CANNON & HEATH
[2016] FCCA 2346
•9 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CANNON & HEATH | [2016] FCCA 2346 |
| Catchwords: Property – modest pool – consideration of s.75(2)(o) factors. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC, 75, 79 and 117 |
| Cases cited: AMS and AIF (1999) 199 CLR 160 at page 207; 24 Fam LR 756 Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 MRR v GR [2010] HCA 4 B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755 Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343 Taylor v Barker (2008) 37 Fam LR 461 Stanford [2012] HCA 52 Hickey & Hickey & Commonwealth (2003) FLC 93-143, 30 FamLR 355 |
| Applicant: | MS CANNON |
| Respondent: | MR HEATH |
| File Number: | BRC 1595 of 2015 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 24 and 25 November 2015; 10 March 2016 |
| Date of Last Submission: | 10 March 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 9 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Streit |
| Solicitors for the Applicant: | Dean Kath Kohler |
| Counsel for the Respondent: | Ms FitzGerald |
| Solicitors for the Respondent: | Edgar & Wood |
Orders
That all previous parenting orders be discharged.
Parenting Orders
That the parties have equal shared parental responsibility for the major long term parenting issues of X born (omitted) 2010 and Y born (omitted) 2013 (the "children").
That the children live with the mother in the greater (omitted) area.
That the children spend time with the father as agreed between the parties but failing agreement:
(a)Until 10 March 2017 each alternate weekend from 9.00am Friday (or after school if applicable) to 9.00am Monday (or before school if applicable) and in the alternate week from 3.00pm Thursday (or after school if applicable) to 9.00am Friday (or before school if applicable);
(b)From 10 March 2017 each alternate weekend from 9.00am Friday (or after school if applicable) to 9.00am Monday (or before school if applicable) and in the alternate week from 3.00pm Wednesday (or after school if applicable) to 9.00am Friday (or before school if applicable);
(c)To remove any doubt in the event that one child is attending school, and the other not, on a Friday that they are to spend time with their father in accordance with these orders the child not attending school will commence her time with the father at 9.00am and the other child will commence her time with the father after school that day;
(d)Commencing in 2017 for one half of each school holiday at the end of terms 1, 2 and 3 as agreed and failing agreement, the first half in even numbered years and the second half in odd numbered years (with the children spending the holiday time with the mother in the second half in even numbered years and the first half in odd numbered years);
(e)Until the child Y commences Year 2 of her schooling, the children spend half the school holidays at the end of term 4 with the parents on a week about basis as agreed and failing agreement in even numbered years the rotation commencing in the first week with the father and the second week with the mother and in odd numbered years the rotation commencing in the first week with the mother and the second week with the father;
(f)Upon the child Y commencing Year 2, the children spend half the Summer holidays with the parents as agreed and failing agreement with the father in the first half in even numbered years and the second half in odd numbered years (with the children spending the holiday time with the mother in the second half in even numbered years and the first half in odd numbered years).
That notwithstanding order (4) herein the parents are to ensure the children spend up to 4 hours with each parent on each child's birthday.
That notwithstanding any order herein the parents are to ensure the children spend time with the mother on Mother’s Day between 9.00am and 5.00pm and with the father on Father’s Day between 9.00am and 5.00pm.
That the parents ensure the children have telephone contact with the other parent by Skype at 6:00pm on each Monday, Wednesday and Friday if the children are in their care.
That the parents be restrained from denigrating the other parent, the other parent’s partner or any family member to or in the presence or hearing of a child or the children and must use their best endeavours to ensure no other person does so.
Each party is to keep the other informed at all times of their residential address, email address and a contact telephone number within 24 hours of any change.
These orders act as an authority to any school or day care provider attended by a child or children to provide to each of the parents information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children.
Each parent is to keep the other informed of the name and contact details of any treating medical or allied health professional who treats a child or the children and these orders act as an authority to any such professional to provide each parent with all information that they are lawfully able to provide about the children.
Property Orders
That within seven (7) days each party do all things necessary to cause the Applicant mother to be paid the sum of $15,000 out of the trust account of Edgar & Wood Solicitors and thereafter the balance to the Respondent father.
That the father indemnify the mother and keep her indemnified in relation to all outstanding debts owed by (business omitted) ("(omitted)") and the (business omitted) ("(omitted)").
That the father retain any funds held in a bank account of the (business omitted).
That Orders 16 to 19 inclusive are binding on (omitted) Super (omitted) as Trustee of (omitted) Super (omitted) (the (omitted) Super Fund).
