CHARLES & CHARLES
[2015] FCCA 365
•20 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHARLES & CHARLES | [2015] FCCA 365 |
| Catchwords: FAMILY LAW – Property – division – initial financial contributions – both parties seek to retain former matrimonial home – capacity to fund orders sought – “addbacks” – ss.75(2)(o) – s.(2) adds in favour of Wife. |
| Legislation: Family Law Act 1975, ss.60B, 60CC(2), 60CC(3), 79, 79(2), 79(4), 75(2)(o), Part VIIA |
| Chapman & Chapman [2014] FamCAFC 91 Hickey v Hickey (2003) FLC 93-143 Pierce & Pierce (1999) FLC 92-844 |
| Applicant: | MS CHARLES |
| Respondent: | MR CHARLES |
| File Number: | MLC 4327 of 2013 |
| Judgment of: | Judge Stewart |
| Hearing dates: | 27 & 28 August 2014, 29 & 30 September 2014 and 3 October 2014 |
| Date of Last Submission: | 3 October 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 20 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Pannifex |
| Solicitors for the Applicant: | William J Keough |
| Counsel for the Respondent: | Mr Grant |
| Solicitors for the Respondent: | CE Family Lawyers |
ORDERS
PROPERTY
The husband pay to the wife the sum of $549,300 as follows:-
(a)the sum of $20,000 within 30 days of the date hereof; and
(b)the balance then remaining to be paid to the wife in accordance to orders 4 hereof (“the second payment”).
Within 30 days of the date hereof the husband advise the wife and provide the wife with evidence of his ability to make the payment in total and provide the wife with evidence of such capacity including but not limited to his capacity to borrow from financial institutions and/or from family. In the event the husband fails to comply with this order the parties have liberty to apply on short notice to seek orders for sale of the property situated at and known as Property O in the state of Victoria being the whole of the land more particularly described in Certificate of Title volume (omitted) folio (omitted) (“the Property O”).
The husband advise the wife a date upon which she is required to vacate the Property O property, such date to be not before 1 April 2015 (“the date”).
48 hours prior to the date the husband pay to the wife through her solicitors the second payment.
Contemporaneously with the date the husband discharge or refinance out of the wife’s name the (omitted) Bank mortgage number (omitted) secured over the Property O property.
Contemporaneously with the date:-
(a)the wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of her right, title and interest in the Property O property;
(b)the wife vacate the Property O property;
(c)the wife leave chattels referred to in Annexure A hereof at the property at which time those items shall be deemed to be in the possession of the husband and provided always that the wife is able to locate such items;
(d)the wife leave the items referred to in Annexure B of these orders at which time such item shall be deemed to be in the possession of the husband.
That each of the parties retain:-
(a)their own personal photographs; and
(b)one half of family photographs.
That by way of consequential arrangement to order 7(b) hereof:-
(a)Prior to the date the wife divide the family photographs into two lots of approximately equal size;
(b)Upon the wife vacating the Property O property the wife leave the two lots of photographs;
(c)Within 7 days of the husband taking possession of the Property O property he choose which lot of photographs he seeks to retain and forthwith provide the other lot to the wife; and
(d)Each of the parties facilitate the other obtaining copies of photographs (at the other party’s expense) if requested.
Each of the parties forthwith do all such acts and things as may be necessary to place the property situated at and known as Property H, in the state of Victoria being the whole of the land more particularly referred to in Certificate of Title Volume (omitted) folio (omitted) (“the Property H property”) on the market for sale at a reserve price of not less than $620,000 (or such other sum as may be agreed to between the parties) (“the sale”) and by way of consequential arrangements for the sale:-
(a)unless otherwise agreed between the parties the sale shall be by public auction;
(b)the selling agent shall be as agreed between the parties and failing agreement shall be such agent as is nominated by the President of the Real Estate Institute of Victoria; and
(c)there be liberty to apply on short notice with respect to the terms and conditions of the sale.
The proceeds of the sale shall be applied as follows:-
(a)Firstly, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge any mortgage or any encumbrance pertaining to or affecting the Property H property;
(c)The sum of $20,000 to be placed in an interest bearing trust account in the joint names of the parties to be held by the solicitors for the husband pending any assessment for Capital Gains Tax arising or assessed to the husband as a consequence of the sale;
(d)The sum of 55 per cent thereof to the wife save that out of the wife’s share the sum of $1,950 shall be paid directly to the husband being the wife’s one half share of the costs of Dr M who prepared the family report in these proceedings;
(e)The remainder thereof to the husband.
Upon the husband being assessed for Capital Gains Tax consequent upon the sale of the Property H property as referred to in order 9 hereof, the $20,000 referred to in order 10(c) hereof be applied as follows:-
(a)to discharge the husband’s liability for Capital Gains Tax consequent upon the sale of the property;
(b)the sum of 55% of the remainder thereof to the wife;
(c)the sum of 45% per cent of the remainder thereof to the husband.
Contemporaneously with the date the wife do all acts and things and sign all documents necessary to withdraw at her expense any caveat she has lodged or caused to be lodged on either the Property O or the Property H property.
Pending the sale, the husband have the sole right to occupy the Property H property and during such right of occupation the husband be wholly responsible for and indemnify the wife with respect to any liability (excluding the caveat) of the said the property including but not limited to:-
(a)all repayments as and when they fall due pursuant to any mortgage or encumbrance (excluding the caveats) secured on the said property;
(b)all rates, taxes and alike apportionable outgoings as and when they fall due; and
(c)all utility costs associated with the property including but not limited to phone, electricity, gas and water from the date of this order.
Pending the payment referred to in order 1 hereof the wife have the sole right to occupy the Property O property and during such right of occupation the wife pay all utilities cost associated with the property including but not limited to telephone, electricity, gas and water as and from the date of this order.
Pending the payment the husband be responsible for and wholly indemnify the wife with respect to any liability, excluding the caveats of the Property O property, save as is referred to in order 14 hereof:-
(a)All repayments as and when they fall due pursuant to any mortgage or encumbrance (excluding the caveats) secured on the said property; and
(b)All rates, taxes and alike apportionable outgoings as and when they fall due.
Neither party encumber or further encumber either the Property H property or the Property O property without the consent in writing of the other (such consent not to be unreasonably withheld including but not limited to consent being sought to borrow monies in order to make the payment by the date).
The superannuation interest of the husband be split to permit the creation of a superannuation interest for the wife.
Paragraphs 19 to 22 of this order are binding on the trustee for the (omitted) Staff Superannuation Scheme (“the Fund”).
Pursuant to section 90MJ of the Act the base amount of $58,100 (“the base amount”) be allocated to the wife from the interest of the husband in the Fund.
Pursuant to section 90MJ of the Act whenever a splittable payment becomes payable in respect of the interest of the husband in the Fund the trustee of the Fund shall:-
(a)pay the wife the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in order 19 hereof; and
(b)make a corresponding reduction in the entitlement that the husband would have had but for this agreement.
Order 19 has effect from the operative date.
The operative time for the purpose of this order is the fourth business day after the day on which a signed copy of this agreement is served on the trustee of the Fund.
Until the happening of any of:-
(a)The establishment of a separate account in the name of the wife in the Fund; or
(b)The transfer or “rolling over” into another superannuation fund of the payment split created by these order; or
(c)The wife satisfies the condition of release and is paid the payment split pursuant to these order; or
(d)The wife executing a waiver of rights within the meaning of section 90MZA of the Act in relation to the payment split pursuant to these orders
The husband is hereby restrained personally and through his or her servants or agents from:-
(i)executing a death benefit nomination in favour of any person; or
(ii)doing any act or thing which could render any part of his or her interest in the fund a “non-splittable payment” within the meaning of Regulation 12 or Regulation 13 of the Family Law (superannuation) Regulations 2001.
Within seven days from the date of this order the wife shall serve a copy of the order on the trustee of the Fund together with a copy of any declaration of being separated for 12 months or divorced as required by the trustee of the Fund.
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 party to all property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)Monies standing to the credit of the parties in any joint bank account be divided equally between the parties;
(c)Insurance policies remain the sole property of the owner named therein;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
PARENTING
All previous orders in relation to the children be dismissed.
The parties have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2011 (“the children”).
The children live with the mother.
The children spend time with the father as follows:-
(a)commencing 27 February and each alternate weekend thereafter from 6.00pm Friday until 4.00pm Sunday;
(b)each Wednesday from 4.00pm until 7.00pm;
(c)on the children’s and father’s birthdays for a period of 2 hours if they fall on a week day and for a period of 3 hours if they fall on a weekend as agreed between the parties and in default of agreement from 5.30pm until 7.30pm on a weekday and from 1.00pm until 4.00pm on a weekend;
(d)on Father’s Day, if it falls on a day where the father is not already spending time with the children as agreed between the parties and in default of agreement from 5.00pm Saturday until 6.00pm on Sunday;
(e)for Christmas:-
(i)in 2015 and in each alternate year thereafter from 4.00pm Christmas Eve until 4.00pm Christmas Day; and
(ii)in 2016 and in each alternate year thereafter from 4.00pm Christmas Day until 4.00pm Boxing Day.
(f)commencing in Term 1 in 2016 the father’s time pursuant to order 29(a) above shall be amended such that the time shall commence at 6.00pm on Thursday until 4.00pm Sunday;
(g)commencing in Term 1 in 2016 the father’s time pursuant to order 29(b) above shall be amended such that the time shall commence from 4.00pm to 7.00pm each Thursday;
(h)commencing 2 February 2017 the time pursuant to order 29(a) hereof shall commence from after school Thursday until 8.30am Monday;
(i)commencing 9 February 2017 the time pursuant to order 29(b) hereof shall commence from afterschool Thursday until the commencement of school Friday;
(j)during the September/October 2015 school holidays as follows:-
(i)from 10.00am on the first Saturday until 4.00pm on the first Tuesday; and
(ii)from 10.00am on the second Thursday until 4.00pm on the last Sunday.
