BELL & BELL

[2013] FMCAfam 6

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BELL & BELL [2013] FMCAfam 6

FAMILY LAW – Children – parenting orders – best interests of the children – new family violence provisions – amount of time to spend with father – Mother is has been primary carer – amount of time that it is appropriate for young child to be away from primary carer – choosing the religion of the children – schooling arrangements for the children.

FAMILY LAW – Property – application for property settlement – contributions before marriage – tax records not given – property dealings after marriage – where the Court may be less cautious about making findings resulting from deliberate non-disclosure of facts – superannuation entitlements – application for splitting order – Father has a much higher earning capacity post marriage – Mother has been out of employment for four years.

FAMILY LAW – Spousal maintenance order – parties’ claimed expenditure exceeds income – evidence not given to justify reasonability of expenses.

Family Law Act 1975, ss.4, 60B(1), 60C, 60CA, 60CC, 65DAA, 66D, 72, 74, 75, 79 and 81
Evidence Act 1995 (Cth), ss.128 and 140

MRR v GR (2010) 240 CLR 461
Mazorski v Albright (2008) 37 Fam LR 518
R & R: Children’s wishes (2000) FLC 93-000
[H] & [W] (1995) FLC 92-598
Coe v NSW Bar Association [2000] NSWCA 13
Re Coe LST 3 of 1995
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Stanford v Stanford (2012) 87 ALJR 74
The Marriage of Hickey (2003) FLC 93-143
In the Marriage of Mitchell (1995) 120 FLR 292
NHC & RCH (2004) FLC 93-204
Gollings and Scott [2007] FamCA 397
In the Marriage of Rosati [1998] FLC 92-804
C v C (2005) 193 FLR 9
Ferraro & Ferraro (1993) FLC 92-335
Norbis & Norbis (1986) 161 CLR 513
Pierce v Pierce (1999) FLC 92-844
Best v Best (1993) 16 Fam LR 937
Weir and Weir (1993) FLC 92-338
In the Marriage of Black (1992) 106 FLR 154
Lansell v Lansell (1964) 110 CLR 353
In the Marriage of Clauson (1995) 18 Fam LR 693
Tomholt & Reed (2008) FMCAfam 380
Bevan & Bevan (1995) FLC 92-600
M & M (2006) FamCA 868
In the  Marriage of Mee and Ferguson (1986) 84 FLR 179
In the Marriage of Vick and Hartcher (1991) 105 FLR 230
Marriage of Luciano (2000) FamCA 401

Applicant: MR BELL

Respondent: MS BELL

File Number: SYC 3884 of 2012

Judgment of: Pascoe CFM

Hearing dates: 31 October, 1 and 2 November 2012

Date of Last Submission: 2 November 2012

Delivered at: Sydney

Delivered on: 21 March 2013

REPRESENTATION

Counsel for the Applicant: Mr Gregory Johnston

Solicitors for the Applicant: John Quinn & Co

Counsel for the Respondent: Mr Julian Millar

Solicitors for the Respondent: Robyn Sexton & Associates

THE COURT ORDERS THAT:

Parenting Orders

1. All previous parenting Orders be discharged.

2. The parties, being MR BELL (“the Father”) and MS BELL (“the Mother”), have equal shared parental responsibility for the children, being [X] and [Y] (“the children”).

3. The children live with the Mother.

4. The children spend time with the Father as follows:

   During the School Term prior to 26 May 2014

   (a)In week 1, from after pre-school/school Thursday until pre-school/school Monday, with week 1 commencing on the first Thursday after the date of Order.

   (b)In week 2, from after pre-school/school Wednesday until pre-school/school Thursday.

   During the School Term after 26 May 2014

   (c)Commencing 28 May 2014, being the Wednesday after [Y] attains the age of seven, from after school Wednesday to before school Monday. Following commencement, this five night “block time” is to continue on each alternative week there after.

   School Holidays

   (d)Apart from Christmas holidays, for up to one half of the school holiday period, precise times to be arranged between the parties at least 4 weeks prior to the commencement of the holiday period, and failing agreement:

   (i)In even numbered years for the first half of the holiday period; and

   (ii)In odd numbered years for the second half of the holiday period.

   (e)At any other or alternative time by agreement between the parties.

   (f)That for the purpose of these Orders, ‘school holidays’ will mean those days not gazetted as school term days by the Department of Education.

5. The children will spend Christmas holidays as follows:

   (a)For the 2013/2014 Christmas school holidays and each alternative year thereafter, the Children will spend time:

   (i)With the Father for the first half of the holidays; and

   (ii)With the Mother for the second half of the holiday.

   (b)For the 2014/2015 Christmas school holidays and each alternative year thereafter:

   (i)With the Mother for the first half of the holidays; and

   (ii)With the Father for the second half of the holidays.

6. In addition to the time that the children spend with the parties as set out in the Orders herein, on the following occasions of special significance the children shall spend time with the parties as follows:

   (a)Notwithstanding any other Order, from Christmas Day 25 December 2013 onwards, the Mother shall have care of the children from 2 pm on Christmas Eve until 2 pm on Christmas Day in odd numbered years and from 2 pm Christmas Day until 2 pm Boxing Day in even numbered years.

   (b)Notwithstanding any other order, from Christmas Day 25 December 2013, the Father shall have care of the children from 2 pm on Christmas Even until 2 pm on Christmas Day in even numbered years and from 2 pm Christmas Day until 2 pm Boxing Day in odd numbered years.

   (c)Easter, where it does not fall within a school holiday period, the children will spend the Easter period (being from after school on Thursday immediately preceding Good Friday until before school the following Tuesday):

   (i)In odd numbered years from after school Thursday until 6 pm Saturday with the Mother and from 6 pm Saturday until before school the following Tuesday with the Father; and

   (ii)In even numbered years from after school Thursday until 6 pm Saturday with the Father and from 6 pm Saturday until before school the following Tuesday with the Mother.

   (d)If Mother’s Day falls on a day when the Mother does not otherwise have care of the children, the Mother will have care of the children from 9 am until 6 pm on Mother’s Day notwithstanding any other Order.

   (e)If Father’s Day falls on a day when the Father does not otherwise have care of the children, the Father will have care of the children from 9 am until 6 pm on Father’s Day notwithstanding any other Order.

   (f)The Children spend time with the parent in whose care they are not otherwise in on [X] and [Y]’ respective birthdays each year, and should the either birthday fall on a preschool/school day, then from the conclusion of school for 3 hours, and should either birthday fall on a non-school day, then for a period of 4 hours with specific times to be agreed, but failing agreement from 1 pm until 5 pm.

   (g)In the event the children are not otherwise in the Father’s care on his birthday each year, and the Father’s birthday falls on a pre-school/school day, the children are to spend from the conclusion of school, 3 hours with the Father, and should the Father’s birthday fall on a non-school day, the children spend a period of 4 hours as agreed between the parties, but failing agreement from 1 pm until 5 pm.

   (h)In the event the children are not otherwise in the Mother’s care on her birthday each year, and the Mother’s birthday falls on a pre-school/school day, the children are to spend from the conclusion of school, 3 hours with the Mother, and should the Mother’s birthday fall on a non-school day, the children spend a period of 4 hours as agreed between the parties, but failing agreement from 1 pm until 5 pm.

7. Where the children have spent the last weekend of the school holidays with the Father:

   (a)Alternate care arrangement times set out in Orders (4)(a) and (4)(b) herein will resume on the second Thursday following the resumption of the school term.

   (b)Alternate care arrangement times set out in Orders (4)(c) and (4)(d) herein will resume on the second Wednesday following the resumption of the school term.

8. That where the children have spent the last weekend of the school holidays with the Mother:

   (a)Alternate care arrangement times set out in Orders (4)(a) and (4)(b) herein will resume on the first Thursday following the resumption of the school term.

   (b)Alternate care arrangement times set out in Orders (4)(c) and (4)(d) herein will resume on the first Wednesday following the resumption of the school term.

9. Each party be at liberty to communicate with the children at all reasonable times and the parent with whom the children are living is to encourage the children to answer any phone calls from the other parent.

10. Each party notify the other as soon as practicable in the event of either or both the children are suffering a serious illness or having suffered a serious accident.

11. Each party keep the other informed of their addresses, landline telephone number and contact details, including mobile telephone numbers where they will be otherwise un-contactable.

12. The Mother retains the children’s passports, and the Father return them to the Mother at the conclusion of any trip in accordance with these Orders.

13. Each party is entitled to remove the children from Australia to travel overseas provided they give the other party at least 4 weeks prior written notice of the intended trip, specifying:

    (a)The date and time of departure;

    (b)The means of transport and all details pertaining thereto including details of the airline with whom the children will be travelling;

    (c)The intended destination;

    (d)Contact numbers and addresses for the children for the duration of the trip and the intended date and time of return; and

    (e)Provide further that such travel will occur during times the children will be with that parent in accordance with these Orders unless otherwise agreed between the parties.

14. That upon written notice being given by one party to the other pursuant to Order (13) herein, the party in receipt of the notice shall, within 7 days from the date of receipt of the said notice, sign all documents and do all acts and things necessary to cause the children’s passports to be made available to the other party including, if relevant, signing all necessary passport applications and consent forms and providing the children’s birth certificates and any other associated documents required.

15. Where the children’s time with the Father commences at the conclusion of a school day, or concludes at the commencement of a school day, the Father or his nominee will collect the children from school at the commencement of the time and deliver them to the school at the conclusion of that time.

16. In the event that Monday is a public holiday, the Father’s time is to be extended so that it concludes at 5 pm on Monday.

17. Where Order (15) does not apply the Father will collect the children from the Mother’s residence (or such other location as is agreed) at the commencement of any time they spend with him and will deliver them to the Mother’s residence (or such other location as is agreed) at the conclusion of any time they spend with him.

18. The parties deliver and collect the children to and from any of their curricular activities or sporting activities as agreed upon between the parties or in which the children participate at the date of this Order when the children are living with the parties.

19. Neither party be permitted to enrol the children in any curricular or extra curricular or sporting activity which takes place during the other party’s time with the children.

20. Neither party be permitted to denigrate the other or members of the other party’s family to the children or in the presence of the children.

21. Neither party be permitted to remove the children from their current schools, and place them in another school, without first consulting and obtaining the agreement of the other party. Failing any agreement between the parties, the Mother is to determine the school that the children are to attend and notify the Father.

