,” she said.

“They are also elated that they can see light at the end of the tunnel and he might be out of the picture.

“Apparently he didn’t contact the girls to say goodbye – they heard it through the media like everyone else.”

She said the family was heavily in debt as a result of the court battle.

“They owe thousands and thousands and thousands of dollars that they simply don’t have but at least they are happy.

“They told me they expect the girls will still talk to a counsellor, as the judge instructed, and they will be back in court on September 27.

“But it looks like that might finally be the end of it.”

Under the Surrogate Parenthood Act 1988 in Queensland, the couple is liable for prosecution and potential jail for three years. Currently in Queensland, altruistic surrogacy, where a couple do not pay for a surrogate mother to carry their child, is legal and couples can apply to the Supreme Court for a parenting declaration. International commercial surrogacy remains illegal and the only way to get a parenting declaration is to go to the Family Court and seek it through Commonwealth laws.

In giving the decision to allow the couple equal shared parental responsibility of the twins, Family Court Judge Judy Ryan said that the surrogate mother was paid $7350 by the couple and she did not want parenting rights and therefore she had granted the twins Australian citizenship.

The Judge also granted the couple indemnity from prosecution, ruling that their evidence could not be used in any criminal proceedings against them. She said that “imprisonment of the couple would see two much-loved children inexplicably separated from the only two people they have known as parents and the potential for long-term psychological and emotional harm to the children were such an event to come to pass is obvious”.

While ruling for the period of time that contact would be disallowed for the father, the Judge said that he could send letters, cards and e-mails to the boy and send him photos and presents for his birthday and at Christmas. The mother, who was not happy with any contact, was ordered to give the father photos of the child three times a year and notify him of school reports or health issues.

In denying contact visits, the Judge said that the boy would be at risk in such contact visits, and agreed with medical advice that the boy could be exposed to drugs.

The Judge in considering the matter of joint parental responsibility, concluded that in view of the father’s lack of interest in the child and his uncontrollable addictions, he did not believe that anything could come  of there being joint parental responsibility and that it would not be in the best interests of the child. In addition, the lack of a meaningful relationship between the boy and his father  was solely as a result of the father’s ‘bizarre and destructive conduct.