(k)during the Term 1, 2 and 3 school holidays as follows:-
(i)in 2016 from 10.00am on the first Saturday until 4.00pm on the first Wednesday and from 10.00am on the second Thursday until 4.00pm on the last Sunday; and
(ii)in 2017 and thereafter for one half of each holiday at times to be agreed and in the absence of agreement the first week from 10.00am on the first Saturday until 4.00pm on the following Saturday.
(l)during the long summer holidays as follows:-
(i)in 2015/2016 holidays for four nights each week from 10.00am on Saturday unless otherwise agreed; and
(ii)in 2016/2017 holidays and thereafter week about at times to be agreed and failing agreement the first week.
(m)such further and other times as agreed between the parties.
The father’s time pursuant to Order 29 hereof be suspended as follows:-
(a)on the children’s birthdays for a period of 2 hours if they fall on a week day and for a period of 3 hours if they fall on a weekend as agreed between the parties and in default of agreement from 3.30pm until 5.30pm on a weekday and from 10.00am until 1.00pm on a weekend;
(b)on the mother’s birthday for a period of 2 hours if it falls on a week day and for a period of 3 hours if it falls on a weekend as agreed between the parties and in default of agreement from 5.30pm until 7.30pm on a weekday and from 1.00pm to 4.00pm on a weekend;
(c)on Mother’s Day, if it falls on a day where the mother is not already living with the children as agreed between the parties and in default of agreement from 6.00pm on Saturday until 6.00pm on Sunday;
(d)for Christmas:-
(i)in 2015 and in each alternate year thereafter from 4.00pm Christmas Day until 4.00pm Boxing Day; and
(ii)in 2016 and in each alternate year thereafter from 4.00pm Christmas Eve until 4.00pm Christmas Day.
The mother ensure that she attend changeovers on time and in the event that she arrives late, even as little as 15 minutes, then the father will be provided with equivalent makeup time which will be added to the end of that period of time.
All changeovers take place at McDonald's (omitted), when the father is not collecting the children from or delivering to the children’s preschool, kinder or school.
The mother and father establish and use a communication journal and record in same, for the information of the other, issues that are limited to the child’s care and the communication journal accompany the children between the parent’s homes.
The parties exchange information concerning the children by way of SMS text messages and the communication journal.
The parties provide a copy of these orders to any preschool, kindergarten or school which the children may from time to time attend.
The mother and father do all such acts and things and sign all such documents to request and authorise any kindergarten or school at which the children attend from time to time to provide copies of all reports, notices, school photograph forms and information relating to the children’s education to both parents.
The mother and father both be permitted to attend all school based activities including preschool, kindergarten or school concerts, plays, excursions, parent teacher interviews and the like, normally attended by parents.
Each party give all necessary consents and authorities to enable the other party to obtain information concerning the children’s education, health care and extracurricular activities.
In the event the mother considers the children medically unfit to spend time with the father she shall provide to the father where possible no less than 12 hours notice prior to the commencement of any such time and a medical certificate evidencing the children’s condition specifically stating that the children are too unwell to spend time with the father, or in the event that this is not possible within 24 hours of the schedule drop-off, and the mother will provide the father with make up time commensurate to the time that was missed at a time the father is not working within fourteen (14) days.
The parties shall immediately inform the other of any serious illness or injury sustained by the children whilst in their care and further provide any particulars of any treatment received by the children together with the name and address of the treatment provider and/or location at which the children are patients.
The parties shall each make available to the other any medication prescribed for the children to enable the other party to administer such medication to the children and the other party shall thereafter administer the medication as prescribed or required and the medication shall pass between the parties so as to ensure that it is in the possession of the party with whom the child is living or spending time.
Each of the parties ensure that except in a case of a genuine medical emergency the children or either of them consult with a general practitioner at the (omitted) Healthcare medical clinic or any specialist they are referred to by that general practitioner.
Each of the parties be and is hereby restrained from consulting with the children or either of them with any counsellor, psychologist, psychiatrist or like health professional save and except by agreement in writing between the parties or further order of this Court.
Each party inform the other party if they intend to take the children outside the State of Victoria during the period the children are in their respective care.
Each party and their servants and agents be are hereby restrained from:-
(a)discussing with the children or either of them or in the children’s presence, details of these proceedings;
(b)denigrating each other to the children or speaking to the children or either of them in their presence about the other in derogatory terms;
(c)enrolling or committing the children to any activity during the other party’s time without first obtaining the other party’s consent in writing to such activity;
(d)removing the children from the Commonwealth of Australia without the written consent of the other party or a court order;
(e)assaulting, intimidating, molesting, harassing, threatening or in any way interfering with each other or the children or either of them; and
In the event of non-compliance with these orders the matter be listed before Judge Stewart as soon as practicable and on short notice.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.
Otherwise all extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
IT IS NOTED that publication of this judgment under the pseudonym Charles & Charles is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4327 of 2013
| MS CHARLES |
Applicant
And
| MR CHARLES |
Respondent
REASONS FOR JUDGMENT
(as corrected)
These are parenting and property proceedings between the parties.
The parenting proceedings relate to the children: –
a)X born (omitted) 2009. X is five years old; and,
b)Y born (omitted) 2011. Y is aged three years five months.
The parties disagree about the amount of time X and Y should spend with the husband. The wife seeks to reduce the amount of time that the children are spending with the husband. The husband seeks a gradual increase in the time that the children spend with him.
The parties also seek a division of property. Each of them agree that there should be an adjustment of property between them and that the Court should make orders in that regard.
Parenting Application
The husband is presently spending time with the children pursuant to orders that were made by consent on the 7th of August 2013. In essence, those orders provide for the children spend time with the husband each alternate weekend from 6.00pm on Friday until 4.00pm on Sunday. There were various other orders made by consent on that day with respect to:-
a)special days;
b)changeover;
c)specific issues orders including that:-
i)the husband have adequate bedding;
ii)the use of a communication book;
iii)notification of contact details;
iv)an order restraining the parties from involving the children in adult issues (including from discussing the proceedings or denigrating the other, or members of their family, in the presence of the children);
v)the parties to enrol and complete a post separation parenting program;
vi)the parties to attend Relationships Australia for child focused counselling; and
vii)a further notation made by the parties to those orders that the children have adequate rest in the husband’s care.
In August 2013 the orders were amended by consent to revise the changeover point from a supermarket at (omitted) to (omitted) police station.
Brief history
The wife was born on (omitted) 1976 and is 38 years old. She is currently not employed outside of the home, is the primary carer of the children and is engaged in full-time home duties. She supports the family by Centrelink benefit and child support received from the husband for the children. She continues to live in the former matrimonial home in Property O, which has an agreed value of $1.2 million. That home is encumbered by mortgage in the vicinity of approximately $227,000. The wife seeks to retain that home in any property adjustment between the parties.
The husband was born on (omitted) 1973 and is aged 41 years. He is employed as a (occupation omitted) and earns approximately $110,000 per annum. He works from Monday to Friday between 7.00am and 4.00pm and says that he has some flexibility in his employment in terms of being able to work from home from time to time and to adjust his working hours. He also says that he has some flexibility with respect to holidays and could take up to 8 weeks per annum by way of annual leave (some unpaid).
The parties commenced a relationship in or around 2003. There is a factual dispute between the parties as to whether or not their relationship commenced in early 2003 or in late 2003, the wife deposing that cohabitation commenced in May 2003 whereas the husband asserts that cohabitation did not commence until December 2003.
At the time of cohabitation both were employed by the (occupation omitted) on similar incomes.
Each of the parties had assets and financial resources at the commencement of the cohabitation and there is a significant dispute between them as to the extent of their respective initial financial contributions to the relationship and the marriage. I shall deal with that issue later in these reasons.
In 2004 the parties became engaged to marry. Subsequent to their engagement, and from September 2004 until March 2006, the parties travelled to (country omitted) where they (occupations omitted). It seems that this period of living in (country omitted) was a sojourn from their lives in Australia. The wife had previously being made redundant from her employment and the husband took a career break.
By March 2006 the parties had returned to Australia and the husband resumed his employment at the (employer omitted) at a similar salary as before. At around that time that the wife pursued alternative employment in the (omitted) industry and in other areas.
The parties married on (omitted) 2006.
Following marriage the parties bought and sold a property in the (omitted) suburbs of Melbourne and ultimately purchased a property in Property O, which was to become the site where the former matrimonial home was built by the parties. There are significant disputes between the parties as to the source of funds for the acquisition and improvement of these properties purchased during the marriage, which I shall deal with later in these reasons.
Following the birth of the children there is no dispute between the parties that the husband continued in employment outside of the home and the wife was primarily responsible for the care of the children, although she did pursue some employment outside of the home in the (omitted) industry.
Separation ultimately occurred in May 2013.
Prior to separation it seems that the marriage faltered and there were distinct periods of unhappiness within the marriage. For instance, even prior to the parties separating, and on 19 June 2012, the wife obtained an intervention order against the husband which the husband consented to (without admission as to the facts and matters giving rise to the need for it). That intervention order allowed the husband to remain in the former matrimonial home with restrictions with respect to family violence (“the first intervention order”).
At around the same time that the first intervention order was made the parties commenced marriage counselling. The parties had been arguing regularly for a number of months prior to the first intervention order.
At around the time of the parties’ separation and on 15 May 2013 the wife obtained a variation to the first intervention order and the husband was required to leave the former matrimonial home.
Although neither party, and in particular the wife, puts their case on the basis that this Court should have significant regard to family violence as a factor impacting on the care arrangements for the children, the family violence issues are relevant in so far as they relate to:-
a)an assessment of the wife’s personality and her alleged incapacity to promote an ongoing and meaningful relationship between the children and the husband for her part;
b)an assessment of the conflict of between the parties, the children’s exposure to that conflict and how it impacts upon them; and
c)the husband’s property application in that he was required to leave the former matrimonial home with few possessions and personal items.
