CATTRALL & CATTRALL
[2024] FedCFamC1F 241
•16 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
CATTRALL & CATTRALL [2024] FEDCFAMC1F 241
File number: BRC 16786 of 2021 Judgment of: CAREW J Date of judgment: 16 April 2024 Catchwords: FAMILY LAW – CHILDREN – Where the children spent very little time with the father for two and a half years following separation – Where the parents agreed to a moratorium on the children’s time and communication with the mother on the third day of trial – Where re-introduction therapy with the father was successful – Where the matter returned for a part-heard defended hearing to determine what care arrangements are in the children’s best interest – Where limiting the children’s relationship with their mother is unnecessarily restrictive – Where the presumption of equal shared parental responsibility does not apply – Where equal shared parental responsibility is nonetheless in the children’s best interests – Where the children will live in an equal time arrangement with the parents after a gradual re-introduction to the mother.
FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where the parties are in dispute about the weight to be given to the husband’s greater financial contributions and wife’s greater homemaking contributions – Whether there should be an adjustment based on the disparity in parties’ incomes – Where contributions favour the husband in the proportion 55/45 – Where there is a five percent adjustment in favour of the wife for earning disparity – Where the property will be subject to equal division including a superannuation splitting order.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 62B, 64B, 65D, 65DAA, 65DAC, 65DA, 75, 79, 90XT, 106A
Family Law (Superannuation) Regulations 2001 (Cth)
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93–637
Eastley & Eastley (2022) FLC 94–094
Isles and Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93–344
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92–655
Re David (1997) FLC 92–776
Stanford v Stanford (2012) 247 CLR 108Number of paragraphs: 80 Date of hearing: 20 – 22 November 2023 and 21 March 2024 Place: Brisbane Counsel for the Applicant: Mr Bunning Solicitor for the Applicant: Simonidis Steel Lawyers Counsel for the Respondent: Mr Lake Solicitor for the Respondent: CG Legal Group Counsel for the Independent Children’s Lawyer: Mr Todman Solicitor for the Independent Children’s Lawyer: Queensland Legal Practice ORDER
BRC 16786 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CATTRALL
Applicant
AND: MS CATTRALL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
16 APRIL 2024
THE COURT ORDERS BY WAY OF FINAL ORDER THAT:
PARENTING
Parental responsibility
1.Mr Cattrall (“the father”) and Ms Cattrall (“the mother”) have equal shared parental responsibility for all major long-term issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth) (“the Act”)) for the children, X born 2012 and Y born 2014.
Living arrangements
2.The children live with and spend time with the father and the mother at all such times as may be agreed and failing agreement as follows:
(a)From 21 April 2024 until 9 June 2024, the children spend time with the mother each Sunday from 9.00am to 5.00pm commencing on the first Sunday after this Order;
(b)From 9 June 2024 until 4 August 2024, the children spend time with the mother each alternate weekend from 9.00am Saturday until 5.00pm Sunday;
(c)Thereafter, during school term, the children live with the mother each alternate week from Friday after school until the following Friday before school;
(d)The children live with the father at all other times.
3.The children spend time with the father and the mother during school holidays and special days at all such times as may be agreed and failing agreement as follows:
(a)During the Christmas school holidays in 2024/2025 commencing on 14 December 2024, with the father in the first week and the mother in the second week and alternating weeks for the balance of the holidays;
(b)Thereafter during all school holidays, with the father for the first half in odd numbered years and the second half in even numbered years, and with the mother in the second half in odd numbered years, and the first half in even numbered years;
(c)With the mother for the Mother’s Day weekend from after school Friday to before school Monday;
(d)With the father for the Father's Day weekend from after school Friday to before school Monday.
Changeovers
4.Upon the commencement of the children spending time with the mother pursuant to paragraph 2 of this Order, changeovers occur at school if the children are at school and if the children are not at school the father deliver the children to the mother’s residence at the commencement of the time the children spend with the mother, and the mother return the children to the father’s residence at the commencement of time the children spend with the father.
Communication
5.The parents communicate by email or text message or via a ‘parenting App’ unless otherwise agreed.
6.Each parent keep the other advised at all times of their respective email address and mobile telephone number.
Overseas Travel
7.Within 14 days of a request to do so by a parent, the other parent is to sign any and all documents necessary to obtain/renew Australian passports for the children, with the parent seeking to travel with the children to pay the costs of obtaining or renewing a passport.
8.The children be permitted to travel outside of the Commonwealth of Australia in the care of either parent, on the following conditions:
(a)The travelling parent provides the other parent with no less than 6 weeks' notice in writing of their intention to travel and include in the notice the destination for travel and the intended departure and return dates to and from Australia; and
(b)Not less than 7 days prior to the intended departure date from Australia, the travelling parent provide the other parent with:
(i)a copy of the return travel tickets for the children;
(ii)an itinerary for the period of travel including destination(s) for the children and the departure date and time from Australia and the return arrival date and time to Australia;
(iii)every address at which they propose to reside with the children whilst overseas; and
(iv)a contact number for the children while overseas.
