BURLEY & GOODING
[2019] FCCA 151
•29 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BURLEY & GOODING | [2019] FCCA 151 |
| Catchwords: FAMILY LAW – Property – contributions – section 75(2) factors – final orders made. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), Pt. VIIA, ss.60CC(2), 60CC(3), 60CC(3)(b), 60CC(3)(c), 60CC(3)(i), 65DAA, 75(2)(o), 79, 79(2), 79(4) |
| Cases cited: C v C [1998] FamCA 143 |
| Applicant: | MR BURLEY |
| Respondent: | MS GOODING |
| File Number: | MLC 1617 of 2018 |
| Judgment of: | Judge Stewart |
| Hearing dates: | 15 & 16 November 2018, 13 December 2018 |
| Date of Last Submission: | 13 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 29 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Puckey |
| Solicitors for the Applicant: | Morrison & Sawers |
| Counsel for the Respondent: | Mr A. Combes |
| Solicitors for the Respondent: | Orman Solicitors |
ORDERS
All previous parenting orders be discharged.
The Husband and Wife have equal shared parental responsibility for the children Y born … 2013 and X born … 2014.
During school terms, the children live with the Husband and the Wife on a week-about basis, from after school/kindergarten (or 3.30pm) on Friday until the conclusion of school/kindergarten (or 3.30pm) on Friday the following week.
Notwithstanding the orders for the children to live with the parties pursuant to order 3 hereof, the Husband spend time with the children as follows:-
(a)at Christmas:-
(i)from 3.00pm on Christmas Day until 6.00pm on Boxing Day in 2019 and each alternate year thereafter; and
(ii)from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in 2020 and each alternate year thereafter;
(b)on the Father’s Day weekend in each year from 6.00pm on the Saturday preceding Father’s Day until 6.00pm on Father’s Day in the event that the Husband is not otherwise spending time with the children;
(c)on the Husband’s birthday and the children’s birthdays if the Husband is not otherwise spending time with the children at times to be agreed and failing agreement:-
(i)for a period of at least 3 hours if a school/kindergarten day, from after school/kindergarten until 7.00pm; and
(ii)for a period of at least 5 hours if a weekend, from 11.00am until 4.00pm;
(d)by telephone, Skype or other like electronic communication:-
(i)on Tuesdays and Thursdays between 7.00pm and 7.30pm when the children are not otherwise in the Husband’s care; and
(ii)at any other time reasonably requested by the children or either of them; and
(e)such further or other times as may be agreed between the parties from time to time.
Notwithstanding order 3 hereof, the Wife spend further time with the children as follows:-
(a)at Christmas:-
(i)from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in 2019 and each alternate year thereafter; and
(ii)from 3.00pm on Christmas Day to 6.00pm on Boxing Day in 2020 and each alternate year thereafter;
(b)on the Mother’s Day weekend in each year from 6.00pm on the Saturday preceding Mother’s Day until 6.00pm on Mother’s Day in the event that the Wife is not otherwise spending time with the children;
(c)on the Wife’s birthday and the children’s birthdays if the Wife is not otherwise spending time with the children at times to be agreed and failing agreement:-
(i)for a period of at least 3 hours if a school/kindergarten day, from after school/kindergarten until 7.00pm; and
(ii)for a period of at least 5 hours if a weekend, from 11.00am until 4.00pm;
(d)by telephone, Skype or other like electronic communication:-
(i)on Tuesdays and Thursdays between 7.00pm and 7.30pm when the children are not otherwise in the Wife’s care; and
(ii)at any other time reasonably requested by the children or either of them; and
(e)such further or other times as may be agreed between the parties from time to time.
For the purposes of changeover pursuant these orders, changeovers occur at school where convenient and otherwise at an address nominated by the Wife close to her home at least seven days prior to that changeover, unless otherwise agreed between the parties in writing.
The children shall attend primary school and kindergarten in Town A.
Each of the parties:-
(a)keep the other advised at all times of the current residential address and telephone number of the children and advise the other of any change thereto within seven (7) days of such change;
(b)advise the other immediately in the event that the children or any of them suffers any serious illness or injury;
(c)authorise any medical practitioner upon which the children or any of them may attend from time to time, to communicate with the other in respect to the children’s medical condition and/or requirements;
(d)authorise all schools or childcare centres at which the children or either of them may attend, from time to time, to:-
(i)provide to the other, at the expense of the other, copies of all school reports, school notices and school photographs in relation to the children;
(ii)communicate with the other, either by telephone, in writing or by personal attendance, in respect to the children’s progress at their respective schools; and
(iii)attend all school function to which parents are normally invited;
subject to any policy in relation thereto.
The Wife continue to attend upon her counsellor or such other counsellor as may be recommended and follow all reasonable and lawful directions of that counsellor until the counsellor directs that the Wife no longer need to attend.
Pursuant to sections 65DA(2) and 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 are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Husband is to retain for his sole use and enjoyment the property situated at and known as D Street, Town A in the State of Victoria, more particularly described as Lot … in ….
The Wife is to retain for her sole use and enjoyment the property situated at and known as L Street, Town E in the State of Victoria, more particularly described as Lot … in ….
The Wife retain the remaining proceeds of sale of the property situated at and known as B Street, Town C, in the State of Queensland, currently held in the Orman Solicitors Trust Account.
Within 60 days of the date hereof, the Husband pay to the Wife the sum of $48,575.
Within 21 days of the date hereof, the Wife return the ride-on lawnmower to the Husband.
Orders 17 to 20 inclusive are binding on the F Super Fund (“the Fund”).
A base amount of $32,200 is allocated as required by section 90XT(4) of the Family Law Act 1975 (“the Act”) to the Husband out of the Wife’s interest in the Fund (member number …) in accordance with paragraph 90XT(1)(a) of the Act:-
(a)the Hand is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”); and
(b)the Wife’s entitlement and the entitlement of such other person to whom a splittable payment may be made to payments out of the Wife’s interests in the fund is correspondingly reduced.
The Trustee of the Fund, F Super Fund Pty Ltd (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:-
(a)calculate in accordance with the requirements of the Act and the Regulations the entitlement from the Husband created by clause 16 of this Order; and
(b)pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the fund.
This order have effect from the operative time and the operative time is 5 business days after service of a sealed copy of this order upon the Trustee by way of prepaid post.
After service of the payment split notice pursuant to rule 7A.03 of the Superannuation Industry (Supervision) Regulations 1994 the Husband shall do all such acts and things and sign all such documents as may be necessary, including but not limited to exercising his request pursuant to rule 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferrable benefits out of the Wife’s interest in the Fund to a Fund of the Husband’s choosing in accordance with rule 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
Liberty is granted to the Trustee to apply with respect to these orders.
Unless otherwise specified in these orders and save for the purpose of enforcing monies due under these or any subsequent orders:-
(a)each party be solely entitled, to the exclusion of the other, to all other property (including choses in action) in their possession as at the date of these orders;
(b)each party retain the motor vehicle currently in their respective possessions;
(c)each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)insurance policies remain the sole property of the owner named thereon;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f)any joint tenancy be and is hereby expressly severed.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
AND THE COURT NOTES THAT:
(A)Upon X commencing grade 1, it is envisaged that the parties should divide the long summer school holidays equally between them as may be agreed, but failing agreement, the time shall continue on a week-about basis.
(B)The letter from F Super Fund dated 28 June 2018 confirms that the Trustee has no objection to the Superannuation Splitting Order contained in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Burley & Gooding is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SHEPPARTON |
MLC 1617 of 2018
| MR BURLEY |
Applicant
And
| MS GOODING |
Respondent
REASONS FOR JUDGMENT
These are proceedings in relation to both parenting and property matters. The parenting proceedings are in relation to two children, Y who was born on … 2013 and is now five years old, and X who was born on … 2014 and is now four years old.
The children have been in a shared care arrangement on a week-about basis since February 2018 pursuant to Magistrates’ Court orders. The paternal grandparents, and particularly the paternal grandmother, have been actively and regularly involved in the children’s lives throughout the periods where both parents have worked on a full time basis.
The parenting dispute concerns the living arrangements of the children. The Husband seeks that either the equal shared care regime continue or that the children live with him and spend four nights per fortnight with the Wife, and the Wife seeks to reduce the Husband’s time from the current week-about arrangement to each alternate weekend from Friday until Sunday.
Background
The Husband was born on … 1976 and is 42 years old. He is a self-employed tradesman.
The Wife was born on … 1981 and is 37 years old. She is employed as a professional within Employer L however is currently on an extended period of leave.
There is some dispute as to when the parties commenced their relationship. The Wife says that they commenced the relationship in … 2009 and commenced cohabitation in August that year. The Husband said that the parties commenced their relationship in 2008. In any event, the parties married in … 2011.
In mid-2017 it is alleged that the Wife commenced a relationship with another partner. The parties separated under the one roof in either late December 2017 or early January 2018. On 24 January 2018, an Application for Intervention order was made by Victoria Police on behalf of the Wife, and was served on the Husband the same day. He was required to vacate the former matrimonial home and moved in with the paternal grandparents. This application was withdrawn on 30 January 2018 and the Husband filed for parenting orders in the Town E Court. The matter was heard and determined on 6 February 2018 where the order for equal shared care of the children was made, and the matter was otherwise transferred to this Court.
In these reasons and pursuant to section 140 of the Evidence Act 1995 (“Evidence Act”), the standard of proof is to a balance of probabilities.