At the time of separation the parties’ investment property, which had been acquired by the husband prior to the marriage, was being rented out. The parties were also significantly in advance of their mortgage payments on the former matrimonial home.
On 30 May 2013 the wife filed an Initiating Application in this court seeking property adjustment between the parties, and proposing that the parties share equal parental responsibility for the children and the children to see the husband as may be agreed between the parties.
On the following day the parties, by consent, agreed that the wife to withdraw the intervention order proceedings, which had been previously issued, upon an undertaking by the husband not to commit family violence. That undertaking was to expire one year later, on the 31 May 2014.
The wife applied for child support and an assessment issued by the Child Support Agency on 6 July 2013 providing that the husband was assessed to pay child support to the wife for the children in the sum of $1,900 per month.
In anticipation of the first return date of the proceedings in this court on 15 July 2013, the husband filed a Response on 12 July 2013. He too sought orders with respect to the adjustment of property between the parties and recorded his agreement that the parties should share equal parental responsibility for the children. In contrast to the wife’s application that time between he and the children be as agreed, he sought specific periods of time to spend with the children being daytime periods for both children, and having regard to Y’s then age of approximately 2 years. At that time the husband sought day times with Y and some overnight time with X every second weekend from Friday to Sunday.
Orders were made by consent on the first return date of the proceedings being, 15 July 2013, whereby the children were to spend daytime periods with the husband on Tuesday and Thursday of each week (the husband having taken parental leave to facilitate such time) and on each alternate weekend on both Saturday and Sunday for daytime periods. Changeovers to facilitate time were to take place at the supermarket car park in (omitted). The matter was adjourned for the preparation of a section 11F Report and further procedural orders were made with respect to property matters. The section 11F Report was prepared and the Family Consultant indicated that, not only should the children have an ongoing relationship with their father, but that overnight stays should be a feature of such time.
On 7 August 2013 the matter returned to Court and consent orders were made. Notably, although the time between the children and the husband ultimately resulted in an alternate weekend regime from Friday to Sunday, with dinners on the alternating Wednesday night, such time was consented to on the basis that there would be gradual increments of time starting with daytime, then from Saturday until Sunday and then to the ultimate regime. Changeovers were to continue at the supermarket in (omitted).
In August 2013 the parties attended financial mediation. No agreement was reached between them.
There was an incident that took place at the front door of the husband’s parents’ home. This incident resulted in the husband and his father seeking an intervention order against the wife with the wife seeking a further intervention order against the husband. All parties ultimately withdrew their applications for an intervention order.
In September 2013 the husband obtained independent rental accommodation.
On 14 November 2013 the husband filed a Contravention Application alleging that the children were not made available to spend time with him on eight occasions. Following the Contravention Application being filed, but prior to the hearing date on the contravention application, the wife filed an Amended Initiating Application for final orders. The wife sought that the previous orders providing for the children to spend time with the husband be discharged and the children spend time with him on each alternate Saturday from 10.00am until 4.00pm and on each Tuesday afternoon from 4.00pm until 7.00pm.
On 3 December 2013, the husband’s Contravention Application was heard and the wife was found to have contravened the orders of 7 August 2013 on the eight occasions as alleged by the husband. As a result of these proceedings the wife was required to enter into a bond with a surety of $1000.00 and for a period of 12 months. A condition of the bond was that she comply with all orders of the Court with respect to parenting matters. Make-up time between the husband and the children was also ordered on the husband’s application. Notwithstanding the wife’s amended application to reduce the husband’s time the Court ordered that the previous orders made remain in full force and effect.
Following that hearing, and on 6 December, the wife sought that future changeovers take place at the (omitted) police station, notwithstanding previous orders had been made by consent, requiring changeovers to take place at the supermarket carpark. The application by the wife was precipitated by an event on 4 December 2013 where she alleges she was assaulted by the husband at a changeover at the supermarket carpark. The circumstances of that incident is in dispute between the parties.
Throughout 2014, there were continual difficulties alleged by the husband with respect to the children being made available, or being made available late, to spend time with him. Clearly this issue has been the source of considerable consternation on the part of the husband and he says that this issue amongst other things is indicative of the wife’s incapacity or unwillingness to wholeheartedly embrace the concept of the children spending substantial and significant time with him and to comply with court orders.
In May 2014, the husband relocated his residence to an investment property in Property H (“Property H”) where he continues to reside. The Property H property had been a property in which the parties and the children had resided in as an intact family unit prior to the completion of the construction of the former matrimonial home in February 2012.
On 11 July 2014, and in consequence of ongoing alleged breaches of the orders by the wife, the husband filed a further Contravention Application alleging that the children were not available to spend time with him on nine occasions. On that same date the husband filed an Application in a Case seeking a revision of the changeover arrangements such that they occur at the McDonald’s Family Restaurant in (omitted). Those applications were listed before the Court on 14 July 2014. The Contravention Application was withdrawn by the husband on that day, which was followed by a Notice of Discontinuance of that application on 6 August 2014
Each of the parties have completed their post separation parenting courses ordered by the Court and the husband has completed a 15 hour anger management course.
The relevant parenting applications made on behalf of the parties were contained in their respective case outlines.
The Material Relied Upon
The Wife relies on: -
a)Further Amended Initiating Application filed 14 August 2014;
b)Financial Statement filed 13 August 2014;
c)Affidavit of Evidence-In-Chief sworn 11 August 2014 and filed 13 August 2014;
d)The Affidavit of Dr S sworn 27 August 2014 during the hearing with the consent of all parties; and,
e)A case outline document.
The Husband relies on: -
a)Amended Response filed 21 August 2014;
b)Financial Statement filed 21 August 2014;
c)Affidavit sworn 11 July 2013 and filed 12 July 2014;
d)Affidavit sworn 6 August 2013 and filed same;
e)Affidavit sworn 14 November 2014 and filed same;
f)Affidavit sworn 11 February 2014 and filed same;
g)Affidavit sworn 12 May 2014 and filed 13 May 2014;
h)Affidavit sworn 12 May 2014 and filed 15 May 2014;
i)Affidavit sworn 10 July 2014 and filed 11 July 2014;
j)Further Affidavit sworn 10 July 2014 and filed 11 July 2014;
k)Affidavit sworn 21 August 2014 and filed on 21 August 2014; and
l)A case outline document
The Affidavit of Dr M (Psychologist) sworn 4 August 2014 and filed 11 August 2014 was presented to the Court as the Family Report. Ultimately Dr M was not required for cross examination by either party.
There have been many matters referred to the by the parties in these proceedings. I have not been able to include every piece of evidence I heard, or on which there was evidence, in these reasons. Just because I have not mentioned something in these reasons does not mean that I did not have regard to it. I have taken all of the evidence into account.
The parties
The wife
The wife gave evidence and was cross examined. She had an unusual presentation and was very particular about matters upon which she gave evidence. From time to time, her answers were evasive and she seemed to completely miss the point of what was being put to her. In addition to being very particular she is clearly an intelligent person. During the course of giving her evidence the wife was also emotional and seemingly failed to understand that anyone could have a different point of view to her.
The wife makes numerous complaints about the husband’s care of the children, and their presentation upon returning from spending time with him in order to justify her stance that the children’s time with the husband should be curtailed. For instance she says: –
a)she is a firm believer in the benefit of routine for the children and she is concerned about the husband’s capacity to adhere to routines the children need;
b)she is concerned that the husband asked her for information with respect to the children’s routine and then had to ask her the same question again some months later (it made no sense to me that the husband should be criticised for this);
c)she is concerned that the husband has failed to administer medication on the basis that the children did not look sick;
d)she is concerned that the communication book was inadequately completed by the husband;
e)she is concerned that when the children returned home from time with their father they were very tired, grumpy and miserable. She said that X becomes aggressive and has hit and kicked her and that Y was tired and very “floppy”;
f)she said that X has said things to her which were concerning following returning from spending time with his father, including saying “I don’t want to talk to you” that he hated his mother and when responding to questions he would say to her “read the book” (referring to the communication book);
g)she is concerned that the children have been unsettled with sleep after spending time with the husband, that this has occurred since separation and had become worse in 2014. She says that X experiences nightmares and clenches his jaw while sleeping and wakes during the night to come into the wife’s bed or otherwise call to her during the night;
h)X is anxious and fearful and there were times when he has been disturbed;
i)Y displays similar traits to X: Y’s sleep has also been disturbed and she sometimes cries in her sleep. The wife notices these problems consistently with the children when they return home from after spending time with the husband;
j)she has had the children and in particular X say to her that he has heard his father say that he has to be naughty to mummy and that if mummy hits him, he was to “hit her back super hard”.
During the wife’s evidence in chief a document prepared by her, reiterating some of her concerns for the children was tendered. The matters set out in the document largely echo the matters put by the wife in her affidavit material, albeit with further particularity.
The mother also asserted that the children, but in particular X, often suffered from illnesses which contributed to the children missing lengthy periods of times with their father. There was a dispute about this issue.
The wife says that the husband’s behaviour towards her at handover was increasingly aggressive and abrupt, that he would regularly grab the children and their bag in a rush and that he would never greet the wife in the presence of the children. In particular she says that he would speak aggressively and abruptly towards her. The wife recounted her observation that the husband would speak over the children in a domineering tone at the time of changeover or grab items from them, causing upset and causing X to stutter
At paragraph 47 of her affidavit the wife says:-
I have become increasingly concerned about the behaviour of the children and often sought to speak to the husband about the same at handovers – or through the Communications Book – without success. I am also concerned about the behaviour of the husband at handover and the impact of such behaviour on the children.
