ABELLA & ABELLA
[2012] FMCAfam 4
•24 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABELLA & ABELLA | [2012] FMCAfam 4 |
| FAMILY LAW – Parenting – two children aged ten and seven years – children have been living with the wife and spending significant and substantial time with the husband since separation – wife seeks these arrangements continue but that the husband’s time be consolidated into a block period – husband seeks a week about shared care arrangement – parties concede there are difficulties in the father-daughter relationship with the eldest child – Family Report Writer identified youngest child as feeling responsible for his father’s distress and unhappiness post separation – ordered that the children continue to live with the wife and spend a block period of four nights with the husband each fortnight as well as an evening in the other week and that the parties and eldest child engage in reportable therapeutic counselling. FAMILY LAW – Property – relatively small asset pool – inheritance received by the husband from his late father’s estate found to attract a 15 per cent loading in the husband’s favour – section 75(2) factors found to attract a |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA, 75, 79 |
| Pierce & Pierce (1998) 24 Fam LR 377 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) Vernon & Vernon [2010] FamCAFC 215 |
| Applicant: | MR ABELLA |
| Respondent: | MS ABELLA |
| File Number: | MLC 1807 of 2011 |
| Judgment of: | Bender FM |
| Hearing dates: | 7, 8 & 9 December 2011 |
| Date of Last Submission: | 9 December 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 24 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Ms Wheeler |
| Solicitors for the Respondent: | Cahill & Rowe Family Law |
ORDERS
Children:
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the children X born (omitted) 2002 (“X”) and Y born (omitted) 2004 (“Y”).
X and Y live with the wife.
X and Y spend time and communicate with the husband as follows:
(a)from after school Thursday to before school Monday, and if Monday is not a school day then to 5.00 pm Monday, commencing 1 March 2012 and each alternate week thereafter;
(b)from after school to 7.00 pm Thursday 8 March 2012 and each alternate Thursday thereafter;
(c)if not otherwise spending time with the husband pursuant to these orders, from 5.00 pm on the eve of Father’s Day to 7.00 pm on Father’s Day;
(d)if not otherwise spending time with the husband pursuant to these orders, on each of the husband, X and Y’s birthdays for four hours by agreement and failing agreement from 3.30 pm to 7.30 pm;
(e)from 5.00 pm on Christmas Eve to 3.00 pm Christmas Day 2012 and each alternate year thereafter;
(f)from 3.00 pm Christmas Day to 6.00 pm Boxing Day 2013 and each alternate year thereafter;
(g)
by telephone each Sunday and Wednesday that X and Y are not in the husband’s care between 6.00 pm and
7.00 pm, with the husband to initiate the telephone call to the wife’s mobile or landline telephone number; and
(h)as otherwise agreed between the parties.
If X and Y are spending time with the husband pursuant to these orders then such time be suspended as follows:
(a)from 5.00 pm on the eve of Mother’s Day to 7.00 pm on Mother’s Day;
(b)for four hours on each of X and Y’s birthdays as agreed and failing agreement from 3.30 pm to 7.30pm;
(c)from 5.00 pm on the day before the wife’s birthday to 5.00 pm on the wife’s birthday;
(d)from 3.00 pm Christmas Day to 6.00 pm Boxing Day 2012 and each alternate year thereafter; and
(e)from 5.00 pm Christmas Eve to 3.00 pm Christmas Day 2013 and each alternate year thereafter.
When X and Y are spending time with the husband pursuant to order 4(a) herein, the wife may telephone X and Y between 6.00 pm and 7.00 pm on Saturday night, with the wife to initiate the call to the husband’s mobile or landline telephone number.
Both parties shall facilitate either of X or Y ringing the parent they are not with upon their reasonable request to do so.
Changeover for the time X and Y spend with the husband pursuant to these orders, when not at school, shall take place at the (omitted) at (omitted) Shopping Centre unless otherwise agreed between the parties in writing.
The husband and the wife be restrained from using any form of excessive physical force when disciplining or interacting with X and Y or either of them.
The parties shall do all things necessary to attend upon Mr P, or such other therapeutic counsellor as agreed between the parties in writing, together with X, and if so requested by the therapeutic counsellor, Y, and continue to attend upon the therapeutic counsellor as directed by them for the purposes of reportable therapeutic counselling.
For the purposes of order 10 herein, the parties shall:
(a)provide to the therapeutic counsellor copies of the Family Report of Mr A dated 1 November 2011, these orders and the reasons for judgment delivered on 24 February 2012; and
(b)place the sum of $5,000.00 from the monies currently held in trust on their behalf in a joint account to be utilised for the payment of the therapeutic counselling and in the event there are any monies remaining at the completion of the therapeutic counselling, those monies shall be divided equally between the parties.
Until such time as the parties and X have completed the reportable therapeutic counselling pursuant to order 10 herein, and the therapeutic counsellor recommends the introduction of holiday time between the husband and X and Y, the husband’s time with X and Y pursuant to order 4(a) and 4(b) of these orders shall continue during all school term holiday periods and the long summer vacation, save that the wife be permitted to nominate in writing to the husband at least 14 days prior to the commencement of same, one continuous period of one week during one of the school term holidays and one continuous period of two weeks during each long summer vacation during which the husband’s time with X and Y shall be suspended.
Upon the recommendation of the therapeutic counsellor that holiday time between the husband and X and Y commence, X and Y’s time with the husband pursuant to orders 4(a) and 4(b) herein shall be suspended during all school holidays and recommence as if the school holiday period had not intervened and X and Y shall spend time with the husband during such school holiday periods as follows:
(a)for one week in each of the school term holidays and failing agreement, the first week; and
(b)for one half of the long summer vacation as agreed between the parties and failing agreement, on a week about basis with the husband to have the first week and each alternate week thereafter until the 2015/2016 long summer vacation when it shall be shared in two equal blocks between the parties by agreement and failing agreement, with the husband to have the first half.
In the event either party intends to travel interstate with X and Y whilst they are in their care, they shall inform the other party in writing of such proposed travel 14 days prior to the proposed travel, such written notification to include details of the address/es and contact telephone number/s during such travel.
Upon the commencement of X and Y spending holiday time with the husband, the wife shall be at liberty to telephone X and Y on Mondays and Thursdays between 6.00 pm and 7.00 pm, with the wife to initiate the telephone call to the husband’s mobile or landline telephone number.
The parties shall communicate by email and/or text message, save in the event of an emergency involving either of X or Y.
Both parties shall ensure they advise the other of their current residential address, landline and mobile telephone numbers and notify the other in writing of any change of such residential address or telephone number seven days prior to any change to that address or telephone number.
Each party shall advise the other of any serious illness or injury suffered by either of X and Y as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each party is free to be fully involved in the school lives of X and Y, to receive copies of school reports, school newsletters, school photograph order forms and the like and to attend all parent/teacher interviews, events and functions to which parents are normally invited.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of X and Y or any of them, and from permitting any other person so to do.
Property:
The balance of the net proceeds of sale of the former matrimonial home currently held in trust on behalf of the parties, after the reduction of $5,000.00 pursuant to order 11(b) herein, be divided equally between the parties.
For the purposes of these orders:
(a)the husband is the member spouse;
(b)the wife is the non-member spouse;
(c)‘the Superannuation Fund’ is AMP Flexible Super – Super Account (omitted) – under the AMP Superannuation Savings Trust;
(d)‘the Trustee’ means AMP Life Limited, or such trustee(s), person(s), or corporation(s) as may be responsible from time to time for the management or investment of the Superannuation Fund.