22. Neither party be permitted to change the children’s religious education from the teachings of the Church of England without first consulting with and obtaining the agreement of the other party.

Property Orders

1. The Mother be entitled to or responsible for:

   (a)The property known as and situated at Property C, [C], being all the land in folio identifier [omitted] (“the [C] property”);

   (b)The shares held in her name;

   (c)The household contents in her possession;

   (d)The proceeds of the bank accounts in her name;

   (e)The motor vehicle in her possession;

   (f)The mortgage over the [C] property; and

   (g)The GE Finance loan.

2. Within 4 months of the date of Order, the Father will do all acts and things and sign all documents necessary to cause to be transferred to the Mother all his right title and interest in the [C] property.

3. Simultaneously with the transfer of the [C] property, the parties will, at the Mother’s expense, cause to be discharged the loan secured by way of mortgage on the title of the [C] property.

4. Simultaneously with the transfer of the [C] property, the Mother will pay to the Father by way of property settlement the sum of $23,595.

5. There be no alteration to each party’s entitlement to superannuation.

6. The Father be entitled to or responsible for:

   (a)The property known as Property P, [P], being all the land in folio identifier [omitted] (“the [P] property”);

   (b)The shares held in his name;

   (c)The shares presently held in the parties’ joint names;

   (d)The household contents in his possession;

   (e)The proceeds of the bank accounts in his name;

   (f)The motor vehicle in his possession;

   (g)The mortgage over the [P] property;

   (h)The equity loan from Bankwest;

   (i)The loan from Ms J. C;

   (j)The Father’s tax liability to the Australian Taxation Office;

   (k)The [D] Pty Ltd Accountant’s outstanding fees;

   (l)The loan from Ms L. C; and

   (m)The outstanding payments on the Bankwest Earth Credit Card.

7. Within 4 month of the date of Order, the Mother will do all acts and things and sign all documents necessary to cause to be transferred to the Father all her right title and interest in the [P] property.

8. Simultaneously with the transfer of the [P] property, the parties will, at the Father’s expense, cause to be discharged the loan secured by way of mortgage on the title of the [P] property.

9. Simultaneously with the transfer of the [P] property, the Father will do all acts and all things and sign all documents necessary to cause the Bankwest Equity Loan to be transferred into his own name and that he take on sole liability for this loan.

10. Within 14 days of the date of Order, the Mother do all acts and things to cause her interest in the shares presently held in the parties’ joint names to be transferred to the Father solely.

11. Within 14 days of the date of Order, the parties do all acts and things to cause the coin collection presently in the possession of the Mother to be sold for the best price reasonably attainable, and the nett proceeds of sale to divided as to 80% to the Mother and 20% to the Father.

12. Other than as herein provided the Father and the Mother each be declared the owner at law and in equity of all items of personalty including but not limited to money, jewellery and personal effects presently in their respective possession and control.

13. Other than as herein provided each of the Father and the Mother remain liable for any debts in his or her sole name at the date of Order and in this respect shall indemnify and hold harmless the other from any liability in relation thereto.

Spousal Maintenance Orders

1. The respondent Father is to pay spousal maintenance to the Mother in the sum of $650 per week, first payment of which is to occur within 7 days of the date of Order.

2. The payment of spousal maintenance is to continue weekly for a period of 2 years after the date of Order.

General

1. In the event the Father or the Mother refuses or neglects to comply with any of the Orders herein, the Registrar of this Court at its Sydney Registry be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute in the name of the Father or the Mother as the case may be, all deeds and instruments necessary to give effect to the Orders herein, or any of them, and do all acts and things necessary to give validity and operation to the said deeds and instruments.

2. Each party have the liberty to apply upon 7 days notice in relation to the implementation of these Orders.

3. The Registrar provide a copy of this judgment to the Office of the Legal Services Commissioner, New South Wales for consideration of whether any breach of the Legal Profession Act 2004 or its regulations has been committed by the Applicant and or Ms G, and if requested, the Registrar is to provide a copy of any document on the Court file to the Office of the Legal Services Commissioner.

THE COURT NOTES THAT

1. Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out and attached below. These particulars are included in these Orders.

2. Under Order (22) the Mother’s hosting a Jehovah’s Witness Bible study group and her other personal religious activities are not to be seen as attempting to change the children’s religious education.

IT IS NOTED that publication of this judgment under the pseudonym Bell & Bell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 3884 of 2012

MR BELL

Applicant

And

MS BELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders and property orders by MR BELL (“the Father”). The parenting application concerns two children, [X] (“[X]”), born [in] 2004 and [Y] (“[Y]”), born [in] 2007.

2. The Father commenced proceedings in this Court by filing an application on 3 July 2012 seeking orders that the children live with him and spend time with the Respondent, MS BELL (“the Mother”). However, he later amended this position, seeking instead orders for substantial and significant time with the children. The Father also sought orders for the sale and distribution of matrimonial assets including, inter alia, two properties, interest in shares and a coin collection.

3. At the hearing the Father further sought parenting orders directing that the children be enrolled at [S] School. Both parties were also to be restrained from causing the children to be baptised or christened into any faith except for the Church of England or the Roman Catholic Church.

4. The Father also sought an order for divorce which was initially contested by the Mother. However, the parties were able to reach an agreement on this matter during the course of the hearing and the divorce was granted accordingly. It is now therefore unnecessary to deal with that application.

5. Apart from consenting to the divorce, the Mother opposed the orders sought by the Father. In her response, filed 8 August 2012, she sought orders that the children remain living with her and spend time with the father. She also opposed any order restricting the children’s religious involvement to the Roman Catholic and Anglican churches. With regards to the property application the Mother sought orders that the Father transfer his interest and title to the former matrimonial home at Property C, [C] to her. The other assets were to be sold. However, the Mother contested the Father’s proposed plan for dividing the profits as sale and his contribution.

6. In addition, the Mother sought an order for spousal maintenance in the sum of $600 per week for a period of three years from the date of the order. This figure was later adjusted to $650 during the course of the hearing.

Background to the Proceedings

1. The Father was born [in] 1972.

2. The Mother was born [in] 1975.

3. The parties commenced a relationship in 1996 and the Mother deposed that she and the Father began living together in 1997.[1] This date is contested by the Father.

   [1] Affidavit of Ms Bell sworn 19.10.2012 at paragraph [2].

4. The parties married [in] 2000.

5. After a difficult period where the Mother deposed the Father continually left and then returned to the family home, the parties ultimately separated. The Father says separation occurred on 19 July 2011.[2] According to the Mother’s evidence final separation did not occur until 30 October 2011.[3]

   [2] Affidavit of Mr Bell sworn 3.10.12 at paragraph [4].

   [3] Affidavit of Ms Bell sworn 19.10.2012 at paragraph [2].

6. There are two children of the marriage, a girl and a boy. Both children currently reside with the Mother in the former matrimonial home at [C].

7. During the marriage the Father worked initially as a police prosecutor, before leaving the police force in 2009 to commence working as a barrister at the independent bar. The Mother worked as an [omitted] up until the birth of [Y]. In mid 2008 the Mother established the business [A] from which she continues to draw a small income.

8. During the marriage the Father was also an [omitted] and was employed to [omitted] both within Australia and overseas.

9. The Mother deposed that due to the Father’s work and sporting commitments, he was often away from home during the marriage. For example, in 2007, it is the Mother’s evidence that the Father was away for a total of 108 nights.[4]

   [4] Ibid, [18].

10. During the course of the marriage the parties purchased and sold a number of properties. These properties were:[5]

    a)A two bedroom unit at Property M, [M];

    b)A townhouse at Property P, [P];

    c)A three bedroom house at Property W, [W]; and

    d)A property at Property C, [C].

    [5] Note that the order and years in which these properties were purchased and sold is subject to dispute between the parties and will be discussed below.

11. The parties also acquired a coin collection with an estimated value of between $16,000 and $25,000.

12. Since the breakdown of the marriage the Father has taken up living with his new partner, Ms G, and her three children at Property L, [L]. This new relationship has resulted in some less than civil encounters between the Mother and Father and his new partner in the recent past.

13. The Mother deposed that on a number of occasions, before the eventual breakdown of the marriage and after, Ms G contacted her and informed her that “he [the Father] took me into your bed” and “I have slept with him every day since January”.[6] At other times the Mother deposed that Ms G told her “I’m really really sorry for you. He loves me. You know it [sic].”[7]

    [6] Affidavit of Ms Bell sworn 19.10.2012 at paragraph [28].

    [7] Ibid.

14. Ms G gave evidence that the Mother had contacted her former partner in September 2012 in what she saw as an attempt to cause distress.[8]

    [8] Affidavit of Ms G sworn 3.10.12 at paragraph [59].

15. The Mother deposed that Ms G has suffered mental health problems and on one occasion mixed alcohol and valium causing her to become “hysterical” and a risk.[9] 

    [9] Affidavit of Ms Bell sworn 19.10.2012 at paragraph [29].

16. Given the tempestuous nature of the post-separation relationship it is of little surprise that there have been numerous problems with implementing parenting arrangements between the parties. The Father says that the Mother unilaterally suspended parenting plans[10] and would often use pickup and drop off times to engagement him in verbal confrontations, sometimes with the children present.[11] The Mother gave evidence that the Father has often failed to pick the children up at appointed times.

    [10] Affidavit of Mr Bell sworn 3.10.12 at paragraph [59].

    [11] Ibid [39].

17. The Mother’s occasional attendance at Jehovah’s Witness services and having weekly Bible studies with that religious sect has also been the subject of some conflict. The Father deposed that [X] has on occasion stated that “His name really isn’t God, it’s Jehovah” and asked Ms G “Do you think Jehovah is God. He is, isn’t he?”[12] The Father alleges that at no time was he consulted about the children’s exposure to this religion.

    [12] Ibid [201].

18. Disagreement between the parties has also arisen in regard to what school the children should attend and the propriety of the Mother allowing a Japanese student to live with her and the children.

19. A conciliation conference took place on 17 August 2012, however the parties were unable to reach agreement on any of the parenting or property issues. This was despite initial indicators suggesting that the parties were close to resolution. Unfortunately, neither party was willing to commit to financial terms without parenting arrangements first being put into place.

20. The real point of disagreement in relation to the parenting arrangements was whether the children should spend five nights or six nights with the father in the future. Neither party appeared ready to make a compromise in regards to this issue.