She goes on at paragraph 48 to say that:-
Since handover has taken place at the (omitted) Police Station, I observed that the husband’s demeanour has mellowed.
The husband
The husband gave evidence and was cross examined.
The husband largely denies the matters put by the wife in order to support her application that the children’s time with him be reduced. He says that the wife’s capacity to nurture the children’s relationship with him and embrace the concept of him spending meaningful, regular and frequent time with the children on a substantial basis is limited. He says that he is concerned that the applicant wife will not promote the relationship between he and the children, and his extended family and the children. He denies the wife’s assertions that his input with the children, even during the marriage, was limited and says that he was involved in all the children’s activities and routines and in fact was the “primary carer” of the children when he was not at work. He said, even during the marriage, that the wife had a habit of watching over him when he was tending to the children.
This evidence tends to suggest to me that the wife was hyper vigilant and anxious about the children’s care, even prior to the breakdown of the marriage. The husband says that occasionally the children leave in an emotional state at changeover but that is because they wish to spend more time with him rather than any difficulty with their relationship with him. He denies being domineering and snatching items from Y. He says, unlike the wife, he does not experience any of the difficulties that the wife experiences with the children with respect to their sleeping patterns. He says that he has tried to be businesslike with the wife during changeovers and says that it is the wife who is quite assertive and domineering at changeovers, when she tries to discuss issues with respect to the children. He said that the wife often tries to talk over the children to repeat instructions to him.
The Family Report
The Family Report was prepared by Dr M on 6 March 2014 and annexed to an affidavit sworn by her dated 4 August 2014.
In the body of Dr M’s report the recommendations contained were that: –
a)X and Y remain residing primarily with their mother and continue to spend time with their father every second weekend from Friday to Sunday;
b)X and Y to have dinner with their father each Wednesday evening;
c)after three months, the time every second weekend should extend over to Monday morning;
d)the children should spend graduating holiday time with their father leading eventually to a scenario where the children spend a week in each of the school term holidays with their father and two weeks in the long summer holidays;
e)after a period the children commence to spend an overnight during the week with their father and in one week the overnight could be used to extend the alternate weekend time;
f)it might be beneficial for both parents to attend an anger management course;
g)each of the parties should be made aware and understand that any orders that are made are to be followed with a strict level of adherence and are “not merely suggestions”; and
h)each of the parties should attend a post separation parenting program.
Each of the parties has attended a post separation parenting program and I do not propose to order further attendance on such program. In addition, the husband deposes to having attended an anger management course in line with the recommendations of Dr M.
Dr M’s report was prepared in circumstances where the husband was seeking to increase his time and the mother was seeking to reduce the husband’s time with the children.
Dr M interviewed the parties.
Dr M noted the husband’s contention that the mother had withheld the children from his care for a period of approximately 2 months following the separation.
Dr M reports regarding the husband that:-
…he just doesn’t think the mother believes that anyone can look after the children as well as she can herself; and he stated that she even allegedly through her own mother and tells her she has to do it her way because she’s their mother, etc; and he stated that she used to do the same with him. He stated that the mother just has her way of doing things, and she allegedly struggles with any alternative approaches;…
The husband went on at a later stage:
…ultimately he think she has some deep level insecurities about the children, which leaves her questioning if he’s capable; but he insists this is without foundation.
The wife sets out her concerns to the psychologist and her concern that the husband cannot look after the children properly. At one point during the interviews for the report she also expressed concern to the psychologist about the husband possibly having Asperger’s syndrome. In response to that the husband had an assessment conducted by Dr N of (omitted) in June 2014, which concluded that the husband’s presentation was not consistent with autism spectrum disorder.
Overall the wife was very critical of the husband, alleging emotional abuse because the husband ignored her at changeovers. For instance, the wife asserted that the husband is domineering and speaks over her at changeover. Dr M reports “she insists that the father speaks over her and she gets scared, stating “he wants to have this power… a Hitler like power””.
The family report writer was not cross examined, and nor was she required for cross examination.
The family report writer did not interview Y because she was too young and did not interview X because he refused to stay in the room with her. She did however observe the children with their parents and noted that each of the children had formed a strong positive bond and relationship with both of their parents and suggested that each of them see their parents as safe, loving and caring figures in their lives.
In observing the children with the husband. The observations were overwhelmingly positive and Dr M observed that the husband was “just very good with them”.
Dr M observed that there were no issues with respect to the children’s interaction with their mother as one would expect. In the evaluation section and in reference to the mother Dr M says:-
…the overall impression I got of the mother was that she appears to be allowing her own anxieties, and her own negative and possibly prejudiced views about the father, to interfere with her decision-making, and ultimately the father/child relationships; and she seemed very rigid and fixed in her beliefs, and unable or unwilling to entertain any different views or scenarios or hypotheses, and a lot of her concerns and issues appeared to be more about different parenting styles as opposed to problematic parenting by the father; and she seemed to be almost looking for issues, and certainly she appeared to be in the habit of automatically assuming the worst, and attributing fault and blame upon the father for any difficulty, bruise, or comment the children might have, and she appears to be taking everything X says, on face value without attempting to follow-up to get an explanation, and without considering that he is only 4 years of age, and his account of events might be inaccurate, and without considering that like a lot of children his age when faced with a parent who has very strong views; that he might be to some extent be telling her what he thinks she wants to hear.
In the evaluation section the family report writer also observed that: –
a)the mother tended to make dramatic sweeping statements generally, without really being able to back them up factually; that she makes assumptions and draws conclusions that are in accordance with her own very negative beliefs thereby perpetuating the fixed and often unhelpful beliefs she may already hold;
b)the mother tended to contradict herself;
c)she did not entirely discount the mother’s observations of the children’s presentation upon their return from spending time with the husband but observed that these behavioural characteristics of the children may simply be as a result of the changes their life and not be demonstrative of any problem with father’s parenting per se.
Dr M noted that:
Ms Charles also tended to make numerous criticisms, and she appeared to have expectations of the father that she herself could not fulfil, such as nap, and she seemed to be wanting to minimise contact on dramatic things that might happen in the future, and she tended to make dramatic sweeping statements generally, without really being able to back them up factually; seeming to base these on her past experiences or perceptions of the father, and her perception of what the children’s behaviour means, and on what X tells her; but this is fundamentally flawed, as by doing this, Ms Charles has no appreciation of the extent to which she may make assumptions and draw conclusions; and she may invite from the child stories and sentiments, that are in accordance with her own very negative beliefs, thereby perpetuating the fixed and often unhelpful beliefs she may already hold.
Dr M commented that the children were observed to have a strong positive relationship and bond with their father and that the husband was observed to be positive and appropriate with them generally and in his interactions with them. Dr M noted that there was nothing in how the children interacted with the husband or in what the preschool said about X to suggest that they were struggling with the current contact schedule. She observed that the children are developmentally capable of managing the current contact schedule as well is additional holiday time in the near future.
Dr M suggested that there was nothing in the mother’s presentation that would suggest that she can truly support, facilitate and encourage the children’s contact and relationship with their father or demonstrated a willingness to do so. Instead she indicated that the mother’s fears, anxieties and rigid views appeared to be significantly impacting on her willingness and ability to accept the children spending time with their father and she concurred with X’s preschool teacher’s observations that the mother was quite an anxious person generally.
When Dr M was analysing the mothers history of being subjected to family violence by the husband, which was denied by the husband, she acknowledged the relevance of such alleged behaviour but commented that when one analysed the mother’s allegations generally that some of her assertions did not appear to be family violence at all. This was consistent with my own observations of the mother whereby a number of the allegations that she made did not appear to be either as significant, abusive, or of a significantly violent character. I also note the inconsistency of the mother in making such allegations. On the one hand, while suggesting and directly reporting to this Court the family violence issues, she said these issues were not of such concern to her that they should impact on the husband’s time with the children. The Family Report goes on to describe the mother as being obstinate, rigid, emotional, anxiety driven and controlling and reactive. Dr M ultimately concluded that many of the issues which she attempted to “unpack” did not appear to be abuse at all and were rather evidence of differences in parenting views and styles.
Dr M noted the mutual dislike, disrespect and conflict between the parents and the mother’s inability to reflect on the children’s experiences independent of her own views.
Further, Dr M also noted that the mother had a tendency to speak over her in an assertive and domineering fashion.
In relation to the issue of the husband’s possible Asperger’s syndrome Dr M reflected that it was possible that this issue was just another perceived fault in the long list of perceived faults the mother sees in the husband.
As a conclusion, Dr M indicated that the mother should not be permitted to “interfere” with the husband’s relationship with the children and she could see no reason why the children should not continue spending time with their father similar to the current regime with a gradual build up so that the children should spend additional time and school holiday time with their father. Dr M was of the view that there was no assistance or necessity in the husband’s time being supervised and did not see any particular concern arising out of the children coping with the different parenting practices and different routines in each of their parent’s household. Dr M made the observation that each of the parents should be permitted to parent the children in the way that they choose and that any opinions about perceived faulty parenting practises alone should not be sufficient to stop the children spending time with their father.
It is significant and should be noted that Dr M was not required for cross- examination by either of the parties.
The evidence of Dr M contained in the Family Report is thorough and considered. The recommendations are consistent with the need for X and Y to have a meaningful relationship with their father and would appear to promote each of the children’s interests. The observations made by Dr M are particularly compelling and insightful in that much of the observed behaviour of the parties, and in particular the mother, coincide with my own observations of the parties when giving their evidence.
In circumstances where the recommendations of Dr M are reasonable and where neither party sought to cross examine her, her evidence is most persuasive in terms of the Court’s view of what will advance the needs and interests of X and Y.
For the sake of completeness, I also concur with Dr M’s view that any orders made by this Court should be regarded as being non-negotiable and binding. I propose to follow the timetable and parenting regime suggested by Dr M (save that it will be somewhat extended) as being that which advances the best interests of X and Y.
