CARSON & WESTERFELD
[2011] FMCAfam 933
•2 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARSON & WESTERFELD | [2011] FMCAfam 933 |
| FAMILY LAW – Children – application for shared care – relevant factors – shared care not in best interests of child – no matter of principle. FAMILY LAW – Property – no matter of principle. |
| Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 60CG, 60DAA, 61B, 61C, 61DA, 65C, 65D, 65DA, 65DAA, 65DAC, 79 |
| Brandt & Brandt (1997) FLC ¶92-758; 22 Fam LR 97 C & C [2005] FamCA 429; 193 FLR 9; [2005] FLC 93-220; (2004) 33 Fam LR 414 Farmer & Bramley (2000) FLC ¶93-060; [2000] FamCA 1615; 27 Fam LR 316 Figgins & Figgins (2002) FLC ¶93-122; [2002] FamCA 688; 173 FLR 273; 29 Fam LR 544 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC ¶93-143; [2003] FamCA 395; (2003) 30 Fam LR 355 Marsden and Winch (No.3) [2007] FamCA 1364 MRR v GR [2010] HCA 4 Mulvany v Lane [2009] FamCA 76 Norbis & Norbis (1986) FLC ¶91-712; [1986] HCA 17; (1986) 161 CLR 513; 65 ALR 12; (1986) 10 Fam LR 819; 60 ALJR 335 Russell & Russell (1999) FLC ¶92-877; [1999] FamCA 1875; 154 FLR 171; 25 Fam LR 629 |
| Applicant: | MS CARSON |
| Respondent: | MR WESTERFELD |
| File Number: | MLC 3190 of 2010 |
| Judgment of: | Riethmuller FM |
| Hearing dates: | 27, 28 and 29 August 2010 |
| Date of Last Submission: | 29 October 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 2 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mort of Counsel |
| Solicitors for the Applicant: | Hogg & Reid |
| Counsel for the Respondent: | Mr Jackson of Counsel |
| Solicitors for the Respondent: | Rhonda G Wilkinson |
ORDERS
Parenting
The Wife and the Husband retain equal shared parental responsibility for making decisions concerning the child [X] born [in] 2004 (“the child”) which shall include:
(a)education including primary and secondary;
(b)significant health care, medical and dental issues;
(c)religious observance;
(d)sporting, cultural and social activities; and
(e)overseas travel including the obtaining of a Passport.
In respect of each issue concerning shared parental responsibility, the Wife and the Husband shall:
(a)consult with the other parent in relation to the decision to be made; and
(b)make a genuine effort to obtain a joint decision about that issue.
The child live with the Wife.
The Husband spend time and communicate with the child as agreed, and failing agreement as follows:
(a)On each alternate Thursday from the conclusion of school (or at 3.30pm) until the commencement of school on the following Monday (or at 9.00am) commencing 8 September 2011;
(b)For one half of each school holiday period as agreed and failing agreement:
(i)In odd numbered years, the first half, to commence from the conclusion of school term until 12 noon on the second Saturday of such holiday period; and
(ii)
In even numbered years, the second half, to commence at
12 noon on the second Saturday of such holiday period until the resumption of school term.
(c)For the first half of the long summer vacation unless otherwise agreed.
(d)For Christmas in 2011 and each alternate year thereafter from 10am Christmas Day until the conclusion of his half school holidays as per paragraph 4(c) herein.
(e)For Christmas in 2012 and each alternate year thereafter from 5.00pm on Christmas Eve until 10am on Christmas Day.
For the purposes of paragraph 4 hereof:
(a)save for changeovers at the child’s school, the parents or their respective nominees shall utilize the [omitted] Police Station Car Park for all changeovers, save as otherwise agreed;
(b)In even numbered years, the Husband’s time with the child shall be suspended from 10am Christmas Day until 9 am 27 December and the child shall be in the Wife’s care during such period.
(c)in odd numbered years, the Husband’s time with the child shall be suspended from 5pm on Christmas Eve until 10am on Christmas Day and the child shall be in the Wife’s care during such period;
(d)in the event that Mother’s Day falls on a time when the child is in the care of the Husband, such period shall be suspended from 6.00 p.m. on the Saturday preceding Mother’s Day until the Husband’s next scheduled period of care;
(e)in the event that Father’s Day falls on a time when the child is in the care of the Wife, such period shall be suspended from 6.00 p.m. on the Saturday preceding Father’s Day until the Wife’s next scheduled period of care;
(f)in the event that the child’s birthday and/or the Wife’s birthday falls during the Husband’s time with the child on a weekend, then such period shall be suspended for 4 hours, or failing agreement from 10am until 2pm;
(g)in the event that the child’s birthday and/or the Husband’s birthday falls during the Wife’s time with the child on a weekend, then such period shall be suspended for 4 hours, or failing agreement from 10am until 2pm;
(h)the Wife and Husband be at liberty to communicate with the child by telephone on a reasonable basis, with the child to be afforded privacy during such communications;
During all school holiday periods, the Husband’s time with the child in accordance with paragraph 4 hereof be suspended and resume in accordance with the usual cycle as if the holiday period had not intervened;
Each parent shall keep the other informed of a current email address and keep the other advised of any change of residential address and/or landline or mobile contact number within 48 hours of any such change.
In the event that the Husband or the Wife intends to travel with the said child interstate or overseas for holiday purposes, he or she shall give to the other three (3) weeks notice in writing of his or her intention and provide full details relating to the itinerary, accommodation and telephone contact number(s), as far as practicable;
The Husband and the Wife be and are hereby restrained by injunction from denigrating the other to the child or in the presence of or in the hearing of the child, or allowing any other party to do so.
Both parties attend forthwith upon a Family Relationships Centre for counselling in order to facilitate ways to improve communication and co-operation as between them for the sake of the child and if recommended (in writing) by the counsellor, the Husband complete a Men’s Behavioural Change program.
The Husband and the Wife be entitled to receive at their respective request and cost a copy of any school term report, newsletter, event notice, notice of any relevant meeting(s) and application forms for school photographs ordinarily provided to parents.
The Husband and the Wife be entitled to make all proper and reasonable enquiries as to:
(a)the social, academic and sporting progress of the child at his school AND FURTHER the Husband and the Wife be at liberty to attend, at their respective election, all school events, concerts, parent/teacher interviews and sporting competitions and events ordinarily attended by parents;
(b)the child’s treating medical practitioners and like health professionals concerning any health issue whatsoever relating to the child;
The Husband and the Wife keep the other advised of any serious injury sustained or any emergency medical and/or dental treatment required by the child whilst the child is in their respective care including the name, address and telephone number of any treating doctor, as soon as practicable.
The Husband and the Wife be at liberty to serve a sealed copy of these Orders upon the following:
(a)any school attended by the child;
(b)any medical or health professional treating the child.
Both parents maintain a communication book which shall be signed by each party at the conclusion of their period of care with the child and address welfare issues concerning the child, with such book shall travel with the child to each of the parties’ households.
Property
Within 60 days of the date of these orders ("the due date"):
(a)The Wife pay to the Husband the sum of $45,794;
(b)The Wife discharge the loan liability with respect to the 2006 Nissan Pathfinder motor vehicle;
(c)the Wife do all such acts and things necessary and sign all documents as may be required to transfer to the Husband at his expense all of her right, title and interest in the real properties situate and known as:
(i)Property O (“the Property O property”);
(ii)Property C (“the Property C property”)
(“the real properties”).
(d)the Husband indemnify the Wife against all payments and liability pursuant to the mortgage registered over the Property O property (“the mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the real properties of whatsoever nature and kind.
Contemporaneously with the transfer of the Property O property the Husband refinance the said mortgage over the Property O property into his sole name to the exclusion of the Wife; and
(a)in the event that the Husband fails to refinance the mortgage into his sole name by the due date then the Property O property be sold and the Husband retain the proceeds after:
(i)payment of costs and commission of the sale; and
(ii)discharge of the mortgage and any encumbrance affecting the said property.
(b)In the event the Wife fails to comply with Order 16(a) or 1(b) by the due date then the property at Property H be sold and after payment of all costs and commissions of the sale and the discharge of any mortgages and encumbrances affecting the said properties:-
(i)the sum of $45,794 together with interest at the rate of 10% p.a. from the due date be payable to the Husband;
(ii)discharge the loan liability with respect to the 2006 Nissan Pathfinder motor vehicle and any associated fees or charges; and
(iii)the balance be paid to the Wife.
The Husband forthwith do all acts and things necessary and sign all necessary documents to transfer the 1992 Toyota Landcruiser motor vehicle to the Wife at her expense.