Parenting Matter

Children’s Care History

1. There is some level of disagreement between the parties over the extent of the Father’s involvement in the children’s care, both before separation and afterwards. The parties also differ over who the primary caregiver for the children was prior to separation in 2011.

2. The Father says that he has “an extremely close and loving relationship” with the children. Although the Father worked full time he says that he has taken a significantly active role caring for the children since the time of [X]’s birth in late 2004. The Father says that from the time of [X]’s birth he has provided a significant portion of her care being involved in all daily rituals (both before school and after), educational needs and emotional needs. The Father also says that he has similarly attended [Y] since his birth in 2007. In contrast to this care, the Father says that the Mother is “extremely ambivalent” about [X]’s education and does not require her to complete the school homework assigned to her.[13] He also says that the Mother “was always either still in bed, or…sitting on the lounge” in the mornings when he was preparing [X] for school. The Father is also critical of the amount of television the Mother allowed the children to watch and claimed it was up to an hour every morning. In the evenings the Father says that he was responsible assisting [X] with her homework, bathing the children and then putting them to bed.

   [13] Affidavit of Mr Bell sworn 3.10.12 at paragraph [11].

3. On the weekends, when not [omitted], the Father says that he had primary care of the children before separation in 2011. During this time, the Father says the Mother would often sleep 16 hours of the day.

4. Since separation the Father says that he has cared for the children whenever he has been able to see them. He says that each child has a room in his current [L] property (although [X] shares her room with [name omitted], one of Ms G’s children) and he has created a loving and caring environment for them. The Father says that when work prevents him from attending picking-up or drop-off times for the children, he always arranges a proxy. The Father says that he has “attended to the overwhelming majority of pick ups”. The Father says that since separation he remains concerned about the Mother’s capacity to parent.

5. The Mother says that during the marriage the Father generally returned home in the early evening and assisted her in caring for [X]. After March 2005, however, the Mother says that the Father was busy travelling, studying or working long hours. This necessitated that the Mother surrender her part time work in order to take care of [X] on a full time basis.

6. The Mother also says that she attended to all [X]’s social commitments, such as church, playgroup, pre-school, school, and swimming lessons. The Mother also says that once [Y] was born and discovered to have many food allergies, she took him to all his specialist appointments.

7. When [Y] was four months old the Mother says that he was hospitalised with pneumonia. The Father was away overseas, leaving the Mother to care for [X] and be at the hospital with [Y]. Upon returning, the Mother says that the Father left for Korea a month later to attend another [omitted] despite learning of [Y]’s condition. The Mother says there were numerous other occasions when the Father was overseas and unable to care for the children during the marriage.

8. When in Australia, the Mother says that the Father was often away at various domestic sporting events. These events also required intensive training and left the Father tired, further denying his availability to the children.

9. The Mother also says that when at home the Father drank alcohol almost every night which often resulted in conflict between the parties. According to the Mother the Father drank at least ¾ of a bottle of wine every night as well as beer.[14]

   [14] Affidavit of Mrs Bell sworn 19.10.12 at paragraph [20].

10. Since separation the Mother says that there have often been times where the Father arranged to have the children but subsequently recanted, claiming work commitments had arisen. When the children did go to the Father’s, the Mother says they were often left in the care of the Father’s new partner while he went to work. The Mother says that the children told her “When we see daddy, Ms G [Ms G] is always there, and sometimes he [the Father] goes to work and leaves us with her”.[15] The Mother also says that when the children return from weekends spent with the Father, [X] returns with her homework not attempted. This places the Mother under pressure to help assist [X] complete her homework after school each evening.

    [15] Ibid, [34].

11. At the time of hearing [X] was enrolled at [C] School and due to complete Year 2 at the end of 2012. [Y] attended the [omitted] Kindergarten, a private preschool, for three days a week over 2012 and is due to start kindergarten in 2013.

12. The children’s current care arrangements are set out in interim consent Orders made between the parties on 26 November 2012. These orders state that:

    ·The children live with the Mother;

    ·Each party have equal shared parental responsibility; and

    ·The Father spends time with the children from Friday to Monday in Week 1 and from Wednesday to Thursday in Week 2 on a two week rotating cycle.  

The Family Report

1. Family consultant Mr L prepared a report for the purposes of these proceedings. In writing the report, Mr L read and made reference to the orders, affidavits and applications dating from July 2012. He interviewed the parents, Ms G, and the children and observed their interactions on the day of interview.

2. In the course of conducting interviews the family consultant identified one of the main issues as being the distress and humiliation the mother evidently experienced in the course of separating from the Father.[16] Whether or not the parents can co-operate in future parenting arrangements is largely dependant on whether their feelings abates over time.

   [16] Bell & Bell Family Report, paragraph [8].

3. On a more positive note Mr L noted that it was his impression that:[17]

   [N]either of the parents nor Ms G have substantial shortcomings with respect to parenting practices as they relate to the children’s basic educational, social and emotional needs and interests.

   [17] Ibid [57].

4. Mr L was also confident that with the passage of time the Mother’s feelings of hurt would diminish and her capacity to co-parent co-operatively would increase.[18]

   [18] Ibid [61].

5. Mr L paid particular attention to the fact that the Mother had sought appropriate support through her church and professional counselling.

6. Upon cross-examination by the Father’s counsel, Mr Johnston, Mr L provided further clarification on this point. According to Mr L’s evidence, the Mother’s reaction was “a fairly typical reaction to a traumatic and humiliating separation”. He further noted that:

   [T]he frequency and intensity of her feelings…will be more evident at some times than at others particularly when there are reminders – which there consequently are, unfortunately, in this context – of the traumatic event…I don’t think that is inconsistent with a recovery that is two steps forward and one step backward.

7. Giving further strength to this conclusion was the fact that Mr L also observed during the day that the Father, Ms G and the Mother talked to each other “calmly, civilly and politely on this occasion.”

8. In the course of interviews Mr L asked [X] what her three wishes were. [X] replied:[19]

   That none of this had ever happened [said with some intensity]; to stay at my school; and to live most with my mum.

   [19] Ibid [44].

9. In a subsequent interview [X] expressed some concern that she may be taken away from her mother and from her school. She did not desire this as she has three close friends at her current school.

10. According to the report [Y] did not indicate any particular preference for either the Father or Mother and talked about activities he enjoys at both homes. His only complaint was that travelling to his father’s house takes “a long time in the car”.

11. Mr L considered both children appeared to be secure and emotionally autonomous

12. In her interview, the Mother expressed the view that she was the primary attachment figure and primary caregiver in the children’s lives. She admitted to being “a bit lazy” at time but attributed this to being “tired from being a single parent”. The Mother also told Mr L that she would agree to the children spending three nights in one week and two nights in the following week with the father in fortnightly cycles. However, the Mother remained concerned about the viability of equal time arrangements given the distance between the parties’ places of residence.

13. The Father when interviewed expressed the view that he has “high standards and might ask too much of the children” but he will “make them do it”.[20] However, he was concerned that he was becoming isolated from the children as he was not being allowed to spend enough time with them. According to the report, the Father was of the view that the Mother does not allow the children to “enjoy their relationship with Ms G and Me”. He also expressed a view that he would like the children to attend a private school.

    [20] Ibid [29].

14. Ms G was introduced to the children In November 2011. Ms G denied deliberately provoking the Mother by referring to affectionate interactions between herself, the Father and the children. She also expressed the view that the Mother’s hostility towards her and the Father does not seem to be diminishing. Although, Ms G admits there has been some change with the Mother no longer “blanket refusing” requests for the children to spend time with the Father.    

15. From this information Mr L expressed the view that any future equal shared parenting arrangements between the parties would be dependent on certain conditions arising. According to Mr L, much would depend on the “capacity or otherwise of the key adults in the children’s lives to develop a co-parenting relationship that is substantially co-operative, flexible and civil.”

16. Mr L concluded his report with the following recommendations:[21]

    It is recommended that, unless the parents agree otherwise, [X] and [Y] live primarily with their mother and, each fortnight, spend from after-school on Thursday to Sunday at around five pm with their father in week one, one night in the alternative week and other times as agreed between the parties.

    It is further recommended that, when [Y] is six years old, the children spend time with their father from after school on Thursday until Monday morning before school each fortnight and at other times agreed between the parents.

    [21] Ibid [66]-[67].

17. At the hearing Mr L suggested that [Y] would be ready for a five night “block period” with his father once he had completed his first year of school.

18. With respect to this block period of time Mr L noted that the age of six is an important developmental year for children. It was Mr L’s evidence that it would not diminish the father’s relationship with [Y] to be patient in moving to a five night period. This was because Mr L believed it was possible for the father to have “substantial and significant time” in the proposed plan of four nights in week one and one night in week two. So long as in that time the Father was able to engage across “the whole gamut of developmentally critical activities” that time would be sufficient.

19. Developmentally critical activities, according to Mr L include, inter alia, putting the child to bed, the bedtime rituals, doing some homework, having leisure time, and weekend time for recreational and extracurricular activities.

Submissions

1. Counsel for the Father, Mr Johnston, submitted that in terms of the parenting orders four nights with the Father would not be “substantial and significant” time. In Mr Johnston’s view it would be more appropriate for the Court to make an order that the children spend six nights a fortnight with the Father.

2. In final submissions Mr Johnston indicated that his client was willing to concede going to a six night arrangement in 2015, rather than 2014. Under this submission the children were to spend one four night block and a single night with the Father every fortnight in 2013. In 2014, it was submitted, orders should be made that the children spend a five night block with the Father and then move to the eventual six night block in 2015.

3. It was further submitted that this case had, although starting in a state of some animosity, become “quite a civilised case”. According to

   
   

   Mr Johnston there has been forgiveness between the parties, there have been apologies and there is now a growing respect between the parties. It was suggested that given these developments the Court could be confident that the parties were determined to communicate better in the future in a “spirit of co-parenting”.

4. Unfortunately, however, the issue of religion was not something that could be resolved between the parties. Counsel for the Father stressed that his client remained in “absolute opposition” to the Jehovah’s Witness Church and as such this was an issue liable to cause future upset between the parties. According to the Father’s counsel the Mother remains unwilling to accept the Father’s opposition to this religious faith. For this reason Mr Johnston proposed that the Court make a restraining order preventing the Mother from allowing the children to associate with members of the Jehovah’s Witness Church.

