BURCH & GOLDING
[2015] FCCA 2864
•20 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BURCH & GOLDING | [2015] FCCA 2864 |
| Catchwords: FAMILY LAW – Children and property – 9 year de facto relationship – three children – considerations of children’s best interests – contributions to property pool – s.90SF factors. |
| Legislation: Family Law Act 1975 |
| Bevan & Bevan (2013) FLC 93-545 Hickey & Hickey and Attorney-General for the Commonwealth of Australia [2003] FamCA 395 Kessey and Kessey (1994) FLC 92-495 Neil v Nott and Anor (1994)121 ALR 148 Re F: Litigants in Person Guidelines (2001) FLC 93-072 Stanford & Stanford [2012] HCA 52 |
| Applicant: | MS BURCH |
| Respondent: | MR GOLDING |
| File Number: | MLC 4120 of 2015 |
| Judgment of: | Judge McGuire |
| Hearing date: | 20 October 2015 |
| Date of Last Submission: | 20 October 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 20 November 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented |
| Solicitors for the Respondent: | Self Represented |
ORDERS:
Children
The parents have equal shared parental responsibility for the children X born (omitted) 2006, Y born (omitted) 2008 and Z born (omitted) 2010.
The children X, Y and Z live on a week about basis between the parents with changeovers to occur on Friday afternoons at the conclusion of school or otherwise at 5.00pm or as otherwise agreed by the parties in writing from time to time.
Property
Within 42 days of the date of these orders the applicant pay to the respondent a lump sum of $33,073.00.
Contemporaneously with the payment referred to in order 3 hereof the respondent transfer all his right, title and interest in the property situate at Property R in Victoria to the wife absolutely.
The applicant make all reasonable applications and efforts to provide the respondent with a release from any mortgage liability secured by the property at Property R in Victoria such to be provided contemporaneously with the transfer of the said property pursuant to order 4 hereof and, in any event, the applicant indemnify the respondent in respect of any mortgage liability secured by the property at Property R in Victoria.
In all other respects each of the parties be solely entitled to the exclusion of the other to all personalty, chattels, motor vehicles, bank account balances or similar, and superannuation entitlements currently in the control of or to the benefit of that party.
Each of the parties be solely responsible for and indemnify the other in respect of the following;
(a)Any and all liabilities incurred by that party since separation;
(b)Any and all liabilities attaching to any of the assets to be retained by that party pursuant to these orders.
All extant applications are hereby dismissed.
Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
Pursuant to Section 81 of the Family Law Act1975 the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
IT IS NOTED that publication of this judgment under the pseudonym Burch & Golding is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4120 of 2015
| MS BURCH |
Applicant
And
| MR GOLDING |
Respondent
REASONS FOR JUDGMENT
The parties here are agitating issues in respect of both the children and property matters. There are three children of the relationship, namely X born (omitted) 2006, aged nine years; Y born (omitted) 2008, aged seven years, and Z born (omitted) 2010, aged five years.
The children currently live between their parents in a regime whereby they are with their father for two weekends in a cycle of three from the Thursday after school until Monday at the commencement of school and in the third week overnight on the Thursdays. They are with their mother at all other times. I calculate, therefore, that they spend nine nights in each three week cycle with their father during school term. School holidays are shared equally.
Both parties propose a different regime. The mother argues for the children to spend each second weekend with their father from Thursday afternoon until Monday morning and to continue the shared school holidays. The father proposes that the children live in a week about arrangement with changeovers to occur on the Fridays.
To their credit, the parties have agreed to the contents and value of the property pool which is not substantial and where the prime asset is the former matrimonial home. The applicant, Ms Burch, continues to live in that home and wishes to retain it. She proposes a payment to the respondent of $32,000 or $22,000 dependent upon her success or otherwise in her application for more time with the children.
Mr Golding argues that the parties’ property, inclusive of superannuation entitlements, be divided on a 50-50 basis.
Each of the parties represented themselves. Unfortunately, their forensic investigations and affidavit material suffered to a degree accordingly. They each presented, however, as intelligent and articulate and conducted their cases with the utmost courtesy to each other and to the Court.