Orders 24 to 27 of these orders are binding on the Trustee.
The base amount to be allocated to the wife out of the husband’s interest in the Superannuation Fund is $33,791.00 (“the base amount”).
In accordance with section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest held by the husband in the Superannuation Fund, the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $33,791.00 and that there be a corresponding reduction to the entitlement that the husband would have had in the Superannuation Fund but for these orders.
Orders 27 and 28 have effect from the operative time.
The operative time for the purpose of these orders is the beginning of the fourth business day after the day on which a sealed copy of these orders is served upon the Trustee.
The Trustee and the parties in accordance with the obligations set out under the Family Law Act 1975, the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry (Supervision) Act and Regulations 1994, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement and make the payment in accordance with these orders.
The wife shall do all things necessary, including but not limited to exercising her request pursuant to r.7A.07(2) of the Superannuation Industry (Supervision) Regulations 1994 for the payment of the transferable benefits out of the husband’s interest in the Superannuation Fund to the wife in accordance with r.7A.13 of the Superannuation Industry (Supervision) Regulations 1994.
Until the happening of any of:
(a)the establishment of a separate account in the name of the wife in the Superannuation Fund; or
(b)the transfer or ‘rolling over’ into another superannuation fund or superannuation account of the payment split created by these orders; or
(c)the wife satisfies a condition of release and is paid the payment split which was created by these orders; or
(d)the wife executing a waiver of rights within the meaning of section 90MZA of the Family Law Act 1975 in relation to the payment split created by these orders;
the husband be and is hereby restrained by himself, his servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of his interest in the Superannuation Fund a ‘not splittable payment’ within the meaning of Regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001.
The court notes:
(a)the value of the transferable benefits from the husband’s interest to the wife’s interest are calculated in accordance with r.7A.13 of the Superannuation Industry (Supervision) Regulations 1994;
(b)pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the husband’s superannuation interest in the Superannuation Fund made after the Trustee has created a new interest in the wife’s name in the Superannuation Fund, as contemplated in these orders, are not splittable payments; and
(c)the Trustee will be relived of its obligations to calculate and split payments under these orders in the event that a lump sum is paid to the wife in accordance with the requirements under the Superannuation Industry (Supervision) Regulations 1994.
Each party and the Trustee have liberty to apply in relation to the implementation of the orders affecting the husband’s superannuation interest.
A copy of these orders be served forthwith upon the Trustee.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)insurance policies remain the sole property of the owner named therein;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Abella & Abella is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 1807 of 2011
| MR ABELLA |
Applicant
And
| MS ABELLA |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the living arrangements for the parties’ children X born (omitted) 2002 (“X”) and Y born (omitted) 2004 (“Y”) and to the division of matrimonial property.
The husband is seeking orders that X and Y live with each of the parties on an equal week about basis, that there be an equal sharing of school holidays, including a provision for each parent to have an uninterrupted three week holiday during the long summer vacation with X and Y and for special occasions.
In relation to property matters, the husband seeks orders that the balance of net proceeds of sale currently held in trust on the parties’ behalf of $215,201.24 be divided on the basis that he retain 70 per cent of same and the wife retain 30 per cent of same. It is common ground the parties have each received $22,000.00 by way of partial distribution of matrimonial assets. It is unclear from the husband’s submissions whether he is seeking a 70:30 division of the “total” realisable asset pool or of the balance of the proceeds of sale remaining only, save that his Amended Initiating Application filed 7 December 2011 seeks orders that:
“the funds from the sale of the parties property currently held in a cash management account with the NAB be divided on a 70/30 in the husband’s favour”.
The husband also seeks orders that from the proceeds of sale received by the wife, she pay him the sum of $3,151.81, being a 50 per cent share of the mortgage and credit card payments made by the husband after the parties separated.
The husband has current superannuation entitlements of $95,446.00 and the wife has superannuation entitlements of $27,864.07. The husband did not put to the court any proposals in relation to superannuation.
The husband argues that a 70:30 division of the proceeds of sale of the former matrimonial home is just and equitable as in 2008 he received an inheritance of $194,449.69 from his late father’s estate, all of which was used for the benefit of the parties. It is the husband’s submission that 70 per cent of the proceeds of sale is an amount less than his inheritance and as such is a just outcome in the matter.
The wife is seeking orders that X and Y live with her and spend each alternate weekend from after school Friday to before school Monday and an evening from after school to 7.00 pm in the “off week” with the husband.
In relation to school holiday time, the wife proposes that the parties, X and Y attend therapeutic reportable counselling with Mr P, or such other agreed therapeutic counsellor, at the parties’ joint expense, funded from the proceeds of sale of the former matrimonial home. When recommended by the therapeutic counsellor, the wife proposes that X and Y commence spending a week in each of the term holidays and two one week periods in the long summer vacation with the husband.
The wife agrees with the husband’s proposals in relation to special occasions and, as the husband did not put forward any formal proposals as to Christmas, she seeks that there be the “usual” order for a sharing of Christmas on an alternating basis.
In relation to property matters, the wife proposes that there be an equal division of the matrimonial assets between the parties, including a superannuation splitting order that would equalise the parties’ respective superannuation entitlements.
The wife argues that an equal division of the matrimonial asset pool is just and equitable on the basis that whilst the husband received the inheritance from his father rather late in the relationship, it was used primarily for the living expenses of the family and did not contribute significantly to the parties’ asset base. She further argues that the contribution made by the husband arising from the inheritance from his father is off-set by section 75(2) factors in her favour, and in particular her primary care of X and Y in circumstances where she receives minimal financial support from the husband.
Background
The husband was born on (omitted) 1966 and is aged 46 years. He is employed on a part-time basis (omitted) and (omitted). The husband has not re-partnered.
The wife was born on (omitted) 1971 and is 40 years of age. She is employed on a part-time basis (omitted) and as a (omitted). The wife has not re-partnered.
The parties commenced cohabitation in 1997 and married on
(omitted) 1999.
The parties purchased their first home at Property H in 1997, utilising $15,000.00 from the husband’s AMP Investment Policy and the husband’s savings to fund the deposit.
The parties sold this property in 2000 and purchased Property R (“the former matrimonial home”).
The husband was engaged in full-time employment throughout the relationship. He was employed by (omitted) for 10 years until, having qualified in 2007 as a (omitted), he commenced work as a (omitted), firstly with (omitted) and then (omitted).
The wife was engaged in full-time employment until shortly prior to X’s birth. The wife returned to part-time employment when X was eight months old. She ceased part-time work just prior to Y’s birth and resumed part-time work when he was seven months old. The wife worked part-time up to 30 to 35 hours per week until
November 2008 when she ceased paid employment.
In 2008, the husband received $194,449.69 from the estate of his late father.