5. Mr Millar submitted, on behalf of the Respondent Mother, that the Mother has historically been the primary caregiver for the children. Counsel noted that the Mother had been a “rock of stability” in turbulent times of the children’s life after the breakdown of the marriage. It was submitted that the Court should maintain this stability by ensuring that the children continue to live with the Mother and that [X] remains at her current school.

6. Mr Millar further submitted that the Father provided no real evidence as to why the children should be enrolled at [S] School. There was no explanation offered, according to Mr Millar, for preferring this school over others which was especially relevant given [X]’s express views on the subject. There was also no evidence given concerning the fees or the capacity of the parties to meet these fees.

7. In regards to the Jehovah’s Witness issue, counsel for the Mother submitted that the Mother is not seeking to have the children baptised into the faith. It was further submitted that the Mother does not ascribe to all of the religious teachings of the Jehovah’s Witness Church and would not refuse a blood transfusion for the children if it was required. The Mother merely derives comfort and solace from the church, which was particularly necessary in the time of crisis experienced after the breakdown of the marriage.

8. It was also submitted, by Mr Millar, that the children continue to attend [S] Anglican Church three times a week and this is where their religious education is derived.

1. Mr Millar then made the submission that there was no need to make an order preventing a boarder staying with the Mother. In Mr Millar’s submission, there was no evidence given that arouses any concern about the boarder living with the Mother.

2. Mr Millar submitted on behalf of the Mother that the Family Report writer’s recommendations in regards to the time share arrangements should be adopted by the Court. That is, that the children spend four nights with the Father comprised of three nights in one group and one night separately in a two week cycle.

3. In respect to moving to a five night block of time with the Father after May 2014, when [Y] is seven years of age, no submission was made. However, Mr Millar did oppose an order allowing the children to spend an eventual six night block with the Father. It was submitted that Mr L has not acknowledged six nights and there was no explanation by the Father’s counsel as to why such an order was in the children’s best interests.

4. In considering the number of nights, Mr Millar submitted, the Court should pay particular attention to the express wishes of [X]. Namely, that she wised to live predominately with the Mother.

5. Mr Millar also submitted that the number of nights the children spend with the Father increases the number of weeknights that the children would be travelling and so raised the question of practicability. It was pointed out by the Mother’s counsel that the Father lived in [L] and the Mother in [C]. Any shared care arraignments would involve a lot of driving time, often in peak hour traffic.

6. According to the Mother’s counsel it would not always be practicable for the Father to pick the children up and so he would have to rely on family. This would lead to uncertainty as to who was picking the children up on a given day which, Mr Millar submitted, would cause [Y] distress.

7. Mr Millar also submitted that the Court should be satisfied that the Mother was experiencing a time of crisis last year with the breakdown of the marriage. These were very distressing times for the Mother, according to Mr Millar, but the Mother recognised she had a problem and was proactive in seeking professional help. Mr Millar submitted that the Court could be confident that the problems the Mother experienced had been identified and have now been resolved.

Issues of Credibility

1. Before setting out the relevant law I think it is first necessary to make a comment about the credibility of the various witnesses in the present case. The credibility of the witness, of course, substantially affects the probative weight that will be given to the evidence. This is of particular relevance in the present case as many of the claims made were not corroborated with other forms of non-testimonial evidence.

2. I found the Father to not be full and frank in the answers that he gave during cross-examination. On a number of occasions the Father appeared to be suffering from serious memory lapses. This loss of memory extended to, among other things, where he had practised as a barrister in the last year; why his new partner was admitted to hospital earlier this year; and whether he had actually signed up to a parenting after separation course. 

3. Despite not being able to remember recent events the Father was adamant in his recollection of events that occurred more than 14 years ago. Indeed I commented at this juncture in the hearing that:

   It troubles me that [the Father’s] memory – I mean he’s a barrister, he’s an officer of the court – that [his] memory appears to be so bad and his knowledge of many of these things which would…go to the heart of being a barrister…seem to be so faulty.

4. The Father’s refusal to be full and frank in his answers raises serious questions especially as he is an officer of the Court. The Father’s subsequent deviation, in the witness box, from the evidence given in his affidavit is also of grave concern to the Court. I note the comments of Mason P with regards to a barrister swearing in affidavit form material he knew to be false. In Coe v NSW Bar Association[22] his Honour remarked:[23]

   10. If (which I doubt) there are exceptional cases where a practitioner who knowingly swears a false affidavit that is filed in court could be regarded as fit to practice, this is not one of them.

   11. In In Re B (1981) 2 NSWLR 372 at 282 Moffitt P said “It is of the utmost importance that this court can order its procedures and give its decisions in the confidence that the barristers appearing before it, will not mislead it, will conduct themselves in accordance with the law and discharge their duty even when not subject to any scrutiny.

   [22] [2000] NSWCA 13.

   [23] Ibid, [10]-[11].

5. In dismissing the appeal in Coe v NSW Bar Association the NSW Supreme Court affirmed the Legal Services Tribunal’s judgment that:[24]

   In our opinion there can be no doubt that a legal practitioner owes special duties to a court of which he is an officer, even when involved in that court’s processes not as a legal practitioner but as a private litigant. Those duties include a duty of honesty and candour to the court.

   [24] Re Coe LST 3 of 1995, 9-10 (emphasis added).

6. Disturbingly, I found that Ms G, also a barrister, was also deliberately evasive and gave disingenuous answers. An illustrative example of this evasiveness is in the answers Ms G gave when being cross-examined on issues relating to finances obtained from her father. Here Ms G when asked about the signing of certain documents continued to assert that she did not know who “settled” the document or who “drafted it”. She continued to use other procedural steps as a veil to avoid answering the question asked about who signed the document.

7. Further, I found it most disturbing that Ms G, who claimed to practise in family law, should have sent a particularly toxic communication to the Mother in these proceedings. This is dealt with more fully later in this judgment.

8. Both the Father and Ms G required immunity Certificates issued in accordance with s.128 of the Evidence Act 1995 (Cth) before giving evidence about their financial arrangements and their dealings with a financial institution. For barristers to require a certificate under section 128 must be of serious concern.

9. It would appear that the applicant and Ms G have conducted themselves in a way that goes directly to fame and character. As such I will direct the Registrar to send a copy of these reasons for judgment to the Office of the Legal Services Commissioner, New South Wales for consideration of this point and if requested, the Registrar is to supply any document on the Court file to the Officer of the Legal Services Commissioner.

10. By contrast I found the Mother’s evidence to be balanced, full and frank. She directly answered the questions posed in an open and honest manner and I found her evidence to be very credible.

The Relevant Law in Relation to Parenting Matters

1. The legal principles which govern parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration.

2. Section 60B(1) enumerates the objects of Part VII as ensuring the best interest 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 children; 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.

3. In determining the best interests of the children, the Court must consider those primary considerations outlined in s.60CC(2) together with those matters, titled “additional considerations”, set out in s.60CC(3). In applying the considerations set out in s.60CC(2), the Court is to give greater weight to the considerations set out in paragraph (2)(b) (see s.60CC(2A)).

4. It should be noted that those considerations that were formally required under the now repealed subsection 60CC(4) have largely been incorporated into the new paragraph 60CC(3)(c) considerations introduced by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (“the 2011 Amendment Act”).

5. The question then turns to parental responsibility of the children. In answering this question the Court is required by subsection 61DA(1) of the Act, when making a parental order, to apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility.

6. According to s.61DA(2) this presumption does not apply if there are reasonable grounds to believe that a parent of the children (or a person who lives with a parent of the children) has engaged in:

   a)Abuse of the children or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   b)Family violence.

7. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them (s.61DA(4)).

8. It should again be noted that these proceedings were initiated on 3 July 2012 and so are subject to the broader definitions of “family violence” and “abuse” introduced by the 2011 Amendment Act.

9. When considering whether equal time or substantial and significant time is in the best interests of the children, the Court must consider and make findings as to whether such time is reasonably practicable (see s.65DAA and MRR v GR (2010) 240 CLR 461).

10. “Substantial and significant time” is defined by s.65DAA(3) and “reasonable practicality” is defined by s.65DAA(5) of the Act.

Primary Considerations

(a) the benefit to the child of having a meaningful relationship with both of the children’s parents.

1. Justice Brown in the case of Mazorski v Albright[25] defines a meaningful relationship as “one which is important, significant and valuable to the child”.[26] From the evidence given it is apparent that the children have an important and significant relationship with both their parents and Ms G.

   [25] (2008) 37 Fam LR 518; [2007] FamCA 520.

   [26] Ibid [26].

2. It was Mr L’s opinion that both children derive benefit from having a meaningful relationship with each of the parents. Neither party disputes this. The orders sought by each party also both involve the children spending substantial time with each of the parents, including weekday, weekend and holiday time.

3. Accordingly I find that the children will continue to benefit from a meaningful relationship with each of their parents.

(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The new family violence provisions introduced into the Family Law Act on 7 June 2012 have substantially broadened the terms used under this factor.

2. Section 4AB(3) now states:[27]

   For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   [27] Emphasis original.

3. The term “abuse” contained in subsection 4(1) of the Act has now also been expanded to specifically include acts causing a child to suffer serious psychological harm and serious neglect of a child as well as sexual assault.

4. The definition of “family violence” is defined under s.4AB(1) as:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

5. Subsection 4AB(2) then sets out a long, though not exhaustive, list of examples of family violence. A wide range of behaviours are captured by this list including unreasonably denying a family member financial autonomy, repeated derogatory taunts, and preventing a family member from keeping connections with friends and family.

6. A “family member” also includes a “step-parent” (see s.4(1AB)).

7. In final submissions, counsel for the Father submitted that there is no family violence “of that kind from which the children need to be protected”. This conclusion, however, seems at odds with the evidence the Father and Ms G placed before the Court in affidavit form. The Father describes several incidents where the Mother’s behaviour would fit within the above definition of “family violence” and where the children where exposed to or otherwise experienced the effects.

8. The Father deposes that the Mother often makes derogatory remarks about him in the children’s presence. The Father says that the Mother constantly makes statements such as “You fucking dickhead”, “You prick”, “You arsehole” and “you selfish arsehole”.[28] The Father also says that her behaviour on these occasions is irrational and hysterical.