In accordance with the decision of the Full Court in Re F: Litigants in Person Guidelines,[1] each of the parties was provided with copies of the relevant legislation in respect of both the children and property issues. The Court also went into some detail explaining the procedure of the trial to both Ms Burch and Mr Golding with an invitation to seek assistance if necessary. It became abundantly apparent, however, that the legal principles guiding the Court’s determination in respect of both children and property matters were foreign to each of the parties.
[1] (2001) FLC 93-072
Ms Burch relied on her trial affidavit and financial statement both sworn 5 October 2015. She adduced evidence from her brother, Mr N, her sister, Ms A, and a Ms J. Not surprisingly, each of the witnesses was sympathetic to the mother’s case but to a stage of being unbalanced in their evidence.
Similarly, Mr Golding adduced evidence from his father and his step-mother. Understandably, each was positive and supportive in respect of Mr Golding and his relationship with his children but, like Ms Burch’s witnesses, their evidence ultimately was partisan and was of little assistance to the Court in its forensic exercise.
The Issues
The children’s issues raised by the parties are not unusual for those coming before these Courts and particularly where the parents do not have the benefit of legal advice and assistance. The mother says that the children are unsettled in the current arrangements and are desirous of more weekend time with her. The father argues that an equal shared time arrangement would be “fair” and that the children say to him that they want to spend more time with him.
Each of the parties readily agreed that they had communication difficulties. By reason of them being in Court and together with the nature of the issues before them, corroborates that they might not communicate easily and freely. My observation of them was of significantly different personality types which might not assist easy post-separation communication. The father is reserved and quiet in his demeanour. He became emotional at times during the trial. The mother was more assertive and confident in her personality, although she too showed the capacity to become emotional. The evidence and comments by the parents during the course of the trial corroborated their lack of communication but notably offered little in how to address this situation, at least for the benefit of their children.
Some practical issues arose during the course of the trial and again probably as a factor of the parties, or in this case, the father, being unrepresented. He argues for an equal time arrangement. He works as a (occupation omitted) and finishes work at 3.15 pm. His children also finish school at 3.15 pm. Their school, however, is some 40 minutes travel from the father’s workplace. Quite simply, he gave little and adduced no evidence as to how he would accommodate the collection of the children from their school save and except some vague unparticularised references to after school care and some people (not on affidavit) who might be able to assist. This, of course, was an issue raised by the mother in support of her preferred regime of care for the children.
The issues in respect of property division primarily rest on the parties’ lack of understanding as to contributions pursuant to section 90SM(4) of the Family Law Act 1975 (“The Act”). Yet again, I am confident that should the parties have been represented then this is a matter which might not have proceeded to trial.
Background
The applicant is 37 years of age. She is currently self-employed as a (occupation omitted). Her evidence in this regard is of some professional qualifications but little experience as she appears to have been primarily occupied with the care of the children and in a homemaker role during the relationship with Mr Golding. There is no evidence before me that Ms Burch has re-partnered. She continues to live in the parties’ jointly owned property at Property R.
The respondent, Mr Golding, is also 37 years of age. He works four days per week at a (employer omitted) as a (occupation omitted). He lives in rented accommodation. He is in a relationship but he and his partner no longer cohabit. Mr Golding’s partner did not provide an affidavit or give evidence despite there being some assertions as to previous difficulties between the children of the parties and one of the partner’s children.
The parties commenced cohabitation in 2004. They separated in September 2013. They did not marry.
Children’s Matters – Relevant Law
Section 60CA of the Act provides that I am to have the best interests of X, Y and Z as my paramount consideration. The Court determines children’s best interests by reference to the objects and principles of the relevant part of the Act as provided in section 60B and also by pragmatic reference of the probative evidence and the parties’ proposals to the mandatory considerations set out in sections 60CC(2) and (3) of the Act.
Section 60B sets out the objects and principles of the legislation as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Both parents here agree that there should be an order that they exercise equal shared parental responsibility in accordance with the presumption provided at section 61DA of the Act. Where there is such an order for equal shared parental responsibility then the Court must enter a mandatory pathway of statutory and intellectual consideration as to the children’s parenting and living regime.