Otherwise:
(a)The Wife retain the following:
(i)Her interest in the real property situate at and known as Property H;
(ii)Her interest in the real property situate at and known as Property M AND FURTHER indemnify the Husband against all payments and liability pursuant to the mortgage registered over the Property M property and all apportionable rates, taxes and outgoings of or with respect thereto of whatsoever nature and kind;
(iii)Her interest in the real property situate at and known as Property G, (“the Property G property”) AND FURTHER indemnify the Husband against all payments and liability pursuant to the mortgage registered over the Property G property and all apportionable rates, taxes and outgoings of or with respect thereto of whatsoever nature and kind;
(iv)The [omitted] business trading under the style “[A]”;
(v)The 2001 Holden Astra motor vehicle;
(vi)The 1992 Toyota Landcruiser;
(vii)The Ride-on mower;
(viii)The horse saddlery as follows:
A.Brown turnout Malcolm Ansell, leather;
B.Brown Bates eventing with long points, leather;
C.Black Bates dressage saddle, leather;
D.Black Wintec, synthetic.
(ix)The following items remaining at the Property O property:
A.Personal photos in a box in guest bedroom;
B.Personal photo albums;
C.Personal records including school certificates in red file;
D.Patchwork wall hanging in red and whites;
E.Any remaining clothing, bags or accessories;
F.Any remaining jewellery, including:
1. hollow gold bangle;
2. grandmother’s wedding ring;
3. fine gold bracelet;
4. diamond-shaped gold-link bracelet;
5. garnet bracelet; and
6. gold three chain necklace with clasp.
G.Horse-riding clothing as follows:
1. 2 hacking jackets;
2. 2 outdoor coats;
3. 1 full-length set of black chaps;
4. 3 calf-high chaps;
5. 2 brown jodhpur riding boots;
6. 1 set of black top leather riding boots;
7. 1 set of top plastic boots; and
8. 2 flocked black riding helmets.
9. Any gloves made for, or used by, the Wife.
H.Wooden saddle stand made by the Wife’s father;
I.Fiction and horse books;
J.Glass vase antique battery cell; and
K.Ornaments on the dressing table in the guest bedroom.
(x)The [S] shares (51,742 shares approximately);
(xi)The Investments:
A.[V]; and
B.The [W] Investment
(xii)Her superannuation benefits earned by her or belonging to her in the following funds:
A.[P] Super;
B.[Ms Carson] Superannuation Fund.
(b)AND FURTHER the Wife indemnify the Husband against all payments and liability pursuant to the loan amounts secured by the Wife in respect of the above investments referred to herein and respectively as follows:
(i)Bendigo Bank Guild Line of Credit ($50,000 approximately); and
(ii)Macquarie Bank ($153,120 approximately);
(iii)The Wife’s Provisional Tax Liability ($42,000 approximately); and
(iv)[W] Ltd.
(c)The Husband retain the following:
(i)His interest in the real property situate and known as Property R (“the Property R property”) AND FURTHER indemnify the Wife against all payments and liability pursuant to the mortgage registered over the Property R property and all apportionable rates, taxes and outgoings of or with respect thereto of whatsoever nature and kind;
(ii)His interest in the real property situate and known as Property B (“the Property B property”) AND FURTHER indemnify the Wife against all payments and liability pursuant any mortgage encumbrance or other debt registered over the Property B property and all apportionable rates, taxes and outgoings of or with respect thereto of whatsoever nature and kind;
(iii)The 2006 Nissan Pathfinder motor vehicle;
(iv)The tools in the shed including the ditch digger, hand held power tools and chain saw;
(v)His [C] Superannuation entitlements;
(vi)all other plant and equipment save and except for those items mentioned in paragraph 19(a).
Pending the transfers referred to in paragraph 16 and 17 hereof:
(a)The Wife have the sole right to occupy the real property at Property G;
(b)The Husband have the sole right to occupy the Property O property;
(c)The parties pay any mortgage instalments or loan repayments and all rates and taxes and like apportionable outgoings due and owing in respect to any real property to be retained by them and as referred to in paragraphs 16 and 17 hereof.
(d)The parties hold their respective interests in the real properties upon trust pursuant to these orders; and
(e)Neither party encumber any item of real property without the consent in writing of the other party same for the purposes of giving effect to these Orders.
The Wife and the Husband divide the Horses, with their respective identification papers as follows:
(a)The Wife to retain:
(i)Bay Mare named [omitted];
(ii)Grey Gelding named [omitted];
(iii)Chestnut Gelding named [omitted];
(iv)3 year old Bay Gelding named [omitted];
(v)3 year old black with white filly named [omitted]; and
(vi)Brown mare named [omitted].
(b)The Husband to retain:
(i)Brown male named [omitted];
(ii)Grey Gelding named [omitted];
(iii)3 year old black filly named [omitted];
(iv)Horse named [omitted];
(v)Chestnut female named [omitted]; and
(vi)3 year old bay filly named [omitted].
And the balance of horses to be divided by agreement “pick for pick”, with the Wife to have the first pick AND FURTHER the parties forthwith do all such acts and things and sign all necessary documents to transfer the horses to the party retaining same under this Order.
The Wife and the Husband to divide the horse floats equally, with the Husband to have the first pick.
Each party be liable for and indemnify the other against all payments in respect of any taxation liability (including GST and/or Capital Gains Tax) in respect of any item of property to be retained by them pursuant to paragraph 16 to 19 hereof.
The Husband forthwith deliver to the Wife a complete set of family photographs of the child and/or the Wife with the Husband to scan all such retrieved images and provide to the Wife a complete disk of the family photographs with any expense to be shared equally between the parties AND following receipt of same if the Wife makes a request within 14 days then the Husband provide his computer hard-drive to a computer expert nominated by the Wife (within 7 days) in order to retrieve all images saved on the disk and provide a copy of same to the Wife at the Wife’s expense.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders with the chattels remaining in the Property O property being deemed to be in the possession of the Husband, save for those items set out in 19(a) with such items to be made available to the Wife for collection in reasonable condition and upon 14 days written notice;
(b)each party retain any superannuation benefits belonging to or earned by that party to the exclusion of the other party;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party to be solely liable for and indemnify the other against any liability encumbering any item of property to which the party is entitled pursuant to these orders;
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Notwithstanding the provisions above, and the Court considering it necessary to exercise the powers of the Court under Section 106A(1) of the Family Law Act 1975 as amended, a Registrar or Registrar of the Federal Magistrates Court of Australia at Melbourne be forthwith appointed to execute any and all transfers in the name of the parties and do all acts and things necessary to give validity and operation to the transfers.
All extant applications for property and children of the Husband and the Wife respectively be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Carson & Westerfeld is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3190 of 2010
| MS CARSON |
Applicant
And
| MR WESTERFELD |
Respondent
REASONS FOR JUDGMENT
The applicant wife was born [in] 1963 and is now 48 years of age. The husband was born [in] 1961 and is now 50 years of age. The parties commenced cohabitation in 1989, however were not married and separated on 6 November 2009. They have one child, [X] born [in] 2004 who is now aged 7.
The parties applied for orders with respect to [X’s] care and the division of property.
The wife seeks orders that the child live with her and spend time with the husband on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday together with alternate Wednesdays from the conclusion to the commencement of school on the following morning in the intervening week. She also proposes for the child to spend time with the husband for half of the school holidays and makes provision for special days.
The husband seeks orders for the child to be in the shared care of the parties on a weekly basis, together with the sharing of the holidays and orders for special days.
Following the release of the family report and the filing of trial material, the wife modified her proposal to include the same number of days per fortnight, but to make them a single block from Thursday to Monday in order to minimise the number of changeovers.
Neither party particularised the property orders sought in their application or response, claiming a division as this Honourable Court deems fit. Both parties failed to provide in their outlines the details of the orders that they sought, despite earlier orders requiring the outlines to include same. At the hearing, the wife sought orders for a division of property on approximately a 50/50 basis. The husband sought a division of property approximately 60/40 in his favour. The parties ultimately forwarded draft orders to the court following the hearing of the matter, which were subsequently marked Exhibits 14 and 15 respectively.
Background
After the child’s birth, the wife was his primary carer. In early 2006 he was enrolled in childcare 3 days a week as both parents worked. The significant issues with respect to parenting are:
a)the nature of the husband’s abuse or abhorrent behaviour directed towards the wife;
b)the impact of the husband’s behaviour on the child; and
c)the extent to which the husband can place the needs of the child before his own and be an appropriate role model for the child.
On the husband’s case, he has a close relationship with the child and it would be distressing to the child to reduce his time with the child. The husband denies that he has behaved in an abusive manner in recent times. To the extent that he had difficulties in the past, the husband states that he has worked through those issues and that the interim orders have worked in the last 3-6 months.
The husband explains that he did not cope well with the separation and the events surrounding it, but that those events have now passed.