In accordance with section 90MT(1)(c) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable in respect of the superannuation interest of Mr Heath, member number (omitted), in the (omitted) Super Fund:
(a)Ms Cannon is entitled to be paid the amount calculated in accordance with the Family Law (Superannuation) Regulations 2001 by reference to a figure of 60 per cent (60%); and
(b)there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.
The operative time for Order (16) above is four business days after the service of these signed and sealed Orders on the Trustee of the (omitted) Super Fund.
That if required by the Trustee of the (omitted) Super Fund or such other entity having responsibility for the administration of the (omitted) Super Fund, the parties will do all acts and things and sign all documents necessary to comply with any requirement of the Trustee or such other entity having responsibility for the administration of the (omitted) Super Fund including obtaining amendments to these orders to enable the Trustee to effect the superannuation splitting order herein.
Any fees relating to the splitting of the superannuation that may be charged by the (omitted) Super Fund to give effect to this order are to be paid from the percentage amount to be received by Ms Cannon.
That the solicitor for Applicant serve these orders on the Trustee of the (omitted) Super Fund within seven (7) days of these orders and orders (16) to (19) inclusive are stayed for a period of 45 days pending any application by the Trustee of the (omitted) Super Fund or the Applicant to vary the terms of these orders to reflect that which the Trustee of the (omitted) Super Fund can comply.
That save for any provision in these orders, the mother retain to the exclusion of the father all her right, title and interest in all other items in her possession and/or control.
That save for any provision in these orders, the father retain to the exclusion of the mother all his right, title and interest in all other items in his possession and/or control.
Costs
That the respondent’s oral application for costs thrown away by the adjournment of proceedings on 25 November 2015 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Cannon & Heath is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 1595 of 2015
| MS CANNON |
Applicant
And
| MR HEATH |
Respondent
REASONS FOR JUDGMENT
Introduction
I am asked to make parenting and property adjustment orders following the breakdown of the parties’ marriage. They have two children: X who is five years of age and Y who is three. Their mother wishes to relocate with the children to Darwin where her partner who is a member of the (employer omitted) is currently posted. Their father would like the children to remain living in the (omitted) area and ultimately an equal shared care arrangement to be implemented.
Throughout this judgment I will refer to the applicant as the mother and the respondent as the father. I mean no disrespect in doing so. I will address the parenting application first in this judgment before considering the property application.
I am also asked to determine an application for costs in relation to the adjournment of the matter from 25 November 2015 to 10 March 2016.
Material relied on
The mother relied on:
a)Her Initiating Application filed 25 February 2015;
b)Her Affidavit filed 23 October 2015;
c)Her Financial Statement filed 23 October 2015;
d)Affidavit of Ms K filed 23 October 2015;
e)Affidavit of Mr R filed 25 May 2015; and
f)Affidavit of Dr S filed 4 November 2015.
The father relied on:
a)His Response filed 28 May 2015;
b)His Affidavit filed 23 October 2015;
c)His Financial Statement filed 23 October 2015; and
d)Affidavit of Ms M filed 23 October 2015.
The court had the benefit of family reports prepared by Mr K and annexed to his affidavits filed:
i)29 July 2015 and
ii)23 February 2016.
A number of documents were tendered into evidence:
a)Exhibit C1 – Schedule of Assets and Liabilities;
b)Exhibit M1 – Bundle of documents produced by the Mother;
c)Exhibit F1 - Correspondence dated 4 February 2015 from Edgar Wood to Dean Kath Kohler;
d)Exhibit M2 - Text message sent to Ms O from father at 5pm on Monday (no date);
e)Exhibit M3 - Statutory declaration by Mr L;
f)Exhibit M4 - Email dated 28 August 2015 from Mr K to R.S. cc Ms L and Mr M; and
g)Exhibit M5 – Minute of orders sought by mother at trial.
Background
The father is 32 years of age. He lives in (omitted) with his parents. At the time of the final hearing he was unemployed but had been working on his family’s former farming property assisting the new owners in accordance with the obligations arising out of the contract of sale of that property.
The mother is 30 years of age. She currently lives in the (omitted) area but is hopeful of moving to Darwin to live with her partner, Mr R. They have been together for about two years.
The parties commenced living together in early 2008 and married in (omitted) of that year. For the majority of their relationship the parties lived and worked on a property owned by the father’s parents in the (omitted) area. X was born (omitted) 2010 and Y on (omitted) 2013. The parties separated in June or July of 2014 and a Divorce Order was made on 10 March 2016. The mother moved to the (omitted) area with the children at separation.