Restrictions and obligations on the parents
9.Neither parent denigrate the other parent or their family to, or in front of, or within the hearing of, the children and use their best endeavours to prevent other family members or third parties from doing so.
10.Neither parent discuss with the children any issue relating to the dispute between the parents in these Court proceedings or show the children any documents connected with the dispute.
11.As soon as reasonably practicable, each parent inform the other of any medical condition, health issue, or illness suffered by the children whilst the children are in their respective care and provide the name and contact number of any practitioner upon whom they have attended with the children.
12.Each parent take all reasonable steps to ensure that the other parent is kept informed in a timely manner of any emergency issues relating to the wellbeing, health, and care of the children while the children are in their respective care and in any event, within 24 hours.
13.The mother continue to attend upon her psychotherapist, Ms B, for so long as recommended by Ms B in order to address any issues identified by Ms B but also to address the following issues:
(a)Coming to terms with the breakdown of her relationship with the father and the impact on the children of being exposed to that, including being exposed to the verbal and physical confrontations instigated by the mother against the father, which also involved at times the mother’s adult child, Mr C;
(b)The mother’s failure to facilitate and foster the children’s relationship with the father for two and a half years;
(c)Understanding the impact on the children of exposure to her negative views about the father;
(d)Understanding the impact on the children of the mother interpreting statements made by them from a prism of dislike and mistrust of the father;
(e)Understanding the importance for the children of experiencing an ongoing meaningful relationship with the father; and
(f)Developing strategies to effectively co-parent and communicate with the father for the benefit of the children.
14.The mother forthwith provide a copy of the Reasons for Judgment dated 16 April 2024 to her therapist, Ms B.
15.The father enrol and complete as soon as reasonably practicable a Parenting Orders Program or Parenting Co-ordination Program with a recognised service provider to assist him with strategies on how to better communicate with the mother and to gain a better understanding on how important it is for the children to have both parents playing a significant part in their lives.
Authorities
16.This Order provides irrevocable authority for any treating medical practitioner, specialist, dentist, or other health or allied health professional to release the children's medical or other information to each parent and to discuss the children's prognosis and treatment with each parent.
17.This Order provides irrevocable authority for any school attended by the children to release to each parent any information and documentation that a parent would usually be entitled to receive.
18.Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
PROPERTY
19.Within 60 days of this Order, Mr Cattrall (“the husband”) and Ms Cattrall (“the wife”) do all acts and sign all documents necessary to transfer the wife’s rights, title, and interest in the property situated at D Street, Town E in the State of Queensland (“the D Street property”) to the husband.
20.Contemporaneously with the transfer of the D Street property, the husband and wife do all acts and sign all documents necessary to release the existing mortgages with F Bank secured against the D Street property and refinance same into the husband’s sole name.
21.From the date of this Order, the husband indemnify the wife against all payments and liabilities pursuant to the mortgages to the F Bank secured over the D Street property and all rates, taxes, and outgoings with respect to the D Street property of whatsoever kind and nature.
22.Contemporaneously with the transfer of the D Street property, the husband pay to the wife the sum of $260,308 (“the settlement sum”).
23.In the event the husband does not pay the settlement sum as required by this Order, then within 7 days thereafter, both parties shall do all acts and things and sign all documents necessary to sell the D Street property upon the following terms:
(a)The selling agent be as agreed between the parties and failing agreement the husband shall within 7 days send to the wife in writing a panel of 3 proposed selling agents, with the wife thereafter within 7 days shall select one selling agent from the panel and inform the husband in writing which selling agent the wife has chosen and in the event the wife has not complied within 7 days, then the
(b)limited to:
(c)husband shall select one of the proposed selling agents from the panel and such nomination shall be binding on both parties;
(d)The D Street property will be listed for sale at a price agreed between the parties and failing agreement at a price nominated by a valuer appointed by the President of the Australian Institute of Valuers (“the listing price”) with the parties to equally pay the cost of the valuer;
(e)The D Street property will be sold at a price to be agreed by the parties and failing agreement the parties shall accept any offer which is not less than 95% of the listing price;
(f)In the event that the D Street property is not subject to an unconditional contract for sale within 90 days of being listed for sale then the D Street property will be sold at auction with an auctioneer as agreed between the parties and failing agreement as appointed by the Chief Executive Officer of the Real Estate Institute of Queensland (“the auctioneer”) for sale by auction at the earliest possible date;
(i)Both parties shall do all acts and things and execute all documents necessary for the sale, whether by private treaty or auction, of the D Street property including but not executing the contract for sale and co-operating in every way with the agent and any auctioneer/s in relation to the sale or auction of the D Street property including making a key available;
(ii)allowing inspection of the D Street property at all times as requested by the agent/auctioneer;
(iii)removing all belongings prior to the date of settlement; and
(iv)such other terms or conditions as are agreed in writing between the parties.