The wife’s evidence
The wife works as a [omitted], operating her own [business], and must be available at various times on a roster to cover weekends. She agreed, when giving evidence, that [X] had been in day-care 3 days a week and to kindergarten 2 days a week when he was four years old. She said that when [X] was in day-care, she would take him to day-care in the mornings and collect him in the evenings. However, when the child was at 4 year old kindergarten his father would take him to kindergarten although she took him and collected him from day-care 2 days a week. When [X] started school, the wife would take him and the husband would collect him in the afternoons.
The wife explained that there was a period of around 5 months when the husband would not cook and she would tidy the house in the mornings and do the washing and cleaning on the weekends. She maintained that the husband did not regularly or routinely prepare meals, even though she was working.
Her experience of changeovers and the withholding of the child from time to time were gruelling. She also said that she felt scared of her exposure to emotional physical situations and of exposing the child to that. She believed that during the period that the husband withheld the child he contrived to make offers for her to have time with the child when she was working because he was aware of her rosters. She works around three and half hours each Saturday. Since that time things have become a little easier, as she has also employed a [omitted] to work in her business. She said that she is concerned that the arrangements were contrived as the husband would give no explanation simply saying that he had plans or that he and the child were doing “things”.
The wife denied that the child is thriving at present. She agreed that they are able to use a communication book, but was concerned that the child is learning to manipulate the situation. She explained that on some occasions when [X] returns from his father’s he would be disrespectable, saying things like “are you blind mum?” The wife found that the child was difficult to put to bed at night when he comes home before contact but often comes to her bed after contact has occurred. The child settles by dinnertime when he comes home from spending time with the husband. The wife was particularly concerned that on one occasion she believed the husband told the child that she did not want to see him. The child said to her “Daddy said you didn’t love me”. The wife explained communication between the parties remained poor, giving the example of when the family dog of 16 years died. She only found out about the pet’s death when her son informed her so whilst they were walking into a friend’s house, with the child saying “oh mum, [omitted] died”. She explained that she did not believe that it was appropriate that she be told in that way, as it was distressing news. However, the wife was also careful to point out that she did not see this in any way as being the child’s fault. It was rather an example of a lack of proper communication from the husband who could have advised her at the time the dog died or in the communication book.
The wife explained there had been a number of incidents and telephone calls at her workplace. She said that the husband had regularly called her a “silly mole” which she minimised to being a ‘pet’ name, but saw it as part of his controlling behaviour. She found that his interactions with her in front of staff eroded her credibility and authority and that often he would be bullying or non-cooperative with her. In January 2010 there was an incident at the workplace where she believed that the handover was to occur at the Police Station at 9.00am. The wife waited 20 minutes and then returned to work where she rang the husband. After some arguments the husband said he was coming at 10.15am. He did not arrive at the Police Station so she returned to the [business]. There was then another argument at the [business], resulting in the child crying and herself being close to tears. She said that she is in a relationship with another person; however he purposely stays away from handovers, as it is not an issue that involves him.
During cross-examination she was able to outline a number of difficulties in the relationship with respect to parenting including: poor communication, problems over the payment for school, problems over clothes and school notes, inconsistent routine and the need for the child to have a home-base.
The wife openly agreed that she believes the husband loves their son.
The wife was cross-examined about the communication with respect to the dog [omitted] and explained that she declines to speak to the husband on the telephone and he would not use the communication book or email. The wife explained that the husband was quick to anger and was concerned that he may provide a limited world view as the child grows older. For example, the wife explained that the husband is rule-based with respect to reading for school, stating that the child “must do it”, making it more of a chore than something that should be enjoyable. She also explained that in other interactions, she is able to have the child reflect on his own conduct. For example, when the child complained that the husband smacked him and that the husband was “naughty”, she asked the child whether the child was sure “Daddy was the naughty one?” The child would, at times, become quiet in response. The examples appear to me to show a great deal of insight into the child’s needs at an age-appropriate level.
Whilst the wife has a demanding job, it is flexible as she runs the business. The wife did not suggest that she would not be working or that she would exclude the husband from the child’s life. Interestingly, when cross-examined about whether the husband was a good parent, she explained that there was eventually a water-shed moment when she saw the husband’s discipline was beyond what she could stand. She gives the example of stripping the child naked and opening the door of the house. However, the wife maintained that she believes the husband loves the child but sometimes was not as caring or insightful as was necessary. She is concerned of the impact of smacking or harsher interactions on the child in the long-term, although she agrees that he is a robust and relatively mature child.
The wife appeared to me to be an impressive and reliable witness. She had many opportunities where she could have portrayed the husband in a far worse light. Her general comments were able to be backed up by examples. Her ability to maintain an appropriate level of objectivity is demonstrated by her example with respect to the child claiming that the husband was naughty for smacking him. This was tempered by her own reflections upon the way in which parenting should be managed and her “water-shed” moment when she decided circumstances must change.
Ms [P’s] evidence
A staff member of the [business], Ms [P], gave evidence. She presented in a straight forward and forthright manner. Her evidence was limited to her observations at the [business].
Ms [P] has worked for the wife for approximately four and half years, and has come to know both the parties and the child. She had a less than positive view of the husband. She gave examples of the husband attending at the [business] prior to separation and how he was unwilling to assist even if heavy lifting was required by the women at the [business] and, if asked to assist, he would complain. She found that the husband would often invade her personal space and generally felt intimidated by him when he was at the workplace. After the separation she noted that he attended the [business] more often and, on occasions, she remembered him calling the wife a “bitch” and deriding her, such as saying that she “looked terrible”. She gave evidence that, on occasion, the latter was said in front of the child.
After separation, when the husband called the [business], Ms [P] found that he would interrogate her as to the wife’s whereabouts and that he was very unpleasant to her and other staff members. She said that staff would avoid answering the phone for fear of encountering the husband on the other end of the line. She also noted that the wife had regularly asked the husband not to telephone her at work. In an incident in January, as described by the wife, the husband came to the [business] and in argument declined to leave but then dragged the child away from the [business] initially. Ms [P] gave evidence that once a fortnight [X] was at the [business] doing some craft, although he was not there for long, and would sit in the staffroom. However, she was clear that she had seen nothing to give her any doubt that the husband clearly loves the child.
I found Ms [P] an impressive witness and I accept her evidence.
Mr [T’s] evidence
The wife also called Mr [T] to give evidence. Mr [T] is a business manager at the [business] working 5 days per week. He confirmed the wife was working around 9.30am to 6.00pm and for 3 and a half hours each second Saturday.
He said that there had only been a couple of phone calls but noted the husband caused considerable disruption to the operation of the business. In his affidavit, Mr [T] gave evidence that he had heard the husband refer to the wife as a “slut” and that the calls to the [business] distressed the wife and other staff members. He recounted that the husband was typically insulting and demanding when he attended at the [business]. He too noted some changes in [X] upon returning from contact, but that he settled down very quickly.
I have no reason to doubt the evidence of Mr [T] and accept the same.
Ms [F]’s evidence
Ms [F] was also called to give evidence. She is the wife’s sister. She observed changes in the wife as her relationship with the husband developed, with the wife becoming more secretive and guarded and no longer wanting to discuss personal matters. She was concerned that the wife was withdrawing from the family. She found the husband to always be insistent on knowing the wife’s every movement. Ms [F] recounted an incident in 1989 when she encountered him at her mother’s house looking for the wife and that he waited some 2 hours until she returned from an additional shift. By that time, the husband was angry and belligerent.
She recounted that over time she saw less of the wife. She also gave evidence of the types of condescending names that he would use for the wife, such as “silly woman” or “stupid mole”. She also found that he would often use racist names for different ethnic groups such as describing Asians as “wing-nuts” and Muslims as “towel-heads”.
Another example that Ms [F] gave in evidence is an incident when [X] was 3 and her daughters, who were 6 and 9 at the time, were swinging him on a baby swing-set in the backyard. The husband complained that the girls were swinging [X] too high and exclaimed that they would “fucking drop him on his head”. At that point he barged in and removed [X] from the swing and berated the wife for allowing [X] to be placed on the swing. Ms [F] was upset by this incident and of the view that nothing untoward was occurring. She even described the husband as making audible grunting and snorting sounds at a baptism ceremony in a contemptuous fashion, causing much discomfort and embarrassment.
Ms [F] gave a further example from 2007 when she was visiting the home, [X] wanted to sit next to one of his cousins and the husband kicked him in the bottom saying “he would bloody well sit where he was told”. [X] fell onto the gravel on the ground and got up crying, but received no comfort from the husband.
Ms [F], whilst the sister of the wife, is also a [occupation omitted]. She presented well in the witness box. She was cross-examined as to the last six months and said that, at times, the wife was emotionally very distressed and that she had lost a lot of weight. She had also observed moments of defiance with the child and that the child was anxious at the end of time periods. She had not seen the child in the husband’s care in recent times.
I accept Ms [F’s] evidence. I found her to be an impressive witness and accept that her perceptions of the events that took place were quite objective.