It is the husband’s evidence that the inheritance was expended as follows:
·Payment of the parties’ credit card debts of between $25,000.00 and $30,000.00;
·Payment toward the mortgage on the former matrimonial home of $50,000.00, of which $20,000.00 was redrawn to purchase the husband’s Ford Focus motor vehicle;
·Renovations to the former matrimonial home, including new kitchen, stone bench tops, stainless steel appliances, new bathroom, new ensuite, new walk-in linen cupboard, new gas heater, new split air conditioner reversible system, rendered internal brick walls, tiling of floors, painting, landscaping, remodelled carport and water tank and pump. The husband estimated the cost of these renovations at $60,000.00;
·Purchase of new furniture for the former matrimonial home, including a leather lounge suite, leather coffee table, solid blackwood buffet, solid blackwood 11 piece dining table, crockery and cutlery;
·Purchase of 6 foot x 4 foot trailer; and
·Balance of funds invested in a money making scheme in (omitted), a program called “(omitted)”, a holiday for the husband’s mother and to purchase his father’s motor vehicle.
The husband was only able to provide the court with receipts totalling $28,382.00 in relation to the cost of the renovations to the former matrimonial home and did not provide any receipts in relation to the furniture that was purchased.
The wife agreed that the renovations detailed by the husband had been undertaken and that they had purchased the new furniture he described after the husband received the inheritance from his father. It was the wife’s evidence that she was not aware of the amount expended in relation to these matters.
The parties separated under the one roof in October 2010. The husband vacated the former matrimonial home on 25 November 2010 when the wife obtained an Intervention Order after an incident between herself and the husband in the former matrimonial home on
23 November 2010.
The husband initially lived with his mother in (omitted) and then moved to rental accommodation in (omitted).
Following separation, the wife, X and Y remained in the former matrimonial home.
The parties sold the former matrimonial home for $573,000.00 and settlement for the sale took place on 31 March 2011. After payment of selling costs, discharge of the mortgage and a personal loan with the National Australia Bank, the net proceeds of sale were $266,917.34.
From the net proceeds of sale, the parties discharged the following joint credit card debts:
·National Australia Bank Visa Gold $12,207.56
·Bank of Queensland Visa $1,942.35
·ANZ Visa Card $13,058.14
TOTAL: $27,208.05
The parties, by agreement, each received from the net proceeds of sale of the former matrimonial home $5,000.00 in early April 2011 and a further payment of $10,000.00 each in May 2011.
The parties also divided an AMP annuity between themselves so they each received $7,000.00.
At the time of final hearing the amount held in trust on behalf of the parties from the net proceeds of sale of the former matrimonial home was $215,201.24.
It was the husband’s evidence that from the date of separation to the settlement of the sale of the former matrimonial home and payment of the joint credit card debts, he paid $2,270.35 in mortgage payments whilst not living in the former matrimonial home and $4,033.28 in joint credit card payments. He seeks that the wife reimburse him for half of those payments.
When the husband first vacated the former matrimonial home, the parties put in place arrangements for X and Y to spend time with the husband in December 2010 and January 2011.
In February 2011, the parties attended mediation at the (omitted) Family Relationships Centre. An interim agreement only was reached.
On 3 March 2011, the husband commenced proceedings in this court. When the matter first came before the court on 15 March 2011, consent orders were made in relation to interim financial matters only.
On 4 April 2011, the parties attended further mediation and entered into a Parenting Plan to cover the period to 27 May 2011. The Plan made provision for X and Y to spend time with the husband from Tuesday to Thursday each week, each alternate weekend and one week in the first term holidays.
Whilst the husband continued to spend time with X and Y, it was for less time than was provided for in the Parenting Plan.
It is the wife’s evidence that this was because the children, and especially X, did not cope with the amount of time away from her care as provided for in the Plan. It was her evidence that the relationship between X and the husband became very tense with X alleging the husband was physically disciplining her, X becoming extremely distressed and refusing to go to the husband or ringing her mother from the husband’s home begging to return home.
The husband agreed that he did not see X and Y in accordance with the Parenting Plan, and was of the view that this was because the wife prevented its’ implementation. He denied any physical discipline or abuse of the children.
The matter returned to court on 7 June 2011 for a Conciliation Conference and to the duty list on the issue of the payment of credit cards and interim children’s matters.
Property matters did not resolve at the Conciliation Conference. The parties had resolved the payment of their credit cards prior to
7 June 2011. I made interim orders by consent in relation to children’s matters. The orders provided for X and Y to live with the wife and spend time with the husband from the conclusion of school each Wednesday to the commencement of school Thursday, alternate weekends from Friday to 5.00 pm Sunday, five days in the term holidays, Father’s Day and by telephone each Tuesday and Thursday.
In addition, the interim consent orders made provision for each party to be appraised of medical and school matters involving X and Y, restrained the parties from using excessive physical force when disciplining or interacting with X and Y, mutual
non-denigration orders and restrained the wife from being present at school changeovers or telephoning X and Y when they were in the husband’s care.
The interim consent orders also made provision for the preparation of a Family Report.
The husband filed a Contravention Application on 1 August 2011, alleging the wife had telephoned the children whilst they were in his care in breach of the 7 June 2011 orders.
When the husband’s Contravention Application came before me on
3 October 2011, I found the wife had contravened the orders without reasonable excuse but otherwise made no further orders.
Since the 7 June 2011 orders were made, X and Y have generally spent time with the husband in accordance with the orders. However the husband’s relationship with X continues to be very strained and there have been may occasions when X has refused to attend or sought to return to her mother earlier than the orders provide.
X has been attending counselling since shortly after separation. Firstly through her school and more recently with Ms W at Centacare in (omitted).
CHILDREN’S MATTERS
The husband’s proposal
As set out earlier in this judgment, it is the husband’s proposal that X and Y live with he and the wife on a week about basis, as well as there being a sharing of school holidays and orders made in relation to special occasions.
It was the husband’s evidence that he believed that such an arrangement would be best for X and Y as both children love him, he loves them and he wants to be with them as much as he possibly can.
It was the husband’s evidence that whilst he and X’s relationship currently has some difficulties and needed to be repaired, he believed that their relationship was gradually improving and that both X and Y would adjust to the change of a week about arrangement.
The husband categorically denied the allegations that he had used excessive physical force with either of X or Y, and was unable to explain why X and Y had both made complaints of the husband’s behaviour, particularly in relation to X, to their mother, the counsellor and to the Family Report Writer.
The husband agreed that there had been occasions when he had physically removed X from the car when she had refused to get out to come and spend time with him or had lifted her up to put her in her room for “time out” because she had refused to obey him when he had told her to go to her room, but was adamant that he had not done so aggressively or in such a way that she would have been hurt.
It was the husband’s evidence that he believed that the difficulties that he and X were experiencing in their relationship at this time were as a result of the impact of the separation of the parents on X’s emotional wellbeing, as well as X being subject to being emotionally pulled by her mother and doing many things in order to please her mother.
When asked to expand on what this meant, it was the husband’s evidence that when X is dropped off by the wife to spend time with the husband, the wife prolongs her goodbyes to X, indulges in lengthy hugging, winds down the window of the car as she is leaving to speak further with X and, until the orders were made preventing her from so doing, would incessantly ring the children, and X in particular, when they were spending time with the husband.
It was the husband’s evidence that these actions by the wife distressed X and generated a feeling in her that she must be seen to be loyal to her mother and want to stay with her mother.
It was the husband’s evidence that he has a very positive relationship with Y, who enjoys his time with him, but denied any allegations that he favoured Y over X or that he treated either of X or Y differently when they are in his care.
It was the husband’s evidence that during the relationship, he was actively involved in the children’s care, and that he had been a “hands on” father.
It was the husband’s evidence that he had resigned from his employment as a (omitted) because of the demands for weekend work that that position required. It was his evidence that he wished to obtain employment that enabled him to be fully available to spend as much time as possible with X and Y.