During the hearing there were numerous facts and matters referred to by the parties. It is not possible to refer to every fact and/or matter in these proceedings and nor is it necessary to do so. I have had regard to the totality of the evidence in these proceedings. If I have not referred to a particular fact or matter it does not follow that I have not had regard to it.
In these reasons a statement of fact is a finding of fact, unless it is obvious from the context that I am reciting the position of one of the parties.
Procedural history
The Husband filed his Initiating Application on 15 February 2018. He sought in relation to parenting issues that:-
a)the parties have equal shared parental responsibility for the children;
b)the children live with the parents on a week-about basis with changeovers to occur at 5.00pm on Friday;
c)the children communicate with the parent with whom they are not residing by telephone at 6.00pm each evening; and
d)the usual orders with respect to the parents keeping each other informed in relation to contact details, the children’s health and wellbeing and information from kindergartens and schools.
And further, on an interim basis:-
e)the paternal grandparents continue to care for the children pursuant to the current informal childcare arrangements on an interim basis;
f)the children attend kindergarten in Town A.
In relation to property matters, he sought that:-
a)he retain the property situated at D Street, Town A in the State of Victoria (“the former matrimonial home”);
b)the Wife retain the following properties:-
i)L Street, Town E in the State of Victoria (“the L Street Town E property”); and
ii)B Street, Town C, in the State of Queensland (“the Queensland property”);
c)the Wife retain the Motor Vehicle M and the Husband retain the Motor Vehicle N;
d)a split of the Wife’s superannuation entitlements so that the parties’ superannuation interests are equalised; and
On an interim basis:-
e)mechanism of sale if the Queensland sale was to be sold on an interim basis, including that the proceeds of sale be held on trust pending further order or agreement between the parties.
I note that the Wife had sold the Queensland property in February 2018.
The matter first came before the Court in the March 2018 sittings of the Shepparton Circuit. On 6 March 2018, orders were made by consent that provided for changeovers, a privately-funded Family Report to be prepared, and spend time arrangements for special occasions. The parties were ordered to attend upon a Family Dispute Resolution Practitioner for a property mediation, and the matter was set down for Final Hearing in the August sittings of the Shepparton Circuit.
Shortly thereafter, the Wife filed her response on 8 March 2018. In relation to parenting matters, the Mother sought that:-
a)the parties have equal shared parental responsibility for Y and X;
b)the children live with the Wife;
c)the children spend time with the Husband each alternate weekend from Friday until Sunday;
d)provisions for special occasion time;
e)all changeovers to occur at Town A Shopping Centre;
f)the Husband to have telephone communication with the children on Tuesdays and Thursdays; and
g)the usual orders for notifications and authorisations.
The Wife did not initially particularise her property orders sought, rather seeking leave to file an Amended Response “once the Husband has provided full and frank disclosure”.
In or around April 2018 the Wife unilaterally enrolled Y at a kindergarten in Town E.
On 17 July 2018 the Husband filed an Amended Initiating Application, which sought that:-
a)in relation to parenting matters:-
i)the parties have equal shared parental responsibility for the children;
ii)the children live with the Husband;
iii)the children spend time with the Wife each alternate weekend from Friday until Monday, and from Thursday until Friday in the alternate week;
iv)provisions for special occasion time and telephone communication;
v)the children to attend kindergarten and/or school in Town A; and
vi)the usual orders with respect to authorisations and notifications; and
b)in relation to property matters:-
i)the Husband retain the former matrimonial home;
ii)the Wife retain the Town E property;
iii)the Wife retain the Motor Vehicle M and the Husband to retain the Motor Vehicle N; and
iv)a superannuation split be effected to transfer a base amount of $35,000 from the Wife’s superannuation interests to the Husband.
The Wife filed an Amended Response on 31 July 2018, seeking that:-
a)in relation to parenting issues:-
i)the parties have equal shared parental responsibility for the children;
ii)the children live with the Wife;
iii)the children spend time with the Husband each alternate weekend from Friday to Sunday and half of all school holiday periods as agreed;
iv)provisions for special occasion time and telephone communication;
v)changeover to occur at a “mutually agreed place halfway between the parties’ locations”; and
vi)the usual orders with respect to notifications and authorisations; and
b)in relation to property matters:-
i)the Husband to retain the former matrimonial home;
ii)the Wife to retain the Town E property;
iii)the Husband retain the Motor Vehicle N and the Wife to retain the Motor Vehicle M;
iv)the Wife to retain the proceeds of sale of the Queensland property;
v)the Husband to pay to the Wife the sum of $87,410.00; and
vi)a superannuation split to be effected to transfer a base amount of $19,500 from the Wife’s superannuation interests to the Husband.
The matter came before the Court in the August sittings of the Shepparton Circuit. The matter was not reached, and the matter was listed in Melbourne on 17 October 2018. Consent orders were also made between the parties that they were to attend upon Ms G, psychologist, (“Ms G”) for non-reportable therapeutic counselling, and made provisions for dates for the filing of further material for trial.
Due to the busy nature of this Court, the matter was not reached on 17 October 2018. The proceedings were adjourned to the November sittings of the Shepparton Circuit. The matter proceeded on 15 and 16 November 2018 and did not conclude on Circuit. The proceedings were adjourned to 13 December 2018 in Melbourne part-heard and concluded on that date.
The witnesses
The Husband gave evidence and was cross-examined. He also relied upon the evidence of the paternal grandmother, Ms H (“the paternal grandmother”) who filed an affidavit in these proceedings on 8 August 2018. The paternal grandmother gave evidence and was cross-examined.
The Wife gave evidence and was cross-examined.
I shall refer to their evidence in more detail and generally throughout the course of these reasons.
A private Family Report was prepared by Mr J (“Mr J”) and was filed under cover of affidavit on 16 August 2018. Mr J also gave evidence in these proceedings and was cross-examined.
During the proceedings I observed that the Husband was a reserved and careful witness who appeared to be endeavouring to present his case in the best light. He was careful to avoid criticising the Wife and careful to focus his attention to the best interests of the children. From time to time he seemed bewildered as to the breakdown of the marriage, but ultimately I formed the view that he had resigned himself to the breakdown of the marriage and to his life as a separated parent.
The Wife’s presentation was in stark contrast to that of the Husband. She presented as an emotional person and hyper-vigilant as a parent, and from time to time her level of emotionality was disproportionate to the issues at hand. I also observed her emotionality to be heightened, but the same over a range of issues. In some instances, her distress was explicable, for instance, when discussing issues of family violence or the children’s distress. In other areas, her level of emotion seemed disproportionate. For instance, the issue of a missing pet goose evoke and almost identical level of distress as the discussion surrounding an alleged sexual assault upon the Wife by the Husband and a distressing assault on her by two other women at a bar. There was an element of hysteria in the Wife’s responses to issues, and I had the valuable opportunity to observe her give her evidence, and how that evidence played out in terms of the level of upset for the Wife.
From time to time, the Wife was tearful, pleading and angry, and she seemed incapable of accepting that anyone could have a view rather than her own. She stoically persisted in her position that the children should spend every second weekend with the Husband from Friday afternoon at around five until Sunday afternoon at five, until the very last stage of the proceedings, when through Counsel she conceded that the overnight weekend time should continue through until Monday morning. Although the Wife conceded that the Father should spend a Wednesday night with the children in the alternate week, she refused to accept that this time could be overnight time, maintaining her view of the Husband’s incapacity to meet the needs of these children, and that her superior caregiving status is indispensable to them.
The Wife was described by her Counsel as a person who reacted badly to the circumstances of the breakdown of the marriage and the proceedings and the Magistrates’ Court. It was said that the proceedings came as a shock to the Wife due to her strong maternal instinct. It was said that she found the Magistrates’ Court proceedings confronting, and that she perceived it as the onslaught upon herself and the children by the Husband and his parents. This description of the Wife speaks volumes about her presentation, and ultimately I formed the view that she continues to regard these proceedings as an attack upon her and the children, who she regards as a single cohesive family unit.
Unfortunately I have formed the view that the Wife elevates her position in parenthood above that of the Husband. This has the consequent effect of devaluing the Husband’s position as a parent, and feeds into what I regard as her tendency to marginalise and exclude the Husband from the children’s lives. The Wife seems unable to embrace wholeheartedly the concept that the Husband has significant value for the children and their ongoing welfare. On that basis, any orders that I make in relation to these proceedings will need to address that issue. I shall otherwise deal with other aspects of the Wife’s evidence throughout the course of these proceedings.
The paternal grandmother
The paternal grandmother gave evidence and was cross-examined. She deposes in her affidavit that she and her husband, the paternal grandfather, had been actively involved in the care of Y and X since their birth, acting as babysitters. There seems to be little dispute about that fact, including that in the two years prior to separation, the paternal grandparents were engaged in caring for the children at various times in the mornings and the evenings five days a week, to assist the parties during their respective periods of full-time employment. The paternal grandmother was initially paid for this assistance, but later that stopped.
The paternal grandmother describes that what can only be regarded as a loving and caring relationship for the children, having a very significant involvement in their lives, including setting up their home for their care. Since separation, the Husband has been living with his parents, and thus the children have had the ongoing benefit of having their grandparents regularly and intimately involved in their care.