The husband’s evidence
The husband gave evidence to the effect that he had largely worked in the home on home duties and was the child’s primary carer. He said that he had been in and out of jobs and whilst he considers himself the primary carer, he noted that the child had been in day-care or kindergarten for significant periods. He said that he had been working with horses, fencing and doing some maintenance, whilst the child was in child-care, at the property. He said that he was not prepared to get work until the child’s care was sorted out. He said that he had, in the past, applied to local tradespeople for part-time work but he had not done so since separation. Whilst saying that he did not believe that organisation skills were his “forte”, he was quick to point out that as far as his son was concerned he believed himself to be very organised. He accepted that the house was messy but maintained that it was not dirty.
The husband said for a period of 5 months he did not remember cooking meals, although did not appear very emphatic about his response in this regard. He appeared to have little knowledge of routines, bed-times or the wife’s discipline styles. He explained that he had passed on the news with respect to the dog’s death to the wife on the next occasion they had a handover. He agreed he harassed the wife after separation but maintained that it did not occur in front of the child and that he did not want conflict. The husband also maintained that he was not aggressive or abusive. He admitted that he called the wife a “silly mole” but maintained that it was a term of endearment. He denied calling her a slut, and maintained that he understood a mole to be a small furry animal, and not the slang definition which implies a woman of few morals or a prostitute. He minimised the events at the [business], maintaining that they were not as dramatic as the wife and staff had made it out to be and denied abusing the wife in public.
The husband did accept the wife was fearful of him, but appeared to have no insight into what may have caused that nor how to deal with that in his interactions with her.
One of the matters of contention between the parties was how they dealt with arrangements for a handover on 24 July 2010. The matter could not be agreed between the parties, and as a result was the subject of correspondence between solicitors. The husband states that he made the child available at 4 pm on the Saturday rather than earlier in the day as the child was attending a birthday party. The wife sought to have the child available at least by 2 pm as she and the child were attending a christening in Melbourne, and wished to be in Melbourne by 5 pm and at the church by 6 pm.
The husband explained that the birthday party was with family friends whom he describes as his "second family”. He stated that the party ran from 3 pm to 5 pm, and therefore the child could not have been made available any earlier if he was to participate in the party. It transpires that the party was at the [Ps’] residence for a child of the [Ps’] who was turning 12. The husband said there were to be six adults and six children and that [X] was to be included, although he was only six years of age.
Mr [P] was later called and gave evidence in the case. Mr [P] said that the party involved four to five of his son's friends and was a lunchtime arrangement, including a cake, after which the boys stayed overnight. Mr [P] said that [X] had arrived midmorning. It appears clear that the interactions between the parties on that day show the husband’s disingenuous attitude towards other family commitments for the day in circumstances where the child could easily have attended both commitments.
Another unfortunate incident between the parties occurred in 2009 on Christmas day. The wife had the child from Christmas Eve to Christmas morning, and the husband was to have him overnight on Christmas night. The husband states that around 10 pm he went to the wife’s house claiming that she had telephoned him saying that she was going to end her relationship with her current partner. The wife says that she received a phone call unexpectedly at 10 pm on Christmas night from the husband who was then outside with the child in the car. He asked her to come out to talk to him, and as she came out he pushed past her, walked angrily into the house and confronted her new partner.
I have seen both parties give evidence about this event and I do not find the husband’s version credible. I reject his claims that he was telephoned by the wife asking him to come to the house. It appears to have been nothing more than an angry outburst by the husband at a time when he had the child in his care.
A further incident occurred on 27 December, and it is worthwhile to look at the descriptions that each of them give of the incident at paragraph [12] of the wife’s affidavit filed on 9 April 2010 and at paragraph [13] of the husband’s affidavit filed on 9 June 2010. In cross-examination, the husband conceded that he acted impulsively. Again, I prefer the version of the wife. There was an agreed arrangement. At the very least, the child should have been woken and ready for when the wife was going to attend for changeover. The whole event appears to me to have the flavour that the wife sets out in her affidavit.
Subsequent text messages, such as "Your son would like to see you" and those to the effect of asking how long the wife was going to punish the child when the argument is not his fault were also sent. Thereafter the interactions appear to me to have become almost a farce as a result of the husband’s behaviour.
Despite this, the husband had recounted to Dr T that he did not believe his behaviour was confrontational, and he had said that he would not cause a scene to upset the child. He denied saying to the family counsellor that he thought the child had no self-esteem.
The husband denied not having a proper conversation about the dog and gave reasons. The wife was not told about the dog’s death before she saw the child. Given the husband’s ability to send text messages and otherwise interact with the wife when it suited him, it seems to show a real lack of insight on his part, if it were not a conscious decision to withhold the information so as to further distress the wife.
The husband does not dispute that the wife is a good mother and says that over the last six months things have gone reasonably well.
The husband denies being abusive or demeaning of the wife in conversations or over the telephone at the [business]. He minimised the names that he had called her as ‘pet’ names. Having seen both of the parties in the witness box, I do not accept that the behaviour can be categorised as ‘pet’ names, but rather it was a sustained course of conduct designed to demean the wife, both directly and in the context of her workplace.
On the whole, I found the husband’s evidence less than impressive, and where it conflicts with the evidence given by the wife and her witnesses, I reject it.
Mr [P’s] evidence
The husband called Mr [P] to give evidence. As recounted above, Mr [P] hosted the birthday party that was referred to by the parties. He appeared to me to be an impressive witness. He was supportive of the husband, saying that he had a doting relationship with [X] and expressed his view that the husband had raised [X].
However, he agreed that in the last few years he had less to do with the wife, and in November 2009 had helped the wife move out. He did not dispute the proposition that the husband "is a mean drunk". He had seen the wife feed, cuddle and change the child in the past. He agreed that he rarely went to the wife and husband’s house. And whilst he could not recall the husband calling the wife "a silly mole", he did note that the husband had called his own wife some names that were not so nice, but he believed that they were in jest.
It appears that Mr [P’s] evidence is largely in accord with the evidence of the wife, save the proposition that the husband has brought the child up. To the extent that Mr P has had an opportunity to observe the child in recent times, it has not been in the wife’s presence. This would explain his perception of the husband’s involvement in child-rearing. To the extent that he gave evidence relating to the birthday party, it is consistent with the husband manipulating the events to frustrate the wife’s desire to attend a family christening with the child. Traits of the husband referred to by the wife, such as name calling (albeit of Ms [P], not the wife), were confirmed.
Child Report
Dr K undertook psychological evaluations of both the parties. In evaluating the wife, he concluded that she presents:
…as a generally rational person who has her son's best interests at heart and in general matters appears unaffected by negative emotions. She is committed to an ongoing relationship with her ex-partner…despite her new relationship. It is likely that she would be responsible in her parenting and spending time with [X].
Dr K notes that the wife does appear to have been affected by the husband’s behaviour and the escalation of that behaviour in the separation, although noting that the conflict appeared to be slowly resolving. He found her to give the impression of being genuine and straightforward, mature and focused on the care and wellbeing of others, particularly her son. He noted that she may benefit from some counselling around the difficulties of contact.
When assessing the husband, Dr K noted that he acknowledged that there were some difficulties at the end of the relationship and that "he reacted inappropriately at times." Dr K suggests that:
This reaction was an exacerbation of pre-existing personality vulnerability towards anger with him suffering from an adjustment disorder following the marital breakdown. The impression that he gives is that he is not particularly focused on work. There is no current formal psychological disorder as such identified.
Dr K notes that he has undertaken some counselling and appears to have some insight into his difficulties, but expresses a concern that:
…it is likely that [the husband] has minimised his own vulnerability to anger, and as such, not resolved the issues until this issue is fully addressed.
Dr K had the impression that the husband had difficulty taking on the perspectives of others on events in the world and did not readily see the world as others may see it. He also had the impression that the husband was not particularly organised, either on a day to day level or cognitively. Ultimately he concluded that this was not a disorder but probably a dispositional characteristic.
Whilst Dr K identified no psychological or psychiatric reason why the husband could not adopt an appropriate form of care for his son, he was:
…somewhat concerned about what appears to be an underlying lack of motivation and lack of organisational abilities if [the husband] was to care for his son for a substantial period of time.
He concluded that the husband would benefit from longer term psychological assistance over the next two years to address anger, the resolution of the relationship and adjustment issues.
When cross-examined, Dr K made the point that personality issues remained important in making family law decisions even if they were not such as to be a disorder within the definitions of Diagnostic and Statistical Manual of Mental Disorders (‘DSM-IV). Importantly, whilst disorganisation is not a disorder, organisation is an essential characteristic for good parenting. Whilst the various characteristics represent the husband’s underlying personality constellation, it appears that under stress the more negative characteristics come forward. This presents some risk into the future when the husband finds events or circumstances stressful and unresolved issues may manifest themselves in terms of the child’s care. Dr K was also concerned that the wife may be too accommodating and self-deprecating with a heavy focus upon the needs of the child and of the husband. He believes the dynamics of the ongoing relationship will continue to be a problem, and that good parenting is about the capacity of the parents to focus upon the child's needs.