The Law
I turn now to the legislative pathway which will assist me in the ultimate outcome of these proceedings. In doing so, I shall try not to repeat matters that have been set out in these reasons but rather incorporate them as I am guided through the decision making process.
First and foremost, the best interests of X and Y are paramount in these proceedings. It is the most important thing to keep in mind. Although the personality, anxieties and concerns of each of the parents and the parent’s rights and obligations are relevant in assessing the best interests of X and Y, such matters cannot be elevated above this fundamental consideration. I am concerned that the wife’s apprehensions as they relate to the children are at times false and misguided, and she appears to regard anyone apart from herself as incompetent to assess what the needs of the children are. I am also concerned that the mother is not capable of assessing facts and matters in an objectively realistic way.
The primary considerations are set out in section 60CC(2) of the Family Law Act 1975. I am also mindful of the objects of the Act as set out in section 60B. I must consider: –
a)the benefit to X and Y of having a meaningful relationship with both of their parents; and
b)the need to protect X and Y from physical or psychological harm and from being subjected to, or exposed to abuse, neglect or family violence.
As these proceedings were issued after the legislative amendments to the Act, which came into effect on 7 June 2012, I give greater weight to the need to protect X and Y from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
In gathering information to assess the primary considerations as I have set out above, I take into account the additional considerations listed in section 60CC(3) of the Act. I have regard to this subsection when evaluating the primary considerations, namely considering what benefit might flow to the children from having a meaningful relationship with each of their parents and also to ensure that they are protected from harm and exposure to abuse, neglect and family violence.
I propose to consider the section 60CC(3) factors at first instance.
The children have not directly expressed any views with respect to their ongoing parenting arrangements. This is entirely appropriate and having regard to their respective ages any expressed views by them would have marginal relevance.
In considering that the nature of the relationship of the children with their mother, the wife has been and continues to be the children’s primary carer. The children have a close and loving relationship with their mother and they are reliant upon her to meet their needs on a day-to-day basis. Notwithstanding the anxious and emotional nature of the mother’s presentation, these anxieties do not appear to have impacted upon the children’s relationship with their mother in an adverse way, although I am concerned that if the mother cannot shield the children from these issues that there is potential for such issues to impact on the children, or either of them, in the future. The wife’s anxieties have the potential to expose the children to conflict between their parents. If concerns about different parenting styles and routines are directly or indirectly communicated to the children this may adversely impact upon the children in the future.
In relation to their father, the children have an appropriate secure and loving bond and attachment to him as their alternative carer. It is unnecessary for me to make any finding with respect to the extent of the husband’s involvement with the children during the marriage. What is relevant is their presentation now, and whether or not their relationship with the husband should and could be built upon. I find that the husband has an appropriate relationship with the children and they with him. Their relationship as it stands now is a strong foundation upon which increasing time with him can be built. Their relationship is of benefit to the children and should be maximised for the children to advance their best interests.
There was little evidence in the case with respect to the extended family, both maternal and parent. However, I note that the children have grandparents and other persons in their lives and it will be of benefit to them to have those secondary relationships pursued while they are in each of their parent’s care. There is no reason why this should not occur. I have no concerns about each of the parties’ capacity to promote the relationships with their respective extended families, when the children are in their care.
Each of the parties have been involved themselves in the children’s lives and have participated in making decisions for them. Each of the parties seeks to maximise their time and interaction with the children, which is appropriate.
In terms of the parties fulfilling their obligations to maintain the children, each of the parties’ attention to these issues has been adequate. The wife cares for the children on a primary basis and provides for their needs with the assistance of child support by the husband. The husband pays child support. In 2013, the husband’s income was higher than he had estimated and therefore, for a period he had arrears of child support which had caused his weekly payment of child support increased to $444 to discharge arrears. The husband’s child support reduced from the $444 to $331 as and from October 2014.
There was some criticism levelled at the husband with respect to child support issues. The husband is a pay as you go income earner and has been making an appropriate contribution to the children’s financial maintenance. I am not critical of him for having his child support reassessed on the basis of him spending more time with the children. To the extent that the husband was in arrears of child support for a period of time, I accept his explanation that the situation did not arise from any recalcitrance on his part to support the children but rather on a mistake of fact on estimating his income.
I regard both of these parties as being financially responsible regarding the children and I have no concerns about their ongoing capacity and willingness to support the children. I also note that each of the parties have supported the children appropriately during periods they are in their respective care.
In assessing the likely effect of any changes in the children’s circumstances in terms of any orders that I propose to make in the future, the orders that I propose to make will gradually increase the children’s time with their father. The orders will of necessity, involve the children spending less time with their mother, but spending a corresponding larger amount of time with the husband. I also propose to order time to take place in each week initially on Wednesday each week for dinner as this promotes regularity and predictability for the children and will reinforce their experiences with their father
The mother said to Dr M that she felt that the children were not coping with the amount of time they are spending with their father, even at the time of trial. Dr M rejected that contention and clearly stated that she feels that the children are developmentally able to cope with the increments of time that she suggested in her recommendations.
Because the children have a close, loving relationship and strong bond with each of their parents, any changes made in the incremental fashion which I propose to order are unlikely, in my view, to have a significant detrimental effect on the children or either of them. However, I am conscious of the children’s young age and the wife’s concerns and anxieties regarding the children and them spending increased amounts of time with their father. When I raised this issue Counsel for the husband, he indicated that his client was not particularly concerned about an elongated timetable. In response to my suggestion that perhaps the timetable could be extended to ensure a smooth transition for the children, the husband demonstrated insight in agreeing to this course.
I do not regard the mother’s anxiety in this case as being objectively reasonable, however I cannot ignore the fact that it exists. During the course of the hearing, the mother filed an affidavit by Dr S, a consultant psychiatrist, who conducted a psychiatric examination of Ms Charles and had psychiatric consultations with her as and from May 2013. I note that Dr S records as follows:-
Ms Charles subsequently consulted her General Practitioner in respect to her psychological issues and her General Practitioner suggested to her that her husband’s verbal abuse would qualify as “mental torture”. She claims that her husband had been mentally torturing her for some time, even though they both participated in marriage counselling but her husband did not follow up with the strategies given to them.
I pause here to note that in my view there is nothing in this case that would suggest on any objective basis that the husband has “mentally tortured” the wife. I reject this assertion made by the wife to the psychiatrist. I accept that this is what she said to the psychiatrist.
Dr S in his mental state examination of the wife on the day of the initial consultation:-
…revealed a young lady who was quite emotional and was talking in a very highly emotionally charged manner and very anxious. She felt deeply hurt and was crying throughout the assessment. She was also very tense, however, she was co-operative and communicative. Her mood was highly anxious and depressed. Her thought content was of pre-occupation and worry about her relationship issues and where this was all heading. Her judgement and insight was intact.
Dr S observed that he had diagnosed the wife with reactive depression secondary to relationship issues and prescribed antidepressant medication along with counselling and support. The doctor noted that the wife was seeing a clinical psychologist.
In July 2014, notwithstanding receiving ongoing counselling and support, Dr S increased the wife’s antidepressant medication due to increasing anxiety.
Dr S appears to have accepted the wife’s contention that she has been subjected to harassment and games by the husband. I am not surprised. However, his report must be considered in light of the limitations on him of not having seen the husband. To the extent that the husband is alleged to have been verbally abusive, torturing the wife, or presenting in the way that the wife has described to Dr S, I reject those contentions.
The question posed to Dr S was a request for him to evaluate whether any issues of family violence had impacted on the wife’s capacity to care for the children of the marriage. Dr S says:-
All of these emotional issues could have impacted on Ms Charles’ capacity to care for the children however, she has been a very strong mother and in this aspect she is very determined that her emotional issues do not affect the care of her children. She takes extra care and precautions so that her emotional state is not reflected upon the children.
Dr S goes on to say that:-
I feel that knowing Ms Charles from approximately one year, that so far the arrangement of looking after her children and handing them over to their father for access has been constantly changing.
He goes on to say that
A stable long-term arrangement would be very beneficial to help with Ms Charles’s mental state and also provide stability for the children.
Dr S was not required for cross examination. I note Dr S’s opinion that the wife will benefit from long-term stable time arrangements for the children and I propose to implement such a regime in any orders. Accordingly, although I do have regard to the wife’s anxieties as described by both Dr S and Dr M, there is no evidence that the wife would not cope with any ongoing arrangements such that it would significantly impact on the children, save perhaps that an elongated timetable or progression of time would assist the wife with transition.
The parties live in relatively close proximity to each other in the outer (omitted) suburbs of Melbourne. It is likely that the parties will continue to live in close proximity to each other, however, as a result of the property orders that I propose to make the wife will be required to vacate the former matrimonial home with the children. The husband initially sought that I make an order requiring the wife to live within a certain distance of Property O. I indicated that I would not be prepared to make that order and it was not pressed by the husband.
In assessing the practicability of the children spending time with the husband on the basis of the orders proposed by either of the parties and ultimately made by this court that there is no issue raised in the proceedings that practicability will be a problem although the parties may live a little further apart in the future.
A practical issue which did arise was with respect to changeovers. The wife had previously sought that changeovers take place at the (omitted) police station, which was a change from the previous consent orders where changeovers had been required to take place at the supermarket in Property O.
It now seems that the wife proposes changeovers take place to and from the parties’ respective homes and it is the husband who feels uneasy with a non-neutral venue due to the possibility of conflict and acrimony between the parties which: –
a)may expose the children to conflict between their parents;
b)has the potential to expose the parties or either of them to further intervention order and family violence proceedings in the State Court; and,
c)has the potential to disrupt the parenting arrangements which will be ordered.