Firstly, the Court must consider whether it is both in the children’s best interests and reasonably practicable for them to live in an equal time relationship between their parents.[2] If the answer to either of those questions is in the negative then the Court must turn to consider whether the children spending “substantial and significant” time between their parents is both in their best interests and reasonably practicable.[3] “Substantial and significant time” includes time for children with parents on both weekends and weekdays and anticipates children and parents being involved in mutually important and enjoyable events.[4]
[2] Section 65DAA(1) of the Family Law Act 1975.
[3] Section 65DAA(2) of the Family Law Act 1975.
[4] Section 65DAA(3) of the Family Law Act 1975.
The parties live only some five kilometres apart and issues of practicability do not feature here, save and except for the parties’ ability to attend to the children’s care in out of school hours. This is an issue dealt with below.
Section 60CC of the Act sets out the mandatory considerations which the Court must reference in its determination of children’s best interests. They are the following:
60CC(2) - The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(3) – Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’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 child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family-any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The mother’s case is that the current living and care arrangements for the children are causing them stress and anxiety. The mother’s evidence implies that the children have had difficulty assimilating the father’s new partner and her children into their lives. She says that each of the children exhibit anxiety, tearfulness and emotional “clinginess.” She says that X, aged nine, wants to sleep in her bed and is reluctant in respect of his attendance at school. She reports difficulties for X with the father’s partner’s son who attends the same school and is in the same class. She says that X’s anxiety has reached a level whereby the school has intervened and X has been collected at lunch time.
Ms Burch reports separation anxieties also for Y and a reluctance to attend school. She says that Y has manifested behavioural problems at school. Ms Burch says that Y is wanting a home base and to “live in one house here with you” while still wanting to maintain a relationship with her father.
As for his older sibling, the mother says that Z suffers severe separation anxiety and reluctance in respect of attending school. She says that the teachers have reported behavioural difficulties at school. Ms Burch says that Z takes a considerable time to settle after returning from his father and is prone to tiredness and tantrums. She says that at times Z has been reluctant to go to his father.
The mother’s affidavit annexes a letter from the (omitted) School dated 4 March 2015 and from Z’s teachers. That letter effectively corroborates the mother’s concerns and for a number of reasons is worthy of transcription in these reasons as follows:
Following our conversation yesterday, I note the following:
Z is now in his second year in our class (sic). He is familiar with the room, teachers, routine and he knows many of the children in our class this year.
Z is having extreme difficulty in saying goodbye to his parents each morning, he cries very loudly and fully for some time after his parents have gone. This crying also has an effect on the other children in the class. Once Z has recovered from his distress, he is happy to play with the other children.
I am needing to watch Z closely as he has hurt a number of children in our class. His actions are often extremely energetic, impulsive and at times aggressive.
I know that his family situation has changed recently and things are challenging for the whole family. Z is a little boy and I wonder if his needs are being fully met. From a (omitted) School child development point of view, the young child up to the change of teeth, around 7, is very much connected with the mother’s etheric body. Around 7 years the childs (sic) own etheric body is born and a new independence arises.
I wonder if in arranging care for your children, this need of Z’s could be taken into consideration.
In loving support to you all.
The mother in her evidence emphasises the lack of effective communication between herself and the father. She says that she has raised her concerns in respect of her children’s demeanour but received no positive response from the father or indeed any inclination for him to communicate with her. She annexes copies of emails accordingly to her affidavit.
Given the father’s application for an equal time arrangement, the mother’s statement at [6] of her affidavit is relevant. She says:
Before setting out the details I would like to state that whilst my view is that there is the potential for a co-parenting arrangement (that is equal or near equal care) to be successful enough to be in the best interests of the children and parents, the circumstances surrounding this must be one of a willingness to accept and communicate about issues with the children, mutual respect, trust, flexibility and general amicability between the parents. Where there is not a willingness to rationally discuss issues and where there is deceit, bullying and conflict between the parents, my view is that co-parenting arrangements must be more prone to being very stressful and disruptive for the children involved. I say that many times over the last 18 months the children have faced issues wholly worth discussing and most times there has been either a flat refusal by the respondent to allow me to explain them to him, an aggressive reaction or a reaction so defensive that the issue at hand is lost, On one occasion I can recall the respondent has bought (sic) issues relating to children to me.