The mother filed her Initiating Application on 25 February 2015 and interim parenting orders were made 29 May 2015. They remain the operative orders and provide in essence for the parents to share equally in parental responsibility for the children; with the children living primarily with their mother and spending time with the father on alternate weekends 9am Friday to 4pm Sunday and from 3pm Thursday to 9am Friday in the other week.
Parenting Applications
At the final hearing the mother sought orders that would provide for her to relocate the children’s residence to Darwin at the end of 2016. If such order was made she proposed that the children live with her and spend time with the father in (omitted) for block periods of up to one week during school holidays and for extra periods in Darwin prior to their commencement of formal education and thereafter for block periods of ten days. The mother’s proposal included provision for the parents to have equal shared parental responsibility. In the event the mother was not permitted to relocate the children’s residence to Darwin she proposed remaining in the (omitted) area and asked the court to continue the current interim orders as final orders.
The father proposed the parents have equal shared parental responsibility; that the children remain living in the (omitted) area and over time move to an equal shared care arrangement of a week about nature. He proposed that in the event the mother was permitted to relocate the children’s residence to Darwin the children spend time with him for the entirety of the school holidays in Spring and Autumn and for half of the Winter school holidays. He proposed that during the Summer holidays the children would spend two weeks with their mother and the remainder of the time with him. He also proposed provision for him to spend time with the children in Darwin as agreed between the parents but at least one weekend a school term. He indicated he would not move to Darwin.
The Evidence
Throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
Along with the affidavit material relied on and the documents tendered I had the benefit of hearing oral evidence from the mother; Ms K; Dr S; the father; Ms M and Mr K. I found the parties to each be honest and forthright in their evidence which they gave to the best of their ability although the father presented at times to be defensive in his responses. Where their evidence differed I preferred that of the mother. Although I formed the view the father did not attempt to mislead the court in his evidence I am satisfied his recollections and perceptions have been clouded by the nature of the dispute with his former wife. He was not always a good historian. The maternal grandmother, Ms K was supportive of her daughter generally and specifically in her daughter’s desire to move to Darwin. She impressed as an honest witness. The paternal grandmother, Ms M, was a forthright witness firm in her views and very much aligned with her son. She presented as angry and defensive. Whilst I don’t believe Ms Heath set out to mislead the court, I found her evidence difficult to accept at times as her desire to be protective of her son appeared to override any ability to be objective.
Mr K is a family consultant in private practice retained by the parties to prepare a family report in these proceedings. His first report was filed 29 July 2015 and an addendum to that report was placed before the court by way of his affidavit filed 23 February 2016. The addendum though was prepared in August 2015. Mr K was cross-examined by counsel for each party. Mr K did not support the mother relocating the children to Darwin. It was his view that the children’s interests would be better served living primarily with their mother in close proximity to their father so that they could spend regular time with him. He was also of the view that by living in the (omitted) area the children would have the benefit of being able to maintain regular relationship opportunities with the extended maternal and paternal families. The report writer accepted the children had developed a relationship with the mother’s partner and would miss him from their lives if he lived in Darwin while they remained in the (omitted) area. He did not equate this with the children’s relationship with their father.
Legal Approach - Parenting
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining the outcome of parenting matters the Court must consider the best interests of the children as the paramount consideration.[1] Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF his Honour Justice Kirby held: [2]
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[1] S.60CA
[2] (1999) 199 CLR 160 at page 207; 24 Fam LR 756 at page 792
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[3] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[3] S.60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[4] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[5] This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[6]
[4] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[5] S.61DA
[6] S.61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[7] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[8] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[9] A major long-term issue in relation to a child means an issue:
[7] S.61B
[8] S.61C
[9] S.65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[10]
[10] S.4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s 65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[11] If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[12]
[11] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[12] S.65DAA(2)(c) & (d)
This legislative approach must be followed in all parenting cases.[13] This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others. The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.[14] In Taylor v Barker[15] their Honours Bryant CJ and Finn J said:
[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
[13] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[14] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343
[15] (2008) 37 Fam LR 461 at page 475
Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.[16]
[16] ibid at page 480
Determining the best interests of the children – the s.60CC considerations
The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.
The child’s relationships[17]
[17] S.60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.
I am satisfied the children have good relationships with each of their parents. Although both parents have cared for the children throughout their lives I am satisfied their mother has been their primary care giver. Flowing from that I am satisfied the children are likely to have their primary attachment with her.
When the parties separated X was not yet four years of age and Y was only 14 months old. They are still very young children. The family report writer was of the view that for the children to develop a meaningful relationship with their non-primary carer it would be better if both parents live in close proximity to each other so that the children do not have to go long periods without seeing their other parent. He described this type of absence as asking the children to emotionally take very big steps beyond their developmental capacity. This was the main reason he was not supportive of the mother’s proposal to relocate to Darwin. When the mother’s more recent proposal to wait until the end of 2016 was put to the report writer he maintained his opinion that it would be too early for these children.