The paternal grandmother describes the Husband’s relationship with the children since the commencement of the week-about arrangement by the Magistrates’ Court on 6 February 2018. She says that the Husband has shortened his work days to be home with the children more often. She describes the Husband as gentle and loving, with the children responding likewise to him. I am left with the overall impression that life in the paternal grandparents’ home with the children and the Husband is loving, natural and conducive to the children’s welfare.
In terms of financial issues, she deposes to providing the Husband with financial support since separation. This is not only in terms of the provision of accommodation, but also a loan of $2,000 post-separation to assist with creditors. She deposes to occasionally providing money to the parties when they were together, and estimates that she contributed approximately $10,000 in small sums, $15,000 towards the deposit of the former matrimonial home, $10,000 to the purchase of the Husband’s Ute and $15,000 towards the construction of the swimming pool.
The paternal grandmother denies making comments to the children about the Wife and denies various other allegations made by the Wife. She says that from time to time the children make comments that indicate that she and the paternal grandfather have been denigrated to the children whilst in the Wife’s care. The paternal grandmother indicated that she was willing and able to extend assistance to the Wife if she required such ongoing assistance, notwithstanding the separation of the parties.
The paternal grandmother was subjected to robust cross examination, however her evidence was truthful and I accept it. I accept that she would provide ongoing assistance to the Wife, and appears to have a reasonable attitude towards the Wife, coloured slightly perhaps by her natural affection for her son and a desire to have her grandchildren as part of their lives as much as possible. There are obviously some issues arising out of the Intervention Order proceedings which arose in December 2018, however the paternal grandmother struck me as a sensible, mature and forgiving woman who had the best interests of the children at heart.
Having observed the paternal grandmother, and read about the involvement of the paternal grandfather, I have no doubt that the paternal grandparents form a valuable and intrinsic part of the fabric of the children’s lives, which should continue. To the extent that the Husband is criticised on the basis that it is his mother who is doing all the caring for the children, I do not accept that criticism. However, I am of the view that he derives a great deal of support from the paternal grandparents on a day-to-day basis. Given the proximity of the Husband’s home in Town A to the home of the grandparents, that support is likely to continue. It will enhance the children’s welfare and will be available to the Husband from time to time.
Mr J
Mr J is the Family Report Writer. He is a qualified social worker, family dispute resolution practitioner and a Regulation 7 Family Consultant. Mr J interviewed the parties on 7 June 2018 and attended at their respective homes. In that sense, Mr J has had the opportunity to observe the children in the immediate company of their parents in their living environment.
Mr J describe the key issue in the proceedings as whether the children will spend more time in the home of one parent, describing it as the stability of living primarily in one household, rather than continuing to live in an equal shared care arrangement. He highlighted the further issue of whether the Husband had sufficient parenting capacity to care for the children on his own for lengthy periods of time, without the help of the paternal grandparents.
Mr J also described the concern with respect to the Wife emotionally influencing Y to not want to stay in the care of the Husband, and that the Wife does not encourage the children’s relationship with the Husband. He identified the Wife’s approach to the proceedings being that she had been the primary carer of the children with little or no assistance from the Husband. This is an area of the dispute between the parties. Mr J also noted that each of the parties allege that the other was having an affair towards the end of the relationship.
At the time Mr J interviewed the parties, changeovers between the parties had been conflictual and traumatic for the children. Significantly at that time, the Wife attributed the difficulties the children were having with the Husband, that they are “scared” of the Husband and do not want to leave the Wife’s care. The Wife believes that the children “dislike being in his care and can’t wait to return to her care, which is why there are no problems at changeovers when they leave their father’s care”. In addition, she admitted that the children often do not want to talk to the Husband on the phone when they are with her, and stated they tell her “they are scared of his voice”.
Mr J identified the children’s good relationship with the paternal grandparents. Although he did not observe the children with the maternal grandmother, there is no dispute in the proceedings that the children also enjoy good relationships with their extended family on the maternal side.
When Mr J observed the children at the home of the paternal grandparents and the Husband, he observed a happy and interactional relationship with the children, the Husband and the paternal grandparents, with the children having no difficulty preparing to move from the Husband’s home to the home of the Wife. He observed the Wife greeting the children emotionally at the changeover.
When Mr J observed the children at the Wife’s home, they were provided with presents that the Wife had bought for them. He reported that the Wife was giving Y a piggyback, at which point Y “stated out of the blue ‘I hate Daddy’.” Mr J noted that there was no response to this by the Wife, who instead took the children into the yard so that they could show Mr J some chickens that had laid eggs and a new puppy.
It seems that the Wife was keen for the Husband to have the children returned to him at the conclusion of the observations, as the changeover for the week-about arrangement was to occur the next day. However, earlier the Husband had indicated that the children should stay with the Wife after the observations, given the proximity of time to the scheduled changeover. The reason the Wife wanted Mr J to observe the changeover was because she was “confident they would say that they didn’t want to go back to him”. However, Mr J noted that because the children had only spent a few hours in the care of the Wife, that the changeover would be “out of context to the children’s normal routine” as they were settled in the home of the Husband, and therefore should not take place.
I am concerned with what Mr J has set out at paragraph 31 of his report:-
The main issue in this matter is whether the current shared care arrangement of alternate week care should be changed so that the children spend the majority of the time with one parent and alternate weekends with the other parent.
Mr J appears to approach the issue on the basis that equal shared care versus alternate weekend care are the only two options available to this Court and to his assessment. Quite plainly, this is not so. In fairness to Mr J, during the course of his cross-examination, he conceded that there are a whole range of possibilities for care arrangements along the care continuum that could appropriately deal with these issues.
In terms of the primary care issue, prior to the equal shared care arrangement which was imposed, Mr J was of the view that it was clear that the Wife had been a consistent primary caregiver figure in the children’s lives in the lead-up to separation. He acknowledged that she had received support for the children’s care from the paternal grandparents during the period when she returned to work.
Mr J described the parties’ personalities as being in contrast to each other, with the Husband being “a gentle and laid-back person”, contrasting with the Wife who he described as a “positive, confident and assertive person”. Mr J thought that the Husband had not been present in the household as often as the Wife, due to a range of work and social factors. He thought that there had been adjustment problems for each of the children, particularly Y, in coping with the alternate week arrangement, but said that there was the complicating factor of the Wife making it difficult for the children to adjust to the alternate weekend care she is “actively undermining their ability to adapt to being away from her”.
Ultimately, Mr J concluded as follows:-
While the children’s needs and stability are best met living primarily with their mother and spending alternate weekends with their father, the issues of changeover from their mother to their father and poor phone calls from the children to their father when with their mother needs to be addressed. It is hope that if the children are returned to her primary care, Ms H will not need to undermine the children’s relationship with their father in order to have them with her for the majority of the time. Y is suffering from anxiety from being exposed to firstly the conflict leading to the separation and secondly the emotional pressure she is receiving from her mother to dislike her father. While the conflict is now minimal and only flares up at changeovers, the emotional pressures on alternate weeks is ongoing and needs to stop to reduce Y’s anxiety.
Under the recommendations section, Mr J reported as follows:-
It is recommended that Y and X live with their mother and spend alternate weekends with their father.
It is recommended that the children spend half of school holidays and half of Special Days with their father.
It is recommended that Mr Burley undertake a Parenting Course to assist him care [sic] for the children when he is not living with his parents and has the children with him.
It is recommended that both parents attend a post separation parenting course so that they can be aware of the effect their conflict and disagreements have on the children if they are not working together as a parenting team.
It is recommended that Ms H obtain counselling to gain insight into how her behaviour in subtly denigrating Mr Burley to the children is detrimental to them forming a healthy relationship with their father.
The Full Court in Hall and Hall set out detailed comments upon the weight to be given to a family report. Commencing at p 78,819, the Full Court said as follows:-
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC ¶90-098 at p. 75,447; Harris and Harris (1977) FLC ¶90-276; (1977) 29 F.L.R. 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.I shall refer to other aspects of Mr J’s evidence throughout the course of these reasons. Although Mr J did ultimately recommend equal shared care, there was a significant shift in his evidence towards a more extensive shared care arrangement. His conclusion was drawn largely but not totally from his perception of the history of care, with the Wife as the more involved carer while the Husband had different responsibilities in the marriage. This has certainly factored into my assessment of this case, however I also have regard to the children’s wider history of care in the two years prior to separation, and the equal shared care regime which has endured for the (almost) 12 month period since separation. Whilst that arrangement got off to a rocky start, primarily due to the Wife failing to support the children in it, and at times actively undermining the arrangement, each of the parties agree that their relationships and co-operation are improving. The Wife, with the assistance of her counsellor Ms G, assures me that she regrets her behaviour and has developed insight into how her behaviour has detrimentally impacted the children’s stability and security when moving between their parents’ homes. Both parties agree that the children are now happier and more secure, and therefore there is some objective evidence that the Wife’s assurances are sincere. On that basis, the current arrangement adequately meets the children’s needs and the arrangement will likely improve with the conclusion of litigation as each of the parties and the children settle into the living arrangements which will endure into the long-term. Although I myself may not have made the same decision for the children’s care in February 2018, that does not mean that it does not meet the children’s needs, both now and in the future, as it provides them with the optimal opportunity to have each of their parents involved in their lives in the fullest sense. Further, although the Wife has made great personal improvements, she continues to elevate her position as mother in a way which has the potential to detract from the position of the Husband. The equal shared care arrangement will provide the best protection for the children’s right to have a meaningful and proper relationship with the Husband. The equal shared care arrangement is practical and involves fewer changeovers for the children. Accordingly, whilst I regard Mr J’s opinion as compelling, having heard all of the evidence I am of the view that the current arrangement will be in the best interests of the children for the future.