   [28] Affidavit of Mr Bell sworn 3.10.12, paragraph [47].

9. The Father says that the Mother has directed this profane language at the children on occasions and been physically violent towards them. One such event was said to have occurred in early 2011. The Father claims that the Mother, in his presence, asked [Y] to come to her “for a cuddle”. According to the Father [Y] declined and the Mother responded with “well fuck off then” to [Y] and physically pushed him away.[29]

   [29] Ibid.

10. According to the Father the Mother has also made derogatory comments to the children about the Father’s family. On 8 February 2012 the Father says that [X] disclosed to him that the Mother had told her that her paternal grandmother had done “the same thing to [omitted] [the paternal grandfather] that you [the Father] did to Mummy. And he doesn’t even know.”[30] The Father said that the Mother has also told the parents of children at [X]’s school that the paternal grandmother cheated on her husband.

    [30] Ibid, [102].

11. Ms G alleges that the Mother addresses her in a derogatory and taunting way. On occasions the Mother has told Ms G “You are Satan. You are the devil. You are an evil fucking temptress”.[31]

    [31] Affidavit of Ms G sworn 3.10.12, paragraph [55].

12. Both the Father and Ms G allege that the Mother has been abusive and on occasions physically violent towards them. The particular instances outlined in their respective evidence is as follows:

    a)In 2011 the Mother confronted Ms G outside [omitted]. The Mother was hysterical, yelling “You are a slut! Who do you think you are”. The conflict then escalated into physical violence where by the Mother attacked Ms G and pushed her to the ground. Once Ms G was on the ground the Mother continued to assault her by punching her in the kidneys and trying “to claw [Ms G’s] face and put her hands around [Ms G’s] throat to choke her.” According to the Father there were more than 50 witnesses to this event. Although Ms G gave a formal statement to the police concerning the incident she did not identify the Mother as the assailant in the police report.[32]

    b)Ms G gave similar evidence to the Father on this episode however she suggested the number of observers was more like 20 people.[33] According to Ms G, before the Mother assaulted her she yelled “I’ll fucking have you. I’ll shred you”.[34] Disturbingly Ms G also gave evidence that at the time when the incident occurred she was pregnant. She says that she miscarried the baby a few weeks later,[35] although she does not directly say that it was due to the alleged assault by the Mother. No further evidence was given on this point.

    c)On 19 February 2012 the Mother gained entry to the Father’s secure apartment building, banged on the door loudly and was yelling to the children, who were inside, to come out to her.

    d)On 28 May 2012 the Mother took [Y] from the Father’s car on one occasion and told the Father “just pay up you prick and we won’t have this problem”. The Father then followed her to a disused petrol station, as requested by the Mother, and then the Mother again yelled at the Father while he was in his car “just pay up and this wont happen”.[36]

    [32] Affidavit of Mr Bell sworn 3.10.12, paragraph, [55].

    [33] Affidavit of Ms G sworn 3.10.12, paragraph [46].

    [34] Ibid, [47].

    [35] Ibid, [49].

    [36] Affidavit of Mr Bell sworn 3.10.12, paragraph, [150]-[155].

13. If the testimony of the Father and Ms G is to be believed it would have very serious consequences for the Mother. The new family violence provisions require the Court to give greater weight to the s.60CC(2)(b) factors rather than merely balancing them against the s.60CC(2)(a) considerations. That is, s.60CC(2A) required greater weight to be given to protecting the children from physical or psychological harm, than to the benefit of having a meaningful relationship with both parents.

14. The Mother disputes many of the allegations made by the Father and Ms G and says they either did not happen or have been grossly exaggerated. The Mother agrees that she has spoken to the Father about financial issues at times when she was “very stressed and distressed about [her] financial position”. However she denies ever speaking about such issues within the children’s hearing or that she made it a condition of the Father seeing the children.[37]

    [37] Affidavit of Mrs Bell sworn 19.10.12, paragraph [63].

15. In regards to the alleged assault on Ms G that occurred in August 2011 the Mother says that she was provoked by Ms G. According to the Mother, she went to the Father’s work to discuss reconciliation. The Father invited the Mother to walk with him and Ms G in [omitted]. During this walk, the Mother says, Ms G smiled at her and said:[38]

    I love him and I love your children…I have seen your children in their beds while they are sleeping and I have kissed them goodnight…I have seen over 200 photos of your children…I’m pregnant.

    [38] Ibid, [30].

16. The Mother says that she found this distressing and provocative. The Mother says that this led to “a heated argument between us, which included some physical contact on both sides”.[39] However, the Mother denies assaulting Ms G in the manner outlined in the Father’s evidence.

    [39] Ibid.

17. The Mother also denies denigrating the Father’s parents. She says that she had a good relationship with them during the marriage although it has become “strained” since the breakdown of the marriage. She also says that from time to time both she and the Father have used profanities in heated arguments, however denies that it has ever occurred in front of the children.

18. These issues were not focused upon during the hearing and there was no cross-examination on the above alleged episodes. Relying on the untested affidavit accounts, then, I am satisfied that there have been at times heated exchanges between the parties. I am also satisfied that in August 2011 these exchanges resulted in the Mother perpetrating unwanted physical violence on Ms G. However, I find that the Father and Ms G have exaggerated, in their evidence, the veracity of these exchanges. I note that there appear to be several inconsistencies and omissions in the evidence about the same occasion given by Ms G and the Father. In considering what weight to give each account I have also made reference to the issue of credibility outlined above. I also find it significant that the Father has not pressed any of the alleged instances of violence at the hearing. I agree with counsel’s assessment that the alleged instances occurred around the time of the breakdown in the relationship and that this has now become “quite a civilised case”. It is also worth noting that Mr Millar, counsel for the Mother, in his final submission appeared to follow the Father’s lead in submitting:    

    [T]here’s no matter of violence and violence orders that’s relevant despite the incident that was referred to around the middle of last year, but that is long in the past and should have no bearing, in my respectful submission, on the outcome of the matter now.

1. Both parties seek an order for equal shared parental responsibility and the Father seeks that the children still remain living predominantly with the Mother. This would seem to be a good indication that there is no apprehension of violence on the Father’s part. The Family Report writer also appeared confident that with the passage of time some of the Mother’s feelings of hurt would diminish and her ability to co-operate with the Father and Ms G would increase. I am encouraged by the parties’ behaviour during the Mr L’s consultation process and by their behaviour throughout the hearing. I am also impressed with the Mother’s recognition of her past failings and the fact that she has sought help from church groups and professional counselling.

2. I place substantial weight on my findings under this factor.

The Additional Considerations

(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views.

1. By virtue of this provision the Court must take into account any view expressed by the child no matter how young or immature the child may be. Section 60CD(2) of the Family Law Act provides that the Court may inform itself of the views expressed by a child having regard to anything contained in a report given to the Court by a family consultant pursuant to s.62G(2).

2. Here [X], when informing the family consultant of her three wishes, replied that she wished to “live most with my mum” and to remain at her present school.[40]

   [40] Bell & Bell Family Report, paragraph [44].

3. When considering the wishes of a child the Full Court of the Family Court in R & R: Children’s wishes[41] cited with approval a statement of Fogarty and Kay JJ in [H] & [W][42]. Their Honours stated that:

   The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.

   [41] (2000) FLC 93-000.

   [42] (1995) FLC 92-598, 81,944.

4. It is relevant that [X] advanced this view in the context of being asked the open question of what her three wishes were. Given the non-leading nature of the question, it is likely that the opinions expressed are [X]’s true feelings on the subject. [X] also noted to the family consultant that when she spends time with her father she misses her mother and wishes she could telephone her more often. She does not have the same need to telephone her father when spending time with the Mother.

5. [Y] did not express a preference for either parent.

6. [X]’s view is of some weight in considering the parenting arrangements to be made.

(b) the nature of the relationship of the children with: (i) each of the children’s parents; and (ii) other persons (including any grandparents or other relative of the children).

1. In Mr L’s assessment, the children have a good relationship with each of their parents and Ms G and appear to be attached to all three. Of these parties [X] both expressly and implicitly indicated a preference for being with her Mother. Despite this [X] was happy to sit on Ms G’s lap during activities that also involved all of the children and her parents. According to Mr L, [X]’s initial interactions with the Father appeared less spontaneous than her interactions with the Mother were. However, she did appear to become more relaxed and at ease in the Father’s presence as the day went on. [X] was recorded as having a similar reaction to Ms G.

2. Mr L gave evidence that [Y] had a good relationship with both his mother and father. According to the Report writer [Y] did not show any preference for his mother, his father or Ms G. Rather his primary focus was on his play activities and he was content to be with whoever was playing with him.

3. It was also noted by Mr L that the children enjoy spending time and interacting with Ms G’s children. Both children appeared emotionally secure and autonomous, although [X] appeared to convey some concern for her Mother’s feelings.

4. The Father expressed concern that the Mother’s conduct is undermining his and Ms G’s relationship with the children. He gave evidence that the Mother has actively prevented him from spending time with and contacting the children. For example the Father says on 4 November 2012 the Mother responded to his request to spend time with the children with “I’m sorry, they don’t want to come”. The Father also alleges that the Mother has encouraged the children to say things such as “Daddy, we don’t want to see you.”[43] [X]’s relationship with the Father may be at greater risk from this sort of behaviour given the Mr L’s conclusion that [X] “identifies with, her mother’s feelings of hurt and rejection”.

   [43] Affidavit of Mr Bell sworn 3.10.12 at paragraph [62].

5. Under cross-examination Mr L conceded that there is still “a question mark” hanging over whether or not the Mother is capable of facilitating a relationship between the Father and the children. However, I am encouraged by the Mother’s forthcoming acknowledgments at the hearing concerning her behaviour. To her credit the Mother has enrolled in a Keeping Kids in Mind – Parenting after Separation Course with CatholicCare. The Mother has also sought and undertaken psychological therapy to assist her in dealing with her grief and humiliation from the breakdown of the marriage. The Mother also expressed the desire during the hearing to work on future communications with the Father.

6. I also accept the family consultant’s evidence that these proceedings have been highly stressful for the Mother and as such have caused the Mother to behave in a more emotionally volatile manner at times.

7. The Father has also at times been responsible for a lack of communication between the parties and he has not actively undertaken any steps to help facilitate better relations with the Mother. There was some initial evidence that the Father had enrolled in a Parenting after Separation Course, however, after cross-examination it appears that the Father has only made speculative enquiries.