It was submitted on behalf of the mother that her proposal will allow for the children to continue to develop their relationship with the father by having extended periods of time with him throughout the year both in (omitted) and Darwin if the father was to visit Darwin. I do not doubt the mother intends to foster the children’s relationships with their father. Having regard to the family report writer’s evidence however I cannot accept that submission. I accept Mr K’s evidence and opinion and find that there is a risk of the children’s relationship with their father being detrimentally affected if the mother was to relocate the children’s residence at the end of 2016.
The children also have close relationships with extended family members on both the maternal and paternal sides. These family members live in and around (omitted). Any move to Darwin would see the opportunities to spend frequent and regular time with them diminish. The mother does not have any family in Darwin. Her support base is in (omitted). Although the mother’s proposal would enable the children to see their extended family when they are on holidays in (omitted) or when family members visited Darwin, if they were to remain in (omitted) they would have better opportunities to develop closer relationships with their extended family. I accept the report writer’s opinion that this is an important issue, albeit at a somewhat lesser importance than ensuring the children develop and maintain a meaningful relationship with their father.
The mother’s partner, Mr R has also developed a good relationship with the children. If he is living in Darwin and their mother remains living in (omitted) the children will not develop as close a relationship with him than they otherwise would if they were living in the same household. Mr K concluded in his report that there would be fewer uncertainties and/or risks attached to the children’s relationships and care landscape in relation to the many significant people in their lives by preserving their long-standing relationship and care network with their father, paternal grandparents and uncles and maternal grandparents and aunts and their mother. He acknowledged that such an outcome would create greater uncertainties and/or risks in the children’s relationships with Mr R. The report writer did not accept the mother’s assertions that the children were experiencing separation anxiety at the reduction of time they were spending with Mr R. He was of the view however that they would pick up on the mother’s sadness and distress at the separation.
Mr K was of the view that if the children were significantly older, which he described as being pre-adolescent and into their later years of primary school around 11 or 12 years of age, they may be better able to cope with a significant move by being away from their father and extended family. He was also of the view that they would be able to cope better with the extensive travel. The report writer accepted a proposition I put to him that if children had already developed a strong relationship with their non-primary carer they would be more able to maintain that relationship even if they did not see that parent as regularly because of distance factors. I asked him if Y at three and a-half could be said to have developed and formed a relationship with her father. He accepted that she had developed a relationship but that it was still in formation stage and that there is still a sense of vulnerability or fragility. This vulnerability underpinned his opinion that the children were too young to relocate.
The report writer was asked about increasing the children’s time with their father if they remained living in (omitted). He was aware the father wanted to see a transition to equal time but was not supportive of that course. Mr K was reluctant to give any definitive recommendations as to a timetable of increased time apart from suggesting that it might be possible to extend their current time a little. In his view there were too many unknowns given the young ages of the children.
Risk of harm[18]
[18] S.60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There are no domestic violence protection orders in place between the parties nor is there any evidence that these children have been subjected to or exposed to abuse, neglect or family violence. I find that in either household the children would not be at risk of harm.
The child’s views[19]
[19] S.60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
Given the young ages of these children their views would not be determinative of the parental dispute and accordingly I do not propose to address this consideration in any detail other than to note that X expressed a wish to see her father more. The report writer was of the view that at the young ages of the children care needed to be taken as to accepting any expressed view given it could be expressed differently on another day.
Practical difficulties[20]
[20] S.60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Practical difficulties arise regardless of where the children will be living. If the mother and children remain in the (omitted) area she and her partner will have the expense of maintain two homes as well as the expense of travel so that the mother and her partner can spend time together. This is an important consideration. The father argued that the mother’s relationship with Mr R has not been tested over time. Whilst that may be the case there is no evidence to suggest that they are not serious about their relationship nor is there any evidence to suggest that they have been experiencing any difficulties in that relationship. There can be no doubt that maintaining two homes will be both a financial and emotional burden to the mother and Mr R. Such burdens could have negative consequences for the care of the children. In particular there would be less money available to meet the children’s needs.
If the children live with the mother in Darwin there will be significant costs in transporting the children to and from (omitted) to spend time with the father and extended family as well as extra costs to the father to spend time with the children if he was to visit them in Darwin. During the hearing it was suggested the (employer omitted) would provide assistance to the mother to transport the children to (omitted) to enable them to spend time with the father but I am not able to make a finding as to the extent of this given a lack of corroborative evidence.