24.At settlement of the contract for the sale of the D Street property, the proceeds of sale will be applied as follows:
(a)In payment of the mortgages secured against the D Street property;
(b)In payment of any agent's commission and auction expenses due on the sale;
(c)In payment of any outstanding local authority rates;
(d)In payment of any conveyancing fees;
(e)The remaining balance to be divided between the parties so as to achieve an equal division overall of the net assets of the parties as otherwise determined by the Honourable Justice Carew in the Reasons for Judgment dated 16 April 2024.
25.The husband and the Trustee, G Pty Ltd, do all necessary acts and things, sign all documents, and give all consents necessary to give force and effect to this Order.
26.Paragraphs 25, 27, 28 and 29 of this Order are binding on the Trustee, G Pty Ltd, of Superannuation Fund 1 (“the Fund”).
27.The amount allocated to the wife in these proceedings out of the interest of the husband in these proceedings being account number …42 in the Fund is $99,971.50 (“the base amount”).
28.Pursuant to s 90XT(l)(a) of the Act, whenever a splitable payment becomes payable in respect of the interest of the husband in the Fund the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount and that there be a corresponding reduction in the entitlement of the husband to whom the splitable payment would have become payable but for this Order.
29.Paragraph 28 of this Order has effect from the operative time and the operative time for this Order is 5 business days after the date of service upon the Trustee of a certified copy of the sealed Order.
30.Save and except as otherwise provided in this Order, the husband forthwith retain as his absolute property and the wife forthwith relinquish and/or transfer all right, title and interest that she may have in and to the following property and financial resources:
(a)The furniture, chattels, jewellery and personal effects currently in the husband's possession;
(b)The husband's bank accounts;
(c)The husband's superannuation interests subject to the superannuation split as provided in this Order; and
(d)All other proprietary interests of whatsoever nature in the husband’s current possession and/or control.
31.Save and except as otherwise provided in this Order, the wife forthwith retain as her absolute property and the husband forthwith relinquish and/or transfer all right, title and interest that he may have in and to the following property and financial resources:
(a)The furniture, chattels, and personal effects currently in the wife's possession;
(b)The wife's bank accounts;
(c)Motor Vehicle 1;
(d)The wife's superannuation interests; and
(e)All other proprietary interests of whatsoever nature in the wife's current possession and/or control.
32.The husband and wife execute all documents and do all acts and things necessary to implement the terms of this Order and in the event of either the wife or the husband failing to do so within 7 days of the receipt of the written request of the other party, pursuant to s 106A of the Act a Registrar of the Federal Circuit and Family Court of Australia (Division 1) at Brisbane is appointed and empowered to execute all such documents and do all such acts and things to implement the terms of this Order.
33.For the Registrar to comply with the powers provided in this Order it will be sufficient proof that there has been non-compliance that the wife or husband provide to the Registrar an Affidavit deposing to non-compliance by the other party.
34.Except as this Order provides to the contrary:
(a)All documents necessary to transfer any property or give effect to any transaction pursuant to the terms of this Order shall be prepared by the party receiving such property or the benefit of such transaction; and
(b)The party receiving such property or the benefit of such a transaction shall be solely responsible for the payment of any taxation, stamp duty, registration fees, legal fees and outlays, and any other costs in relation to the transfer of any property or the receipt of any benefit of such a transaction pursuant to the terms of this Order.
NOTATION
A.The mother had no objection to the provision in this Order that she continue to undergo therapy with Ms B.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
The applicant, Mr Cattrall, and the respondent, Ms Cattrall, are a married couple who separated in 2021. They are not yet divorced. They have two little girls, X aged 12 and Y aged nine. The issues in dispute concern parenting and property.
Until November last year, the children had not spent any time with their father for about two and a half years. On the third day of the trial, the parties agreed to implement an interim order which provided for the children to live with their father for three months and not have any contact with their mother during that time. The father and children were assisted in that process by an intensive live-in reintroduction program which the parties agree was successful.
By the time the proceedings returned to Court three months later, the father contended that the children should remain in his care and only see their mother for four hours a fortnight supervised. The mother proposed that after a gradual reintroduction to her, the children should live in an equal time arrangement.
For the reasons set out below, the children will live in an equal time arrangement with their parents after a graduated re-introduction to their mother. The parents will have equal shared parental responsibility for all major long-term issues.
In the property proceedings, I will refer to the applicant as the husband and the respondent as the wife for convenience and to assist in the anonymisation of the judgment. The property of the parties or either of them is modest and will be divided equally. There will be a superannuation splitting order so as to equalise the parties’ superannuation benefits and the husband will be required to make a cash payment to the wife of $260,308.