8. I feel it also necessary here to make some comment on the past communications between the Mother and the Father’s new partner,

   
   

   Ms G. Ms G, under cross-examination admitted to sending the Mother text messages with comments such as the following:

   [Mrs R snr] said [Ms Bell] doesn’t stand a chance against Ms G.

   […]

   And know this [Ms Bell]. I am 10000 times the person you are. And I love him. With everything in me. He is my home. And I’ll never ever stop. You have mutilated him. That fine wonderful beautiful sensitive intelligent man. And I, who has everything, I have money, I have privilege, I have education, I have power, I have an intellect that you cannot fathom. I will LOVE that man with every vestige of strength in my body. Forever. You KNOW that. You bank that. Because I will NEVER stop loving him.[44]

   [44] Affidavit of Ms Bell sworn 19.10.12, paragraph [27].

9. I found the communications that Ms G had with the Mother during the breakdown of the marriage to be extremely inappropriate. These communications were provocative, hurtful and no doubt distressing to the receiver. I find this behaviour quite shocking for someone who claims to practice regularly in the area of family law. I also have no doubt that these communications contributed to the Mother’s distress and her failure to come to terms with the end of a relationship.

10. If these communications were to continue it could have an effect of the children’s ability to relate to each of the parents as it would heighted the parental conflict. This would be of some concern for the Court. However, I accept the evidence of Mr L that Ms G has the best interests of the children at heart and that she is willing to work on further rapprochement with the Mother.

11. Evidence was given that the children have a close and loving relationship with their paternal grandparents.

(c) the extent to which each of the children’s parents 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 children; and (iii) to communicate with the children.

1. Despite seeking orders that the parties do all things to enrol the children in [S] School, the Father appears to have otherwise declined the opportunity to participate in making decisions concerning the children’s schooling arrangements. Under cross-examination by

   
   

   Mr Millar it was revealed that the Father had not had any involvement in the decision of [Y]’s schooling arrangements. The Father did not attend the orientation day for [Y]’s preschool despite being invited by the Mother to do so. Admittedly the Mother only gave short notice to the Father. However, I find the fact that the Father made no follow-up enquiries with school teachers or principal telling.

2. Despite not attending the orientation or consulting with the school principal, the Father still contended that [S] School was a better school. Upon further questioning it became apparent that the only research the Father had done into the children’s educational needs was “speak to a few people”. The Father also did not explain why he thought it better for [X]’s school to be changed when she had expressed the desire to remain at her current school. The Father admitted “I have never discussed with [X] staying there [[C] School] or otherwise”.

3. In addition to these concerns there is also the issue of paying for [S] School’s considerable fees. The Mother gave evidence at the hearing that she could not afford to pay such fees. The Father gave no explanation of how the fees were to be paid. Given the Father’s evidence on his financial position, which I will turn to later, it seems hopeful at best that he would be able to pay the full fees for both children.

4. Similarly, although seeking orders to prevent the Mother having a boarder in her house, the Father has not taken any steps to familiarise himself with the boarder. During the hearing it was pointed out to the Father that the Mother’s boarder had been present at the interviews with Mr L. Despite this the Father did not speak with her during the course of the day. When asked whether the Father wished to meet this boarder, the Father responded “I didn’t have a view either way”. Although the Father said he was concerned about the Mother’s decision to have a boarder and the consequences for the children he did not make any attempt to introduce himself to the boarder when in her presence. Nor has he made any subsequent enquiries as to the suitability of the arrangement. I do not find the Father’s explanation that he thought it inappropriate to speak to the boarder convincing.

5. Given the Father seeks orders concerning the children’s schooling arguments and orders curtaining the Mother’s freedom of action I place some weight on my findings under this consideration.

(ca) the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children.

1. The Mother gave evidence that the Father has not been regular in child support for the children. Since the separation she has assumed financial responsibility in relation to the maintenance of the children while in her care. According to the Mother’s evidence, she was required to seek the assistance of the child support agencies after the Father failed to pay any child support for two consecutive months. The assessment for the children’s care came out as $438 a week.

2. Other than the 28 May 2012 episode, where the Mother demanded the Father “pay up”, described above, the Father gave no evidence concerning this issue. It is some concern that the Father has not seen fit to be more consistent in his efforts to assist in the maintenance of two young children.

3. The evidence, however, for this requirement was scarce and largely untested at Court and so I give little weight to my findings under this consideration.  

(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparents or other relative of the children), with whom he or she has been living.

1. I accept that prior to separation both parties were actively involved in the day to day care of the children. It seems clear, though, that the Mother has played the role of primary carer, both during the marriage and after the subsequent breakdown. As pointed out above, [X] has expressed the desire to live “most” with her mother. According to the Family Report writer this view is:[45]

   [C]onsistent with her attachment history and the sense of emotional connectedness and mutual attunement that is a feature of her relationship with her mother.

   [45] Bell & Bell Family Report, paragraph [58].

2. Despite this, Mr L also concluded that [X] is still able to enjoy spending time and interacting with the Father and Ms G. [Y] appears to be more secure and emotionally autonomous.

3. I accept that a reduction in time with the Mother would have significant effect on the children, especially [X]. However, neither party to this action seeks any substantial change in the children’s circumstances. Mr L gave evidence that [Y] is soon to begin school and this is a developmentally critical time for him. According to Mr L the Father’s relationship with [Y] would not be diminished if he was to spend five nights a fortnight with the children rather than the Father’s proposed six. Mr L suggested in this regard it was best to “play it safe” and not place [Y] in a situation where there were too many changes to adjust to in the one year.

4. I have taken my findings under this consideration into account when assessing the parenting arrangements.

(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. The Mother has raised a concern about the distance between the Father’s home at [L] and hers at [C]. The Mother was especially concerned with the issue of whether the Father will be able to get the children to school on time. At the hearing the Mother gave evidence that the children would be exposed to spending significant time in peak hour traffic if the Court was to make the Orders the Father sought.

2. The Mother also alleged that the Father’s work hours would prevent him from being able to pick the children up from school and so his proposal was not practical. In support of this claim the Mother gave evidence that the Father has regularly failed to receive the children at the appointed times. One example given was in August 2011 the Mother says that the Father cancelled an arranged day with the children due to work. After final separation the Mother says that the Father called her on “approximately [a] weekly basis when he was due to collect the children and could not make it.”[46] Since that period the Mother says the Father has now developed a pattern of sending text messages with the intended times for picking up the children and has not followed the arranged schedules.

   [46] Affidavit of Ms Bell sworn 19.10.12, paragraph [53].

3. In his interview with Mr L, [Y] complains that the travel from his Father’s house to his Mothers take “a long time in the car”.

4. The Father gave evidence that the travel time between houses is 30-40 minutes. He says that he views the period of time in the car as “very important” as it allows him to interact with the children. He says that he often uses the time to play games with the children and allows [X] to “DJ” with the car radio.

5. He also says that there have only been “about 6 occasions since separation that I have not been able to pick up [X], and 2 or 3 occasions when I have not been able to pick up [Y].”[47] The Father says that on these occasions he either asks the Mother, his mother, or one of his sisters to assist.

   [47] Affidavit of Mr Bell sworn 3.10.12, paragraph [32].

6. Evidence was given by Mrs Bell (snr) and Ms G that they would be available to assist in picking up the children when the Father is unable.

7. As discussed elsewhere in this decision, communication has been a significant problem between the parties. However, I accept that the parties have been working on improving in this area and I am encouraged by the evidence given that the Father “would like to try and talk to [Ms Bell] more”. The Mother responded that she thought this undertaking by the Father was genuine and she has also agreed that she hoped communication:

   would be more natural, free flowing and more frequent between Mr Bell and I in the future.

8. Given the benefit, already identified, that the children stand to derive from having a strong relationship with both parents I find that the distance here does not represent a significant difficulty. 

(f) the capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparents or other relative of the children); to provide for the needs of the children, including emotional and intellectual needs.

1. The Father says he has been concerned with the Mother’s capacity to parent the children since they were young. The Father says that during the marriage the Mother would watch an hour of television each morning, she rarely ensured that children had food for lunch, and that she would sleep up to 16 hours a day on the weekend.[48] Accordingly, it was the Father’s responsibility to cook for the children, put them to bed, assist with homework, play and do all the housework. All this was done while the Father was working full time.

   [48] Affidavit of Mr Bell sworn 3.10.12, paragraph [17].

2. After separation, the Father says the Mother continues lack the capacity to adequately care for the children. Under the heading “Concerns About the Mother’s Capacity to Parent the Children” the Father lists a number of instances where he alleges the Mother has failed to provide for the children’s needs.  The Father says that he is concerned: [49]

   a)About the Mother’s constant inability to control irrational and hysterical behaviour such as when [Y] slammed his finger in a door. Here the Father alleges he immediately prepared to drive [Y] to hospital while the Mother became hysterical and stated screaming. Once in the car the Father says that the Mother opened the door while travelling and said “I’m going to kill myself”.

   b)That the Mother is lazy and neglect in caring for the children’s needs. Here the Father says that the Mother did not assist in cleaning the children’s teeth.

   c)That the Mother relies on [X] to assist in [Y]’s toileting rather than taking sole responsibility herself.

   d)That the Mother allows the children to watch in excess of two hours of television a day.

   [49] Ibid, [47]-[48].

3. Later on, under the heading “Further Concerns About the Mother’s Capacity to Parent the Children” the Father lists additional concerns as to the Mother’s capacity to care for the children. Here he alleges:[50]

   a)On more than 12 occasions the Mother has prevented the children seeing the Father.

   b)In February 2012 [X] stood outside Ms G’s house and said “we are not allowed to go inside”. [Y] also stated “Yes Daddy we can’t go inside”.

   c)The Mother took the children for a nine day cruise without the Father’s consent.

   d)The Mother directly involved the children in negotiations as to the Father’s time with them and directed [X] to call his mobile telephone to indicate this.

   [50] Ibid, [87]-[93] and [181].

4. The Father also says that the Mother is very “ambivalent” about [X]’s education and does not require her to complete any of her assigned homework. The Father says that he is “very concerned about [X]’s educational needs” and that on 19 May 2012 he “looked into [X]’s ‘Home Reader’ book…[and] saw that the wife had marked off three (3) entries for the year 2012”.[51] The Father also said that when he attempts to get [X] to complete her homework she replies “Mum says I don’t have to do all of my homework”. According to the Father he has received this response on five occasions.