It was the husband’s evidence that whilst he and the wife had had difficulties communicating, he was of the view that their communication was improving with the passage of time, such that he considered them now able to deal with each other in a business-like fashion in relation to arrangements for the children.
When it was put to him that there had been an incident as recently as the week before the final hearing, where he and the wife had argued when he had dropped into the wife’s home to collect some cream for X, he denied that any argument had taken place.
In relation to the proposal of the wife to attend upon Mr P for reportable therapeutic counselling to assist in the repair of his relationship with X and to seek guidance in relation to the introduction of holiday time, it was the husband’s evidence that he was not opposed to such an arrangement if the court formed the view that it would be in the best interests of X and Y.
The wife’s proposal
As set out earlier in this judgment, the wife seeks orders that X and Y live with her and spend time with the husband each alternate weekend from after school Friday to before school Monday and an evening in the “off week” from after school to 7.00 pm. In relation to school holidays, the wife seeks orders that the parties and X and Y attend a reportable therapeutic counselling and that a sharing of school holidays only commence upon the recommendation of the therapeutic counsellor.
It was the wife’s evidence that she has been the primary carer for X and Y since their respective births.
It was her evidence that following X’s birth, she worked on a part-time basis in order to be available to care for the children whilst the husband had the more traditional role of full-time employment and as the primary income earner.
It was the wife’s evidence that in late 2008, she ceased paid employment as both X and Y were unhappy with being placed into care whilst she was at work, and that she and the husband had agreed that it would be in the children’s best interests if she were to resume a full-time homemaking and parenting role.
It was the wife’s evidence that since separation she has been X and Y’s primary carer and that any living arrangements for them should continue to reflect their primary attachment to her.
It was the wife’s evidence that the husband and X have a very difficult relationship, which predates separation. It was her evidence that the husband has always had difficulty in managing X, who can at times exhibit oppositional and difficult behaviour.
It was the wife’s evidence that since separation, X has resisted spending time with the husband, and particularly lengthy overnight time.
The wife gave evidence that X has complained of being excessively physically disciplined by the husband, including being dragged by the wrist and ankles to her bedroom, being made to sit in a “naughty chair” for over two hours, being locked in her bedroom and of the husband yelling at her and shaking her.
It was the wife’s evidence that X has, on occasion, refused to go to the husband or has rung her highly distressed and sobbing, begging her mother to be allowed to come home.
It is the wife’s evidence that Y has also expressed to her concerns about how the husband has treated X, including concerns that the husband has hurt X or will hurt X again.
It is also the wife’s evidence that the existing arrangements, whereby the children go back and forth between herself and the husband on six occasions in each fortnight is too disruptive and is distressing to the children. It was her proposal that it would be much better for all if there were put in place an arrangement whereby X and Y spend a block period of time with the husband in each fortnight, such that there are only two changeovers in each period.
It is the wife’s evidence that she and the husband have real difficulty in communicating, and that X and Y are very much aware that their parents do not get on at this time.
The wife therefore argues that her proposal that X and Y spend time with the husband each alternate weekend from after school Friday to before school Monday would minimise the interaction between the parties and reduce the potential for X and Y being exposed to their parents’ conflict as changeovers would take place at school.
In the Family Report prepared by Mr A in this matter, he recommended that in addition to a block period of time, X and Y also spend an evening meal with the husband in the “off week”. The wife supported such a proposal.
Further in his Report, Mr A, in relation to school holidays, proposed that any orders in relation to time between X and Y and the husband be deferred until such time as the relationship between X and the husband had been repaired. It was his proposal that the parties and X undergo therapeutic intervention, with a view to the reparation of the father-daughter relationship and that extended holiday time could commence thereafter as recommended by the therapeutic counsellor.
It is the wife’s proposal that the parties and X attend upon Mr P for reportable therapeutic counselling and that holiday time commence upon Mr P’s recommendation. It is the wife’s proposal that this therapeutic intervention be funded by an amount of $3,000.00 being set aside from the funds currently held in trust on the parties’ behalf from the net proceeds of sale of the former matrimonial home.
Mr A
Mr A is a Regulation 7 Family Consultant with the Federal Magistrates Court. He prepared a Family Report in this matter dated
1 November 2011 and also gave viva voce evidence at the final hearing of this matter.
In his Family Report, Mr A made the following observations in relation to the husband in paragraph 38:
38.The writer considers that Mr Abella took part in his interview as openly as he could; though displayed some reluctance about the details of his current relationship with X, and whether or not he might have “hurt” the child. While he did admit he has a problem with X, the extent of this problem did not become evident until later in the interviews. At the same time the writer feels Mr Abella is a basically honest man; but one who would profit from professional assistance with his parenting knowledge and skills and, particularly, his relationship with X.
In relation to the wife, Mr A made the following observations in paragraph 55 of his Report:
55.In interview it can be said Ms Abella struck the writer as being a basically honest, straightforward person; who, while valuing the relationship between the children and their father, is presently seriously concerned about the deterioration in the relationship between Mr Abella and X.
In relation to X, Mr A reports at paragraph 70 of his Report that X told him:
“Dad has stopped hurting me now.”
When Mr A asked X to explain what she meant by her father “hurting” her, she told him that he had carried her upside down, thrown her on the ground, locked her in her room and thrown her teddies out of the car.
Mr A is clear in his Report that when further discussing these matters with X, he gained the impression that these incidents, whilst most likely to have happened, had not been recent.
X made it quite clear to Mr A that she would not like to live in a week about arrangement with each of her parents as she would miss her mum too much, but did not seem distressed by the concept that the court might put in place similar arrangements to those that are in existence at the moment.
Mr A described a very interesting interaction with X during the interview process. Whilst interviewing the wife, X was heard to be crying in the playroom and unable to be consoled by the husband. Mr A explained that X had become anxious about missing her netball game at 4.00 pm and given her level of distress, the planned play session with the husband was aborted by agreement between the parties and the writer in order to ensure X would attend her netball game.
In paragraphs 60 and 61 of his Report, Mr A then described what ensued:
60.… However, before the children left the playroom, the writer quietly asked X whether she was really crying – she had tears running down her cheeks – X, spontaneously, smiled. When the writer asked X, playfully, "Was that a smile I saw?", without thinking, X smiled a second time.
61.What is interesting about this small event is the extent to which, the dynamics of the family breakdown and its consequent problems, have empowered X to get what she wants. Both her parents – and, the writer, for that matter – agreed the play session with Mr Abella should be concluded, so X could return to (omitted) straight away: with Ms Abella following later alone in her own car. As the writer mentioned to both of the parents, there was some obvious learning for each of them, arising from this situation.
In relation to Y, Mr A described him as follows in paragraph 79 of his Report:
79.It does seem Y maybe a particularly sensitive boy; and also a bit of a worrier. Unsurprisingly, he seems to identify with his father's hurt, following the parental separation. This is often observed to be the case with particularly sensitive children.
Mr A reports that he discussed the possibility of a shared care arrangement with Y, and that whilst his initial response to such a suggestion was that it would be good, he conceded that he would miss the parent he wasn’t living with if he couldn’t see them for seven days.
In paragraph 83 of his Report, Mr A summarised his interaction with both children as follows:
83.Whereas it seems X and her father have come into conflict, this does not appear to be the case with Y. On the contrary, Y, being the sensitive little boy, seems to be almost over-identifying with his father's hurt and confusion; and may be seeking to parent, or look after, his father. When it was explained to Y that he does not need to take responsibility for his father or for making decisions about his own living arrangements – that these decisions are for his parents to make – like his older sister, Y seem relieved.