These issues may be avoided by utilising a neutral changeover point. The irony in relation to this issue is that it is now the wife that seeks the less secure changeover. It is not clear to me why she has changed position in this regard, and seems to be consistent with her propensity to adopt inconsistent positions in relation to a number of issues.
Continued exposure of the children to the conflict between their parents will have an adverse and detrimental impact on them and has the capacity to impact on the relationship that they enjoy with each of their parents. Although in many cases it is ideal or optimal to children to be able to change between the parents’ care from home I am not of the view that this is one of those cases. In this case the potential for conflict at changeover is real and unfortunately probable given the wife’s propensity for domineering and assertive behaviour. My concern also arises out of her incapacity of her to see any alternate point of view than her own.
The husband for his part suggested a number of neutral changeover alternatives including changeover at the supermarket or a public place such as the (omitted) Railway Station or a McDonald’s restaurant in (omitted).
I am not persuaded that the supermarket option presents the best changeover point as the changeover takes place in a relatively isolated car park. Nor am I persuaded that the (omitted) Railway Station is ideal in that the changeover would involve parking some distance away from the actual changeover position.
Accordingly, in my view, and unless otherwise agreed between the parties in writing, it is most appropriate that changeovers take place at the McDonald’s restaurant in (omitted), which has security cameras and will be a public venue.
A further practical issue is the wife’s continual tardiness. This issue was the subject of significant discussion in evidence at trial. It is concerning that the wife appears to be habitually late and does not seem to appreciate the husband’s concern about this issue.
At paragraph 21 of the husband’s affidavit sworn on 21 August 2014, the husband deposes to the wife failing to make the children available to spend time with him on 28 occasions and by being late to the changeover on 57 occasions over a period of just over 12 months. Annexure “C 2” of the husband’s affidavit is a table setting out those numerous occasions where the wife either failed to make the children available or was late for delivery. The wife was cross examined about issues of lateness and non-attendance and although she quibbled with an assertion that she was late for two hours and 20 minutes on 4 December 2013, she did not take issue with a general proposition that she’d often been 10 to 15 minutes late. She said that on 4 December, she was late by 40 minutes. Notably, 4 December was the day after the husband’s contravention application had been found proved. In my view the wife minimised her conduct in relation to her tardiness. The wife had a tendency to try and justify and rationalise her behaviour. There seemed to be a real lack of appreciation on her part that the habitual lateness was a problem and inappropriate. In terms of this issue I find it is likely that the husband’s evidence is the more accurate description of the periods of late occurrences and failure to attend.
Ultimately from the time changeovers take place from school to school, this practical difficulty will present as less significant. In the intervening period it should be very clear to each of the parties, but in particular the wife, that changeover times are not negotiable.
I propose to make a further order that in the event that there are ongoing compliance issues with these orders that parties have the ability to list the matter before me as soon as is practicable and on short notice. I concur with Dr M’s view that the parties need to regard these orders as non-negotiable and there needs to be absolute and strict compliance with the terms of the orders.
Habitual lateness has a very real capacity to affect X and Y’s right to maintain their relationship with their father and ensure that they have direct contact with their father on a regular and predictable basis.
The capacity of each of the mother and the husband to provide for the needs of the children has been an issue of significance in this case.
Although contradictory in her evidence, the mother and her criticisms of the husband seemingly put his capacity to care for the children in issue. However, from time to time during her evidence she told the Court that she was not saying that the husband could not look after the children, and the real complaint is a lack of feedback from the husband. The mother also elevated her role as primary carer to the point where it is difficult for her to accept that other people may have either a different parenting style or a more relaxed attitude about parenting. For instance the mother said that she was their mother and she was their voice. In evidence the mother was not just assertive but at times aggressive in stating her opinion. She fails to note anybody else’s view, but her own.
Evidence which was concerning was the wife’s evidence about the children’s contact with a counselling professional Ms K. At paragraph 71 and following of the mother’s affidavit she says that as a result of concerns that she had about the behaviour of the children after separation and after periods of time with the husband, she needed to establish some strategies as to how to deal with the children’s behaviour and how to respond to them. She said that at the end of July 2013, she obtained a referral from her general practitioner to Ms K “child psychologist”. The children attended upon Ms K once every two weeks and then once every three weeks, in addition to the wife having individual counselling sessions with her. The wife says at paragraph 73 of her affidavit:-
Ms K indicated to me that she had concerns about the children’s behaviour. Ms K indicated that she felt that the childrens’ behaviour was attributable to their father’s behaviour. Ms K recommended to me that I block out the husband’s behaviour at handover and she gave me strategies to deal with the children when they returned from time with their father.
This evidence was misleading in a number of ways. During the course of the evidence, it was abundantly clear that Ms K is not in fact a child psychologist but rather a counsellor. I mean no disrespect to Ms K in that regard, but the mother sought to elevate Ms K’s alleged advice. The wife said that that was an unintentional mistake. Given that the wife is such a particular person with a particular personality style and attention to detail, it is difficult to understand how such a mistake could be made by her.
The greater concern is the wife’s attribution of cause and effect to the opinion of Ms K in her affidavit. The wife was cross examined about the contents of Ms K’s notes which had been provided on subpoena. The notations made by Ms K note that on 18 August 2014 the wife is reported as saying to Ms K that she was very concerned that X and Y were not being looked after appropriately by their father and that the husband was a bad influence on X. The wife discussed with Ms K:-
Mo discussed further what she wanted in the report for court, Mo reminded again of what can be provided. Mo became increasingly upset with this information. At one point requiring writer to place boundaries on Mo’s aggressive tone. Mo slowly calmed from this.
In an earlier appointment Ms K reported as follows:-
Mo instructed writer on what she wnted in a report for the family law court, writer emphasised that this program is not funded to write formal legal reports for the courts. Informed Mo that a summary of observations made about children’s behaviour could be written and a discussion of the child focused parent work Mo has engaged in however no reference to Fa’s parenting would be made. Mo became visably upset about this and state that this was not ok and that the Fa’s parenting needed to be addressed.
It seems that the wife in being told that the report would not address the issue as requested by the wife to be addressed asked to speak to the manager.
This indicates that Ms K had not indicated that she felt the children’s behaviour was attributable to their father’s behaviour. The mother had actively sought such information from Ms K and Ms K declined to provide such information. I regard paragraph 73 of the mother’s affidavit as being misleading and false.
Ms K’s notes are revealing in another sense. The wife continually made allegations about behavioural traits of the children which she attributes to the difficulties the children are having spending time with the husband. Ms K’s notes reveal that during one session the mother stated that the children were displaying disturbing behaviour in the clinic room where they were observed to be chasing each other and rolling over each other. On that occasion the wife was provided with feedback from Ms K that such behaviour was not disturbing and more about the children being bored in having to wait for the mother.
It seems that the mother disagreed with the feedback provided by Ms K and left the session feeling angry that a report would not be provided the way she wanted it to be written. I regard that session is relevant because it is a direct example of the mother attributing incorrect explanations to relatively normal behaviour by the children. Because of this I find it difficult to accept the wife’s evidence that the children display concerning behavioural traits, I do not accept attribution of such behavioural traits to any difficulty that they have with time with the husband. This is particularly so in light of the report as previously set out by Dr M. The wife also alleged that X was often ill. While the husband accepted that X did suffer from recurrent bouts of illnesses and chest infections the extent and severity of which illness was dubious, particularly insofar as to prevent the children from spending time with the father.
To avoid any doubt, in terms of any evidence with respect to how the children are coping with the time I prefer the evidence of the husband when it is in conflict on these issues with the evidence of the mother. My view in that regard is corroborated by the unchallenged evidence of Dr M. I have no concerns about the capacity of the husband to care for the children during the time proposed and in my view he has a better than acceptable capacity to care for the children during periods of time they are with him. I do not accept that he has failed to implement routines for the children and I do not accept that any different routines or parenting style has impacted significantly on the children’s welfare. Further, I do not accept that the mother has a capacity to properly and truthfully portray issues, relating to the children’s behaviour. The only evidence I am prepared to accept in relation to behavioural difficulties with the children are when such observations are made by either the husband or an independent third party, for instance, when X was experiencing some behavioural issues when he attended at four-year-old kindergarten. I am not prepared to assign any behavioural issues with the children to difficulties with the husband’s caregiving of them. There can be a myriad of reasons as to why the children have at times experienced some difficulty. For instance, given the wife’s attitude and incapacity to provide the children on time and on all occasions it is equally as possible that the time the children have spent with the husband has been so fractured and disjointed as a result of the mother’s actions that such instability in and of itself may have been what is causing issues (if any issues exist).
Despite these matters, the husband acknowledges that the wife is an excellent parent to the children and is better than average. This is not a case where the husband has applied for residence and it is clearly a case where the husband simply seeks to have a reasonable relationship with his children, but not interfere with their primary care with their mother. This demonstrates the husband has insight in to the children’s needs.
The wife appears to be a highly functioning and adequate parent with respect to the children in most aspects, save for her capacity to wholeheartedly accept the children spending time with the husband and her capacity to accept that he actually has something to offer them. I do regard this is a significant deficit in the mother’s capacity. However, at this stage, it does not appear to have significantly impacted the children and it is important that it does not impact on them into the future.
The items which were returned to the husband comprised only a small proportion of their total, in some instances when items were returned they were damaged. Very few, if any, of the items with any sentimental attachment were returned.
As a result the husband seeks an order that he be permitted to enter the property in the absence of the wife to search the premises.
When cross examined on this issue the wife’s evidence that she had:-
a)returned all items in her possession which were on the list; and
b)only retained her own personal possessions; and
c)did not break items.
The wife’s evidence was unconvincing on this point and I fear that the husband’s items cannot be retrieved. However, I propose to make an order that the wife leave any of those items (which she locates) in the home when she vacates.