Dr K remains of the view that the husband has anger management problems and is minimising these difficulties. He draws a distinction between conflict management that the husband has started to engage in and anger management which requires identification of what drives a person to be angry. He is of the view that the husband has anxiety issues about control and believes that the husband is reactive. This is also reflects on the question of the level of the husband’s insight.
I accept Dr K’s evidence. I find that his observations and the reasons for them are set out in his report and his evidence is persuasive and largely in accord with the evidence and observations that could be made at trial.
Dr T
Dr T prepared a family report recommending equal shared responsibility and for the child to live with the wife and have time with husband from Friday to Monday and each alternate Wednesday night, together with half of the school holidays. The family report writer had concerns about the appropriateness of the husband’s parenting model and behaviours, and despite the child’s wishes, suggested that it may not be in the child’s best interest for the child to spend equal time with the husband.
At the time of writing his report, the family report writer noted that “each party has put a huge amount of energy into the blackening the other’s character.” Having heard the evidence in the matter, it appears that this is a fair statement with respect to the husband but that the wife’s version largely recounts the events that actually occurred.
In cross-examination, he described the husband as more hostile and the wife more self-effacing and trying to make things work. He had the sense that the husband was much less flexible and much more focused on his own issues. He was concerned that if it was accepted that the husband had behaved in the ways described in the material, outbursts that most people can control, that indicated that there was a lack of emotional regulation. He stated that the denigrating comments of the wife could be internalised by the child and that some of the comments made would suggest poor boundaries on the part of the husband. He had spoken to the school principal who had indicated that the child was erratic and emotionally fragile and having difficulties adjusting. The family report writer remains of the view that the husband is still in need of assistance with anger management and perceives that the husband still has issues to deal with.
The family report writer was of the view that if the husband overcame a number of these issues a week-about arrangement would not be problematic.
The Law
The power to make a children’s order is provided for in s.65d of the Family Law Act 1975.
In deciding what informs the discretion under s.65D of the Act, a number of steps are necessary. First, regard must be had to the objects and principles set out in s.60B:
60B [Object of Part and Principles underlying it]
(1) [Object of Part] The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) [Principles underlying object] The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Importantly, the court must regard the best interests of the child as the paramount consideration: see s.60CA. When determining the best interests of the children, one must have regard to the ‘primary’ and ‘additional’ considerations that are set out in s.60CC as follows:
60CC [How a court determines what is in a child’s best interests]
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child
having contactspending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
In Marsden and Winch (No.3) [2007] FamCA 1364 Warnick and Thackray JJ discussed the relationship between the primary and additional considerations in s.60CC, saying:
77. The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
78. It follows that we reject the premise inherent in the husband’s submission that his Honour was obliged to indicate “what factor or factors combined to displace the primary consideration contained in section 60CC(2)(a)”. Firstly, that submission ignores the fact that there is a second primary consideration which his Honour was also obliged to take into account. Furthermore, it is not a question of other factors being needed to “displace” one of the primary considerations. Rather, his Honour was obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as he thought appropriate in arriving at the result most likely to promote [the child’s] best interests. In doing so, he was of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.
Their Honours’ comments in Marsden were referred to with approval in Mulvany v Lane [2009] FamCA 76 at [84] by May and Thackray JJ who said:
76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.
The Court must also consider any risk of family violence, as required by s.60CG:
60CG [Court to consider risk of family violence] (1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
The phrase ‘family violence’ and the terms ‘abuse’ are given detailed definitions in s.4 of the Act:
4(1) [Definitions] in this Act … unless the contrary intention appears:
…
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b)a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first‑mentioned person or the other person, and where there is unequal power in the relationship between the child and the first‑mentioned person.
…
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
…
Consideration of the Factors in s.60CC(3)
Any views expressed by the child
The child in this case is young although he has expressed a clear view to have time with both parents. I accept that the child’s preference is to maintain a strong relationship with both parents and that the child has a good relationship with both parents, having been distressed about the separation.
The nature of the child's relationships
The child appears to have a good relationship with each parent and both parents, in their own way, are committed to the child.
There are no significant issues in this case relating to the child’s relationship with other persons. The child has a positive relationship with friends of the husband, such as Mr [P] and his family, and appears to have a positive and appropriate relationship with the wife’s current partner.
The willingness and ability of each parent to facilitate and encourage the child's relationship with others
I am not persuaded that the husband has the capacity to facilitate and encourage a close and continuing relationship between the child and the wife. His conduct to date shows that his capacity for self-regulation and boundaries impinge upon his ability to ensure that his interactions with the child are shielded from his views of the wife and the dispute.
The wife, on the other hand, has demonstrated a clear capacity to put the child’s needs first and has considerable empathy and accommodation for the views and needs of others. This is apparent not only from the evidence to date before me but the assessments of the professionals in this case. I am satisfied that the wife will continue to encourage and facilitate a close and continuing relationship between the child and the husband albeit that it must be within the appropriate boundaries given the husband’s behaviour towards her.
The likely effect of any changes in the child's circumstances
In this case there will be no separation of the child from siblings or significant others in the child’s life, however the arrangements will affect the day to day care of the child.
Practical difficulties and expense associated with contact
There does not appear to be any real practical difficulties and expenses involved in this case in facilitating the child having time with each parent on a regular basis.
Capacity of the parents to meet the child's needs
I have no doubts as to the capacity of the wife to meet the child’s day to day needs as well as the child’s longer term emotional and developmental needs.
It appears likely that the husband is able to meet the child’s day to day needs. However, his disorganisation and emotional issues lead me to have real reservations as to his capacity to meet the child’s needs on a day to day basis if the child were in shared care. Even with far less than shared care, I have reservations as to his capacity to meet the child’s emotional and developmental needs into the future.
The maturity, sex and background of the child and the child’s parents
There is nothing significant with respect to the maturity, sex, lifestyle and background of the parties in this case.
An Aboriginal child’s right to enjoy his culture
The child is not said to be an Aboriginal or Torres Strait Islander child, nor are there any significant cultural issues or traditions that impact upon the decision in this case.
The attitude to the child and the responsibilities of parenthood
It appears to me that the events between the parties demonstrate that the husband has been unable to separate his emotional difficulties relating to the separation, and indeed his longer term treatment of the wife from the needs of the child. In this sense, the husband has not demonstrated the capacity to meet all of the responsibilities of parenthood. In this respect, the only criticism that could be made of the wife is that she accommodated the husband’s behaviours for too long before taking steps to end the relationship.
Any family violence
It appears to me that the husband’s conduct, both in the ‘pet’ names that he called the wife and his attendances at her [business] and interactions with her since separation do fall within the meaning of family violence and have involved both the wife and the child.
There are family violence undertakings in place which in recent times appear to have regulated the behaviour of the husband.
Whether it be preferable to make an order that would least likely to lead to the institution of further proceedings
I must bear in mind the types of orders that are least likely to lead to further litigation. In this case, regular interactions between the parties appears to be at a significant risk of breaking down and resulting in further litigation, as would a substantially shared arrangement. The parties’ parenting styles are clearly very different and do not appear to me to be compatible.
Any other fact or circumstance
There do not appear to be other significant factors that would be relevant under s.60C(c)(3)(m).
Primary Considerations
Meaningful relationship
In considering the first of the primary considerations in s.60CC it is necessary to consider the benefits to the child of having a meaningful relationship with both parents. The Full Court in McCall & Clark [2009] FamCAFC 92 summarised the existing authorities with approval, saying:
[115] The phrase ‘meaningful relationship’ in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Brown J, after setting out the definition of ‘meaningful’ and ‘meaning’, said at paragraph 26:
What these definitions convey is that ‘meaningful’, when used in the context of ‘meaningful relationship’, is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or ‘of consequence’. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[116] Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders [2007] FamCA 102 (an appeal involving an application by a mother to relocate) agreed with Dessau J’s exposition in M & S (formerly E) (2007) FLC ¶93-313 of the effect of the amending Act and said at paragraph 33:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
and later at paragraph 36 said:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[117] Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.
[118] It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (‘the present relationship approach’);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (‘the presumption approach’); and
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (‘the prospective approach’).