Parental responsibility
There is no dispute between the parties that they should have equal shared parental responsibility for the children. To that extent, the alleged family violence between the parties does not rebut an agreed position that the parties ought to have equal shared parental responsibility for the children’s care. This is a sensible concession by each of the parties, and I concur, that whatever has occurred between them in terms of alleged family violence matters, such circumstances should not deprive the children of having their parents equally involved in major decisions for their care in the future.
This issue has caused immediate difficulties, as Y is due to start school very shortly and the parties cannot agree on whether she should go to Town A Primary School or O Primary School in Town E. However, I regard the schooling dispute as being largely based on the dispute between the parties as to where children should live and how the children should spend their time, rather than any fundamental inability for them to make joint decisions for the children’s care.
A further example of the parties’ dissension was the issue of the children’s kindergarten. There was a bizarre circumstances in this case regarding Y attending two different kindergartens concurrently, and I have expressed my concern as to how that came about, and how such a circumstance was quite obviously not child focussed. This has significantly impacted on Y, and may impact further on her transition to primary school. Annexed to the Wife’s affidavit of 8 October 2018 at annexure G10 is a letter from the ‘Kindergarten Centre’, which is the kindergarten that Y attends near the Wife’s home. The key parts of the letter recite as follows:-
Y has attend [sic] care with us from the 2nd April 2018, 2 days a fortnight in our kinder program.
Y presents each day on [sic] neat clean attire, a very happy young girl, she is always holding her mother’s hand, some mornings harder to separate from her mother Ms Gooding, clinging to her and asking for more cuddles and kisses. This is also hard due to attending care fortnightly not weekly as other children…
In discussions with Counsel for the Husband during closing submissions, I stated that I found this entire circumstance with Y attending at a different kindergarten each week extraordinary. Counsel for the Husband agreed with that sentiment and noted that the Wife’s reason for doing so was that Y had told her she did not like the other children at the Town A kindergarten. Counsel for the Husband submitted that this last line above, with regard to Y struggling in attending fortnightly, was amplified by the equivalent letter from the Town A kindergarten, annexed to the Husband’s affidavit filed on 1 October 2018 at annexure B1. It records:-
Y has developed a lot of confidence over the last few months. She is becoming more active and inquisitive in her play especially outside. She is showing strong indicators that she will be ready for school in 2019. The transition process to school for Y will need to allow her to become familiar, comfortable and feel safe at school. Going to school with her friends will help with this process.
Importantly, it goes on:-
Y has many friends at kindergarten as is well accepted. Although this needs to be rebuilt each time she comes to kinder as she misses a week and the friendship focus shifts whilst she is away.
Y is curious, inquisitive and loves to learn.
I feel that after she has settled in at school, Y will thrive.
Counsel for the Husband submitted that both kindergartens agree that this arrangement is having an impact on Y, and that there is no controversy that this was a result of a unilateral decision by the Wife that has been consistently protested by the Husband. I accept that this is the case. This situation exhibits a lack of insight upon the part of the Wife with little regard for the impact such an arrangement would have on Y. Counsel for the Husband rightly put it that the Wife appears to do things with the perception that they might assist her case in some way, with little or no regard for the long term effects of those actions.
Nevertheless, the parties’ decision to share parental responsibility for the children is optimistic and bodes well for the future. Furthermore, absent the litigation and the parties’ respective positions for care arrangements which will be determined by these proceedings, I would hope that the parties can extend the focus to what is actually in the best interests of children. I say this with some caution given the history of conflict in this matter, but nevertheless I am satisfied that such a position is appropriate and in the best interests of the children.
The parties’ mutual and consensual decision by the parties engages section 65DAA of the Family Law Act 1975 (“the Act”). This section provides that where an order for shared parental responsibility for children is made, the Court must consider orders for equal or substantial time if they are reasonable practicable and in the best interests of the children.
This position has particular resonance in this case. The Husband will live in Town A and the Wife will live in Town E. The drive-time between Town A and Town E is around 30 minutes’ country driving, and in that sense of geographic proximity, it is reasonably practical for the parties to have equal shared care.
Further, in terms of each of the parties’ availability to the children, although the Husband is employed on a full-time basis, I am satisfied that with the assistance of the paternal grandparents and with an adjustment to his working hours which he says he can do, I accept that the Husband, in practical terms, would be able to care for the children outside of school and kindergarten hours. I am satisfied that the Wife is also well able to make herself available to the children, as she has done in the past and has the demonstrated capacity to do so. The Wife says and I accept that at least for the 2019 year she will not be employed outside of the home, and therefore will be available to assist the children in that sense.
The Wife raises questions surrounding the Husband’s practical availability to attend such things as paediatric appointments for the children, particularly Y. She says that this has the potential to become an issue due to the paediatric report, which was annexed to the Wife’s affidavit of 8 October 2018 at annexure G11. In my view, this submission is nothing more than corroborative of the Wife’s elevation of her role in the children’s lives. Whilst I accept that it has been the Wife who has taken the children to the doctor during the parties’ marriage, there is nothing to suggest that the Husband could not adjust his personal or work commitments in order to do that as well. I would not regard it as appropriate that the Husband use the paternal grandparents as nominees to conduct and convey children to anything but the most mundane and matter-of-fact fact medical appointments. Ideally, it should be the parents who undertake that role.
The parties’ practical availability also impacts on the selection of school for the children. The parties would have me try and assess the various academic attributes of each school, however on the basis that they are state schools I am satisfied that either school will provide the children with an appropriate education for their primary school years.
I will return to the issue of whether or not there should be equal shared care and/or or substantial care as defined in section 65DAA of the Act later in these reasons.
The Law
In these proceedings, the best interests of Y and X is the paramount consideration. In determining what is in Y and X’s best interests, there are two primary considerations and numerous additional considerations which are to be considered.
The primary considerations are set out in section 60CC(2) of the Act. Accordingly, I must consider the benefit to the children in having a meaningful relationship with both of their parents.
The parties concur that Y and X should have a meaningful relationship with both of their parents. The real dispute is the question as to how the time should be formulated, in order to achieve a result which is in the best interests of the children going forward. On either party’s proposal, I am of the view that a meaningful relationship will endure between the children and their parents, and all of the other significant people in their young lives.
Pursuant to section 60CC(2) of the Act, I am also to have regard to the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I am to give greater weight to this second consideration, to have a meaningful relationship with both of their parents.
I shall deal with family violence in a moment as there are specific incidents of family violence that require consideration. However, on any view, neither party puts the case on the basis that family violence issues should preclude time between the children and the other parent. The real issue in this case is whether family violence has occurred, and if it has occurred, if and how the parties should be protected from that.
Prior to separation
The Wife alleges that there was a conflictual incident at the time of separation. She describes a situation where in the last two years of the marriage, the parties’ relationship had been deteriorating and verbal abuse was exchanged on a regular basis. She said that this put her in fear that the Husband would physically hurt her.
On 1 October 2017, the Wife said that she woke up to the Husband “inserting his fingers into my vagina”. She said that the parties had been separated under the one roof for a period of around 12 months, with the Husband sleeping in a separate room. The parties were in dispute about the sleeping arrangements, with the Wife asserting that he had entered her room and sexually assaulted her, stating words the effect of “I am your husband I have needs too”. Following this alleged incident, the Wife spent some time at the maternal grandmother’s house. The Husband said that he could not recall this incident happening at all and said it was a “complete fabrication” and that the Wife was “most certainly lying”, but said that at the time he and the Wife were sleeping in the same bed, but that there had been no sexual relationship since the Wife’s return from Country P in … 2018 in the context of their marital relationship.
This allegation of the Wife is significant and serious. Because of the operation of section 140 of the Evidence Act, I must take into consideration the seriousness of the allegation when considering whether, on the balance of probabilities, it has occurred. I take into account that the Wife left the home at that time to attend at her own mother’s residence, which suggests to me that at the very least the Wife found something unpleasant in the parties’ interactions of the previous days. This however does not amount to a finding that the Husband has digitally penetrated the Wife while she was asleep and without her consent. The Wife did not report this allegation to the police, and although I accept that such a circumstance may not be unusual within the context of a marriage which is breaking down, there does not seem to me to be any other corroborative evidence, which could lead me to a positive finding that it occurred.
I also must have regard to the fact that the Wife in these proceedings is prone to exaggeration when recounting events. This makes her evidence, in my view, unreliable with respect to this incident. The Wife, in an endeavour to protect her children and with the strong maternal instincts, has been prone to hyperbole in order to justify her position at final hearing. I take into account my assessment of the Husband as a relatively truthful witness, and in this regard I accept his evidence that he could not recall any of event of this nature. I also regard it as inherently improbable that he would not recall an event such as this if it occurred in the way the Wife described. Accordingly, I decline a finding of serious sexual assault perpetrated by the Husband towards the Wife.