Mr Golding’s case is based in large part on his understanding that his children are desirous of an equal-time regime between their parents. At [7b] of his affidavit Mr Golding deposes:
The children have clearly voiced that they want to spend an equal amount of time with both parents, all making statements such as;
·“I want to see you and mum the same amount of time.”
·“I love living here.”
·“How many days until I get to come back and see you again?”
·“When I’m at Mums (sic) I miss Dad. When I’m at Dad’s I miss Mum.”
Mr Golding’s evidence in Court was somewhat equivocal in respect of the issues raised by Ms Burch about the children. His initial response was that the children did not display such behavioural concerns when in his care. He later implied that, whilst there were some manifestations of concern, the mother’s method of addressing these matters was an over-reaction on her part and served in itself to contribute to the children’s ongoing behaviour. In the witness box he was generally dismissive of the above comments by Z’s school teacher emphasising that the letter had been elicited by Ms Burch herself.
In his affidavit Mr Golding responds to the mother’s concerns as to the children’s behaviour. Essentially, he acknowledges some difficulties such as the children’s sensitivities and anxieties during school transitions. He says that he has dealt with the issues by way of direct consultation with the children themselves with the implication being that the mother overreacts and/or is over vigilant.
Mr Golding insightfully volunteered that he and Ms Burch have different parenting styles and perhaps reflective of their personality differences. Mr Golding says that he has reacted to difficulties for the children in his partner’s household by removing himself and the children to their own accommodation. Mr Golding’s unchallenged evidence is that he has had direct consultations with each of the children’s school teachers.
Mr Golding was at pains to claim that there was, in fact, already an equal shared care arrangement for the children. Although he has the children for nine nights out of each twenty-one, Mr Golding’s emphasis and calculations are based on the fact that he has two out of each three weekends with the children, whereas the mother’s time primarily involves school weeks.
Mr Golding presented as a thoughtful, dedicated and a loving parent. I suspect that he prefers to avoid conflict with Ms Burch who also presented as a dedicated and caring parent who prioritises her children’s needs.
Section 60CC Factors
Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents.
I am satisfied on the evidence that these three children all have successful, loving and meaningful relationships with each of their mother and their father. These are two good parents. They each prioritise their children’s needs.
Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
To the credit of these parents, and despite their own residual animosities, matters of family violence do not feature in this matter.
Section 60CC(3)(a) – any views expressed by the child and factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
These children are still very young and it is unlikely on the evidence before me that they would be able to rationalise their own views and preferences as to their living and parenting arrangements in a mature fashion and absent issues such as their divided loyalties and their attempts to please each parent. It is reasonable to assume that these children are very much aware of the poor communicative and non-cooperative relationship between their parents. As such, whilst each parent is able to quote the children with statements of preference which favour that parent’s application before this Court, such statements are notable in their contrariness and, I suspect, say little more than that these children would prefer that their parents desist from conflict or at least, that they be removed from it. On the balance of probabilities, I expect that these children are telling each of their parents what they think that parent would like to hear.
Section 60CC(3)(b) – the nature of the relationship of the child with: each of the child’s parents; and other persons (including any grandparent or other relative of the child).
The parents are of different personality type. They have different parenting styles. Nevertheless, it is instructive generally to note that the children have equally dependent and attached relationships with each of their mother and their father.
Further, I had the benefit of seeing a number of members of the children’s extended family give evidence and I am content that X, Y and Z will also have involved and loving extended families on both sides.
Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity: to participate in making decisions about long-term issues in relation to the child; and to spend time with the child; and to communicate with the child.