Parental capacity and responsibility[21]
[21] S.60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied both parents have the capacity to meet the children’s day to day needs including their emotional needs.
The mother gave evidence of being emotionally vulnerable living so far from her partner. She said that she has had difficulty sleeping partly because she was fearful without Mr R being in her home. The mother has received harassing and explicit notes, flowers and confectionery left at her home, has seen foot prints around her home after hearing the dogs bark of a night and said her front porch light had been removed on one occasion. She described being driven off a road by another vehicle one evening. These incidents were reported to the police. If these incidents were as a result of the conduct of one person they would amount to stalking. The police have not charged anyone in relation to any of the incidents. It is not surprising the mother would be fearful not only for herself but for the children. These incidents did not happen prior to Mr R moving to Darwin. I accept she would feel more secure living with Mr R. It is not surprising then to read in the report of Dr S, consultant psychiatrist retained by the mother, that she was having difficulty with her current situation without her partner’s presence. Dr S did not consider the mother to be suffering from any mental illness including a major depressive disorder or significant anxiety disorder. Although Dr S said that being separated from her partner was making it difficult for the mother to provide the best parenting possible I am not able to give any weight to this conclusion. Dr S did not assess the mother’s parenting. I can accept however his observation that the mother was finding her current predicament frustrating which was causing her distress.
It was submitted on her behalf that her parenting was being compromised by being away from her partner. There is insufficient evidence however for me to make that finding.
The mother whilst accepting the father had paid child support was critical of him for his lack of regularity in doing so. There is some merit in her criticism but overall I am satisfied he has paid child support and met his parental responsibility in that regard.
It was argued that the mother has not encouraged or promoted the relationship between the children and their father by failing to provide any extra time for him with the children and by insisting he not collect them from their day care centre. I was not persuaded by this argument. In the context of the dispute and lack of trust between the parties the mother’s approach is not surprising. Overall she impressed as a parent who acknowledged the importance of the children having an ongoing relationship with the father but was torn by her desire to live with her partner.
Limiting further proceedings[22]
[22] S.60CC(3)(l): Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Avoiding further proceedings is always to be desired but given the young ages of these children there remain many unknowns in relation to their future parenting. The mother’s partner is employed in the (employer omitted) and may face further transfers in the future. The father was unemployed at the hearing and his circumstances may also change. Neither proposal in relation to which locality the children should live should be favoured as potentially limiting further proceedings.
The father’s proposal to make an order increasing his time with the children until they ultimately live in an equal time arrangement however does have the potential for further proceedings if the children are unable to cope with such an arrangement. The report writer was unable to offer any definitive timetable as to progression given the many variables children face as they get older.
Presumption of Equal Shared Parental Responsibility
I am satisfied the presumption for equal shared parental responsibility applies given this is not a case where family violence or abuse has been an element. The parties have had difficulties in communicating which is to be expected in the context of their relationship breakdown but I am satisfied this difficulty is not so significant that they would be unable to communicate effectively to make decisions for the children. Each party seeks an order for equal shared parental responsibility and I will order accordingly.
Consideration of Equal Time or Substantial and Significant Time
Having determined that an order for equal shared parental responsibility should be made I must commence my consideration of the children spending equal time with the parents. In doing so I must be satisfied that such an arrangement would be not only in their best interests but reasonably practicable. If the mother’s proposal to move to Darwin is adopted it is clear such an arrangement would not be reasonably practicable. If they remained living in the (omitted) region I would be satisfied as to the reasonable practicability of such an arrangement as the parties would not live too far apart. However on balance I am not satisfied such an arrangement would be in the children’s best interests given their very young ages and stage of development. In making that finding I accept the opinion of the family report writer. I also accept his opinion that it would not be in the children’s best interests to attempt a prediction as to a timetable over which the children would be able to adjust to such an arrangement.
The children have been in the primary care of their mother all of their lives. I am satisfied that it is in their best interests for that to continue. When I turn to consider whether a substantial and significant time order would be in the children’s best interests I have been guided by the report writer. I am satisfied the children are of such a level of development that they could handle an increase in time with their father and a corresponding decrease in time with their mother. Although the report writer opined that setting a timetable to alter arrangements is problematic, I am satisfied it would be appropriate to set a modest timetable so that the children move from two nights in one week to three nights and then after six months move from one overnight in the second week to two overnights. This will ensure they continue to develop their relationship with their father by taking ‘small steps’.