Under the heading “Evaluation”, Mr A sets out his Evaluation in relation to the matter as follows:
88.The marital separation in October 2010 brought with it the usual pain and confusion for all concerned. However, after 12 months some of this appears to be healing. Mr Abella has asked that the existing living arrangements for the children be changed, so that the children live in a 7/7, shared care arrangement. At the same time it has become clear during the preparation of this report that Mr Abella's relationship with X is presently problematic. In the writer's opinion it does seem that this important daughter/father relationship, which needs to be re-established, will require external professional help.
89.For his part Y has shown a willingness to enter into a 7/7 shared care arrangement; however, the writer is inclined to think that at least some of Y's motivation in wishing to do this, is out of a sense of loyalty, and may be because of a misplaced sense of responsibility to emotionally support his father.
90.For these reasons Mr Abella's proposals cannot be supported at this time. In the writer's view the interim arrangements should be rolled over, but with the consolidation of the 4 overnights a fortnight into a single period around each alternate weekend during school terms, from Thursday through to Sunday. This also has the benefit of reducing the number of changeovers – presently 6 per fortnight – down to 2.
91.It is also suggested that on a convenient weekday evening in the off week that the children spend time with their father from after-school, for a recreational activity and/or meal, until about 7 PM.
92.As regards school holiday time and summer vacation time, which is frequently shared between parents, in this case it is suggested that this be deferred, until such time as X's relationship with her father has been repaired. X is presently attending counselling at Centacare (omitted). It is suggested that, if possible, at the discretion of the counsellor, Mr Abella also be involved in this counselling. It would also be a benefit if this counselling could take place out of school hours, which seems to be a particular concern of X’s.
Under the heading “Recommendations”, Mr A summarised his recommendations for this family as follows:
93.That Mr and Ms Abella share parental responsibility for the long term care, welfare and development of X and Y.
94.That X and Y live in their mother's primary care.
95.That X and Y spend time with their father each alternate weekend commencing after-school Thursday and concluding on Sunday evening, or Monday evening, if Monday is a public holiday.
96.That in the off-week on a convenient weekday evening X and Y spend time with their father from after-school until about 7 PM.
97.That there be other time for X and Y with their father by agreement between the parents.
98.That there be liberal internet and phone contact between Mr Abella and the children at reasonable times.
99.That, if they have not already done so, Mr and Ms Abella introduce the use of a communication book.
100.That the present counselling being undertaken by X at Centrecare in (omitted) be extended, at the counsellor's discretion, by the introduction of Mr Abella.
101.That, the normally shared school holiday time and summer vacation time, not occur until Mr Abella has completed joint counselling with X.
102.That Mr Abella undertake and complete a parenting course.
When giving his viva voce evidence, Mr A indicated that there had been an error in the recommendations contained in his Report. He indicated that he had recommended that there be a consolidation of the existing time that the children spend with their father under the existing orders, being four nights in each fortnight, but that his recommendation was mistakenly detailed as for only three nights in each fortnight. He therefore clarified that the recommendation contained in paragraph 95 of his Report should have read that X and Y spend alternate weekends with their father, commencing after school Wednesday and concluding on Sunday evening in order to reflect the four overnights.
When it was put to Mr A by Counsel for the wife that given the difficulties that the parties have in communication, a better arrangement would be that X and Y spend time with the husband from after school Thursday to before school Monday in each alternate week, Mr A conceded that that too would be a workable arrangement.
Counsel for the wife put to Mr A that given the difficulties in the husband’s relationship with X and the husband’s limited insight as to his contribution to those difficulties, that it would be preferable that the time between X and her father be no longer than three nights to limit the interface between father and daughter.
It was Mr A’s evidence that whilst his proposal of four nights was not without risk, it was his hope that the husband would take the opportunity to repair his relationship with X and to ensure a continuation of the father-daughter relationship.
Mr A confirmed that this recommendation was very much conditional upon the husband and X engaging in therapeutic counselling.
It was Mr A’s evidence that he was very much opposed to a shared care arrangement for either X or Y.
In relation to Y, it was Mr A’s evidence that he found Y to be a very sensitive and responsive little boy who was feeling responsible for the husband, and for that reason he was of the view that it would not be a good idea for Y to live in a week about arrangement. Mr A was also of the view that Y was still of an age where he would miss the wife who has been and is his primary carer if he were to be away from her for seven nights each alternate week.
Mr A was asked in cross-examination by the husband whether he believed that X had acted out with him as a result of any influence on her to do so by the wife. It was Mr A’s evidence that he did not believe that was the case, and when asked to expand on that, gave evidence as follows:
“I believe that the problems in X’s relationship with her father are of a different order. They’re different kinds of issues. They are relationship problems between a father and a daughter and they’re to do with parenting knowledge and parenting skills and being able to handle a nine year old or nine and a half year old daughter. I don’t think that X’s position in the family presently is something that she has been coached about by her mother if that’s what you’re implying.”
The wife’s proposal in relation to the parties and X attending upon Mr P for reportable family therapy, and that the commencement of holiday time be at his recommendation was put to Mr A. Mr A agreed that this proposal accorded with his recommendations, as long as it was something the parties could afford.
Mr A flagged that if such intervention proved to be beyond the financial capacity of the parties, it was his understanding that (omitted) Community Support or (omitted) Community Services in the (omitted) region might also be able to assist the parties.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In this matter, both parties are proposing that they have equal shared parental responsibility for X and Y.
Whilst both parties confirm that there have been difficulties and, at times, conflict in their communication, both parents showed a willingness to improve their communication for the benefit of X and Y.
It was the husband’s evidence that he felt there had been an improvement in his communication with the wife, with the passage of time, from the initial upheaval of their separation. The wife was not as positive about there having been that improvement, citing a very recent argument between them at her home when the husband called in to collect cream for X.
There is no doubt that X and Y would benefit from both their parents being actively involved in making the major decisions in relation to their lives and I am satisfied that an order that the parties have equal shared parental responsibility for X and Y would be in their best interests.
Where the parents have equal joint parental responsibility for their children, section 65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. Section 65daa (1) provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65daa (5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
The husband is seeking an order that X and Y live equally with both himself and the wife.
The wife seeks orders that X and Y live with her and spend significant and substantial time with the husband.
If satisfied that an order for equal time or significant and substantial time is practical, the court when determining what the living arrangements should be for children must do so on the basis of what arrangements are in the children’s best interests.
When determining what is in the children’s best interests, the court must consider the matters set out in section 60cc(2) and (3) of the Act. Each of the matters contained in those subsections, where relevant, must be considered and assessed in the context of each of the parties’ proposals and a decision made as to which party’s proposal, or such other arrangement as the court may determine, is in the children’s best interests.
Section 60cc(2) of the Act sets out the primary considerations that the court must take into account when determining what is in the children’s best interests. They are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Both X and Y have a loving and meaningful relationship with each of their parents.
At this time, there are difficulties in the relationship between X and the husband, which is acknowledged by both of the parents.
Having said that however, it is interesting to note in Mr A's Report that when X was speaking to Mr A, she identified both her mum and dad as people she loves and responded “okay” when Mr A put to her that the court might to decide to continue similar arrangements for the time that she was to spend with her father as are currently in place. Having said that however, I note she also told Mr A that one of her three wishes was to spend less time with her dad.