The mother was critical of the father in this respect. She exhibited email evidence that she would attempt to engage the father in discussion on matters arising about the children. She criticises him for his lack of response and involvement. However, after having the benefit of seeing these parties, I suspect that the father’s reluctance is due more to his personality rather than any lack of commitment to his children. Indeed, on an individual basis, he has shown an admirable commitment. I expect, however, that he finds communicating with the mother difficult and something he would prefer to avoid. Whereas she is assertive, he is passive. Each in their own way has a tendency to criticise the other. This is not a good recipe for communication.
The mother and her witnesses were also critical of the father for returning the children on occasions early from time with him. After hearing and seeing the father and again noting his personality, I am not so critical. However, Mr Golding will need to understand that he will have obligations in respect of the care of his children and should not be reliant upon the mother to assume his responsibilities.
Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
Each of these parents has contributed according to their abilities to the maintenance and support of their children.
Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: either of his or her parents; or any other child, or other person (including the grandparent or other relative of the child), with whom he or she has been living.
These children have been fortunate in that they have enjoyed frequency of contact with each of their parents. It seems that, at least in the early days following separation, the parents acknowledged this need and established regimes accordingly. Their initial efforts may have involved too many changeovers for the children who, of course, were then much younger and in the early throes of dealing with their parents’ separation.
The current arrangement has been ongoing now for some time. Effectively, the changes that each of the parents now propose are relatively minor and, I suspect, are as much in line with that parent’s own preferences as much as they are focused on the children’s best interests.
The change proposed by the mother would give the children more quality time with her on weekends. Currently they spend two out of three weekends with the father. Interestingly, the father’s proposal would also see the children sharing their weekend quality time between the parents.
Despite the valiant attempts of each of those parents to somehow connect the children’s anxieties and stressors with the current parenting arrangements, I expect that the children would transit more easily and comfortably if they were to learn that their parents were able to cooperate and communicate in the parenting of them.
On the evidence before me, I am not persuaded that the changes anticipated by either parent would unduly or negatively impact upon these children.
Section 60CC(3)(e) – the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis.
The evidence does not reference this particular consideration.
Section 60CC(3)(f) – the capacity of: each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
These children have emotional needs. The evidence indicates that they are each vulnerable and prone to anxiety. A greater insight by both Ms Burch and Mr Golding into the children’s needs and to have stable and comfortable relationships moving forward with each of the parents would undoubtedly contribute to a large extent to the alleviating or total removal of these stressors and anxieties.
The mother challenges the father’s capacity, namely that he provides no evidence of his proposals to collect the children from school and who would care for them in out of school hours. The father works some 40 minutes from the children’s school. Despite his late protestations as to flexibility and sympathetic arrangements from his employer, he adduced no evidence to address this issue. Indeed, his regular reference to “flexibility” in his evidence in Court shows a further lack of insight. Frankly, the Court would prefer evidence of certainty, not flexibility, in arrangements for these children. I suspect that had the father chosen to take legal advice and/or representation then this would not be an issue. However, as is becoming ever too frequent in these Courts, litigants either choose or are obliged for financial reasons to act for themselves. They do so too often oblivious of the requirements of the Family Law Act 1975. They do so on a misunderstanding that the Court is impressed by a plethora of criticism of the other parent and with little regard to the fundamentals such as arrangements for the children. As their Honours in the High Court insightfully noted in Neil v Nott and Anor[5]:
A frequent consequence of self-representation is that the Court might assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.
[5] (1994)121 ALR 148 at pg 150
In this sense, therefore, there is merit to what the mother argues. Mr Golding comes to this Court asking to have the care for his children on seven days per fortnight. This would ordinarily involve him collecting or arranging the collection and care of the children after school. He does not work on Fridays. I therefore calculate that this obligation would arise on four afternoons per fortnight (Mr Golding’s work hours do not cause a problem at the commencement of school). Whilst maintaining the difficulties that confront Courts with litigants in person in these respects, I also note that the current arrangement whereby Mr Golding has the children overnight on nine occasions per three weeks would obligate him to collect the children on three separate Thursdays being days on which he works. The mother’s evidence makes no specific criticisms of the father’s capacity in this respect thus far and it is open for me to find that he is able to attend to the children’s collection and care either by himself or with assistance on these occasions.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture, traditions) of the child and any of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
This subsection is not relevant on the evidence.