The Wife alleges that on … 2017, when she was preparing for X’s birthday party, the parties engaged in a verbal argument about separating. The Wife said that she was “fearful he would punch me so I went outside”. It is common ground that the Husband had not ever physically assaulted the Wife at that point, save for the previous allegation of sexual assault. The Wife said that the Husband was very angry and “continued to yell at me, red faced and threw his phone at me, which just missed hitting me”. She said that he said that he then “sped off in his car aggressively”. The Wife said she felt fearful. She said she “felt very scared and locked the front door, but knowing Mr Burley had keys I put a chair in front of the door and in front of the bedroom door so he couldn’t get in”. Under cross-examination, the Husband agreed that the parties had an argument and that he had been upset, but that this was because he had become more suspicious about the Wife’s affair. He denies throwing the phone at the Wife, yelling at her close to her face or calling her a “slut” or a “cunt” as put to him by Counsel for the Wife. The Husband agreed that he left the house but that he returned a couple of hours later, and that there had been no occasion where he stayed outside of the home. He said that the parties apologised to the other about the incident.
I accept that this incident occurred and that it was ugly and unpleasant. There are further incidents of verbal violence between the parties, including a denied incident where the Wife alleges that the Husband said to X, who would not go to sleep, “You’re going to sleep or I’m going to tie you to the bed”.
The Wife further alleges that the children at that time, particularly Y, said they felt “scared” of the Husband.
The Wife alleges that on 16 January 2018 she and the children were having a shower and the Husband deliberately turned on a cold tap in the kitchen, which changed the shower to only hot water which scolded she and the children. There is nothing in this incident to suggest that the Husband deliberately did that, save for the Wife’s own speculation.
The Husband alleges that on 23 January 2018, the Wife said words to the effect of “if we go through the courts it would [get] ugly and expensive and cause damage to the children”, and she concedes this at paragraph 75 of her 8 October 2018 affidavit. The Wife asserts that she did not mean it as a threat. The Wife said that later that evening, she was sitting outside the house when the Husband came outside and started to talk to her. She said that she did not want to get into another argument, so she went inside she walked into the bedroom to try to shut the door. She said the Husband stood in the doorway blocking the door, and as a result she felt scared and trapped. She tried to move past him to get out of the bedroom, but he pushed her right shin into the doorway, bruising her leg. The Wife said that the Husband said words the effect of “You’ve brought this on yourself, you’ve done this, and you’ve done this to the kids”. Annexed to the Wife’s affidavit at G6 are two photos of the Wife which allegedly show bruising. However, it is very difficult for me to see any bruising in the photographs, even when they have been annexed in colour to the affidavit. There is no allegation that the Husband has ever hit or struck the Wife in anger.
The Wife also alleges that she was the victim of an assault at the Hotel in the early morning of 7 April 2018. The Wife said that she had attended to collect some friends after a party that she had been invited to but had not attended for fear of seeing the Husband. The Wife says at paragraph 83 of her affidavit:-
When I went upstairs to find my friends. [sic] After being there for about 20 minutes, I went into the bathroom. Two women, Ms Gooding and Ms K, who I used to be friends with when I was in a relationship with Mr Burley, followed me into the bathroom. Ms Gooding said “Mr Burley has told us everything, you fucking slut.” Ms K then pushed me up against the wall and restrained me whilst Mr Burley repeatedly hit me in the stomach and face. Mr Burley then said “You have got more coming your way.”
The Wife annexes photos of these injuries to her affidavit. She says she made a complaint to the police and went to hospital. The Wife said she made applications against both women and the Husband for Intervention Orders, but has withdrawn all three applications. The Husband says that he has no knowledge of this incident.
The Husband also alleges that the Wife has been abusive towards him. At paragraph 30 of his affidavit filed on 17 July 2018, the Husband asserts that on 23 January 2018, the Wife applied for a Family Violence Safety Notice “in an effort to secure an advantage” in relation to the parenting proceedings. He said that she threatened him with statements such as “We are going to go through all the courts, it’s going to cost you 20 grand it’s going to get really nasty and ugly”. He alleges that she said “I am going to fight you like there’s no tomorrow”, that it was going to be a “big ugly bill” for him at the conclusion of the proceedings, and that “it’s going to damage our relationship it’s going to damage the kids”.
Further, at paragraph 9 of his affidavit filed on 1 October 2018, the Husband says:-
9. I maintain that what I have experienced at the hands of the Respondent since separation amounts to domestic violence. This includes:-
(a) The ex-parte removal of me from the home based on lies.
(b) False allegations made in Intervention Order Applications.
(c) False allegations of sexual offences made to the Police leading me to be subjected to a Police interview.
(d) Financial abuse including:-
(i) Leaving me completely without funds at separation;
(ii) Spending the proceeds of the sale of the Queensland property in beach of an agreement reached at Court;
(iii) Failing to make any contribution at all to the mortgage in Town A.
(e) Making false and hurtful allegations against my mother and other family members.
(f) Trying to get the children to reject me.
(f) Lying about her extra marital affair and falsely accusing me of having an affair.
To some extent, that is borne out by the Wife’s behaviour and reactions which occurred as recently as December 2018 when she vacated the Town A property.
There was very little cross-examination regarding these additional matters. The case proceeded on Circuit and both Counsel upheld a sensible and proper degree of proportionality and expedition to the proceedings. Having regard to the parties’ respective proposals, it is obvious that neither party alleges that family violence issues are so serious that the children’s relationship with the other should be significantly curtailed. In the Wife’s case, her proposal that the children’s time with the Husband should reduce is based largely on her assessment of the children’s capacity to move smoothly between their two homes, a perception that the Husband’s caregiving capacities are lacking and he is reliant on his parents, and her assertion that she has been the children’s primary carer. In the Husband’s case, his application for shared care and/or equal shared care is based on his desire for the children to have each of their parents involved in their lives to the maximum and optimum extent. As a result of his concerns that the Wife undermines his relationship with the children (which has some objective support) he said that his continuing role in their lives is particularly important.
In terms of family violence issues, I am satisfied that there has been mutual unpleasantness between the parties arising out of their marital breakdown which has impacted on each of them. The after effects of that family violence is ongoing but has started to abate. The Wife perceives herself as a victim and has acted emotionally and as though she is under siege. Her highly emotional and volatile response has impacted on her insight as to the needs of the children and their ongoing relationship with the Husband and others. However, I do accept that she holds these subjective views and I have factored that into my assessment of the children moving forward.
I also consider that the Husband has been subjected to controlling behaviour by the Wife and low level verbal abuse and unpleasantness. He has been less reactive and emotional to those events than the Wife and his focus on the ongoing care for the children has been maintained.
I am satisfied that there has been some heated discussions and pushing and shoving between the Husband and the Wife, which is a direct result of the unpleasantness of the breakdown of the marriage. I also accept that the Wife has experienced this behaviour in a way which causes her to feel fearful and anxious of the Husband.
I am not satisfied that this behaviour impacts on the outcome of the proceedings in any significant way, and certainly not to the extent of an assessment as to whether the time should be reduced to each alternate weekend, as opposed to either equal shared care or something else along the spend-time continuum.
The additional factors pursuant to section 60CC(3) of the Act
The Act sets out the further matters to take into account pursuant to section 60CC(3). These factors also provide guidance when considering the best interests of Y and X, including when assessing the primary considerations.
Any views expressed by the children and any factors (such as the children's maturity or levels of understanding) that the Court thinks are relevant to the weight it should give to the children's views
For the purpose of these proceedings, although there has been various statements made by the Wife as to the children’s views being resistant to spending substantial and significant time with the Husband, I can give little weight to these views. Putting aside issues as to whether or not the children are of an age where their views should be considered relevant, on any assessment, the way that the children have reacted to the Husband must be taken into account in circumstances where the Wife has actively undermined the children’s relationship with the Husband. I shall address this further when I assess the nature of the children’s relationship with the Husband, and also the attitudes presented by each of the parties to the responsibilities of parenthood as set out in sections 60CC(3)(b) and 60CC(3)(i) respectively.
The children did not express any view to Mr J, which is appropriate.
Having regard to the children’s ages, their views cannot be and should not be considered relevant. Even if they were expressed as positive towards the Husband, I would place very little weight on them in the assessment of what is in Y and X’s best interest.
The nature of the relationship of the children with each of their parents and other persons (including any grandparent or other relative of the children) and the attitudes to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents
I take into account the nature of the children’s relationships with each of their parents and any other persons, including grandparents and extended relatives of the children on both the maternal and paternal sides. In conjunction with this, I propose to jointly consider the attitudes of the parents to the children and to the responsibility of parenthood that have been demonstrated by each of the parties, as it seems to me that in this particular case those two factors involve a similar assessment.
At first instance, I note that the situational family violence and unpleasantness which occurred leading up to the end of the marriage does neither party any credit. For the Husband’s part, I have found and accept that there were incidents during which he was verbally abusive towards the Wife in a way that was inappropriate. I am also of the view however that the Wife has reacted disproportionately to a number of those incidents, in a way which has facilitated a sense of self-righteousness and elevation on her part with respect to her position in the lives of the children.
It is suggested by the Wife that the Husband had little involvement in the children’s lives during the marriage, and to that extent, she has been the primary carer for the children. Much reliance has been placed on this particular factor by the Wife. For instance, she said that the Husband preferred to spend time socialising at the local Sports Club than spend time with the family, and that the preponderance of responsibilities for the children therefore fell to her.
The Wife points to the fact that it was she who took 137 days off work when she returned to work in the last two years leading up to separation, and that such absences related primarily to responsibilities and duties concerning the children for which she received little assistance from the Husband.