Such an arrangement would of course not be reasonably practicable if the mother was living in Darwin. I have concluded for the reasons addressed above, having particular regard to the family report writer’s assessment of the children’s level of development, that any move by the mother at the end of 2016 would be too early for these children. Whilst I don’t necessarily accept the report writer’s view that they may not be ready till around 12 years of age, I accept his view that it is difficult to predict at what age the children would be ready. The mother had a very strong argument to move having regard to her right to have a relationship with Mr R and her right to freedom of movement but those rights and legitimate desires must give way in this case given the very young ages of the children.
Accordingly, I am of the view the children’s best interests would be met by the children living with the mother in (omitted) and spending time with the father each alternate weekend from 9.00am Friday to 9.00am Monday and in the alternate week from 3.00pm Thursday to 9.00am Friday with the time in the second week increasing by a night after six months. This would see such time commence 3.00pm Wednesday and conclude at 9.00am Friday.
The father’s time with X would not be able to take place on the Friday morning once she commences school but there would be no reason why Y would not be able to continue spending the Fridays with her father. Once they are both at school, their time with the father would commence from after school on the Friday.
Block periods of time would be appropriate once they have started school but I am of the view that half school holidays over the Summer break may be too long for the children away from the other parent. Until Y commences Year 2, the Summer holidays should be taken on a week about basis alternating so that the children spend Christmas with each parent in alternating years. Once Y is in Year 2, the Summer holidays could move to half holidays enabling each parent to arrange longer holidays for the children.
Property Applications
The mother in her property application sought a cash payment of $60,000 which at the trial was reduced to $40,000 given a lack of funds to meet her original proposal. She also sought an order for a superannuation splitting order that would see her receive 65% of the father’s superannuation.
The father proposed that the mother receive 50% of his superannuation.
Evidence
When the parties married they resided on a farm owned by the father’s parents. His family had been farming in the (omitted) district for three generations. The father worked on the family farms and to a lesser extent the wife did also. Initially the father received a salary from his parents of $800 a week after tax plus superannuation and had the benefit of rent free accommodation with associated utilities and a motor vehicle. In 2012 at the suggestion of the paternal grandparents the father and mother set up a partnership known as the (business omitted) (“(omitted)”). This partnership structure was created to enable the parties to receive income from the sale of harvested crops in lieu of a wage. The paternal grandparents determined which area of their farming business would be allocated to the (business omitted) each year rather than by way of allocation of set paddocks. The (business omitted) did not pay expenses associated with the cropping. They continued to receive rent free accommodation and the use of a motor vehicle and fuel. The final harvest payment was received by the father after separation in the sum of $38,448.11 inclusive of GST. The father did not account to the mother for this sum. He deposited the funds into an account in his name and used this money to live on and pay child support.
Another partnership was created in 2012 between the parties and the paternal grandparents primarily to secure finance for the purchase of a Header. This partnership was known for the purposes of these proceedings as the “(business omitted)”. The Header was purchased for $200,320 and fully financed by a finance company. This loan fell into default and the father, without reference to the mother, post separation entered into an arrangement with a related entity, the (omitted) Trust (“the Trust”), to repay the loan and avoid foreclosure. This left the (business omitted) owing a debt to the Trust.
The family farming business experienced financial difficulties in 2015 and the farms were sold that year along with a clearing sale for equipment and other items. The clearing sale included items held by the parties through the (business omitted).
After the sale of the properties the father returned to the farms to assist the new owners as part of the sale agreement. The paternal grandfather was to have conducted this consultancy but after suffering a serious medical condition, the obligation was carried out by the father. His parents did not pay him a personal wage for this work although a sum had been allocated to the consultancy in the contract of sale.
The mother was rightly critical of the father for failing to make full and frank disclosure during the proceedings despite repeated requests. I accept her evidence that she did not become aware of the details of the payment from the sale of crops and the details surrounding the loan to the (business omitted) from the Trust until the father filed his affidavit material at the final hearing. The evidence of the father and his mother in relation to the financial arrangements clearly showed a concerted and calculated effort to exclude the mother from decision making and knowledge in relation to the interests of the partnerships. The effect of their actions meant the mother was not consulted in relation to the sale of significant items such as the GPS system and Header nor the entering into a loan arrangement with the Trust prior to the sale of the Header. The father and his mother were aware these proceedings were on foot when they entered into arrangements to sell items of which the mother had an interest thereby disadvantaging her by denying her any input into the sale of those items. The proceeds of sale of these items were deposited into the trust account of the father’s solicitors and have in part been expended on account of his legal fees to the tune of $5,362.50. The mother has borrowed from her family to meet her own legal fees.