The husband also seeks further items at annexure B to his orders sought and I propose to order that the wife leave all those items, except the photo albums, behind when she vacates. There was little argument on this issue but I do have regard to the fact that the husband left the home in rushed circumstances and was able to take very little with him at that time. He returned to collect some items but I accept that with thought and time there are these further items he would seek. I also have regard to the fact that the wife will retain the majority of the chattels and therefore the items sought by the husband seem modest by comparison.
In terms of the photographs I will craft an order which will have the parties retain their personal photographs, share their family photographs and be provided with an opportunity to copy any family photograph retained by the other.
Long service leave entitlements
The husband has around 16 weeks of accrued long service leave with his present employer. It is unclear to me why this was raised. In any event it was not pursued and I merely take it into account as one of the benefits the husband will derive from his long term and secure employment when assessing section 75(2) factors.
Contributions during the marriage
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(4) In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, 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;
(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;
(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.
During the marriage and after a short period living in a home owned by the wife’s parents, the parties moved into the Property H property which had been owned by the husband prior to the commencement of the relationship. At that time the Property H property was encumbered by a mortgage of somewhere between $90,000 and $100,000. The parties lived in that property from early 2004. In late 2004 the parties travelled to (country omitted) and returned to live in the Property H property upon their return in late 2005. They stayed at Property H until they moved into Property A in 2007. In 2009 the parties purchased Property O, built on that site and it remained as the former matrimonial home until separation.
During the marriage the parties’ changing circumstances, children’s births, change of careers, working holidays and responsibilities for home duties dictated their respective contributions. Largely, the husband was earning more than the wife but she was generally bearing the greater responsibility for home duties and parenting. Each of them made some financial contributions and each of them fulfilled home duties and parenting functions. In an overall sense I had a real feeling that each of them regarded their union as a partnership and each worked diligently towards attaining their future goals and enhancing their lives as a family.
Although from time to time there was some rental income being derived from property owned by the husband prior to marriage, similarly income was being earned on the money held by the wife from her pre-marital asset.
Although the wife argued that the parties had kept a number of separate accounts during the marriage, at least partly due to some concerns she had about share trading undertaken by the husband, and tried to minimise his role with respect to caring for the children, such factors do not impact significantly on my assessment of contribution made personally by the parties or either of them.
Therefore, and weighing the personal contributions made by the parties, non-financial and financial I regard these contributions made by the parties at that time as equal.
Ultimately each of the parties conceded that the contributions made personally by the parties during the marriage should be regarded as equal however I have dealt with this matter in order to demonstrate the appropriateness of that concession made by each of them through their Counsel.
I also note the finding with respect to the gift of $50,000 by the husband’s grandparents which I regard as a contribution for and on behalf of the husband.
Contributions after separation
There do not appear to be significant post separation contributions to be taken into account. For a few months the husband paid the mortgage but withdrew that support and paid child support as previously described. Since May, 2014 the husband has lived in the unencumbered property in Property H. Prior to that he was in receipt of the rental income from that property.
The wife has been the primary carer for the children since separation and has also had the benefit of living in cost free accommodation (save for one mortgage payment). Indirectly the wife will contribute to some of the costs of her accommodation due to the $20,000 increase in the mortgage figure as set out above.
The husband has been contributing to his superannuation entitlements post separation however has been able to do so because the wife has been caring for the children.
Contribution based entitlement
Counsel for the husband contended the husband’s contribution based entitlement in these proceedings at approximating 60 to 62.5% of the non-superannuation assets of the parties. This assessment was largely based on the husband’s superior initial financial contributions and the gift from his grandparents. In monetary terms having regard to the findings I have made the husband’s contributions of this nature are, on historical figures at least, around $370,000 superior to the wife’s. An alternative way of assessment is that the husband came in or contributed to the wealth of the parties roughly 85%. This of course is an indication only and cannot be regarded as determinative of a contribution based entitlement.
A further check is that the husband’s superiority of contribution at historical values equates to roughly 22.5% of the non-superannuation asset pool on present day values. If anything, this sort of analysis would have the effect of undervaluing the recognition which should be given to the husband’s additional contributions, particularly when one property is intact and constitutes about one third of the assets as are in existence today (although noting that some of the mortgage over the Property H property was discharged after the parties commenced their relationship and the $50,000 gift was applied in reduction of that mortgage).
The assessment is of course discretionary and in the circumstances I am therefore comfortable with an assessment of the parties’ respective contribution based entitlements at 60% for the husband and 40% for the wife and that the appropriate weight to be afforded the disparity of extraordinary style contributions, in the circumstances of this marriage, is at this level.
The factors pursuant to section 75(2) of the Act, insofar as they are relevant
The age and state of health of each of the parties
The parties are a similar age. They both enjoy excellent health.
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
Each of the parties has the capacity for gainful employment and that is undisputed.
The husband has had the benefit of largely continuous employment with his present employer and has been employed by them for about twenty years. He presently earns $127,400 per annum. There was some dispute about his earnings and some cross examination around whether or not the income disclosed in his financial statement was accurate. In the wider approach the husband’s capacity for employment is assessed to be at around this level and his income is likely to be maintained and possibly increase into the future. His employment is secure and this is a significant personal resource for the husband which I will take into account.
The wife has the primary care of the children. Until Y commences school, which is at least two years away, the wife’s capacity for employment outside of the home is limited.
The wife does have work and vocational skills that will assist her in re-entering the work force when the time comes. She has tertiary qualifications in (qualifications omitted) and had worked in that field for about seven or eight years until she changed career direction and obtained qualifications in the (omitted) industry during the marriage. Her career change was motivated by an enduring interest in (omitted) and allowed her to combine that passion with remunerative employment.
My assessment of the wife and her personality is that she would assiduously apply herself to any employment and is likely to be successful and skilled at any employment she undertakes. She is intelligent and has a significant capacity to focus on detail. While this attribute has sometimes been to her detriment in being able to focus on the wider needs of the children, it is likely to be to her advantage as an employee or business person.
Whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years
I have dealt with this factor with respect to the wife.
The husband will also have the care of the children on the basis ordered. Although this is not primary care of the children he will still need to tailor his employment around his obligations to care for the children and I am satisfied that he will do so. Although the husband will organise his employment obligations around his care of the children, including taking unpaid parental leave if necessary, I am satisfied that these issues will have little if any appreciable impact on his income.
Commitments of each of the parties that are necessary to enable the parties to support himself or herself or a child or another person that the party has a duty to maintain
Each of the parties filed financial statements in these proceedings which set out their income and expenditure as at the date of the hearing.
In respect of the wife she supports herself with Single Parent Assistance from Centrelink and child support paid by the husband which is currently around $311 per week (perhaps a little higher on the husband’s evidence). She has some minor dividend income. At this time her income is very modest and it is unlikely to improve significantly until Y commences school. The wife’s stated expenses are modest and this accords with my general view that each of the parties are financially responsible.
Having regard to the orders I propose to make, the wife will be required to vacate the former matrimonial home and find alternative accommodation. There was some discussion during the hearing regarding the possibility of the wife receiving Property H and living with the children in that home. Naturally this would have some financial advantages with respect to stamp duty, selling costs and the like however the wife has indicated that she does not wish to adopt that course. I am not critical of her in coming to that decision. Her primary position was to retain the former matrimonial home however there is no evidence that she can afford to do so. There will be a number of adjustments, both physically and emotionally, which the wife will need to make and these things will have weighed into her consideration not to move back into a home which had been occupied by the parties previously. Not every decision is made on a purely financial basis.
Accordingly, the wife will have moving expenses and ultimately will have purchase costs associated with buying a new home which she has told me is her intention. The wife will stay in roughly the same locale, being the (omitted) suburbs of Melbourne and the valuation on Property H at $620,000 provides an approximate indication of the cost of a suitable home for herself and the children.
These are matters which weigh in my assessment. I am also conscious that the wife will need a pre-payment of funds to assist her and I will made provision for that in these orders.
The husband’s evidence suggests that his income from personal exertion is $127,400 per annum and he receives a modest amount in dividends as passive income. There was an issue surrounding whether or not the husband had accurately recorded his income and expenditure on a novated motor vehicle lease in his Financial Statement. It would seem that the husband’s income from personal exertion as stated in his financial statement at $2,180 is understated compared to his evidence of the salary package he receives which would appear to be his weekly receipt after the payment of the motor vehicle lease. To the extent that the husband includes a payment expense of $195 at item 28 of his Financial Statement he has overstated his expenses and understated his income. To the extent that the husband has included the lease liability as his own liability in his Financial Statement that is incorrect. The lease liability is his employer’s liability. I am not convinced that the husband was necessarily duplicitous in making this error. The husband was cross examined on these issues and made concessions readily. I am concerned that the husband did not devote sufficient attention to the preparation of his document to accurately reflect the detail. These issues have no doubt caused the wife significant concern in relation to the accuracy of the rest of the document.
I am satisfied that the husband’s salary package is as set out at paragraph 83 of his affidavit and supported by a letter from his employer.
To the extent that the husband was cross examined in relation to weekly discretionary expenditure, I do not regard his spending as unreasonable but note that he does have sufficient income to engage in such spending. The husband will have significant debt at the conclusion of these proceedings in order to fund the transfer of the former matrimonial home into his name and to refinance the existing mortgage over the property. This is his choice. He could also live in a more modest home with the children and therefore I do not regard his probable debt level after these proceedings as a matter which impacts on my assessment of section 75(2) factors and it was not suggested that I should. I am satisfied that the husband has the capacity to fund the orders he seeks and he will be given an opportunity to do so.
The responsibilities of either party to support any other person
Save for the children neither of the parties has a responsibility to support any other person.
The eligibility of either party for a pension, allowance or benefit
As set out the wife is eligible for assistance through Centrelink.
Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable
As referred to earlier the wife’s primary position is that she would like to remain in the former matrimonial home however she is unable to fund that scenario on the orders I propose to make. The orders made will be sufficient for the wife to fund a more modest property for herself and the children which will be suitable for their needs and as I have noted the value of the Property H property is indicative of the cost of a more modest property in the area.
The husband will take on the responsibility of the former matrimonial home which will allow him to maintain his standard of living and provide for the children when they are in his care.
The parties are in the fortunate position that their financial position is sufficient to afford each of them a reasonable standard of living following the division of property pursuant to these orders.
The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
The wife has not sought periodic or lump sum maintenance in her Response or her Case Outline. Counsel for the wife, in an admirable attempt to argue the wife’s position to retain the former matrimonial home did suggest that maintenance could be provided by the husband to fund any future borrowings by the wife however did not press the argument during final submission.
For reasons which are unclear to me in his case outline, the husband seems to suggest that there should be a capitalized spousal maintenance order in the sum of $10,000. In the event that the wife’s maintenance was under consideration I would regard that amount as trifling.
In any event, absent any application I do not propose to consider this matter further save to say that it would appear the husband would have a limited capacity to pay maintenance after payment of child support and reasonable personal support and the wife has a capacity to support herself moving into the future.
The duration of the marriage and the extent to which it has affected the earning capacity of the parties
The parties’ relationship and marriage is approximately 10 years in duration. During that period the children were born and the wife assumed the role of homemaker and parent while the husband was able to continue in his employment and along his career path. The husband’s earning capacity has improved during the marriage whereas the wife’s earning capacity has been interrupted. The wife was able to retrain in the (omitted) industry however it is unlikely that this vocation has improved her earning capacity and seems to have been a lifestyle choice for the wife.
In the overall assessment the duration of the marriage has had a detrimental effect on the earning capacity of the wife and it is unlikely that she will achieve the earning capacity of the husband for many years, if at all.
The need to protect a party who wishes to continue that party’s role as a parent
This factor has been dealt with in these reasons. Suffice to say that the wife seeks to be available on a full time basis for Y until she commences school and it seems that the parties structured their lives to enable the wife to fulfil that role, albeit in the context of an intact marriage.
My assessment of the section 75(2) factors as they relate to the wife also includes an allowance for the next few years where her earnings and income are reduced due to her obligations as primary carer for the children before Y commences school and also in recognition of the fact that it will take some time for the wife to resume employment. The wife will also be somewhat more limited in her employment opportunities and will need to be available for the children outside of school hours. It is also likely that the wife will be the first person called upon by the children’s school if necessary.
If either party is cohabiting with another person – the financial circumstances relating to the cohabitation
Neither party is cohabiting with another person.
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
The husband pays child support and will continue to do so at a level commensurate with his income.
Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
There are further matters relevant for additional consideration.
An issue arose with respect to the balance sheet and regarding an amount which the wife had at bank which was earlier approximately $11,300 and had later reduced to $5,000. The husband sought that a figure go in to the balance sheet at the higher figure on the basis that had the wife not paid those fees there would be a greater amount available for distribution between the parties. In other words, the husband sought to “add back” the amount.
The husband had borrowings from his family in the vicinity of $100,000 for legal fees which will need to be paid but he told me that payment can be deferred.
The wife will have liability for legal costs in a substantial sum at the conclusion of these proceedings.
In Truman & Truman [2013] FamCA 765 Fowler J had to consider the treatment of legal fees incurred by each of the parties. In that case the issue was of much greater significance than is the case here however his Honour’s comment is relevant. At paragraph 54 his Honour said:-
This Court does not follow the practice of adding back and dividing non- existent assets. There is no warrant for doing so in the Act. That once fashionable practice was one which assisted in pointing perhaps a way to a just solution; however, there exists plenty of opportunity for the Court to come to a just and equitable assessment as to the source and application of funds in its consideration of contributions under Section 79 (4) and matters referred to in Section 75 (2) and also in particular 75 (2) (o).
Accordingly I shall not be adding the additional amount of $6,300 into the asset pool as being notionally in existence. The real issue is whether I should give it any weight at all. In my view given the small amount involved and the fact that the husband has managed to pay some legal expenses from income I will make no adjustment for this issue.
In terms of the parties’ ongoing obligations to pay or repay legal expenses I will take these into account in my overall assessment of the parties’ future obligations and needs.
The husband sought to advance an argument that the wife’s conduct with respect to parenting matters, and in particular the necessity to bring contravention applications (one proved and one withdrawn) should impact on my assessment of the overall result as either some form of negative contribution or under section 75(2)(o).
On 3 December, 2013 the Court made orders reserving the husband’s costs on his contravention application filed 14 November, 2013 having found that the wife had breached previous orders on 8 occasions.
On 14 July, 2014 the husband withdrew a further contravention application filed on 11 July, 2014 on the basis that it had the capacity to cause the final hearing to be delayed. There was no reservation of costs at the latter court date.
For the reasons I have set out in the parenting portion of this Judgment, the wife’s conduct with respect to failing to comply with parenting orders is not satisfactory and clearly the husband has incurred costs as a result although there is no evidence as to quantum.
Given that the general rule is that each party bears their own costs and costs were reserved following the hearing where the breach was proved I can do no more than add this factor to the myriad of factors to be weighed in the ultimate result.
The costs of the Family Report are in a different category. Pursuant to order 13 of the orders made 7 August, 2013 the husband was to pay the cost of Dr M at first instance and the wife was to reimburse the husband as to one half upon property orders being made. I propose to make that order.
Overall adjustment for section 75(2) factors
Having regard to all of the matters set out above in my view it is appropriate to make a 15% adjustment in favour of the wife having regard to section 75(2) matters on non-superannuation assets. This equates to an adjustment of just under $250,000 for these matters which is a significant amount.
I am of the view that the section 75(2) factors weigh in the wife’s favour and significantly so, the most significant factors being her ongoing requirement to care and provide for the children and her reduced capacity for remunerative employment consequent upon the marriage.
In terms of superannuation adjustment and given there will a superannuation splitting order, I propose to adopt the two pool approach as referred to in Hickey v Hickey (2003) FLC 93-143 and C v C (2005) FLC 93-220.
I am unable to accurately quantify the parties’ superannuation entitlements at the commencement of their relationship although it was put on behalf of the husband that his superannuation entitlements were significantly more than the wife’s at that time. Even if that is so, absent any particularity I propose to equalize the parties’ superannuation by way of splitting order and if there is any adjustment in the wife’s favour, such adjustment is appropriate having regard to the husband’s ability to continue to earn at a superior level into the future together with the other section 75(2) factors as set out.
Any other order made under this Act affecting a party to the marriage or a child of the marriage: s.79(4)(f)
This sub-section is not applicable in this matter.
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: s.79(4)(g)
This matter has been dealt with.
Conclusions
Thus, in the broad the property orders I propose to make will provide for:-
a)a sale of Property H;
b)a property division on non-superannuation assets of 55% to the wife and 45% to the husband;
c)an equal division of superannuation entitlements by way of superannuation splitting order.
As a final check and returning to section 79(2) for a moment I note the parties will each receive a division of property as follows:-
a)The wife will receive a total of $916,116 (assuming Property H nets $620,000, which it may not). She will take that amount predominately in cash but has $27,857 in other assets comprising her car, her shares and some additional cash. She will also hold superannuation entitlements in the sum of approximately $105,000. She will owe the husband $1,925 for the costs of the Family Report which will be paid to the husband out of the wife’s share of the Property H proceeds;
b)The husband will receive a total of $749,549 (with the same caveat as to Property H). He will take that amount by taking the substantial asset of the former matrimonial home and will make a payment to the wife of $549,250. He will be able to defray the payment to the wife by his 45% of the net proceeds of Property H and the sale of shares if necessary. By my calculations he will have a significant mortgage of around $440,000 and he will be required to pay his tax and visa card debt. The evidence suggests that he can just afford to retain the property and he will be given the opportunity to do so. He will also hold superannuation entitlements in the sum of approximately $105,000.
Each of the parties will have their own obligations to pay legal expenses.
Having considered the overall picture the orders I propose to make seem to me to accord justice and equity between the parties.
I certify that the preceding two hundred and eighty-one (281) paragraphs are a true copy of the reasons for judgment of Judge Stewart
Date: 4 May 2015
Annexure “A”
Stained wood cabinet
A step ladder
The (omitted) Bench
The husband’s bicycle
Box of C64PC and accessories (if located)
Boxes of trains and accessories (if located)
Boxes of comics
Antique vacuum cleaner (if located)
Box of board games
The husband’s CD’s
(omitted) table
Bubblegum dispensing machine
(omitted) saw
Box of stamp/stamp albums
Husband’s birthday and Christmas card, in frame (if located)
9 litre gas bottle and BBQ
Wooden wall mirror (if located)
1 tallboy from master bedroom
Canon EOS camera
One microwave
The husband’s book collection
Gentleman’s wardrobe
Tax returns and other documents (if located if already taken)
One wooden bedside table
One computer chair
Wooden green bed and mattress
Hand sewn quilts from husband’s parents
Glenfiddich Scotch bottle
Home theatre system (incl speakers in spare room)
Box of hand tools and fridge (in carport)
Selection of power tools
Box of old computer equipment (under stairs / in carport)
Cot mattress and portacot
Husband’s clothing
Apple TV unit (if located)
Green single bed cover (childs)(if located)
1 x bookshelf located on upstairs landing
Wallet with old notes and coins, mens silver bracelet and mens silver watch (bedside table in master bedroom) (if located)
Annexure “B”
(previously Annexure “A”)
| Items | Location |
| Antique Cabinet | Rumpus Room |
| Digital Camera | Dining Room |
| Boxes of personal items and collectibles (3 boxes) | Shed |
| Box of computer disks/CD’s | Carport |
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Consent
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Costs
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Damages
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Jurisdiction
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Remedies
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Statutory Construction
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