[119] We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is ‘the prospective approach’ although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
[120] We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
[121] In coming to our conclusions we accept as appropriate the interpretation of ‘meaningful relationship’ set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
[122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
I note that the child has a meaningful relationship with the wife and it appears to me that her parenting skills will only result in that relationship strengthening. At present the child also has a meaningful relationship with the husband, however it is less clear how that relationship will develop over time. A significant parenting role for the husband, in light of his behaviour to date and underlying emotional issues, presents a real risk in that he will not be able to meet all of the child’s ongoing needs and therefore over time this will undermine the meaningful nature of the relationship. It also runs the risk that his attitudes towards the wife will undermine the meaningful relationship that the child has with the wife. It appears to me that the wife as the primary carer, with substantial care of the child, will ensure the meaningful relationship with her is maintained, and is more likely to allow the child to maintain a meaningful relationship with the husband.
Protection from harm
In this case, the protection of the child from psychological harm is significant. The conduct of the husband in his undermining, and abuse, of the wife, particularly the name calling and the behaviour at the [business], has on a number of occasions occurred in front of the child and is clearly a cause of psychological harm for a child. It is not unlikely that this has been a significant factor in the child’s schooling issues. In the longer term, the child needs a good modelling of behaviour and longer term exposure to behaviours that the husband has engaged in the past will be to his significant detriment. I take into account that in recent months, the behaviour has minimised. However, this is a short period of time leading up to the trial and I am not persuaded that I can have confidence that such behaviour has minimised in the longer term, on the strength of such a short period.
Parental Responsibility
When considering the specific orders that should be made, it is appropriate to start with a consideration of parental responsibility. This is defined in s.61b:
61b [Meaning of parental responsibility] In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61c provides for each parent to have parental responsibility, subject to any parenting orders, even if the parents are separated. However, in considering the appropriate parenting orders a presumption that it is in the best interests of the child for the parents to have ‘equal shared parental responsibility’ may arise as a result of s.61da which provides:
61da [Presumption of equal shared parental responsibility when making parenting orders] (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65daa).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The effect of an order for shared parental responsibility is set out in s.65dac of the Act as follows :
65dac [Effect of parenting order that provides for shared parental responsibility] (1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65dae).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Parenting Time
When deciding upon orders for parenting time, further specific requirements are set out in the Act, if orders are to be made providing for ‘equal shared parental responsibility’ for the children. Section 65daa states:
65daa [Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances]
Equal time
(1) [Court must consider whether equal time is in the best interests of the child] If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60ca is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) [Court must consider whether the child spending substantial and significant time with each parent is in the best interests of the child] If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)[Substantial and significant time] For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60cc(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60cc(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60cc(3)(i)).
Note 2: Paragraph (c) reference to future capacity–the court has power under section 13c to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
In MRR v GR [2010] HCA 4 (Rosa’s case), the High Court addressed the relationship between s.65DAA and s.61DA, saying:
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1).
Section 65DAA provides a set of criteria which must be fulfilled in cases where an order for equal shared parental responsibility has been made and consideration is being given to equal time or substantial or significant time. As the High Court said in Rosa’s case:
[13] It is only where both questions [in s.65DAA(1)(a) and (b)] are answered in the affirmative that consideration may be given, under par (c), to the making of an order. … the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.
Importantly, the requirement of reasonable practicality ‘requires a practical assessment of whether equal time parenting is feasible’: see Rosa’s case at [15].
Parental responsibility
In this case, the parties are both able to provide input into the child’s care into the future. Ultimately, it appears to me that the presumption in s.65DA is rebutted as a result of the family violence in this case, however it is ultimately in the child’s best interest that there be an order for equal shared parental responsibility.
Turning to s.65 DAA, I must consider whether or not it is in child’s best interest for there to be a shared care. For the reasons set out above, I am not persuaded that it is in the child’s best interest that there be shared care in this case.
It appears that shared care is reasonably practicable on a shared logistics perspective, but as it is not in the child’s best interest, s.65DAA is not satisfied.
Substantial contact
When turning to the question of substantial contact, the dispute is whether there be weekend time with Wednesday night in the alternate week, or a block of time as suggested by the wife. Both come within the definition of substantial contact, but ultimately I am persuaded that a block of time involving both school days and non-school days is appropriate.
In this case, the interactions between the parties have been very difficult. Whilst the child is young, it appears to me that the regular interactions between the parents and the difficulties that this entails outweigh the benefits of having time with the husband each second weekend and on Wednesday night in the alternate week. Rather, the same amount time but over a block once a fortnight will better meet the child’s needs to have time with the husband in a way that can be managed to minimise the interaction between the parents and the difficulties that entails.
Stepping back and reflecting on the parenting regime as a whole, I am persuaded that the substance of the orders proposed by the wife are in the child’s best interest.
The parties are largely agreed as to the balance of the parenting orders. I am persuaded that the husband should receive equivalent time for special days as the wife. The husband disputes the need to undertake an anger management course and seeks that the wife complete a post separation parenting course. Both seek orders for ongoing counselling. I am not persuaded that the wife needs further assistance of the type provided by a post separation parenting course. She has, in my view, demonstrated significant insight and focus on the child’s needs. The husband would be likely to benefit from a Men’s Behavioural change course. I am mindful that the parties live in a relatively remote area, and counselling prior to commencement of such a course may be helpful to ensure that the husband obtains the greatest benefit from the course. I will therefore make orders that they both attend further counselling and that the husband attend a Men’s Behavioural Change Course on the written recommendation of the counsellor.
Whilst some of the draft clauses submitted by the parties are more verbose than those I would ordinarily employ, as there is substantial agreement as to many of the terms I have therefore made orders in terms based upon the drafts submitted by the parties.
Property Issues
Under s.79 of the Family Law Act 1975, the court may make such orders as it considers appropriate, altering the interests of the parties in property. Section 79 sets out a number of significant matters that must be considered, in order to determine what orders would be appropriate.
In Hickey & Hickey (2003) FLC ¶93–143; (2003) 30 Fam LR 355, [2003] FamCA 395, the Full Court of the Family Court conveniently summarised the preferred approach as follows:
[39] The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s. 79. That approach involves for inter-related steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the court should identifying and assess the contributions of the parties within the meaning of s. 79 (4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as percentage of the net value of the property of the parties. Thirdly, the court should identifying and assess the relevant matters referred to in ss. 79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s. 79(4)(e), the matters referred to in s. 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the court should consider the effect of those findings and determine and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC ¶91-626; Ferraro and Ferraro (1993) FLC ¶92-335; Davut and Raif (1994) FLC ¶92-503; Prpic and Prpic (1995) FLC ¶92-574; Clauson and Clauson (1995) FLC ¶92-595; Townsend and Townsend (1995) FLC ¶92-569; Biltoft and Biltoft (1995) FLC ¶92-614; McLay and McLay (1996) FLC ¶92-667; JEJ and DDF (2001) FLC ¶93-075 and Phillips and Phillips (2002) FLC ¶93-104. (emphasis added)
The approach taken in Hickey & Hickey must now be read subject to the decision in C & C [2005] FLC 93-220; 32 Fam LR 414; 193 FLR; [2005] FamCA 429 (with respect to superannuation), where Bryant CJ, Finn and Coleman JJ said:
[43] Thus, the way in which s 90MS is drafted leads us to the view that superannuation interests are another species of asset which is different from property as defined in s 4(1), and in relation to which orders also can be made in proceedings under s 79.
[44] However s 90MS(1) does have the effect, in our view of requiring that in a case where the Court intends to make orders in relation to superannuation interests of the spouses, it must do so “under” s 79 (although s 90MS(2) makes it clear that the Court cannot make an order in relation to a superannuation interest except in accordance with Part VIIIB). In other words, the Court must apply to superannuation interests the matters to be taken into account under s 79.
[63] However, given the conclusions we have reached above, we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the Regulations if a splitting order is sought in any application before the Court, or if no such order is sought, valued either according to the Regulations or otherwise). This of course is the approach which the trial Judge adopted in this case.
In undertaking the first step, the various items of property should be identified with reasonable precision and value. However, in subsequent steps it is not possible to make an adjustment for each relevant factor with mathematical precision. This is clearly identified by Nygh J in G & G (1984) 9 Fam LR 969; (1984) FLC ¶91-582 (at p 79,697 ), where his Honour said that:
It cannot be required of the Family Court that it assess contributions with mathematical precision, with respect to each item.
This observation was approved by Mason J (as his Honour then was) and Deane J in Norbis & Norbis (1986) FLC ¶91-712; (1986) 161 CLR 513; [1986] HCA 17; 65 ALR 12; (1986) 60 ALJR 335; (1986) 10 Fam LR 819. This observation has regularly been repeated in the authorities: see for example, Brandt & Brandt (1997) FLC ¶92-758; (1997) 22 Fam LR; Farmer & Bramley (2000) FLC ¶93-060; [2000] FamCA 1615; (2000) 27 Fam LR 316. Of course, “Judges [and Federal Magistrates] are obliged to exercise their discretion judicially and should explain the broad nature of their reasoning that leads to their conclusion”: Figgins & Figgins (2002) FLC ¶93-122; [2002] FamCA 688; 29 Fam LR 544; 173 FLR 273.