Legal Approach – Property
In determining property proceedings the court is firstly required to identify according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property that is available for distribution between them. It is then necessary to determine whether it is just and equitable to make an order altering the parties’ interests in the property. If so satisfied the court must then consider the contributions made by each of them under the various s.79(4) considerations before looking at their future needs by reference to the s.75(2) factors. [23]
[23] S.79(2) & (4), Stanford (2012) HCA 52. See Hickey & Hickey & Commonwealth (2003) FLC 93-143, 30 FamLR 355 for approach prior to the High Court decision in Stanford
The property of the parties
It was submitted on behalf of the parties that a one pool approach be adopted in this case. Given the marriage was of some six years duration and the pool of assets is modest I am satisfied that approach is to be preferred to a two pools approach which would have seen a different assessment in relation to the superannuation and non-superannuation assets. At the hearing the parties tendered at the court’s request an agreed statement of assets and liabilities[24] that document is reproduced below. I find that the assets and liabilities of the parties are as set out in that document.
[24] Exhibit C1
| Statement of Assets and Liabilities | ||
| Assets | Agreed value | Evidence/Comment |
| Funds held in Edgar and Woods Trust Account | $41,937.50 | These funds are the remains of the proceeds from the sale of the (business omitted) Assets after the payment of the Father’s legal fees of $5362.50 on 13.11.15 ie -2 (omitted) GPS -ute These amounts include GST. Affidavit of the Father [55(b) and (c)] Exhibit M1 – Trust Statement of the solicitor for the Father |
| (omitted) business | $325.00 | Affidavit of the Father H-11 |
| (business omitted) ATO account | $694.00 | |
| Wife’s motor vehicle | $10,000 | |
| Husband’s contents | $3,500 | |
| Wife’s contents | $3,000 | |
| Husband’s tools and equipment | $500 | |
| Husband’s superannuation | $37,372 | |
| Wife’s superannuation | $187 | |
| TOTAL ASSETS | $97,515.50 | |
| Liabilities | ||
| GST payable on sale proceeds | $4,300 | Affidavit of Father [55], H-09 |
| Loan on 2 x (omitted) GPS | $6,754.90 | Not disputed that (omitted) GPS was owned by (business omitted). Not disputed asset was financed. Affidavit of Father shows amount GPS sold for at [55I] and loan for shortfall to be repaid at [50]. Affidavit of the Father H-06 Confirmed in Affidavit of Ms M [13] |
| 50% Shortfall on header | $15,181.35 | Not disputed that header was owned by (business omitted). Not disputed purchase was financed and in arrears – Annexure I to Mother’s affidavit shows amount outstanding Affidavit of Father shows amount header sold for at [55(a)] and loan for shortfall to be repaid at [54] Confirmed in Affidavit of Ms M [6] |
| TOTAL LIABILITIES | $26,236.25 | |
| NET ASSETS | $71,279.25 | |
Is it just and equitable to alter the property interests?
In Stanford[25] the majority held:
60. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
[25] [2012] HCA 52
I am satisfied that it is appropriate in this case to alter the property interests of the parties in light of the demise of their marriage and the fact that the maintenance of the current legal ownership of their property would not afford them justice and equity.
Contributions
Both counsel submitted I should find the parties made equal contributions. When they commenced their relationship neither had any assets of significance. The father made the greater financial contribution by way of his income derived from working in his family’s farming business. The mother however was the primary homemaker and parent. I accept those submissions.
I was not invited to make contribution findings in relation to the issues surrounding the father retaining proceeds of sale of crops and utilising part of the proceeds of the sale of items belonging to the partnerships but rather to take those matters into account when I consider the s.75(2)(o) factor. I am satisfied that that would be an appropriate course in the circumstances.
Section 75(2) factors
Having determined the contribution elements the court is required to have regard to the provisions of s.75(2).
The father is 32 years old and the mother is 30. They are both in good health. There is no evidence to suggest either of them would have difficulty obtaining employment. I am satisfied there should be an adjustment in the mother’s favour as she will have the primary care of two young children of the marriage as a consequence of the parenting decision which forms part of these reasons.
It was submitted on behalf of the mother that a further adjustment should be made in her favour having regard to s.75(2)(o) which provides for the court to have regard to: any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account. I accept that submission. The father had the benefit of the proceeds of the sale of items to pay part of his legal fees amounting to $5,362.50 and he utilised the (business omitted) proceeds of sale of crops received in October 2014 and February 2015 totalling $47,688.11 for his own benefit and the payment of child support without reference and accounting to the mother. I am satisfied the father in concert with his mother also failed to inform the mother of financial arrangements in relation to the partnerships notwithstanding the mother had a financial interest in them. She was denied any input in relation to the (business omitted) receiving a loan from the Trust to pay off the debt owed to the finance company in relation to the Header. She was denied any input in relation to the sale of the other items. I am further satisfied the father failed to make proper disclosure to the mother as was his obligation in these proceedings until he filed his trial affidavit disadvantaging the mother’s preparation for trial.