A division of duties within a marriage is difficult to assess ex post facto, particularly when each of the parties will no doubt endeavour to cast their position in a better light during the proceedings. I do find that the Wife’s involvement with the children pre-separation has likely rendered her the parent who assumed most of the responsibility for the care of the children, particularly when engaged in full-time home duties following a period of maternity leave, and also in terms of the level of responsibility later, even with the assistance of the paternal grandparents, when the Husband was absent from home. I accept that the Husband pursued his own endeavours, but that the Wife, in the context of an intact marriage, also attended various social occasions with him, including at the Sports Club, I also note the concession made by the Husband to Mr J, and on that basis I accept that the Wife had a more intimate and hands-on role with the children prior to separation, but note that each of the parties were involved with the children and their lives.
The Wife was cross-examined surrounding her travelling to Country P to have some surgery and whether it was the Husband or the paternal grandmother who fulfilled the role of carer for the children during that period of time. Whatever happened during that period, it is obvious that the Wife was sufficiently satisfied with the Husband’s ability to care for the children, albeit with the assistance of his parents, to obtain and meet her medical needs at that time.
As a result of the caregiving arrangements for the children throughout 2018, and also the observations I have read in Mr J’s report, I am satisfied that the children have a close and loving relationship with each of the parents. This is appropriate, and to some extent is also unremarkable, save for the conflict that arises with these two children at changeover. Mr J makes those observations, and although he observes the children’s interactions with their parents in their respective homes as being qualitatively different, there is nothing to suggest any adverse outcomes for the children as a result.
I also accept that the parents have very different parenting styles. The Husband is more laissez faire with respect to his caregiving for the children, whereas the Wife seems more hands-on in engaging the children in crafts and other activities. I am unable to say that one approach is superior to the other. The real relevance is that the children will be required to negotiate the parents’ respective personality and parenting styles.
To the extent that either of the children, and in particular Y, have expressed any reluctance to spend time with the Husband and any upset at changeover, I accept the Husband’s evidence that within a relatively short space of time the children settle into his care. This circumstance must be viewed in light of the Wife’s behaviour in “actively undermining” the Husband’s relationship with the children. Nowhere is this better demonstrated than by the annexure to the Husband’s affidavit filed on 17 July 2018, which forms a transcript of a changeover between the parties. This transcript was provided by the Wife’s solicitor to the solicitor for the Husband. The transcript was taken from a recording which the Wife took in in her motor vehicle leading up to changeover. Subsequently, the Wife then forwarded the audio recording to be transcribed by somebody in her solicitor’s office. I imagine that that process took a number of days, and on the Wife’s instructions, the transcript was then forwarded to the solicitors for the Husband. The transcript was forwarded in an endeavour to support the Wife’s position that the children were not coping with separating from the Wife at the commencement of time with the Husband. Although it is lengthy, I propose to set out the transcript of that material in total:-
Ms Gooding: Um she keeps asking about why she needs to go and she doesn’t want to go. Y why don’t you want to go and see your Daddy?
Y: Because I’m too scared.
Ms Gooding: You’re scared? Why are you scared? Does Daddy hurt you?
Y: He hurt me.
Ms Gooding: How has Daddy hurt you?
Y: With, with, with, with my leg.
Ms Gooding: Have you asked Daddy that you don’t want to go? Do you talk to daddy about it?
Y: yeah but he keeps saying no.
Ms Gooding: Sweetheart it’s okay.
…
Ms Gooding; The 20th, taking the children to Mr Burley’s.
*child crying*
X: No.
*child crying*
Ms Gooding: sweetheart I would love you take you home but.
Y: I don’t want to go. Noo *crying hysterically*
Ms Gooding: I’m sorry but.. Y, I want to talk you home.
Y: *crying* I don’t want to go.
Ms Gooding: Sweetheart I want to take you…
Y: *crying* I don’t want to go.
Ms Gooding: I know darling
Y: I want to go home *inaudible due to crying*
Ms Gooding: I know sweetheart and I want you too.
*child crying hysterically*
Ms Gooding: Sweetheart I want to take you home but I can’t because Daddy, daddy’s…
Y: Can you get me out.
Ms Gooding: Sweetheart don’t’ try and open the door, please.
Y: I’m not opening the door I just don’t want to go.
Ms Gooding: I know and I want you home.
*child crying*
Ms Gooding: Aw sweetheart.
Y: I wanna walk home.
Ms Gooding: You can’t walk home honey.
Y: Can daddy please take me, take me to you.
Ms Gooding: Oh honey I want you with me but daddy wont let you.
Y: I want to ask him.
Ms Gooding: I love you. I love you very much and I don’t like seeing you upset.
*child crying*
Ms Gooding: Y. Y, I’m so sorry.
*child crying*
Ms Gooding: Y. Y. I love you both. I’m so sorry this is happening to you.
Y: please. Please. Take me home.
Ms Gooding: Sweetheart, sweetheart, I would.
Y: we cant go to Daddy’s on dinosaur world.
Ms Gooding: Sweetheart I would take you home but Daddy wont let me.
*child crying*
Ms Gooding: I’m so sorry. I’m so sorry kids.
Y: Don’t make me.
Ms Gooding: I’m so sorry. I’m going to need your help. They’re screaming and crying. They’re screaming and cry and it’s awful.
Mr Burley: Ah they’ll be alright once they get there.
*child crying*
Mr Burley: What’s going on?
Y: I want Mumma.
Mr Burley: What’s wrong?
Y: Just please take me to Mummy.
Mr Burley: What’s wrong?
Y: I want you to take me to mummy.
Ms Gooding: She doesn’t’ want to go.
Mr Burley: It’s alright sweetie.
Ms Gooding: She wants to stop this.
Y: Take me to mummy.
Mr Burley: It’s okay. It’s okay. We’re going to a party. We’re going to have good time.
*child crying hysterically*
Y: Take me to mummy!
Mr Burley: It’s okay, come on.
Ms Gooding: I’ve got to hug her. I’ve got to hug her.
Y: Can you please take me home?
Ms Gooding: jus give me a cuddle. Just give me.. I want to take you home but I cant.
Y: I want to go home.
Ms Gooding: Do you want a dinosaur? Do you want your dinosaur?
Y: no, no, no, I want to go home.
*both children crying*
Ms Gooding: it’s your week with daddy sweetie.
Y: I want to go home.
Ms Gooding: I know. *inaudible*
Y: *inaudible* monsters.
Ms Gooding: yeah I know. I’ll give her a cuddle.
Mr Burley: Come on. We’re going to have a good time.
[sic]
The Wife’s behaviour, not only in recording the children but what she actually said to the children, is appalling. It shows scant regard to the emotional and psychological welfare of the children, particularly the welfare of Y. The only thing that might be said that is positive about the Wife’s behaviour is that it was done in her subjective belief that the children should be spending greater time in her care. The Wife has deliberately suggested to the children that the Husband is to be feared, that they should be distraught about spending time with him and that she is allied with the children in a joint desire for them that they not have to go with the Husband. Not only does this impact on my assessment of the children’s relationship with the Husband, such that I discount any problems with changeover as being directly referable to their relationship with him, it also exhibits a lack of insight on the part of the Wife as to the children’s needs.
The Wife told me that she has realised the error in her ways. Although she said that, I have real misgivings about her level of insight and whether she is truly remorseful about her behaviour. It is important that she continues to deal with this issue with her counsellor as to how it was that she put the children in such a position. I am of the view that the Wife’s repentance is more to do with her ultimate realisation that what occurred leading up to the changeover has not at all assisted her case and has had a positively detrimental effect on the assessment of her capacities as a parent and her attitude to the responsibilities of parenthood. It casts a pall over any suggestion by her that the children’s relationship with the Husband is impaired by anything but her own complicity in causing the children emotional distress. Not only should the Wife not record the children again, more significantly, she should never engage in this sort of behaviour with the children, regardless of whether she is unhappy with Court-imposed living arrangements. I find it difficult to understand how and otherwise loving and caring mother could possibly deal with her children in this way. My assessment in this regard impacts on my assessment of the Wife in the sense of whether she will be able to promote a relationship with the children and the Husband, which is child-focused and does not put her needs before the needs of the Husband. In my assessment, the Wife continues to have deficits in this regard, and even if she does indicate that she has realised that her behaviour was not warranted on that day, she has continued to date to be to resistant to fulsome time taking place between the Husband and the children.
For instance, the Wife’s application, in the circumstances of the history of care and the children’s extensive involvement with both the Husband and the paternal grandparents, would seem to be unduly restrictive and niggardly. I am concerned is reflective of a deep-seated desire on the part of the Wife to restrict the Husband and the time he spends with the children. The Wife’s application for each alternate weekend and a dinner in the alternate week, regardless of whether the weekend time continues into Monday morning, will be insufficient to safeguard the children against the Wife’s gatekeeping practices. The Wife’s application has the potential to undermine the children’s relationship with the Husband. The Husband’s relationship with the children will be safeguarded by the children spending substantial and significant time with him, and there does not seem to be any reason why that should not occur. I am well satisfied that the children, having regard to the nature of the relationships and the history of care, could easily spend extensive time with the Husband, and that their existing relationships are sufficient to ensure that this sort of arrangement could be in their best interests from a developmental perspective.
Accordingly, I assess this case on the basis that during school terms the children’s relationship with the Husband is sufficient to support primary care to him with five nights a fortnight the Wife, equal shared care and/or primary care to the Wife and five nights a fortnight with the Husband. In that sense, the case then becomes an issue of what, out of those proposals, is in the children’s best interests.