PARENTING
Issues
The significant parenting issues requiring determination are different to those identified at the commencement of the trial, which is understandable given the parties consent to and implementation of the interim order made on 22 November 2023. Each party had the opportunity to identify the significant issues now requiring my determination. The issues were formulated on behalf of all parties by counsel for the father with some input from counsel for the mother. While the issues could perhaps be more efficaciously expressed, they were identified in the following terms:
(1)What time should the children spend with the mother which is informed by findings made as to:
(a)The attitude of the mother to father as a parent;
(b)The insight that the mother has into the post separation dynamic;
(c)The mother’s ability to support the relationship between children and the father; and
(d)Whether any of those issues affected the children’s relationship with the father prior to their reintroduction therapy and moving forward is likely to do so and cannot otherwise be ameliorated?
(2)Has the mother caused either covertly or overtly the children’s resistance to see the father over the last two and a half years?
(3)Should there be unsupervised time with the mother?
(4)How to proceed to a shared care arrangement and what form the shared care arrangement takes?
PROPOSALS OF EACH PARTY
As already identified, the father proposes that the children remain in his care and spend supervised time with their mother for a maximum of four hours per fortnight at a contact centre. The father proposes that he have sole parental responsibility for major long-term issues. The precise terms of the order sought by him are set out in his fifth amended Initiating Application filed 26 February 2024.
As already identified, the mother proposes that the children should immediately spend unsupervised time with her, initially during the daytime only and gradually increasing over several months to equal time. The mother proposes that the parents have equal shared parental responsibility. The precise terms of the order sought by her are set out in her third amended Response filed 18 March 2024.
The independent children’s lawyer (“ICL”) recommends that the children live with the father and spend time with the mother, initially supervised for two hours per week for no less than three months, and upon the provision of a report from the mother’s therapist “confirming that the mother has continued to participate in her therapy and that the mother has addressed issues in relation to improving the family relationships”, for gradually increasing unsupervised time until the children are spending nine nights per fortnight with the father and five nights per fortnight with the mother. The ICL recommends the father have sole parental responsibility.
BACKGROUND
The mother and father married in 2011 having commenced a relationship sometime in 2010. In mid-2011, the parents relocated from New South Wales to Queensland and commenced residing in the property at D Street, Town E (“the former matrimonial home”). The former matrimonial home was initially rented and was subsequently purchased in late 2012.
The parents separated on a final basis in mid-2021 but are not divorced. The parents lived separate lives under the same roof for some months during the period 2018 to final separation on 5 July 2021 at which time the father temporarily relocated. In early August 2021, the father returned to the former matrimonial home and continues to reside there. Since that time, the father has had the benefit of living in the former matrimonial home, although he alone has met the mortgage repayments, rates, and all other outgoings in relation to the home.
At or about the end of July 2021, the mother relocated from the former matrimonial home. The mother now resides in a rental property in Town E.
The father was born in 1972 and is 51 years of age. He is employed as a manager and is in good health. The father’s average weekly wage is $2,716. Until the children commenced to live with the father late last year, he was paying child support to the mother as assessed in the amount of about $452 per week.
The mother was born in 1977 and is 47 years of age. She is employed as an assistant manager and is in good health. The mother’s average weekly wage is $1,840. The mother is currently paying child support to the father as assessed in the amount of about $279 per week.
The parents’ two children are X born 2012 and Y born 2014 (“the children”).
The mother has another adult child from a previous relationship, namely, Mr C aged 20. Mr C currently resides with the mother. Mr C lived with the parents throughout the marriage. He was eight years old in 2011 when he was adopted by the father.
The father worked in a ‘fly in, fly out’ job until about 2016 and continued to travel with his employment until 2018.
The parents have been involved in various criminal and domestic violence proceedings since their final separation. In mid-2021, the mother pleaded guilty to a charge of common assault against the father and was sentenced to a good behaviour bond, with no conviction recorded. In mid-2021, the mother consented without admissions to a protection order naming the father as the protected person. The protection order will expire in mid-2026. In mid-2021, the mother filed an application for a protection order against the father on behalf of the child, X. The mother withdrew the application the following month.
The children did not spend time with the father from mid-2021 to the commencement of trial apart from a few short, supervised visits. On 20 April 2022, supervised time with the father was ordered, however it was not successfully facilitated due to the children’s refusal to spend time with the father. Supervised time was suspended by further order on 19 October 2022.
On the third day of trial, being 22 November 2023, the parents consented to an interim order which provided for the trial to be adjourned part-heard to 21 March 2024. Further, the order provided that the children would live with the father, and he would have sole parental responsibility. A moratorium was placed on time and communication between the mother and children from 14 December 2023, being the date upon which the children left the mother’s care.
The father and mother have each incurred legal fees of about $200,000.
APPLICABLE LEGAL PRINCIPLES
In parenting proceedings under the Family Law Act 1975 (Cth) (“the Act”), s 43 of the Act requires the Court to have regard to several matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, 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, and any other fact or circumstance considered relevant (s 60CC).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of such behaviour include assault, stalking, repeated derogatory taunts, intentional damage, or destruction of property etc.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
[2] Evidence Act 1995 (Cth) s 140.