Section 60CC(3)(h) – if the child is an Aboriginal or Torres Strait Islander child.
This subsection is not relevant on the evidence.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
I am satisfied on the evidence that each of the parents have adopted a responsible attitude to their obligations of parenting these children. Sadly, they have not been able to do so cooperatively.
Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family.
This subsection is not relevant on the evidence.
Section 60CC(3)(l) – whether it would be preferable to make the order that will be least likely to lead to the institution of further proceedings in relation to the child.
The order that the mother seeks would diminish the time for the children with the father. Whether or not such a course would be justified on the evidence, this result would inevitably aggrieve the father and further entrench the lack of trust and mutual respect between these two parents. In such a climate, further litigation would be a probable result.
Findings and Conclusions
I am satisfied that these three children have a meaningful relationship with each of their parents. The evidence satisfies me that the mother and the father have very different parenting styles. They are yet unable to acknowledge and respect the other’s style and each prefers to be critical of the other rather than understanding that their children might benefit from the breadth in style and role model.
I am not persuaded that these children have made any informed or rational statements of their preferred living arrangements. Each parent gives evidence that the children have made statements consistent with that parent’s case. It is entirely probable that each parent is telling the truth and that these children, very much aware of their parents’ conflict, are telling each parent what they believe that parent wants to hear.
The capacity of each of these parents is compromised only by their negativity and lack of insight into their children’s needs. Each is suspicious and vigilant of the other. Such a position is compounded by their diverse personalities. Otherwise, both are capable and devoted parents to their children. The pity is that any difficulties in these children are perceived as innate or reflective of the other parent’s failings other than simply a manifestation of these children experiencing their parents’ conflict.
Notably, the father’s unchallenged evidence is that he acknowledges that his children have suffered difficulties and has liaised with the school towards improvement. On the balance of probabilities, I am persuaded that these children do exhibit more emotional anxieties in the presence of their mother than they do with their father but this again is simply symptomatic of each parent’s different parenting style, vigilance and reaction.
The orders sought by the mother would reduce these children’s time with their father. As observed above, I am not persuaded that any difficulties experienced by these children is necessarily connected to the quantity of time they spend with each parent. To the contrary, any reduction of the time for the children with their father would, I suspect, send to them the wrong message to the effect that they would perhaps assimilate their mother’s critical and negative opinions of Mr Golding.
The father’s proposal is a relatively simple one. It involves week-about time throughout the year. The current arrangements see the children spending nine nights per fortnight with Mr Golding. The move to equal time is not a dramatic one in terms of quantity but would at least maintain the quality of the relationships for these three children with each of the parents. The additional practical benefit for the children would be of a simple once per week changeover alleviating any complications of midweek changeovers between parents who at this stage are unable to communicate, cooperate or be respectful of each other’s roles with the children.
The fact that Ms Burch and Mr Golding are of different personality types with different parenting styles does not, to my mind, negate the likelihood for success of an equal-time arrangement. Rather, and until these parents gain the requisite insight into the benefits of cooperative parenting, it is entirely reasonable for each of them to engage in “parallel parenting” where I am satisfied that the children will adapt to transitions between households and parenting styles.
The legislation does, of course, oblige me to consider the benefits to the children of an equal time arrangement before any other option. Frankly, in a matter such as this the parents are required to exhibit the same skills and have the same facilities for their children whether the regime be “equal time” or “substantial and significant time.” In a geographical sense, a regime of equal time is a reasonably practicable one.
In all of the circumstances, I am persuaded in favour of the father’s application whereby the children live on a week-about arrangement between their parents with the changeovers to occur on a Friday at school and if not a school day then at 5.00pm on the Friday with the parent into whose care the children will be coming to collect from the other parent’s home.
Property – Relevant Law
The jurisdiction of the Court to make orders for property, settlement or alteration here is provided in section 90SM of the Act as follows:
(1) In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them--altering the interests of the parties to the de facto relationship in the property; or
(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the de facto relationship; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.