I am not satisfied that the Wife’s proposal is in the children’s best interests in the circumstances of this case. Having regard to the nature of the children’s relationships, I am not satisfied that the circumstances justify a decrease from equal shared care to two or three nights per fortnight. Such a proposal would limit the children’s face-to-face relationship not only with the Husband but also with the paternal grandparents, who have been involved in their care in such a regular way both prior to and subsequent to separation.
There is evidence that there has been improvement in the nature of the parents’ relationship at changeover, which can only impact positively on the children. However, I am of the view that there is still some room for improvement. I am satisfied that the Husband harbours an appropriate respect for the Wife, notwithstanding his obvious struggle in dealing with the breakdown of the relationship.
A further matter which impacts on my assessment of the Wife’s parental gatekeeping practices is the Wife’s proposal with respect to, for instance, Christmas time. It may seem like a small issue, but it is the Wife’s proposal is that she alone should have the wake-up with the children on every Christmas Day. In my opinion, this demonstrates the Wife’s tendency to elevate her role in the children’s lives to primacy, while at the same time marginalising and diminishing the Husband’s role consequent upon that attitude. These orders and issues are less important in the general scheme of things, however they have a flavour which is unfortunate. There is a potency to the orders that the Wife seeks, which tends to suggest a sense of propriety surrounding the children, and a further sense that it is she who allows the children to spend time with the Husband. That is not how their relationship with the Husband should be perceived, and in any arrangement there should be an endeavour to reach a joint and cooperative parenting stance.
The extent to which each of the children's parents have taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children, and to communicate with the children
In considering whether the parents’ participation in the children’s lives as set out in section 60CC(3)(c) of the Act is concerned, I am well satisfied that neither parent can be criticised in this regard. Each of them seek a fulsome relationship with the children to the maximum extent that is available to them, and that will be in the children’s interests. There is no question that no matter what the result is in this case, each of the parents will continue to be involved in the lives of the children appropriately.
The extent to which each of the children's parents have fulfilled, or failed to fulfil, the parent's obligations to maintain the children
In considering financial aspects in relation to the children, I am well satisfied that each of the parents have fulfilled their obligations to maintain these children and will continue to do so in the future. There was a criticism of the Husband that he stopped providing financial support for the Wife fairly shortly after separation, however the Husband continued to pay the mortgage over the former matrimonial home in which the children and the Wife were living. I am not satisfied that the Husband can be criticised in his financial support of the children, and certainly there can be no criticism of the Wife in terms of her support. It must be remembered that these children have been in an equal shared care arrangement since February 2018, and therefore the financial burden of the children is likely to have been similar, although perhaps not equal, in the sense that the Wife may have taken the children to more of the medical appointments and the like.
The likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of the parents or any other child, or other person (including any grandparent or other relative of the child), with whom they have been living
In terms of the other expenditure set out, it is quite clear that a further $13,000 was agreed to pay out MasterCard, a Electric account and the Wife’s car loan, which were all joint marital expenses and should not be attributable solely to the Wife. Accordingly, it appears that aside from the remaining proceeds of sale of $18,000, the Wife’s additional expenditure on day-to-day living expenses approximated around $15,000 to $18,000.
The Wife was cross-examined on her financial statement to establish that she had sufficient income at the time she no longer had access to the Husband’s accounts in around January 2018 to cover day-to-day living expenses, particularly in light of the fact that the Husband continued to pay the mortgage on the Town A property. Although there is some force in that submission, I accept that the Wife had some additional expenses that seem to be reasonable, and in any event these monies are no longer available for the Wife’s use. On balance, I do not regard it as reasonable to “add back” any money to the Wife’s side of the ledger, save and except that the $18,000 in the trust account of the Wife’s solicitor shall be taken into account as existing property available to be divided between the parties.
In AJO & GRO [2005] FamCA 195, the Full Court of the Family Court referred to three clear categories where it might be appropriate, in the exercise of discretion, to add back property which is no longer in existence when calculating assets available to be divided. Those circumstances are where there has been a pre-distribution of matrimonial assets, where the parties have expended monies on legal fees or where a party has embarked on a course of conduct that has negligently or recklessly diminished or wasted assets.
The question of addbacks was considered by Justice Murphy in Kouper & Kouper(No.3) [2009] FamCA 1080:-
97. The Full Court in AJO & GRO (2005) FLC 93-218 noted that circumstances in which it is appropriate to notionally add-back to the pool of assets, fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and in the circumstances outlined in Kowaliw referred to above.
98. That Full Court rejected the notion that “the mere fact that a party has expended money realised from the disposition of assets that existed as at the date of separation, will result in that expenditure being added back…” as being unduly simplistic (at para 39).
99. That add-backs are exceptional has also been emphasised in the Full Court in C v C ([1998] FamCA 143) where, (at para 46) the Full court held:
Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool, ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives.
Further, at paragraph 108, Justice Murphy said:-
108. Whilst, clearly enough, the authorities make it plain that the manner in which any dissipation of funds should be dealt with is a matter for the trial judge’s discretion, and accepting that the discretion ought not, of course, be fettered, it nevertheless seems to me that (leaving aside the issue of paid legal fees) the authorities indicate that the issue can, conveniently, be approached by reference to five questions:
(a) Is it contended that property (including money), that would otherwise be available for distribution between the parties if a s 79 order is made, has been dissipated with a consequential loss to the property otherwise potentially divisible between the parties at the date of trial?;
(b) If so, is it alleged that the dissipation of property was in respect of things other than what, in the particular circumstances of this particular marriage, can be classified as “reasonable living expenses”?;
(c) If it is asserted that any loss to the divisible property results from dissipation of property other than in respect of such expenses, why is it asserted that the result should be a sharing of that loss by the parties other than equally?
(d) If it is contended that this be the result, why should there be an add back (which brings to account, dollar for dollar, such past expenditure in current dollars) as distinct, for example, from there being an adjustment being made pursuant to s75(2)(o)?; and
(e) How should either any “add back”, or adjustment pursuant to s75(2)(o), be quantified?
The Husband contended that there should be a quantified “add back” or consideration of the monies retained by the Wife from the proceeds of sale of the Queensland property.
In Grier & Malphas [2016] FamCAFC 84, Justices Murphy and Kent noted the importance to take into consideration, where there is significant disparity in the use of sums post-separation, such the use of funds in determining the exercise of the discretion, stating from paragraph 128:-
128. Each of the parties used funds available to them in the approximately four years between separation and trial. Included in purposes for which the sums were used were the reasonable living expenses of each. So-called “addbacks” are the “exception and not the rule”. Further, although always of course a matter of discretion it can be said that, in the usual course of events, amounts spent on reasonable living expenses would not often be added back.
129. As the Chief Justice points out, with those principles in mind, the trial judge adopted a broad-brush approach to the parties’ respective expenditure. No error is established by reason alone of that approach; authority eschews “overly pernickety analysis” and s 79 demands neither an audit nor an exercise in accounting. However, when significant sums of money are said by one party or the other to have been “wasted” or to amount to a unilateral “premature distribution of property” and the evidence is suggestive of either or both, an analysis of the relevant sums and their use is needed.
…
131. … the evidence discloses a very significant disparity in the sums expended by the parties and that her Honour did not address that disparity or examine the purposes for which the money was used. We repeat that this is a matter of discretion and could have been done either by “adding back” or, as has been suggested as often preferable by decisions of the Full Court, by reference to s75(2)(o).
I have looked through the expenses said to be incurred by the Wife. While a number of them are certainly discretionary, for instance the puppy (although contended by the Wife that she required the puppy for “security” after the Husband took the family dog), overall the expenditure is not outlandish or aberrant as to put it outside the category of “reasonable living expenses”. Further, I do accept that following the breakdown of the marriage, there is an adjustment period financially, where the parties need to work out how to live as a single parent.
Although I do not condone the Wife’s behaviour vis-à-vis the undertaking, I am not satisfied that the Wife expended the money wantonly and recklessly. However, I am satisfied that she retained those monies to the exclusion of the Husband. Nevertheless, I am also satisfied that such money has been spent on justifiable day-to-day living expenses, and so I decline in the circumstances to either add the money back or take into account is a matter pursuant to section 75(2)(o) of the Act.
Initial Contributions
There is a dispute between the parties as to the commencement of cohabitation. The Wife alleges that cohabitation commenced in August 2009, and the Husband suggests that cohabitation commenced in … 2008. The Wife produced a diary entry which is suggestive and corroborative of a commencement date of cohabitation of 2009. On balance, I am of the view that it is probable that the Wife is correct in her assertion of the commencement date of the relationship.
This becomes relevant because on the Wife’s case, she owned the Queensland property at the commencement of cohabitation with about $15,000 equity in the property. She also held the Town E property with equity at around $15,000. The Wife says that she had various chattels and held $26,000 in superannuation interests. The Wife’s superannuation entitlements at the commencement of cohabitation agreed between the parties. The Wife also alleges that she had $40,000 in savings at the commencement of cohabitation, and used this to make significant improvements to the Town A property.
The Husband held equity in the Town A property, with the Wife alleging he had equity of $25,000 and the husband suggesting an equity of around $70,000. He said he had furniture and chattels and received cash payments from his parents to assist in renovations and the installation of a swimming pool. He also says that he had $10,000 in savings.