[3] M v M (1988) 166 CLR 69 (“M & M”).
[4] Ibid.
[5] Ibid; N and S and the Separate Representative (1996) FLC 92–655.
When assessing the nature and magnitude of a risk posed by a parent, all relevant evidence must be considered as part of the “matrix of evidence”[6] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
[6] Eastley & Eastley (2022) FLC 94–094 at [31] (“Eastley”).
[7] Johnson & Page (2007) FLC 93–344 at 81,890–81,891, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen (2022) FLC 94-092 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[8] Isles (fn 7) at [7].
[9] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.
[10] Baghti & Baghti and Ors [2015] FamCAFC 71.
[11] M v M (fn 3) at 76.
Each parent has parental responsibility (i.e., all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[12]
[12] Banks & Banks (2015) FLC 93–637.
WHAT TIME SHOULD THE CHILDREN SPEND WITH THE MOTHER WHICH IS INFORMED BY FINDINGS MADE AS TO:
· THE ATTITUDE OF THE MOTHER TO FATHER AS A PARENT;
· THE INSIGHT THAT THE MOTHER HAS INTO THE POST SEPARATION DYNAMIC;
· THE MOTHER’S ABILITY TO SUPPORT THE RELATIONSHIP BETWEEN CHILDREN AND THE FATHER; AND
· WHETHER ANY OF THOSE ISSUES AFFECTED THE CHILDREN’S RELATIONSHIP WITH THE FATHER PRIOR TO THEIR REINTRODUCTION THERAPY AND MOVING FORWARD IS LIKELY TO DO SO AND CANNOT OTHERWISE BE AMELIORATED?
It is necessary to set out some of the background in order to contextualise the history of animosity directed by the mother toward the father. In 2018, the mother discovered that the father was communicating via text with a woman from his gym. The woman sent the father some photographs (presumably explicit) which for some reason were also received on Mr C’s phone, and Mr C showed them to his mother. The father seems to absolve himself from all responsibility for the inevitable fall out, by suggesting that his involvement with the woman only lasted a couple of weeks. The reaction by the mother, while perhaps predictable given that her relationship with Mr C’s father had ended because of his infidelity, was inexcusable because she exposed Mr C and the children to her extreme anger and abuse of the father.
The parents remained living together until their final separation in mid-2021. This period must have been very difficult for all concerned but particularly for Mr C and the children. There were physical altercations instigated by the mother against the father, and the father surreptitiously audio recorded several incidents which certainly portrayed the mother in a very poor light.
At least by the end of the relationship, the mother was drinking too much. The final separation occurred after another altercation which involved the mother putting the father in a headlock as she tried to remove his phone on which he was recording the altercation. Mr C was present and encouraged by the mother to retrieve the father’s phone. The children were in the house, and I have no doubt they were aware of the altercation. In the audio recording of the incident, one of the children is heard to ask after the father seemingly worried that he may not be alright.
For much of the period 2018 to 2021, the father was sleeping in the children’s queen size bed. One or both children have a history of being fearful of sleeping alone at night. After separation, the mother made allegations that the father had inappropriately touched X by putting his hand down her shirt and rubbing his penis against her. The Department of Child Safety, Seniors, and Disability Services (“Child Safety”) rejected the allegations but did express some concerns about the father not appreciating appropriate boundaries.
The mother audio recorded the children on several occasions after separation. The recordings do her no credit. The mother elicits statements from the children, particularly X, by asking leading questions which she then interpreted through her prism of dislike and mistrust of the father. The recordings were also, in my view, an attempt to deflect responsibility for the children’s refusal to spend time with and communicate with the father, by recording them saying they did not want to see the father. I have no doubt that the mother’s enmity towards the father was significantly responsible for the children’s rejection of the father, at least initially.
Ironically, the father, at that time, just wanted to be a part of the children’s lives with regular contact. The father changed his position to seek an order for the children to live with him in 2022. During the trial, the father acknowledged that the mother is a good mother who loves the children.
Despite numerous third parties, including the family report writer, Ms H, and other professionally trained persons, attempting to encourage the children to spend time with the father, the children, particularly X, were adamant in their refusal. The children even locked Ms H out of her interview room when she left to invite the father to join her and the children during the family report interviews.
The father submits that until the mother can demonstrate that she has truly changed in her attitude to him and gained insight into the impact on the children of being exposed to her dislike of the father, her time with them should be supervised and for short periods. The father conceded during cross-examination that the likely costs of the supervision may well mean that the children’s time with the mother would not even be four hours per fortnight.
The father submits that the order recommended by the ICL, which proposes a 9/5 arrangement once a report is provided by the mother’s therapist, impermissibly abrogates the Court’s responsibility to a third party.[13] In my view, the order proposed by the ICL really does not make a great deal of sense. For instance, it does not identify what matters would need to be addressed by the therapist in her report other than in a very general way. It was not clear to me how any apparent risk posed by the mother, which was not articulated, is addressed by the ICL’s proposed order.