What is apparent is that in order for X’s relationship with the husband to be fully repaired, the advice of Mr A, which is accepted by this court, is that some professional therapeutic intervention is needed to ensure that the husband is assisted in developing the necessary insights and skills to better parent X and to ensure that his meaningful relationship with her is repaired, consolidated and allowed to develop into the future, especially as X approaches adolescence.
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Concerns have been raised in relation to the husband using excessive physical force on X in order to discipline her or manage her acting out.
Whilst the husband adamantly denies that this has occurred, I am satisfied that there have been occasions when he has physically manhandled X in a way that has hurt her and scared her.
I am also satisfied that behaviour has not continued and that the husband now has a greater understanding of the necessity to manage X differently.
It was the husband’s evidence that he has undertaken a Parenting Course, as well as personal counselling at Centacare, with a view to assisting him to better manage the separation process and to be a better parent.
Section 60cc (3) of the Act sets out the additional considerations to be taken into account by the court when determining what is in the children’s best interests. Each of these will be considered in turn where relevant.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
When speaking with Mr A, both X and Y indicated a willingness to continue with the existing interim arrangements that were in place for the time that they spend with the husband., though one of X’s three wishes was to spend less time with the husband.
It was apparent, however, that the current arrangements have not been universally successful, with X at times resisting spending time with her father as a result of the difficulties that the father-daughter relationship is currently experiencing.
Whilst Y indicated a willingness to live in a shared care arrangement with each of his parents, and expressed a desire to spend more time with his father, Mr A was most concerned that this was as a direct result of Y assuming some responsibility for his father’s emotional distress rather than it necessarily being a real reflection of Y’s genuine wishes.
Given X and Y’s young ages, the identified difficulties in X’s relationship with the husband at this time, and the concerns of Mr A about there being a level of parentification in Y’s desire to spend equal time with both of his parents, the court cannot place a great deal of weight on any wishes expressed by either of X or Y.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As noted previously in this judgment, X and Y love both their mother and father.
The difficulties currently experienced in the relationship between X and the husband have been discussed in this judgment at length and won’t be repeated here, save to make the observation that it will be vitally important that the husband and X are fully engaged in professional therapeutic assistance in respect to the reparation of this relationship as soon as possible.
Both the husband and wife gave evidence of X and Y having positive relationships with their paternal and maternal grandmothers, and this too should be encouraged and continued.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The husband has expressed concerns about the willingness of the wife to encourage X’s relationship with him, and describes the wife prolonging changeover/s and, prior to orders restraining her from doing so, constantly calling X when she was in his care. The wife has denied these behaviours. Mr A’s evidence was clear that the problems in the father-daughter relationship are not as a result of any coaching or actions of the wife.
I am satisfied that the wife does support X and Y having a relationship with the husband, but is concerned about the deterioration in his relationship with X since the parties separated.
For these reasons, I think it will be important that both parties be involved in the therapeutic counselling to ensure they are working together to enable X’s relationship with her father to be repaired as soon as possible.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The wife currently lives in rental accommodation in (omitted) and the husband has recently moved to rental accommodation in (omitted).
In these circumstances, the parties are sufficiently geographically close that X and Y will be able to move easily between their parents’ homes and attend school and any extra-curricular activities in which they may become involved in their local area.
If orders were made in the terms sought by the husband, I am satisfied that given their ages and the issues in the father-daughter relationship, neither X or Y would cope with seven days away from the wife, who has always been their primary carer.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
As noted above, both parents live in reasonably close geographical proximity to each other, such that there is no practical difficulty in X and Y being able to move easily between both parents’ homes.
At this time, both parents are engaged in employment which is flexible and designed to allow them to work around their commitments to care for X and Y.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that both parents are able to provide for X and Y’s physical, emotional and intellectual needs.
Having said that however, there has to be some concerns in relation to the husband’s more recent capacity to manage X’s behaviour, particularly when she is being oppositional or resistant to the husband and his efforts to discipline her.
There also has to be some concern in relation to the level to which Y seems to be embroiled in the husband’s distress. Mr A was particularly concerned that Y, who he describes as a particularly sensitive little boy and something of a worrier, has identified with his father’s hurt, and is feeling to some degree that he has the responsibility to look after his father.
The husband must accept that it is his responsibility to look after Y, and to ensure that he does not, even subconsciously, expose Y to his personal distress and unhappiness.
Again, the therapeutic interventions which are being recommended for the parties will be of real benefit to the husband in this regard.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not relevant.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I am satisfied that both parties take the responsibilities of parenthood very seriously and are endeavouring to be the best parents they possibly can for X and Y.
The reality is however that there are aspects of the husband’s parenting in particular which he needs to address to ensure that his relationship with X is repaired as soon as possible and that he develops the requisite skill-base to be able to then continue to parent X in a way that ensures their relationship continues positively into her adolescence.
Similarly, as noted earlier in this judgment, it will be important that Y is shielded from any distress that his father is feeling so that Y can continue to enjoy a positive relationship with his dad.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
The concerns in relation to the manner in which the husband was disciplining X, particularly in the months immediately following separation, have already been detailed in this judgment.
It is pleasing to see that the evidence is such that there would appear to have not been a repetition of this behaviour, nor can there be into the future.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Not relevant.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This is always the ideal outcome in matters relating to arrangements for children.
However, in this matter the recommendations of Mr A, the Family Report Writer, are that until such time as the parties and X in particular have undergone therapeutic intervention, orders not be made for there to be extensive holiday time between X and Y and the husband.
The wife has put forward a proposal to the court that the parties attend upon Mr P with a view to undergoing that therapeutic intervention and that holiday time commence in accordance with Mr P’s recommendations.
Whilst there is a great deal to be said for this recommendation, the practical difficulty is that if one or either of the parties is not in agreement with Mr P’s recommendations, then a return to court may be the only viable alternative.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
It was very pleasing to see that the parties were able to agree on the arrangements to be put in place in relation to special occasions.
Whilst the husband had no specific proposal in relation to Christmas arrangements, the practical suggestion of the wife for a sharing of this day would clearly be in X and Y’s best interests.
There is also some practical difficulties in relation to the wife’s suggestion that they engage Mr P to assist in the therapeutic intervention, both in terms of cost and distance given that the parties are (omitted)-based and Mr P is in Melbourne.
However, I am satisfied that Mr P is best qualified to assist the parties and X, and that the parties can make provision for the costs of his assistance to be met from the proceeds of sale of the former matrimonial home.
Conclusion
Since the parties physically separated in November 2010, their children X and Y have lived primarily with the wife and have spent regular time with the husband.
In June 2011, consent orders were made on an interim basis between the parties which provided for X and Y to spend four nights in each fortnight with the husband, being overnight Wednesday in each week and on alternate weekends.
There is no doubt that since the parties separated, the relationship between X and the husband has become difficult, with X resisting spending time with her father, complaining of rough treatment at his hands and of feeling that she is treated differently to Y, who she perceives as being her father’s favourite.
Whilst it is the husband’s evidence that he believes that this deterioration in their relationship is as a result of X feeling emotionally pulled by her mother, he concedes that there are difficulties in the relationship and that it does need to be repaired.