Ultimately, where the parties differ on estimates, it is impossible to discern with any clarity what their initial financial contributions actually were. Safe to say, I am satisfied that each of the parties had some modest equity in the properties the commencement of cohabitation which they contributed to the matrimonial asset pool at commencement. In the scheme of things, these issues have practically no impact on the assessment of this case, as their initial financial contributions would appear in the broadest sense to roughly cancel each other out. Absent any particular evidence as to the extent of initial financial contributions of non-superannuation assets, that is the best I can do on the evidence.
The Wife’s superior financial contribution at the commencement of cohabitation is that of her superannuation. This will be weighed in my assessment of the ultimate adjustment in this case.
Contributions during the marriage
Section 79(4) of the Act requires consideration of the contributions of the parties. The relevant parts of section 79(4) of the Act are as follows:-
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and…
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;
…
Each of the parties are hard-working, and during the marriage their efforts were largely directed towards the conservation and improvement of matrimonial assets and resources. Prior to the birth of the children each of the parties were employed, and the Wife’s taxable income was higher than that of the Husband. The Wife took maternity leave following the birth of the children and returned to full-time employment two years prior to the breakdown of the marriage, whilst the Husband’s parents assisted with childcare. The Husband worked full-time throughout the course of the marriage.
In my view, the direct contributions of the parties during the marriage, both financial and non-financial, should be assessed as being relatively equal. They each directed their efforts in different areas, however I am satisfied that with the normal ebbs and flows within a marriage the contributions were roughly equal. This makes sense in a case where the parties seemed to have worked hard and had two children, having a strong work and family ethic. Each of the parties struck me as being hard-working and decent and people who work to the best of the respective abilities. It seems likely to me that the Wife had a more significant role in the care of the children and the Husband was employed away from home. However, when assessed overall, these different and disparate contributions all seem part of the flow of usual family life, and an adjustment for such matters is not warranted and illusory.
In terms of indirect contributions, it is quite clear that the parties received benefit from the assistance of the paternal family in both financial and non-financial sense, and I accept that from time to time the paternal family made financial contributions.
Post-separation contributions
Each of the parties have made post separation contributions in terms of their equal care of the children, and on the Husband’s part, payment of the mortgage on the former matrimonial home. The Wife is paying the mortgage on the Town E property, however has in the past been able to utilise rental proceeds to do so. When the Husband was paying the mortgage on the former matrimonial home, he was living with the paternal grandparents and was able to do so. I do not propose to make any adjustment for post-separation contributions.
Overall, and save for the greater contribution to superannuation made by the Wife at the commencement of the relationship, I regard the parties’ direct and indirect financial and non-financial contributions to the welfare of the family and the acquisition, conservation and improvement of matrimonial assets and resources to be roughly equal. To the extent that there may be mild differentials between the parties, I note that this has been a busy marriage of around nine years which has produced two children. The net result is a relatively modest asset pool and pursuant to the orders made in relation to parenting issues, the parties will continue to share the care of the children.
The factors pursuant to section 75(2) of the Act, insofar as they are relevant
I now take into account the factors pursuant to section 75(2) of the Act in assessing whether there should be any adjustment, taking those factors into account in either parties’ favour.
The age and state of health of each of the parties
The parties are of a similar age, each in the middle of their working lives and capacities. Each of the parties are in good health and are fit and able to work.
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
The Husband is working full-time. He has a very low disclosed taxable income, however I am satisfied on balance that he has a capacity to undertake remunerative employment and ability to earn at a higher level than he currently receives, notwithstanding his low taxable income.
The Wife has previously worked as a professional. While she is not currently working and will not work this year, she will return to remunerative employment. Her previous income was approximately $46,000 per annum and I am satisfied that she has an earning capacity at around that level.
Each of the parties will have the care of the children on a week about basis, and that care will impact on the respective capacities to undertake remunerative employment. I am satisfied that the Husband has a greater capacity to adjust his work as a self-employed person to maximise his income during the periods the children not in his care, essentially by working longer hours in that week. I am satisfied that the Wife does not have that level of flexibility in that she is employed by third-party.
Furthermore, in the context of the separation of these parties and the children resuming or commencing school or kindergarten, I do not regard the Wife proposing to take some time off work this year as unreasonable. She also strikes me as having had a very serious emotional reaction to the breakdown of the marriage and the continuing litigation. As a result of the orders that I have made with regard to the children. I also perceive that there will be an adjustment period for the Wife which may inhibit her ability to work in the shorter term. Nevertheless, I am satisfied that by around the commencement of the 2020 year, the Wife should be in a position to resume employment. Therefore, I assess that in the short term, namely the next 12 months or so, the Wife will not work and receive income at the same level as the Husband.
In such a limited asset pool and moving forward, I am of the view that the factors set out in section 75(2) of the Act weigh slightly in the Wife’s favour in that regard.
Whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years
I have dealt with this above.
Commitments of each of the parties that are necessary to enable the parties to support himself or herself or a child or another person that the party has a duty to maintain
Each of the parties have filed financial statements in these proceedings which set out their income and expenditure as at the date of swearing. Neither of the parties appear to have excessive expenditure and each of them have a modest earning capacity. Each of them will have significant costs associated with housing and caring for the children during the period that they are in their respective care. Neither of the parties are cohabiting with another person.
By virtue of the orders I propose to make, each of the parties will have a roughly similar mortgage and a home to live in, which is appropriate.
The responsibilities of either party to support any other person
Neither party has the responsibility to support any other person.
The eligibility of either party for a pension, allowance or benefit
The Wife may be eligible for a Centrelink benefit while she is not engaged in employment outside of the home.
Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable
Notwithstanding the size of the asset pool in this case, the parties are in the fortunate position that they have two real properties which will provide accommodation for each of them respectively, and will afford them reasonable standard of rural Victorian living following the division of property pursuant to these orders.
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
Neither party has sought periodic or lump sum maintenance in their case.
The duration of the marriage and the extent to which it has affected the earning capacity of the parties
The parties were in a relationship for approximately nine years and were married. During the relationship the children were born and both parties worked, although the Wife had some periods of not working outside of the home surrounding the birth of the children. The Husband’s earning capacity has continued during the marriage, whereas the Wife’s earning capacity has been interrupted. This does not seem to have impacted on the Wife’s earning capacity.
The need to protect a party who wishes to continue their role as a parent
I have dealt with this issue earlier in these reasons.
If either party is cohabiting with another person and the financial circumstances relating to the cohabitation
Neither party is cohabiting with another person. The Wife lives in Town E with the children of the marriage. She does not live with anyone else.
Any child support that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
There is no current child support assessment between the parties. Although this may be a matter for adjustments within the child support agency, I would regard it as inappropriate if, by virtue of the parties respective taxable income and the Husband’s ability to control his personal taxable income as a self-employed person, if the Wife was assessed to pay child support to the Husband. I do however accept that there is a risk that this will occur in terms of how the Child Support Agency’s formula operates.
To make it clear, I do not accept that the Husband’s income as stated is his taxable income, and I assess him as having a capacity to earn which is roughly commensurate with the Wife’s earning capacity, notwithstanding what his taxable income reveals. In the event that either party makes an application for administrative assessment of child support to the Child Support Agency, each of the parties shall be at liberty to produce or refer to this part of my reasons in support of any application that they may be advised to make.
Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account
I weigh into my consideration that the Wife will be doing the majority of the transport of the children to and from Town A kindergarten and Town A Primary School. She will have greater needs with respect to transport costs than the Husband to facilitate such attendance. This matter weighs in the Wife’s favour.
Finally, the Wife should return the ride-on lawnmower to the Husband as in my view it attaches to the former matrimonial home, and she had no right to remove it from the property when she vacated. The Wife also took other items from the property which ought properly have been regarded as fixtures and fittings, and I take that into account in a general way, noting that the Husband will need to reinstate the property to reinstate the accommodation.
Property discussion
I am satisfied that the factors set out in section 75(2) of the Act weigh in favour of the Wife marginally. I am satisfied that having regard to all of the contribution factors contained in section 75(2) of the Act, that the appropriate adjustment marginally weighs in favour of the Wife of 52.5% of non-superannuation assets. This will result in the Wife retaining her $40,000 equity in the Town E property, the $18,000 held on trust with her solicitors, and a further cash payment of $48,575, to be paid to her by the Husband.
I am satisfied that the Wife’s initial financial contributions to superannuation are such that the contributions should be taken into account, particularly as it comprises such a significant portion of the parties’ superannuation interests. The superannuation interests of the parties should be split on the basis that the Wife retain 60% of the overall superannuation entitlements and the Husband should retain 40% of those entitlements. On that basis there should be split of the superannuation from the Wife’s superannuation fund to the Husband in the sum of $32,200.
For all the foregoing reasons I am satisfied that these orders are just and equitable in terms of an assessment of the section 79 and section 75(2) criteria as set out in the Act. Furthermore, taking a step back in terms of the overall financial outcome, each of the parties will retain a property and a mortgage. Each of the parties will bear their own legal expenses. Following the payment by the Husband to the Wife, his borrowings will increase to an amount approximating the Wife’s present mortgage now. Ultimately, if the Wife pays all of the payment to her to reduce her mortgage, that mortgage will be less than the Husband’s, however the Town E property is worth less than the former matrimonial home.
For all the foregoing reasons, I am satisfied that the orders I will make are in the best interests of the children with respect to parenting orders, and are just and equitable division of property matters between the parties. I make the orders as are set out.
I certify that the preceding one hundred and ninety-seven (197) paragraphs are a true copy of the reasons for judgment of Judge Stewart
Date: 29 January 2019
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