[13] Re David (1997) FLC 92–776 at 84,576.
In my view, the best evidence to date of the mother’s acceptance of responsibility for the children’s rejection of the father was her agreement to the interim order which permitted the children to live with the father for three months and have no contact with her. I have no doubt of the extraordinary sacrifice made by the mother particularly as it occurred just prior to Christmas. The mother’s actions satisfy me that she is now prepared to do whatever is necessary to assist in the children repairing their relationship with the father. By all accounts, the children’s relationship with their father is now very good.
The father and the ICL were critical of the mother for including a fluffy toy in the children’s possessions (when they left her care) which was sprayed with her perfume and had a note secreted in it. The note comprised the words of a song that the mother had historically sung to the girls each night, and also contained an expression of her love for them. I reject the harsh criticism of the mother. There is no evidence the toy distressed the children. Indeed, it may even have assisted their transition to the father by having some continuing connection with their mother. Otherwise, they may well have felt abandoned by her. I should observe that the father’s and ICL’s criticisms of the mother were no doubt informed by Ms J, the therapist engaged to conduct the reunification between the children and the father.
While the intensive re-introduction therapy has been successful by all accounts, I consider it necessary to record my reservations about the extent to which one of the therapists, Ms J, appears to have aligned herself with the father. In my view, she acted quite unprofessionally in sending an email to the father in which she said, among other things:
… wait til you read [the mother’s] antics ... she gave a false name to [Dr K] and told her she was an alienated parent who hasn't seen her kids for 3 months and whose father sexually abused her daughter.
She might only ever get supervised visits at this rate.
Ms J was relying upon third hand information about something allegedly said by the mother during a one-and-a-half-hour interview with another therapist on the day the mother’s grandmother died. The mother denies the allegations. It seems that as the father was paying Ms J’s fees (about $14,000) she may have felt it appropriate to express such statements.
The mother’s proposal for the children to remain in the primary care of the father for several months before moving to an equal time arrangement is yet another demonstration in my view of the mother’s change of heart. Further, the mother proposes equal shared parental responsibility and expresses a willingness to co-parent with the father. The mother also indicated an intention and willingness to continue her therapy with Ms B stating that she would have no objection to an order being made to that effect. These concessions are all persuasive indicators in my view of the mother’s commitment to change. I am satisfied that the mother is now able to put the children’s needs ahead of her own, but the mother will be required to continue to seek support from her therapist and, in particular, to work through the following issues:
(a)Coming to terms with the breakdown of her relationship with the father and the impact on the children of being exposed to that, including being exposed to the verbal and physical confrontations instigated by the mother against the father, which also involved at times the mother’s adult child, Mr C;
(b)The mother’s failure to facilitate and foster the children’s relationship with the father for two and a half years;
(c)Understanding the impact on the children of exposure to her negative views about the father;
(d)Understanding the impact on the children of the mother interpreting statements made by them from a prism of dislike and mistrust of the father;
(e)Understanding the importance for the children of experiencing an ongoing meaningful relationship with the father; and
(f)Developing strategies to effectively co-parent and communicate with the father for the benefit of the children.
HAS THE MOTHER CAUSED EITHER COVERTLY OR OVERTLY THE CHILDREN’S RESISTANCE TO SEE THE FATHER OVER THE LAST TWO AND A HALF YEARS?
In relation to this issue, I need not add to the findings already made in my consideration of the first issue.
SHOULD THERE BE UNSUPERVISED TIME WITH THE MOTHER?
At the end of the trial, the parties agreed that, pending judgment, the mother should spend supervised time with the children commencing on the first Sunday after the trial.
By the time judgment is delivered, the mother will have spent several occasions with the children on a supervised basis. I am not satisfied that the mother’s previous conduct, including exposure of the children to her enmity towards the father, is a risk of such magnitude that her time with the children requires supervision. A number of years have now passed, and the mother has been and will continue to undergo therapy. The concessions made by the mother during the trial have persuaded me that she is genuine in accepting responsibility for the impact of her previous conduct and that she is now committed to facilitate the children’s ongoing relationship with the father.
I consider it to be in the children's best interests to spend unsupervised time with the mother in the expectation that some semblance of normality can be resumed in their lives.
HOW TO PROCEED TO A SHARED CARE ARRANGEMENT AND WHAT FORM THE SHARED CARE ARRANGEMENT TAKES?
The mother proposes a very gradual increase in the children’s time with her before commencing equal time. While I am persuaded that there should be some gradual increase given that the children have not spent any time with the mother for three months and then only limited supervised time, I am not of the view that the process needs to be quite as slow as proposed by the mother. It is not as though the children do not already have a close and loving relationship with the mother.
I consider that the regime proposed by the mother will be too disruptive, increasing the time as it does by one day a fortnight over several months. In my view, once there has been a return to unsupervised time the arrangements should move to equal time over a shorter period than that proposed by the mother.