Given the mother will have the primary care of the children and taking into account their young ages along with the factors considered above in relation to s.75(2)(o) I am satisfied an overall adjustment of 20% in the mother’s favour is warranted.
Discussion
The next stage of the process is to step back and assess whether in all of the circumstances it is just and equitable to make the orders proposed. I have assessed contributions at 50% each and an adjustment in the mother’s favour at 20%. That would equate to the mother receiving 70% and the father 30%.
The father has already had the benefit of cash funds received from the sale of crops that were not made available to the mother. For that reason I am of the view that there should be a cash adjustment to her. The difficulty in this case is that there are liabilities amounting to $26,236.25 and only $41,937.50 from which they are to be paid. Although the loans in relation to the sale of the GPS and Header are owed to the paternal grandparents and/or the Trust and the loans were arranged without reference to the mother, consideration of which was taken to account under s. 75(2)(o), I am satisfied they are legitimate debts.
I propose to order that the mother receive the sum of $15,000 from the funds held in the trust account of Edgar and Woods Solicitors within 7 days of these orders. The balance of those funds will then be paid to the father on the basis that he indemnify the mother in relation to all outstanding debts of the 2 (omitted) and the 4 (omitted).
The father will retain his interest in the (omitted business), the funds in the 2 (omitted) Account, his contents, tools and equipment. The mother will retain her motor vehicle, contents and superannuation.
I propose to make a superannuation splitting order such that the mother will receive 60% of the father’s superannuation. On the figures set out in exhibit C1 these distributions will see the mother receive slightly more than 70% of the net pool. I am satisfied that the orders providing for such a distribution is just and equitable.
Costs Application
On the second day of the hearing, 25 November 2015, it became apparent that Mr K had been asked to prepare an addendum to his report. This addendum had not been filed and did not appear on any outline of case document relied upon by the parties. Although Mr K had sworn an affidavit annexing his addendum on 1 September 2015 that affidavit was not filed until 23 February 2016. Counsel for the father foreshadowed when the proceedings were adjourned on 25 November 2015 that she would be making an oral application for costs in relation to Mr K’s attendance on 25 November 2015 thrown away by the adjournment and the father’s legal costs as a consequence of the need for another day to complete the hearing. These costs were sought on an indemnity basis. It was submitted that the father’s legal team were unaware that the mother had obtained the addendum and the contents of the report until the second day of the hearing.
The mother opposed the making of such an order. Her counsel drew the court’s attention to annexure “c” of the affidavit of Mr K filed 23 February 2016 which was a letter dated 12 August 2015 under the letter head of Dean Kath Kohler Solicitors who act for the mother. Although it was under the mother’s solicitor’s letter head it was joint correspondence signed by both the solicitor for the mother and the solicitor for the father. This letter is clearly a joint request for an addendum. Exhibit M4 was an email from Mr K advising both solicitors that he had completed the addendum and enclosing his account. It was submitted that it was “a bit rich” of the father to seek costs, indemnity or otherwise, in circumstances where the solicitors for the father knew of and were party to a request for an addendum and had knowledge that it had been completed. It was conceded that an error had occurred in that the affidavit annexing the addendum had not been filed nor read in the mother’s case but that did not warrant an application for costs when the solicitors for the father knew of the existence of the addendum. I am satisfied that although counsel for the father may have been taken by surprise as to the existence of the addendum, as was I, her instructing solicitor should have been well aware of the existence of the addendum.
It was further submitted on the mother’s behalf that although the hearing was adjourned the trial had not finished and another day would have been required in any event. The court was adjourned at 5.00pm on the second day after extensive cross-examination of the father and his mother. That cross-examination did not conclude until 4.45pm. I accept the submission that Mr K would not have been reached on that occasion and an adjournment was inevitable. It cannot be said that the adjournment was necessarily caused by the failure to file the affidavit annexing the addendum.
In those circumstances I am not satisfied the father has made out any justification for departing from the usual rule that each party should bear his or her own costs[26] in relation to the adjournment of the matter.
[26] S.117(1)
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Date: 9 September 2016
S.60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).
S.60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
S.60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.S.60CC(3)(j): Any family violence involving the child or a member of the child’s family.
S.60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.S.60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Costs
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Remedies
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