   [51] Ibid, [12].

1. Taking into account those payments the Father has made and his ongoing liability to pay $436 per week I still find that the above factor necessitates an adjustment in the Mother’s favour.   

Section 75(2)(o) Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account.

1. As already noted there are additional matters submitted by the parties which I have previously had regard to.

   a)I find that the liability the Father claims in respect of the [L] property does not require any adjustment in the Father’s favour. The Father claims he only directly contributed $5,000 to the purchase of the property. Yet with this relatively small sum of equity in the property, the Father claims he took on a 1.55 million dollar liability. It is also unclear whether the outstanding loans from [Mr & Ms B] are loans for which the Father is liable to repay or if they were in fact gifts. I do not intend to repeat my findings with respect to the evidence given in relation to these claims. I merely note that it was within the Father’s ability to provide clear and unequivocal evidence as to the existence and quantity of these loan obligations. As he declined, for whatever reason, I do not find it appropriate to place any weight on the claimed liabilities.

   b)The Father also asked the Court to take into account his outstanding debt to trade creditors in the amount of $23,800. As outlined above it became apparent during the hearing that the title “trade creditor’s debt” was misleading as the Father had included personal expenses, such paying for a swimming pool fence at his home. No adequate evidence was given to distinguish between those actual trade creditor’s debts and the non-related debts. Following the Full Court’s reasoning in Black[177] and in the absence of further evidence I do not believe the Father is entitled to any adjustment under this consideration.

   c)Finally I return to the issue of the Father’s outstanding tax liability. Once the accepted tax liability of $47,000 is deducted the Father is still claiming an outstanding tax debt of $24,730. Again it was clear on this count the Father had been deliberately dishonest in his evidence regarding his tax liabilities. Even if the debt of $24,730 was accepted I do not consider it to make much of a difference in the current circumstances given the Father’s high income. But the later consideration is beside the point. The determining factor is that it was open to the Father to provide clear evidence as to his relevant debts. No adjustment will be made.

   [177] In the Marriage of Black (1992) 106 FLR 154.

2. On weighing all of the factors under s.75(2) I have determined that the Mother should receive a further 30 percent adjustment in her favour. This will give the Mother 80 percent of the identified asset pool of the parties overall.

Section 79(2) Considerations

1. Under s.79(2) of the Act, a Court shall not make a property settlement order unless it is satisfied that it is “just and equitable” to do so. The question posed by s.79(2) is thus whether, having regard to those existing interests, the Court is satisfied that it is just and equitable to make a property settlement order.[178] The High Court’s reasoning in Stanford makes it clear that a finding that is just and equitable to alter the existing property rights is, in effect, a statutory precondition to the making of any order under s.79.

   [178] Stanford v Stanford (2012) 87 ALJR 74, 81.

2. The Court granted the Father’s application for divorce early in the proceedings. The Father is also now in a new relationship and cohabitation with his new partner. There is no longer, and will not be hereafter a common use of the property by the Father and Mother. I find, given these reasons, that it is just and equitable in the present case for the Court to alter the parties’ interest in the property of the former marriage.[179]

   [179] See Lansell v Lansell (1964) 110 CLR 353, [12] per Kitto J.

3. It remains to consider whether the adjustment of a further 30 percent in the Mother’s favour, giving her a total of 80 percent of the matrimonial property is a just and equitable conclusion to reach. I find that the net assets of the parties as able to be identified total $672,872. This is a relatively modest pool. The real monetary effect of such finding the Mother is entitled to an additional 30 percent would be to give the Mother an extra $201,861.60. This is by no means an extreme figure and is less significant in light of the Father’s high earning capacity. In this respect I note the Full Court’s decision in the Marriage of Clauson:

   The relevant factors are quite striking in this case. In particular they relate to the enormous disparity in the income and income earning capacities of the parties coupled with the circumstances that the wife is the custodian of four children aged between 3 and 8. In an asset pool of this dimension the assessment of those and other (lesser) s 75(2) factors by a figure of $210,000 is inadequate. It is a comparatively insignificant sum compared with the dimension of the assets and the difference between the parties’ present and future circumstances.[180]

   [180] In the Marriage of Clauson (1995) 18 Fam LR 693, 709.

4. The Mother seeks to retain the former matrimonial home at [C]. Her counsel submits that she should be given the opportunity to achieve this. There was some evidence that the Mother is able to secure a mortgage of approximately $500,000 and that her sister is able to move into the home to assist with repayments.  Give the Mother’s evidence I am satisfied that she is able to retain the [C] property.

5. Before setting out the structure of the above property orders, it is first necessary to deal with the Father’s application for a superannuation splitting order. The effect of such an order would be to increase the amount of cash funds the Mother would need to find to retain the [C] home because she would take superannuation benefits instead of cash. I do not believe this is a just an equitable solution, following the reasons outlined in Clauson above. There is a significant disparity in both present and future earning capacities between the parties, which does not lend itself to the need for a splitting of superannuation entitlements.

Structure of the Orders

1. Under section 81 the Court is required to as far as practicable make orders which finally determine the financial relationship between the parties and which avoid further proceedings between them. I believe the following orders will best serve this provision. Taking the above determinations into account, the Mother will receive the following assets:

   ·    The [C] property  $950,000

   ·    Shares  $4,860

   ·    [A] Superannuation entitlement  $17,248

   ·    [P] Superannuation entitlement  $24,041

   ·    Legal Fees  $15,762

   $1,011,911

   LESS

   ·    Mortgage on [C] property  $446,645

   ·    GE Finance loan  $3,374

   $561,892

2. Thus the effect of these findings, without any further adjustment, is that the Mother will receive net assets worth $561,892. It follows that the Mother must pay the Father $23,595 to achieve an 80/20 split in the Mother’s favour. The total net assets the Mother will therefore receive will be $538,297.

3. Calculated on the same basis the Father will receive:

   ·    The [P] property  $490,000

   ·    Shares  $34,316

   ·    [F] Superannuation entitlement  $127,200

   $651,516

   LESS

   ·    Mortgage on [P] property  $282,605

   ·    CGT re [P] property  $30,000

   ·    Sales costs re [P] property  $20,000

   ·    Equity Loan from Bankwest  $120,201

   ·    Loan from Ms C (snr)  $27,340

   ·    Father’s tax liability  $47,000

   ·    [D] Accountant’s fees  $990

   ·    Loan from Ms C (jnr)  $4,400

   ·    Bankwest Earth Credit Card  $8,000

   $540,536

4. Once the Mother’s payment of $23,595 is added, the Father’s total net assets are worth $134,575.

5. Additionally, there is the coin collection for which the value was unknown and which was not included in the net asset pool. This coin collection is to be sold following this judgment and the total net proceeds from the sale will be divided 80/20 in favour of the wife.

6. As to the motor vehicles, personal items, jewellery and home contents, it was impossible to ascertain what was included in these broad categories. As neither party sought any particular order in relation to them I simply make orders that each party retain those above mentioned items that they have had in their position since separation.

7. I am satisfied that these orders are just and equitable.

Spousal Maintenance

1. Where spousal maintenance is sought in addition to a property order it becomes the next step in this process. It is only to be exercised after those steps outlined under s.79 have been completed and it is not to be confused with the s.75(2) component in the s.79 application.[181]

   [181] In the Marriage of Clauson (1995) 18 Fam LR 693.

2. Section 74 empowers the Court to make a spousal maintenance order and s.72 delineates the circumstances in which the power may be exercised.[182]

   [182] Ibid, 705.

General Principles

1. Section 74(1) provides that:

   In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.

2. Section 72 provides that:

   (1)  A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   (a)  by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   (b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (c)  for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2).

   (2)  The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.

1. Section 75(1) provides that in exercising jurisdiction under section 74 the Court shall take into account only the matters referred to in subsection (2).

2. The role of each of these s.75(2) provisions is important. FM Walters (as he then was), quoting Dickey’s authoritative text, has noted:

   …section 72, which concerns the liability of one party to a marriage to maintain the other, says nothing of the amount of maintenance that a needy spouse is entitled to receive from his or her partner should the former enforce this liability by a maintenance order. Quantum of spousal maintenance is determined by the court pursuant to section 75(2). It is possible for a liability to pay maintenance to be established under section 72, yet for the subsequent maintenance order to be quite small – or even for no maintenance order to be made at all – on account of the relevance of particular considerations set out in section 75(2).[183]

   [183] Tomholt & Reed (2008) FMCAfam 380, [16].

3. The Full Court in Beven[184] set out a four step process which must be satisfied before an award of spousal maintenance will be granted:

   a)A threshold finding under s.72;

   b)A consideration of sections 74 and 75(2);

   c)No fettering principles that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and

   d)Discretion exercised in accordance with the provisions of s.74 with “reasonableness in the circumstances” as the guiding principle.

   [184] (1995) FLC 92-600.

4. Subsequent 75(3) provides that,

   In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

Submissions and Determination

1. The threshold question under s.72 requires the Court to make a determination on whether the Mother is “unable to support herself […] adequately”. In determining what is meant by the term “adequately” the Full Court has said that it is not to be determined by reference to any fixed or absolute standard but by having regard to the matters referred to in s.75(2).[185] In M & M the Full Court stated that the question of whether a person can support himself or herself adequately:

   …is not to be determined upon a ‘subsistence level’ but upon consideration of whether the applicant can support himself or herself ‘adequately’ importing a standard of living reasonable in the circumstances.[186]

   [185] M & M (2006) FamCA 868; In the Marriage of Mitchell (1995) 120 FLR 292.

   [186] FamCA 868, [32].

2. I my opinion the Mother clearly passes the threshold test. As outlined under the s.75(2) factors above, she is the primary homemaker and caregiver of the children and will continue in this role under the Orders herein. Given this responsibility, and the children’s ages, the Mother has not been able to engage in full time paid employment for a number of years. It was also submitted that she would not be able to obtain gainful employment again without first undertaking a period of retraining.

3. The Mother’s needs are set out in her Financial Statement. Her income, disregarding pensions and superannuation entitlements, is only $192 a week.[187] This figure of $192 is based on the Mother’s taxable income of $10,000. I accept this figure.

   [187] Financial Statement filed 22.10.2012. Part D (income derived from [A] and [R] businesses).