(3) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
Section 90SM(4) references section 90SF of the Act which itself provides:
(1) In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:
(a) only to the extent that the first-mentioned party is reasonably able to do so; and
(b) only if the second-mentioned party is unable to support himself or herself adequately whether:
(i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
(ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(iii) for any other adequate reason.
Note: For child of a de facto relationship , see section 90RB.
(2) In applying this principle, the court must take into account only the matters referred to in subsection (3).
(3) The matters to be so taken into account are:
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i) a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii) a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t) the terms of any financial agreement that is binding on a party to the subject de facto relationship.
(4) In exercising its jurisdiction under section 90SE, a court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
The High Court in Stanford & Stanford [6] and the Full Court in Bevan & Bevan[7] have recently revisited the proper approach for trial Judges implementing section 90SM of the Act. That approach had previously thought to have been settled by way of a multi-step approach as articulated by the Full Court in Hickey & Hickey and Attorney-General for the Commonwealth of Australia[8].
[6] [2012] HCA 52.
[7] (2013) FLC 93-545.
[8] [2003] FamCA 395.
The Full Court in Bevan in following Stanford has cautioned against trial Judges taking a strict step-by-step approach with a preferred course being one where the notion of justice and equity, as set out in section 90SM(3), should permeate the entire statutory and intellectual process.
In my consideration, I must first establish and attribute value to the property pool. In the matter now before me, and to their credit, the parties agree the property pool at value. I must then determine whether justice and equity demands any alteration of property entitlements at all. The parties are the joint registered proprietors of the major asset, being the former matrimonial home. They each claim various contributions, both direct and indirect to the acquisition, improvement and maintenance of the contents of the property pool. The parties have been separated for some time and they each agree that there is currently an uneven distribution of the value of the property in each of their hands. As such, I am easily persuaded that it is proper to consider an alteration of their property interests.
I must consider the contributions of the parties, be they financial or non-financial contributions and both direct and indirect contributions to the property pool. Not surprisingly, these parties being unrepresented, neither is fully understanding of the statutory provisions and/or the relevant historical authorities which guide my consideration and determination.
The parties, and in particular Ms Burch, argue for an adjustment of the distributions to the property pool after a consideration of contributions and based on relevant section 90SF factors.
The Property Pool
Assets
The property pool is settled and agreed as follows:
·Home in joint names at Property R in Victoria, $225,000;
·Toyota 4Runner (sold by respondent) $1,000;
·Hyundai motor vehicle (applicant) $750;
·Applicant’s shareholding $1,000.
TOTAL: $227,750.
Superannuation
·Applicant’s superannuation $8,614.
·Respondent’s superannuation $22,691.
TOTAL $31,305.
Total Property Inclusive of Superannuation
·$259,055.
Liabilities
·Mortgage, $74,015.
Net Property Inclusive of Superannuation
·$185,040.
Contributions
This relationship endured over some nine years and brought three children. Ms Burch has occupied the property since separation and whilst meeting the mortgage obligations. Mr Golding has been obliged to find alternative rental accommodation for himself and the children when they are with him.
Mr Golding’s affidavit material is relevant in its content and general misunderstanding of the statutory considerations for the Court. He tends towards subjective mathematical calculations and usually without proper evidentiary basis and premised on a notion of “fairness”. Ms Burch’s affidavit at [16] is more attuned to the Court’s considerations and more particularised in its content.
Mr Golding agreed in cross-examination that Ms Burch’s family provided a gift of $60,000 towards the purchase of the Property R property some two years prior to separation. Whilst Mr Golding suggested that this was a gift to “both parties” I am satisfied that this is a contribution by or on behalf of Ms Burch.[9] It is a contribution that came relatively late in the relationship and constitutes substantial injection into the property pool given the relative value of that pool.
[9] Kessey and Kessey (1994) FLC 92-495
The unchallenged evidence of Ms Burch is that there were other lesser financial contributions from each of the parties’ families. Ms Burch’s evidence is that she also entered the relationship with some $10,000 in savings whereas Mr Golding came to the relationship with a credit card debt and liabilities totalling near $5,000.