It would appear that X is a strong minded little girl, who is not adverse to manipulating a situation in order to get her own way. Her acting out in Mr A’s rooms in the course of the Family Report interview process in order to be allowed to leave early is a prime example of X knowing how to manipulate her parents to achieve her own ends.
Having said that however, it is also clear, given Y’s independent verification of his concerns about how the husband has treated X when they are spending time with him, that the husband has at times not known how to manage X’s behaviour and that there were occasions where his disciplining and handling of her crossed the line and was too rough and too physical.
I am satisfied that professional assistance is required in order to repair the father-daughter relationship and to assist the husband to develop better insight into the parenting skills he will require to ensure that his loving relationship with X is fully repaired and that he has the skill-base to parent her into her adolescence.
The consent arrangement entered into by the parties in June 2011 made provision for some six changeovers between the children and their parents in each fortnight. I am of the view that this is far too many changeovers and is very disruptive for X and Y, as well as the parties.
Whilst the husband is seeking orders that X and Y live with each of their parents on a week about basis, it is most apparent that this is not an arrangement that would be in X and Y’s best interests.
The wife has been X and Y’s primary carer all their lives. They are still of an age where that primary attachment must be recognised and supported.
Further, given the difficulties in the relationship between X and the husband, equal time would not be an appropriate arrangement for X at this time.
Whilst Y is open to the idea of an equally shared living arrangement with both of his parents, Mr A raised real concerns that Y’s wishes in this regard reflected his sensitivity to the unhappiness and distress his father has experienced post separation and his wish to support his father, rather than an expression that truly reflects both his wishes and what would be in his best interests.
Finally, at this time the parties’ conflicted relationship and inability to communicate well would not support a shared care arrangement, as such an arrangement requires a level of cooperation between parents that does not exist for these parties.
In these circumstances, I am of the view that it would be in X and Y’s best interests that they continue to spend four nights in each fortnight with the husband, but that such time take place in a single block period. I am also satisfied that it would be in X and Y’s best interests that changeover for these times take place at school. Firstly, this minimises the opportunity for conflicted interaction between the parents and secondly, allows the husband to engage with X and Y’s school on a regular basis.
Given this arrangement, and the current communication difficulties, I will also make an order that the parties communicate by email and/or text message, save in the event of an emergency involving either of X or Y.
I am also satisfied that it will be important that X and Y spend time with the husband from after school until 7.00 pm in the alternate week to that in which they have spent the weekend with their father, as ten days would be far too long for them to go without seeing him.
In relation to school holidays, I accept Mr A’s professional recommendation that to order extended school holiday time between X and Y and the husband prior to the reparation of the father-daughter relationship would be premature.
My difficulty in relation to what orders to make in this regard has been referred to previously in this judgment, that is the cost of the interventions proposed by the wife and the potential for further litigation in the event that either party is unhappy with the recommendations of the therapeutic counsellor.
However, given the importance to X of the current difficulties in her relationship with the husband being addressed as soon as practicable, it is my intention to make orders that the parties attend upon Mr P for reportable therapeutic counselling, or such other therapeutic counsellor as agreed between the parties in writing, and that in order to fund that intervention, an amount of $5,000.00 be set aside from the funds currently held in trust on the parties’ behalf, being the net proceeds of sale of the former matrimonial home.
PROPERTY MATTERS
The parties’ financial history has been set out in the background to this judgment and will not be repeated here.
The Issues
I have identified the issues in relation to the division of matrimonial property between the parties as follows:
a)Should the wife reimburse the husband 50 per cent of the mortgage payments and credit card payments made by him post separation?
b)What should be the adjustment as between the parties in the husband’s favour for the inheritance received by the husband from his late father’s estate two years prior to separation?
c)What should the adjustment be as between the parties arising from section 75(2) factors?
d)Should there be a superannuation splitting order made to equalise the parties’ superannuation entitlements?
The legislation
Section 79 of the Act defines the Court’s powers in determining applications for property settlement. Sub-section 79(2) of the Act provides that:
The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account under section 75(2) of the Act are as follows:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The four-step approach
In Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at [39], the Full Court of the Family Court described the preferred four-step approach in property matters as follows:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), ("the other factors") including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case ….
Assets and liabilities
The parties are in agreement as to what constitutes the matrimonial asset pool. It is as follows:
Balance of net proceeds of sale of the former matrimonial home $215,201.24 Proceeds of sale previously distributed equally to the parties $30,000.00 Proceeds of AMP policy divided equally to the parties $14,000.00 (omitted) Ford Focus motor vehicle (husband) $15,000.00 (omitted) Mitsubishi Magna (wife) $1,800.00 Chattels and furnishings in the former matrimonial home NK Total $276,001.24
Superannuation:
Husband’s superannuation entitlement with AMP $95,446.00 Wife’s superannuation entitlement with (omitted) Super $27,864.07 Total $123,310.07
The husband is seeking an order that from the wife’s share of the net proceeds of sale of the former matrimonial home, he be reimbursed 50 per cent of the mortgage payments made by him post separation, as during this period the wife had the benefit of living in the former matrimonial home whilst he had to find alternate accommodation.
The husband is also seeking an order that the wife reimburse him
50 per cent of the joint credit card payments made by him from after the date of separation until the wife agreed to them being paid out from the proceeds of sale of the former matrimonial home.
The husband argues that the credit cards were joint debts of the parties and that accordingly both have a responsibility to meet those payments and he should be reimbursed by the wife for her share.
It was the wife’s submission that she too made some mortgage payments post separation in circumstances where her income was very limited.
It was the wife’s evidence that once the former matrimonial home had been sold, neither party was required by the bank to make further mortgage payments on the basis that any arrears would be recovered upon settlement of the sale of the matrimonial home.
In relation to the credit card payments, it was the wife’s evidence that save for the NAB Visa Gold Card, to which she was a joint cardholder, all other credit cards were held solely by the husband and that she had no knowledge of how he utilised those cards during the marriage. She conceded however that the credit card debts had been incurred during the course of the relationship.
The wife further argued that after separation, the husband paid no child support in relation to X and Y until July 2011, and that she was solely financially responsible for their upkeep.
It was therefore submitted on her behalf that any payments made by the husband in meeting the parties’ joint debts in this period was offset by the wife having total financial responsibility for X and Y.
In the circumstances where the wife has assumed the major financial responsibility for the parties’ children X and Y in the period after separation, I think it is reasonable that the husband accepted responsibility for payment of some of the parties’ joint debts, including some mortgage payments and the interest payments in relation to the joint credit card debts.
In these circumstances, I do not intend to accede to the husband’s application that he be reimbursed a portion of the payments made by him in this regard.
Contributions
It is common ground that in 2008, the husband received an inheritance from the estate of his late father of $194,449.69.
I am also satisfied that the husband’s evidence as to how the parties spent his inheritance is, by and large, an accurate reflection of the decisions the parties made in the utilisation of that inheritance.
It was argued on behalf of the husband that the receipt by him of the inheritance from his father so late in the marriage constitutes a considerable contribution by him to the parties’ overall financial position.
The husband argued that he should receive 70 per cent of the parties’ assets, though it was unclear whether he was seeking 70 per cent of the total realisable assets or of the balance of the net proceeds of sale of the former matrimonial home currently held in trust. It was the husband’s submission that 70 per cent of the parties’ realisable assets does not even equal the amount that he inherited.
Counsel for the wife conceded that the husband must be given some credit for the late receipt by him of the inheritance from his late father’s estate.