4. The Mother also receives $150 from the international student boarding with her. Beyond these small sources of income it is apparent that the Mother has no significant earning capacity at the present time.

5. Under Part G of the Mother’s Financial Statement, she claims $2,720 a week in expenses. Included in this estimate is the figure of $765 which the Mother estimates she will be required to pay in the weekly mortgage payments that she will incur upon receiving the [C] property. These weekly expenses are made up of the following:

   ·Bankwest Home loan  $765

   ·Rates and unit levies  $25

   ·Building and contents insurance  $27

   ·Health insurance  $48

   ·Car registration  $12

   ·GE Finance furniture loan  $43

   ·All other expenditure claimed under Part N        $1,800

6. It would appear that the Mother’s claimed $1,800 of expenses under Part N represents the sum of $600 personal expenses and $1,200 expenses incurred for the child. As spousal maintenance is only concerned with the Mother’s personal expenses, the later amount of $1,200 is not relevant to the present calculations. The $600 in personal expenses appears quite reasonable, with the biggest expense being $100 a week for food. I accept these amounts.

7. Therefore I find that the Mother’s total weekly expenditure comes to $1,520.

8. The Mother’s financial shortfall when placed alongside those s.75(2) findings, outlined above, satisfies me that the Mother cannot adequately support herself and has a real need for support.

9. Taking into account the Mother’s earnings that she receives from her companies and from the boarder, she is left with a need of $1,178 a week.

10. The Father’s claimed income from practising as a barrister amounts to $4,600 a week. However, the Father claims total expenses amounting $5,834 a week and therefore claims to have a negative net balance for each week. Under Part G the Father claimed the following weekly personal expenditure to be deducted from his income:

    ·Total income tax  $1,439

    ·[F] Superannuation Contributions                    $307

    ·Mortgage Payments  $1,900

    ·Rates and Levies  $60

    ·Other rates and levies  $200

    ·Home and contents insurance  $25

    ·Private health insurance  $63

    ·Car registration  $40

    ·Credit card repayments  $1,000

    ·Child support  $800

11. It is firstly necessary to point out, that as a barrister, the Father is self employed and therefore determines the amount he pays in his superannuation fund. Although, the Father is free to make whatever superannuation contribution he chooses, he cannot do so at the expense of reducing his obligation to his former wife. An analogous point was made by the Full Court in the Marriage of Mee and Ferguson:[188]

    It appears to us, that although the husband was perfectly free to enter into these additional liabilities if he chose to do so, it was not appropriate for him to do so and then treat that as a basis for reducing his maintenance payments for his own children.[189]

    [188] (1986) 84 FLR 179.

    [189] Ibid, 197.

12. Following the Full Court’s reasoning I do not accept the Father’s claimed superannuation expenditure. For similar reasons I do not accept the Father’s claimed mortgage repayments to the Commonwealth Bank for the [L] property. The Full Court in Ferguson went on to say:

    [The Husband] had appropriate accommodation, the change did not have any compelling basis, and it made a very serious inroad into the husband’s weekly net earnings.[190]

    [190] Ibid.

13. As is the case here. The Father and his new partner had appropriate accommodation before purchasing the [L] property. No compelling explanation was given by the Father as to why he needed to purchase a $2.4 million property other than some brief mention that it had sentimental and historical value to his new partner. It is not appropriate that the Father use such a liability to avoid meeting his obligations to the Mother.

14. I also do not accept the claimed $200 in “other rates, unit levies” as the Father offered no evidence or explanation as to what this figure related to or how it was different to the $60 already claimed for “Rates, unit levies”.

15. In the absence of any evidence, I also do not accept the Father’s claimed $63 a week for private health insurance. This figure seems to be far in excess of that which would ordinarily be paid for single person coverage. It would seem the Father has claimed the entire amount he pays for a family plan. I will therefore only deducted $48 for health insurance from the Father’s income, being the comparable rate to the Mother’s claimed health insurance.

16. Under the heading “Credit card payments” the Father claims $1,000 however, as he explains this is a monthly figure and not weekly. The figure is apparently based on the assumption that the Father pays $80 “minimum” a week on his credit card. However, this would add up to a figure of around $320 a month and not $1,000. The Father offers further explanation in column next to the claimed figure, stating that most of his weekly expenses in relation to Part N are paid on the credit card. If this is the case then they will already be taken into account under that heading and it would appear that the Father is attempting to claim a double deduction. Either way, the figure remains ambiguous and in the absence of any evidence I will exclude the amount from deductions.  

17. Finally, the Father also claims $800 a week in “actual payments” for child support. The evidence on this point, outlined above, was that the Father has only recently begun paying this figure. His payment history has not been regular or certain and for periods of some months the Father has made no payments at all. The Father also has no legal obligation to make a payment of $800 of week. I therefore will only deduct the amount the Father is legally obliged to pay in child support payments, $396 a week, from his income. That is the figure which the Father states he is required to pay, in his Financial Statement.

18. I accept all other amounts, not the subject of discussion above, claimed by the Father under Part G. Those expenses the Court accepts therefore amount to a deduction of $2,008.

19. Under Part N of his Financial Statement, the Father claims further expenses. Two of the columns of the expenses claimed by the Father can be dealt with quite quickly. In the column titled “For Children (If Applicable)” the Father outlines a number of expenses totalling $1,430. No evidence was given as to which children these expenses related to, however, it would appear from reading the Financial Document as a whole, the Father is referring to Ms G’s three children who reside with the couple at [L]. It is a clearly settled principle of law that the Father does not owe any duty to support these children, being neither their parent nor their step-parent.[191] In the absence of evidence specifying those expenses that relate to the children of the marriage and those that the Father currently cohabits with, I have not deducted this amount.

    [191] See ss.60C(1) and 66D(2) also Child Support (Assessment) Act 1989 (Cth), s.3(1) and In the Marriage of Vick and Hartcher (1991) 105 FLR 230, 235.

1. Similarly, the Father seeks to deduct $385 for expenses that he incurs for Ms G. Again the Father has no obligation to incur these expenses for Ms G and so they should not be used to reduce his capacity to meet his obligation to the Mother.

2. That then leaves the total of $940 claimed weekly expenditure for the Father. They are:

   ·Food  E$100

   ·Household supplies  E$50

   ·House repairs  E$50

   ·Gas  E$10

   ·Electricity  E$10

   ·Heating fuel  E$10

   ·Telephone  E$50

   ·Motor vehicle petrol  E$70

   ·Motor vehicle maintenance  E$40

   ·Farers/car parking  E$150

   ·Clothing and shoes  E$100

   ·Medical, dental and optical  E$20

   ·Entertainment/hobbies  E$25

   ·Holidays   E$50

   ·Chemist/pharmaceutical  E$10

   ·Gardening/lawn mowing  E$75

   ·Cleaning (house/pool)  E$50

   ·Repairs – furnishing and appliances                 E$20

   ·Dry cleaning  E$30

   ·Gifts  E$10

   ·Hairdressing and toiletries  E$10    

3. The “E” placed before the dollar value stands to represent that the Father has given an “estimate” of the expense incurred. Again there was very little evidence advanced in support of these estimates and I find many of them to be excessive, inappropriate or more than broad estimates. In the absence of further evidence I have determined to exclude the Father’s claimed expenses for the “House repairs”, “gardening/lawn mowing”, “cleaning (house/pool)”, and “Repairs – furnishing and appliances”. The amounts claimed, and indeed the occurrence of the expenses themselves, were not prima facie reasonable and should not, in my opinion be included in the absence of any evidence to justify their inclusion.

4. I have also determined to exclude the telephone bill as this ordinarily could be claimed as a business deduction. Accordingly I find the Father’s reasonable weekly Part N expenditure to be $695.

5. I find that the Father’s total net income is $1,897 a week. This figure represents the sum of his weekly income of $4,600 minus $2,703 in expenses which I have determined the Father reasonably incurred.

6. The relevant s.75(2) factors concerning the Father have already been dealt with extensively above. However, I reiterate here that the Father has the benefit of a much high earning capacity. Although I am not prepared to find that that the Father’s new partner, and her parents, comprise a financial resource in any strict sense of the term, I do note that the Father has had the benefit of being able to secure finances on very favourable terms. Such circumstances favour the Mother’s application.

7. Given the Mother is the principle caregiver for the children and as such currently unable to obtain gainful employment I find it both necessary and appropriate to grant the Mother some form of relief in the way of spousal maintenance. I note that the Father is required to pay child support, but find that he clearly still has the ability to reasonably provide support to the Mother after child support is deducted.

8. In her application before the Court the Mother seeks spousal maintenance for a period of three years. It was claimed this would give her a reasonable opportunity to retrain and re-enter the workforce. I accept that the Mother currently does not have the capacity to support herself however I find that two years represents a more reasonable period for maintenance. This is because [Y] will commence school sometime in 2014-2015, giving the Mother greater freedom to find employment. If the Mother finds that at the end of the two year period she is still in need of support it is open to her to bring a further application before this Court to vary or extend the terms of the maintenance Orders.

9. Although, by my calculations the Mother comes out with a financial need of $1,178 a week, she only requested $650 a week from the Father. I therefore propose to make the following Orders:

   a)That the respondent Father is to pay spousal maintenance to the Mother in the sum of $650 per week; and

   b)That the Father continues to make these payments for the period of 2 years commencing from the date these Orders take effect.

10. In making the above findings with respect to the Father’s financial affairs, I have had regard to the comments of O’Ryan J in the Marriage of Luciano:[192]

    The obligation [to make full and frank disclosure] arises because of the necessity for the court in such proceedings to consider all aspects of the financial circumstances of each party. […]

    If there is non-disclosure in the relevant sense then the failure to disclose undermines the whole process of adjudication of the proceedings in relation to financial matters.

    A finding of non-disclosure may in appropriate cases, depending on the circumstances, result in the other party being granted without more, the relief sought.[193]

    [192] (2000) FamCA 401

    [193] Ibid, [373].

11. I consider this decision to be reasonable in the circumstances given the Mother’s clear need and the Father’s high earning capacity. Although the Father is entitled to significantly improve his living standards after the marriage it is not equitable for him to do so at the expense of his obligations to the Mother.

I certify that the preceding four hundred and three (403) paragraphs are a true copy of the reasons for judgment of Pascoe CFM

Associate: 

Date:  21 March 2013