Ms Burch is also unchallenged in that her superannuation entitlements at the commencement of the relationship approximated $7,700 whereas the majority, if not all, of Mr Golding’s superannuation was accrued during the course of the relationship.
The evidence suggests that Ms Burch was employed in the early stages of the relationship but then was occupied with homemaker and childcare responsibilities. Mr Golding assumed the primary financial provider role for the majority of the relationship.
The parties significantly improved the Property R property. Again, Mr Golding attempts to give a monetary value to his labours but in doing so neglects to attribute an appropriate equal contribution by Ms Burch in her role as child carer and homemaker. In any event I am satisfied that Ms Burch also contributed by her labours to the home improvements as did various family members albeit perhaps to a lesser degree than did Mr Golding.
Taking the evidence as a whole and given the relevant authorities, I am satisfied that the parties contributed equally during the course of the relationship.
Ms Burch claims a post-separation contribution “in the order of $10,000” to further add value to the property post-separation and bringing it into compliance for a certificate of occupancy. That evidence, particularised in annexures to Ms Burch’s affidavit, was effectively unchallenged. Again, however, this contribution must be seen against Ms Burch having occupancy of the property since separation to the exclusion of Mr Golding.
I am satisfied that Ms Burch has made a superior direct financial contribution. The property pool is not substantial. The mother’s family’s injection of $60,000 therefore assumes some significance over and above the other financial contributions of and on behalf of the parties. In real terms it contributes some 30 per cent of the property pool as it now stands inclusive of superannuation and was introduced late in the relationship. It must, of course, be seen and considered as against the other contributions, direct and indirect, by and on behalf of the parties.
Secondly, the mother’s unchallenged post-separation contribution of $10,000 is also of some significance. Nevertheless, in a property pool of this magnitude, the parties’ indirect contributions being by the father and his family by reason of their labours and the mother, at the same time, providing childcare and homemaking facilities are of real significance.
In all of the circumstances, I am of the view that Ms Burch should receive an adjustment of 15 per cent by reason of contributions which, after the consideration of contributions, would distribute the property pool as to 65 per cent to Ms Burch and 35 per cent to Mr Golding.
Section 90SF Factors
Both parties are in good health and have the capacity for employment. By reason of these orders, they will each have the responsibility for the care of the three children for one week in each fortnight.
Mr Golding is in employment, albeit currently on only four days per week as a (occupation omitted). His evidence suggests that his employment will be ongoing and there is no evidence to persuade me that he has other than a capacity for full-time employment.
Ms Burch has skills and qualifications as a (occupation omitted). Her experience, however, is limited. Nevertheless, my observations were of a confident and resourceful woman and I expect her to eventually assert herself in her chosen profession. In the meantime, however, and in the short term, Mr Golding has a superior earning capacity.
There are other factors to be taken into account under section 90SF(3)(r) of the Act. Firstly, Ms Burch has had the use of the property at Property R since separation. In this sense she has had the use of Mr Golding’s financial entitlement in that property. Secondly, neither party seeks a superannuation splitting order. The property pool is limited in its quantum. The superannuation entitlements of the parties are also limited and it is proper that the superannuation entitlements be simply “treated as property” in the sense of the other assets.
As a consequence, Mr Golding will be retaining his own superannuation entitlement of $22,691 as part of his settlement whereas Ms Burch will be retaining the major tangible asset being the former matrimonial home. As such, Mr Golding will have the financial impost of re-establishing himself in accommodation for himself and the children.
In all of these circumstances, I am not satisfied that it is just and equitable to further alter the parties’ property interests after a consideration of all of the factors under section 90SF(3) of the Act.
Conclusion
Consequently, the property pool inclusive of superannuation entitlements will be divided as to 65 per cent to Ms Burch and 35 per cent to Mr Golding. Ms Burch will retain the former matrimonial home but provide a release for Mr Golding under the mortgage. Each party will retain all other items of property and personalty including superannuation entitlements in his or her possession. I calculate, therefore, that a cash adjustment of $33,073 by Ms Burch on Mr Golding is necessary to achieve the percentage distribution.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 20 November 2015
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