WHAT PARENTING ORDER IS PROPER?
As already indicated, I have concluded that the children should live in an equal time arrangement with their parents in circumstances where there is no practical impediment to such an order. The parents live close to each other and to the children’s school. The mother has historically been the children’s primary carer and now that the children’s resistance to spending time with the father has been overcome, I accept the mother’s submission that an equal time arrangement is in their best interests. Limiting the children’s relationship with their mother as suggested by the father is unnecessarily restrictive, but perhaps influenced by the unfortunate intervention of Ms J, who failed to adhere to appropriate boundaries between herself as a professional engaged to carry out a task, and the father in this case.
The parents will have to communicate on matters concerning their children whatever parenting order is made. I am not persuaded that necessary communication would be vastly different if the children spend only five nights with the mother each fortnight (as proposed by the ICL) rather than seven nights each fortnight. There is no evidence that any major long-term issue such as education, health, religion, name, etc. is likely to result in disagreement between the parents such that equal shared parental responsibility will be problematic. In my view, while the presumption in favour of equal shared parental responsibility does not apply in this case (given that there are reasonable grounds to believe that a parent has engaged in family violence), I consider such an order to be in the children’s best interests. The children need to see their parents working together and I am satisfied that the parents are motivated to do better in future.
In my view, the father would benefit from undertaking a Parenting Orders Program or Parenting Co-ordination Program to assist him with strategies on how to better communicate with the mother and to gain a better understanding on how important it is for the children to have both parents playing a significant role in their lives. While I have been critical of the mother’s conduct, the father would be wise to reflect on his own conduct in the lead up to the separation.
Each party had the opportunity to make submissions about the other party’s proposed parenting order. In the absence of submissions on any particular provision, I have assumed that there is no strong objection to that proposed by the other party. I have incorporated various provisions from each party’s proposed order in the final order.
The parenting order I propose to make best meets the needs of the children in the circumstances of this case.
PROPERTY
In this part of the judgement, as earlier noted, I will refer to the applicant as the husband and the respondent as the wife and jointly as the parties.
Issues
The parties identified the following issues for my determination:
(1)Given the myriad of contributions made by each party, what weight should be placed on the husband’s greater initial financial contribution and greater financial contribution during the relationship, and the wife’s greater contribution as homemaker and parent during the relationship?
(2)Should there be any adjustment when considering s 75(2) factors, in particular, in the event that one party will have the primary care of the children and any income earning disparity between the parties?
APPLICABLE LEGAL PRINCIPLES
In property settlement proceedings, the Court may make such order as it considers appropriate, altering the interests of the parties to the marriage in the property of the parties or either of them, including an order for a settlement of property in substitution for any interest in the property for the benefit of the parties, and an order requiring either or both of the parties to the marriage to make, for the benefit of either or both of the parties, such settlement or transfer of property as the Court determines (s 79(1) of the Family Law Act1975 (Cth) (“the Act”)).
The Court cannot make an order unless it is satisfied that, in all of the circumstances, it is just and equitable to make the order (s 79(2)).
In considering what order (if any) should be made in property settlement proceedings, the Court is required to take into account the following (s 79(4)):
(a)The financial contribution made directly or indirectly by or on behalf of a party to the acquisition, conservation or improvement of any property of the parties or either of them, whether or not that property still exists;
(b)The contribution (other than financial) made directly or indirectly by or on behalf of a party to the acquisition, conservation or improvement of any property of the parties or either of them, whether or not that property still exists;
(c)The contribution made by a party to the welfare of the family constituted by the parties and any children, including any contribution made in the capacity of homemaker or parent;
(d)The effect of any proposed order upon the earning capacity of either party;
(e)The matters referred to in s 75(2) of the Act so far as relevant;
(f)Any other order made under the Act affecting a party; and
(g)Any child support under the Child Support (Assessment) Act 1989 (Cth) that a party has provided, is to provide, or might be liable to provide for a child of the marriage.
The High Court of Australia in Stanford v Stanford[14] identified certain principles to be applied in property settlement proceedings. In particular, when considering whether it is just and equitable to make an order, it is firstly necessary to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.[15] Secondly, the discretion as to whether or not to make a property settlement order, although extraordinarily wide, must nevertheless be exercised in a principled way.[16] Thirdly, there is no presumption that the parties’ rights to or interests in property are or should be different from those that currently exist.[17] The consideration of whether it is just and equitable to make an order should not be considered by reference only to the matters in s 79(4). It is necessary to give separate consideration to s 79(2) and (4) and not to ‘conflate’ the two subsections.[18]
[14] (2012) 247 CLR 108.
[15] Ibid at 120, [37].
[16] Ibid at 120–121, [38].
[17] Ibid at 121, [40].
[18] Ibid at 120, [35].
IS IT JUST AND EQUITABLE TO MAKE AN ORDER?