However, it was argued on behalf of the wife that the court should consider the use that the parties made of the inheritance. It was argued on behalf of the wife that, at best, $90,000.00 was expended by the parties to their direct benefit, being $30,000.00 to pay out their credit card debts, a $30,000.00 payment in relation to the mortgage and the $30,000.00 that was utilised in the renovations to the property (this figure reflecting the receipts that the husband was able to provide to the court in relation to the costs of the renovations).
It was argued that the balance of the funds was expended on furnishings, the motor vehicle which is being retained by the husband, a holiday for the husband’s mother and on general living expenses.
It was submitted on behalf of the wife that she too had made a considerable contribution over the course of the parties 11 and a half year relationship, as she had been the primary homemaker and caregiver to the parties’ two children, X and Y, as well as working either full-time or part-time for a large proportion of the relationship.
Counsel for the wife did not make any submission to the court as to what percentage should be attributable to the husband by way of contribution courtesy of his inheritance, but rather argued any greater contribution by him was offset by the adjustment that should take place in the wife’s favour pursuant to section 75(2) of the Act.
The law is quite clear that an inheritance received by a party to a marriage is to be considered a contribution by them alone.
Counsel for the wife referred the court to the matter of Vernon & Vernon [2010] FamCAFC 215, where Coleman J was determining an Appeal from Terry FM. In that matter, Terry FM determined that an inheritance received by the husband five years before the end of a 26 year marriage was offset, in part, by the contributions made by the wife over the totality of their 26 year marriage.
In paragraph 54 of Coleman J’s decision in Vernon & Vernon (supra), His Honour held as follows:
54.In the course of her judgment the learned Federal Magistrate referred to the decision of the Full Court in Pierce & Pierce (1998) 24 Fam LR 377. Relevant in that context is the decision of the Court of Appeal of the Supreme Court of New South Wales in Kardos v Sarbutt [2006] NSWCA 11, the leading judgment in which was written by Brereton J. The question is, in part, although not strictly solely, the extent to which the wife’s contributions over 26 years could have permissibly eroded the impact of the husband’s contribution late in the cohabitation of his inheritance.
In this matter, I am satisfied that were it not for the inheritance received by the husband, the contributions of both the parties to the asset pool during the course of their relationship would have been considered equal.
If the totality of the husband’s inheritance had been utilised by the parties to pay out the mortgage on the former matrimonial home, thus increasing the net property pool available to the parties by that amount, there is no doubt that the weight accorded to that contribution so late in the relationship would have been considerable.
In Pierce & Pierce (1998) 24 Fam LR 377, the Full Court considered the manner in which an initial contribution by a party to a marriage should be treated. In paragraph 28 of their decision, the Full Court held as follows:
28.In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: See also Campo and Campo (unreported, Full Court (Ellis, Lindenmayer and Finn JJ), Sydney, delivered 19 May 1995 at pages 21 and 22 of the joint judgment) and Zahra and Zahra (unreported, Full Court Sydney, delivered 3 October 1996, per Ellis J. at page 10).
As noted in Pierce & Pierce (supra), the Full Court were considering the manner in which an initial contribution by a party to a marriage should be treated. Its’ relevance to this matter is the finding of that court that the contribution of one party must be looked at in the context of what use that contribution is put to by the parties. This holds true whether that is an initial contribution or a contribution by way of inheritance received during the relationship.
The matrimonial pool in this matter is relatively small. The amount the husband received from his inheritance equates to 70 per cent of that pool.
However, the reality is that the parties chose to utilise the husband’s inheritance in such a way that it cannot be seen to have greatly contributed to the asset pool available for division between the parties and as such, even though the husband received the inheritance late in the marriage, the full amount of his inheritance cannot be seen as a contribution to the parties’ property available for division between them.
In all these circumstances, I have formed the view that in relation to contributions, there should be a loading in the husband’s favour as a result of the inheritance received by him of 15 per cent.
Section 75(2) factors
The husband, who was self-represented in these proceedings, made no submissions in relation to what, if any, adjustment should be made between the parties in relation to section 75(2) factors.
It was submitted on behalf of the wife that there should be an adjustment in her favour in relation to section 75(2) factors.
It was argued that the wife has the primary care of the parties’ two children and will continue to do so into the future.
It was submitted on behalf of the wife that after separation the husband paid no child support until July 2011. It was the wife’s evidence that since 20 July 2011, she has received five payments from the husband. Four of these payments were $42.54 and the last payment of child support received by her was $772.14 in September 2011.
It was the wife’s evidence that she has not received child support from the husband since September 2011 and that he has been assessed to pay minimal child support since that time because of his current income.
It was the wife’s evidence that she currently earns, on average, $260.00 per week from her part-time employment as a (omitted).
It was the wife’s evidence that whilst she will endeavour to increase her hours of part-time employment, her income earning capacity is restricted given her responsibilities for the care of X and Y.
It was the wife’s evidence that when the husband was employed at (omitted), he had a base salary of $51,000.00 a year and regularly earned bonuses, such that his average income was $70,000.00 per year. Further, it was the wife’s evidence, not disputed by the husband, that whilst working as a (omitted), he averaged an income of $45,000.00 per year.
It was therefore submitted on behalf of the wife that the husband’s earning capacity was significantly greater than her own.
Counsel for the wife, in submissions, did not attribute a percentage in respect to the adjustment sought in the wife’s favour for section 75(2) factors.
It is apparent from the orders made by me in relation to children’s matters that the wife will continue to have the primary care for X and Y. It is also apparent that at least for the short to medium term, she will bear the major financial responsibility for each of the children with only minimal support from the husband.
I also accept the submissions made on behalf of the wife that the husband’s earning capacity exceeds that of the wife, albeit at this time he is choosing not to assume full-time employment.
In these circumstances, I am satisfied that there should be an adjustment in the wife’s favour in relation to section 75(2) factors of
15 per cent.
Superannuation
The husband made no submissions to this court in relation to whether there should be any adjustment made in relation to the parties’ respective superannuation entitlements.
It was argued on behalf of the wife that there should be a superannuation splitting order made in the wife’s favour, such that the parties’ superannuation entitlements are equalised.
I am satisfied that it is appropriate that there be a superannuation splitting order made in the wife’s favour so that the parties’ current superannuation entitlements are equalised.
In these circumstances, an order will be made that there be a superannuation splitting order in the wife’s favour, with the base amount to be $33,791.00.
I note that the wife’s solicitors provided to the court proof that procedural fairness had been accorded to the husband’s superannuation fund in relation to any superannuation splitting order being made.
Just and equitable
As can be seen, I have determined that a just and equitable outcome for these parties is for there to be an equal division of both their realisable assets and their superannuation entitlements.
At separation it is common ground that the wife retained 90 per cent of the contents of the former matrimonial home, including the new furnishings and appliances purchased by the parties from the husband’s inheritance and the husband retained the Ford Focus motor vehicle. Neither party provided the court with a valuation of the matrimonial chattels. I am satisfied that a just and equitable distribution of the parties’ chattels and motor vehicles is that they each retain those assets that are currently in their possession without further adjustment.
I am satisfied that this outcome is an appropriate adjustment of the husband’s contributions arising from the receipt by him of the inheritance from his late father’s estate, against the section 75(2) factors that are weighted in the wife’s favour.
Accordingly, orders will be made that reflect this determination.
I certify that the preceding two hundred and thirty-seven (237) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 24 February 2012
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