With respect to the final step, it is important to note that it is the justice and equity of the actual orders that the court must consider: see Russell & Russell (1999) FLC ¶92-877; [1999] FamCA 1875; 25 Fam LR 629; 154 FLR 171.
With respect to property orders, the wife seeks that there be a division of property between the parties that is roughly 50/50 but the husband seeks a division of 60/40 in his favour.
The Asset Pool
The parties’ asset pool consists of the following as indicated in the wife’s case outline.
Property
| Asset | Ownership | Value |
| Property O | Joint | $320,000 |
| Property H | The wife | $375,000 |
| Property R | The husband | $800,000 |
| Property M | The wife | $90,000 |
| Property C | Joint | $210,000 |
| Property B | The husband 1/7th | $49,286 |
| [A] business | The wife | $1,061,565 |
| Property G | The wife | $245,000 |
| 2006 Nissan Pathfinder (the husband drives) | The wife | $42,000 |
| 2001 Holden Astra (the wife drives) | The wife | $3,000 |
| 1992 Toyota Landcruiser (the husband drives) | The wife | $3,000 |
| Horse floats × 2 | The wife | $8,500 |
| Horses × 20 and saddlery | Joint | $10,000 |
| 10 × 6 tandem trailer | The husband | $2,845 |
| Ride on mower | Joint | $4,000 |
| Chattels remaining in the home occupied by the parties during the relationship at Property O | Joint | Estimated $10,000 |
| Tools in shed including a ditch digger, hand held power tools, chain saw | Joint | Estimated $10,000 |
| [S] Shares 51,742 at 45c | The wife | $24,577 |
| [V] | The wife | Nil |
| [W] Investment | The wife | NIL |
| Total assets | $3,268,773 |
Liabilities
| NAB mortgage Property O | Joint | $38,000 |
| NAB mortgage Property R | The wife | $44,000 |
| NAB mortgage Property M | The wife | $51,000 |
| NAB mortgage Property G | The wife | $159,000 |
| NAB loan re motor vehicle | The wife | $29,506 |
| Bendigo Bank Guild Line of Credit | The wife | $50,000 |
| Macquarie Bank | The wife | $153,120 |
| [W] Ltd | The wife | $100,000 |
| ATO Current Liability (Provisional tax) | The wife | $42,000 |
| Total liabilities | $666,626 |
Superannuation
| [P] Super | The wife | $5,000 |
| The wife’s superannuation fund | The wife | $140,179 |
| [C] | The wife | $93,420 |
| Total superannuation | $238,599 |
I therefore find that the total assets $3,268,773. The parties have relevant liabilities of $666,626, and superannuation entitlements of $238,599. This results in a net pool of $2,602,147 together with superannuation of $238,599. Thus, the resources of the parties are just under $3mil.
Contributions.
Section 79(4) of the Family Law Act requires consideration of the contributions of the parties. The relevant parts of s.79(4) are as follows:
79 [Alteration of property interests]
…
(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; or and
…
It is relevant, when considering the various contributions, to also consider the times when these contributions were made: see Pierce & Pierce (1999) FLC ¶92-844; [1998] FamCA 74; (1998) 24 Fam LR 377, where the court considered the weight to be given to various contributions, having regard to the time of those contributions, and the importance of them.
The history of the parties’ relationship is set out earlier in this judgment as is much material concerning the parenting of their child. The parties are 48 and 50 years of age, having lived together for around 20 years, separating in November 2009. Their child is seven years of age. The husband had purchased Property R prior to the marriage, together with a one-seventh share in land at Property B. The wife had purchased a 50 per cent share with her own mother and sister of a property at Property H.
Not long after they commenced cohabitation in 1989, the husband became unemployed in 1992. He earned minimal income in 1993 as a [omitted]. He was ultimately re-employed in his father’s business in 1996. In 2000, the wife purchased the [business] in [A] and operated it as a [omitted]. Initially the husband remained in Melbourne working part-time then later in 2001 he moved to [A], where he worked as an [omitted]. He was retrenched in 2003 and decided not to work.
The parties had their child in 2004, and in 2006 placed the child in child care three days a week as the wife was continuing to operate the business. Various properties were purchased by the parties during the course of the relation. In 2009 a separation occurred which was most acrimonious. I need not repeat the details of the conduct of the parties set out above.
The property at Property R remains a significant asset in the asset pool, having a value of $800,000. This property was purchased by the husband prior to the cohabitation, although was the subject of a mortgage which has now been repaid.
The wife had worked as a [omitted] in [suburb omitted] between 1989 and 2000, earning around $60,000 per annum by the end of that period. Between 1989 and 1993 she had worked part-time at [omitted]. She explains that they moved to [A] as a result of a decision by the husband not to join the family business in Melbourne.
She explains that she brought a half share in the Property H property, a Ford Falcon, horse float, and some superannuation as she had been working for approximately five years prior to cohabitation.
The wife says that, with respect to Property R, the property was purchased by the husband and his first wife in 1984 for around $68,000. Although they had separated earlier they didn’t settle their matrimonial property issues until after the parties had commenced cohabitation. The wife says that $35,000 was paid to the husband’s first wife in exchange for her transferring the property to him and him retaining his interest in the Property B property. As a result she estimates that the equity in the property at Property R must have been less than $70,000, and notes that a drawdown was taken on the mortgage to fund the payment. The wife accepts that he had a one-seventh interest in land at Property B with family members, but on her recollection this was valued at around $7,500 at the time. She also recalls that he had a very old motor vehicle which was sold for scrap metal soon after cohabitation for around $200 and little furniture.
Whilst the property at Property R is now worth a substantial sum ($800,000), I accept that its value at the time of cohabitation was less than one-tenth of this amount. I also accept that the equity in the property would have been no more than $35,000, and probably somewhat less.
On the limited material available it is difficult to conclude that there was a substantial or significant difference in the value of the property that the parties brought to the relationship. The relationship has been one of many years.
During the course of the relationship the wife worked and the husband was in and out of employment for different periods. With respect to non-financial contributions, the wife says in her affidavit:
[22] In relation to non financial contributions I say that [the husband] has partially painted the interior of the home. [The husband] did install the water tanks and assisted in the installation of irrigation and some minor landscaping. I continued to be primarily responsible for homemaking responsibilities save that [the husband] shared the cooking duties with me for the evening meal, however the major cleaning and washing duties fell to me.
[23] As to parenting, when I arrived home after work essentially [the husband] would not do anything else. I continued to bathe [X] at night with only sporadic held from [the husband]. Accordingly, I say that the parenting responsibilities were shared, particularly in view of the amount of time [X] was in child care. [X] was born [in] 2004. In January 2006 [X] was placed into child care three days per week. I would drop [X] at child care and collect him from child care. There were only 2 full days per week where [the husband] would care for him during the day, Mondays and Fridays and Saturday morning until he went to kindergarten when he was now away from home for four days a week. I would be primarily responsible for [X] therefore after work each night and on Saturday afternoons and Sunday. On commencement of school he was away from home five days per week. I would drop [X] at school and [the husband] would collect him at the conclusion of school. When [X] started school I stopped working each Saturday morning and only worked every second Saturday morning.
It is clear that the wife has made by far the greater financial contribution during the time that the parties were together, through her income from employment and operating the [business] business. Having seen both the parties give evidence and their cross-examinations with respect to parenting issues, I accept the wife’s evidence with respect to her role as a homemaker and her contributions with respect to parenting. I am persuaded that the wife made at least an equal contribution as homemaker and parent to that of the husband.
Since separation I am persuaded that the wife has made the more significant financial contributions, and more significant parenting contributions with respect to the child of the parties. Indeed, the conduct of the husband in the period from separation until trial could only be seen as having made her financial contributions and parenting contributions more difficult due to his behaviour towards her, often in her workplace (as well as his conduct with respect to parenting).
Ultimately, I find that a contributions assessment, having regard to the facts and circumstances of this case, of 52/48 in favour of the wife reasonably reflects the contributions of the parties.
Section 79(4)(d) to (g)
I now turn to the third step in the process of apportioning the assets available for distribution between the parties and consider the matters set out in s.74(d) to (g).
The effect of any proposed order upon the earning capacity of either party to the marriage: s.79(4)(d)
In this case the proposed orders allow the wife to retain the [business]. Whilst she earns a significant sum from the [business] (around $300,000 per annum), her earnings are partially earnings from her role running the [business] and partially the return on investment in the business. Whilst the orders may impact upon her earnings as she may need to incur borrowings, in effect she will retain substantial earnings.