The husband and the wife contend that it is just and equitable to make an order. That position is understandable given that the husband and wife separated nearly three years ago and “there is not and will not thereafter be the common use of property” by the parties.[19] Additionally “the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the relationship”.[20] In such cases, the “just and equitable requirement is readily satisfied”[21] and I am satisfied in this case that it is just and equitable to make an order.
[19] Ibid at 122, [42].
[20] Ibid.
[21] Ibid.
BALANCE SHEET
The parties agree on the balance sheet which is set out below:
Ownership Description Value ASSETS 1 Joint D Street, Town E $860,000 2 Husband Motor Vehicle 2 sale proceeds $26,750 3 Wife Motor Vehicle 1 $7,000 4 Husband F Bank account ending in …80 $5,504 5 Wife Commonwealth Bank of Australia account ending …79 $3,500 6 Husband Household contents $7,500 7 Wife Household contents $7,500 Total $917,754 LIABILITIES 8 Joint F Bank Home Loan account ending …00 $72,120 9 Joint F Bank Home Loan account ending …01 $293,720 10 Wife Motor Vehicle 1 loan $4,703 Total $370,543 SUPERANNUATION Member Name of Fund Type of Interest Value 11 Husband Superannuation Fund 2 Accumulation $287,525 12 Wife Superannuation Fund 2 Accumulation $43,401 13 Wife Superannuation Fund 3 Accumulation $44,181 Total super $375,107 Net assets (including superannuation) $922,318 Net assets (excluding superannuation) $547,211 WHAT WEIGHT SHOULD BE PLACED ON THE HUSBAND’S GREATER FINANCIAL CONTRIBUTIONS AND THE MOTHER’S GREATER CONTRIBUTION AS HOMEMAKER AND PARENT?
It is common ground that at the date of marriage the husband had about $40,000 cash from the sale of a property, and superannuation benefits of about $80,000, which are of course reflected in the husband’s current superannuation benefits. The husband worked ‘fly in, fly out’, usually five days on and five days off, until about 2015/2016. When he left that employment, the husband received a lump sum of $25,000. The husband was then employed in another industry until about 2018 and continued to travel for work although not as frequently but still for periods of up to two weeks on occasion. The husband ceased travelling away for work in about 2018 but continued in full time employment with a requirement to be available after hours and on weekends to take calls. The husband was employed full-time throughout the relationship.
It is common ground that at the date of marriage the wife had a motor vehicle, some savings, and some superannuation. There is no agreement about the quantum of savings or superannuation and there is no evidence to support the wife’s contention as to the value of her initial contributions. The wife concedes that the husband’s initial contributions exceeded her own. The wife was a full-time mother to Mr C and the children until 2018. From 2018, the wife was employed in various part-time jobs including in merchandising, night filling, and as an assistant manager in a retail store, for short periods. In 2019, the wife commenced a full-time position as an assistant manager where she continues to be employed.
Shortly after their marriage, the parties purchased the former matrimonial home for $450,000. The husband contributed $32,000 to the purchase and the wife obtained a first homeowners grant of $10,000. The balance was jointly borrowed from F Bank.
It is common ground that the husband’s financial contributions exceeded the wife’s both initially and during the marriage and that the wife’s contributions to the welfare of the family and care of the children exceeded the husband’s, particularly in the circumstances where he was working away from the home for significant periods.
In my assessment having considered the myriad of different contributions made by each party, contributions favour the husband in the proportion 55/45.
SHOULD THERE BE ANY ADJUSTMENT WHEN CONSIDERING S 75(2) FACTORS, IN PARTICULAR, IN THE EVENT THAT ONE PARTY WILL HAVE THE PRIMARY CARE OF THE CHILDREN AND ANY INCOME EARNING DISPARITY BETWEEN THE PARTIES?
I have determined that the children should live in an equal time arrangement.
The only other potential factors identified by the parties that may warrant an adjustment is the earning disparity between the parties and the debt the wife has for her legal fees. The husband receives a salary of $141,280. The wife receives a salary of $95,680. The wife has a debt of $96,811 for her legal fees. The husband’s mother has paid his legal fees.
In my view, an adjustment of five percent or $46,116 should be made in favour of the wife such that the property of the parties or either of them, including superannuation, should be divided equally overall.
WHAT PROPERTY ORDER IS APPROPRIATE?
The husband will have the opportunity to retain the former matrimonial home by paying out a sum of cash to the wife. The wife sought the maximum cash payment to her and no superannuation splitting order, while the husband proposed an equal division of the superannuation and a smaller cash payment.
It seems to me that a superannuation splitting order is appropriate, and I propose to adopt an equal division. The husband will retain the former matrimonial home subject to the loans, his car, bank account, household items, and his balance superannuation after the superannuation split. The wife will retain her car subject to the loan, her bank account, household items, her superannuation including the superannuation split, and a cash payment of $260,308. Each party will retain net assets including superannuation of $461,159.
I consider such an outcome to be just and equitable.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated:16 April 2024
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