The orders do not have the potential to impact upon the husband’s earnings which will remain those appropriate for an [occupation omitted]. With respect to the age and state of health of the parties, in this case the parties are both able-bodied and able to continue to work. If the husband chose to work full time I see no reason that he would not be able to do so and earn a reasonable income as a [occupation omitted]. He suggests that as an [occupation omitted] he would earn only around $25,000 per annum. I do not accept his evidence on this issue, although I am not persuaded that he would earn significantly more than average weekly earnings. Having seen him in the witness box and reviewed the material relating to parenting issues it does not appear to me that it is likely that he would be able to run a successful [omitted] business as a principal but would have to obtain employment as an employee.
The matters referred to in sub-section 75(2) so far as they are relevant: s.79(4)(e)
a) The age and state of health of each of the parties
I have addressed the age of the parties above. Both appear to be in good health.
b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The income property and resources of the parties are those identified above. The wife is a [omitted] operating her own [business] in country Victoria. She will continue to earn significant income from operating this practice.
The husband is a [omitted]. He suggests that his income will be quite low. It appears to me that his income levels will never be equivalent to that of the wife and in large part will be dependent upon the extent to which he wishes to pursue employment or his own business as a tradesman.
Both parties have the capacity to earn income that would allow them to maintain a reasonable standard of living and both will receive significant assets given the size of the matrimonial pool.
c) Whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years
The wife will have the care and control of the child of the marriage and receives little assistance in this regard from the husband.
My assessment of the parties when giving evidence, in light of the facts and circumstances of this case, lead me to the firm view that the wife is unlikely to ever receive significant child support to assist with the care of the child of the parties. It appears to me that this is for two reasons: there will be a significant disparity in income of the parties, weighted strongly in favour of the wife, and secondly that the husband is unlikely to engage in employment that results in any significant child support liability.
I therefore take into account has the financial support of the child will be a significant financial impost upon the wife.
d) 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.
Both parties have the capacity to support themselves and maintain a reasonable standard of living in country Victoria. The extent to which each will receive assets from the matrimonial pool will enable them to maintain a reasonable standard of living.
e) The responsibilities of either party to support any other person;
It is not suggested that the parties have a duty to maintain other persons, or a responsibility to support any other person.
f) The eligibility of either party for a pension, allowance or benefit.
Neither party will require a pension or benefit.
g) Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
As set out above both parties have the capacity to support themselves, receiving assets sufficiently reliable to maintain a reasonable standard of living.
h) The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
This factor is not relevant in this case.
k) The duration of the marriage and the extent to which it has affected the earning capacity of the parties;
It does not appear to me that the duration of the marriage has negatively affected the earning capacity of either of the parties. The wife has fully developed in her earning capacity to the extent where she is a [omitted] operating her own business. The husband’s earning capacity flows from his skills as a [occupation omitted]. It does not appear that the husband forewent opportunities or development of his earning capacity during the course of the relationship.
l) The need to protect a party who wishes to continue that party’s role as a parent;
This factor is not relevant in this case.
m) If either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
I am not persuaded that either party is presently cohabiting with another person. I note the evidence that the wife is in a relationship with another person but I am not persuaded that it has reached the stage where she is cohabiting with him.
n) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
As referred to above, it appears to me that the wife is unlikely to receive any significant child support from the husband and has been the primary financial provider for the child and since separation.
o) Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
In this case it was appropriate to take into account the husband’s presentation and demeanour as it is likely that this will have some impact upon his earning capacity into the future.
Conclusions
Taking these matters into account, along with the assessment of contributions made above, and the overall size of the pool, it appears to me that an adjustment of five per cent in favour of the husband is appropriate.
The property and superannuation of the parties should therefore be divided 53/47 in favour of the husband.
Is the result just and equitable?
The result of a split of 53/47 in favour of the husband would be a division of the property of the parties are such that the husband receives $1,454,132.91 and the wife $1,316,950.56.
In order to reflect such a split, based upon the preferences of the parties with respect to retaining assets (as appears in their draft orders), the parties each retain significant real property, chattels and superannuation. Based upon the draft orders of the parties, the wife must also pay to the husband $45,794.38. This assumes that the Horses and 2 horse floats are divided substantially equally.
The lack of evidence as to the detailed identity and value of the horses, saddlery, floats and chattels at Property O makes division of them difficult. In the context of the pool they are of very modest value, calling for a practical method of making the division in a way that is approximately equal.
In order to effect the division of horses, floats and trailer, I will order that the parties have six of the horses respectively in order of their preferences, and thereafter they can choose horses ‘pick for pick’, commencing with the wife.
With respect to the horse floats, as the wife will have first preference on the horses, the husband can have first preference on the floats, and therefore I will order him to have the float he prefers (as there are no individual valuations for these items). Both seek to retain the tandem trailer. Given the differential in earnings I will allow the husband to retain it at the value agreed.
The husband has possession of the Nissan motor vehicle. To minimise conflict and disputes he should retain (and he can sell if he wishes) and the wife pay the loan to ensure the financial relationship is severed.
With respect to the photographs the wife is entitled to a copy of all them. The husband should provide copies of the photos to the wife. If the wife is not satisfied it is appropriate that she have the right to have an expert examine the hard-drive to obtain the photos. I am satisfied she would only pay for an inspection of there is a real purpose. Ultimately, this is a result of the husband’s conduct in deleting the photo files.
My calculations of the adjustments are as follows:
| Asset | Value | Orders | Husband | Wife |
| Property O | $320,000 | H | 320000 | 0 |
| Property H | $375,000 | W | 0 | 375000 |
| Property R | $800,000 | H | 800000 | 0 |
| Property M | $90,000 | W | 0 | 90000 |
| Property C | $210,000 | H | 210000 | 0 |
| Property B | $49,286 | W | 49286 | 0 |
| [A] business | $1,061,565 | H | 0 | 1061565 |
| Property G | $245,000 | W | 0 | 245000 |
| 2006 Nissan Pathfinder (the husband drives) | $42,000 | H | 42000 | 0 |
| 2001 Holden Astra (the wife drives) | $3,000 | W | 0 | 3000 |
| 1992 Toyota Landcruiser (the husband drives) | $3,000 | W | 0 | 3000 |
| Horse floats × 2 | $8,500 | 4250 | 4250 | |
| Horses × 20 and saddlery | $10,000 | 5000 | 5000 | |
| 10 × 6 tandem trailer | $2,845 | H | 2845 | 0 |
| Ride on mower | $4,000 | W | 0 | 4000 |
| Chattels remaining in the home occupied by the parties during the relationship at Property O | $10,000 | joint | 5000 | 5000 |
| Tools in shed including a ditch digger, hand held power tools, chain saw | 10000 | H | 10000 | 0 |
| [S] Shares 51,742 at 45c | $24,577 | W | 0 | 24577 |
| [V] | Nil | W | 0 | Nil |
| [W] Investment | Nil | W | 0 | Nil |
| Total assets | $3,268,773 | $1,448,381 | $1,820,392 | |
| Liabilities | ||||
| NAB mortgage Property O | $38,000 | H | 38000 | 0 |
| NAB mortgage Property R | $44,000 | H | 44000 | 0 |
| NAB mortgage Property M | $51,000 | W | 0 | 51000 |
| NAB mortgage Property G | $159,000 | W | 0 | 159000 |
| NAB loan re motor vehicle | $29,506 | W | 0 | 29506 |
| Bendigo Bank Guild Line of Credit | $50,000 | W | 0 | 50000 |
| Macquarie Bank | $153,120 | W | 0 | 153120 |
| [W] Ltd | $100,000 | W | 0 | 100000 |
| ATO Current Liability (Provisional tax) | $42,000 | W | 0 | 42000 |
| Total liabilities | $666,626 | $82,000 | $584,626 | |
| Superannuation | ||||
| [P] Super | $5,000 | W | 0 | 5000 |
| The wife’s superannuation fund | $140,179 | W | 0 | 140179 |
| [C] | $93,420 | H | 93420 | 0 |
| Total superannuation | $238,599 | $93,420 | $145,179 | |
| Total Net Property and Superannuation | $2,840,746 | $1,459,801 | $1,380,945 | |
| 53/47 split | $1,505,595 | $1,335,151 | ||
| Adjustment | $45,794 | -$45,794 |
Any orders under s.79 must be just and equitable: see s.79(2). Section 79(4) sets out a large number of considerations which are discussed above. Ultimately, once all of the specific detail is considered, the court must still look at the matter as a whole to determine if the outcome is just and equitable. This requires consideration of the actual outcome of the orders.
The actual effect of the orders is set out above. It appears that the amount of superannuation, in comparison to the property pool is modest, and therefore can be conveniently dealt with by allowing the parties to keep their respective superannuation and to adjust the property pool taking it into account. I bear in mind the considerable imprecision in the chattel adjustments, however in the context of the case as a whole, I remain satisfied that the overall outcome is just and equitable.
I therefore make orders accordingly.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 2 September 2011
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