CHRISTOS & CHRISTOS
[2014] FamCA 535
•27 July 2014
FAMILY COURT OF AUSTRALIA
CHRISTOS & CHRISTOS [2014] FamCA 535
FAMILY LAW – CHILDREN – Best Interests – Where there is one child of the marriage – Where both parents seek orders for the child to live with them – Where the husband seeks an order for sole parental responsibility – Where there are allegations of domestic violence by both the husband and the wife towards each other – Where there are findings of domestic violence by the wife toward the child – Where there is conflict and poor communication between the parents – Where there are significant differences in the parenting styles of each parent – Where there is no real disagreement between the parents about major long term issues for the child – Where the single expert recommended that an equal time arrangement would not be effective and that the child should live with the husband – Where the single expert recommended that that the parents have equal shared parental responsibility – Orders made for the child to live with the husband and to spend substantial and significant time with the wife – Orders made for the parents to have equal shared parental responsibility for the child.
FAMILY LAW – PROPERTY SETTLEMENT IN RELATION TO MARRIAGE – Where the husband and wife cohabited for twelve years – Where the husband’s financial contributions are significantly greater than the wife’s – Where the husband’s parents loaned substantial sums of money to the husband prior to and during the marriage – Where some of these loans are statute barred – Where it is found that the loans are to be accounted for as contributions rather than as liabilities of the husband – Where both parties made contributions as parents and homemakers although the wife’s contribution was greater – Where both parties are currently unemployed – Where the wife will be left in a lesser financial position than the husband but where the husband will have the financial burden of caring for the child – Where the contributions of the husband are found to be greater than the wife’s, being 70 per cent to the husband compared to 30 per cent to the wife including a 5 per cent adjustment for the wife for s75(2) factors – Where the wife seeks an order for spousal maintenance – Where the application for spousal maintenance dismissed due to failure of the wife to meet the threshold test in s72.
Family Law Act 1975 (Cth) ss 61DA, 60CC, 106A, 106B, 72, 75
Limitation Act 1969 (NSW) ss 14, 16
Dundas & Blake [2013] FamCAFC133
Ogilvie and Adams [1981] VR 1041
Af Petersens and Af Petersens (1981) FLC 91-095
Biltoft and Biltoft (1995) FLC 92-614
APPLICANT: Ms Christos
RESPONDENT: Mr Christos
INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer
FILE NUMBER: SYC 4025 of 2012
DATE DELIVERED: 27 July 2014
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Rees J
HEARING DATE: 31 March, 1, 2, and 4 April 2014 and 8, 9 and 10 July 2014 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr R. Schonell SC until 4 April 2014 then Mr S. Schonell
SOLICITOR FOR THE APPLICANT: LAC Lawyers
COUNSEL FOR THE RESPONDENT: Mr Dura
SOLICITOR FOR THE RESPONDENT: Paltos Briggs
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ladopoulos
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW
Orders
PARENTING
1. That all previous parenting orders in relation to A born … 2005 (‘the child”) be discharged.
2. That the husband and the wife have equal shared parental responsibility in relation to the child.
3. That the child live with the husband.
4.That, unless the husband and the wife otherwise agree in writing, the child shall spend time with the wife as follows:
4.1during school terms, on an alternating weekly basis from the conclusion of school on Friday (or from 3:00 pm if the Friday is not a school day) until the commencement of school on Monday (or until 9:00 am if the Monday is not a school day) in one week and from the conclusion of school on Monday (or from 3:00 pm if the Monday is not a school day) to the commencement of school on Tuesday (or until 9:00 am if the Tuesday is not a school day) in the alternate week;
4.2for one half of each school holiday period as agreed between the wife and the husband in writing or, if no agreement, for the first half in years ending in an odd number and for the second half in years ending in an even number;
4.3in the event the child is not in the wife's care on Mother's Day, from 10.00 am on Mother's Day to the commencement of school the following day or until 10.00 am on the following day if the following day is a non-school day;
4.4in the event that the child is not in the wife's care on the child’s birthday, from the conclusion of school until 7:00 pm if the child’s birthday falls on a school day and from 9:00 am until 2:00 pm if her birthday falls on a non-school day; and
4.5at such other times as agreed between the wife and the husband in writing.
5.That in the event that Father's Day is on a day when the child would not be living with the husband then the time that the child is with the wife is suspended from 10.00 am on Father's Day to the commencement of school the following day or until 10.00 am on the following day if the following day is a non-school day.
6.That, in the event that the child is in the wife’s care on the child’s birthday, she shall spend time with the husband on that day from the conclusion of school until 7:00 pm if the child’s birthday falls on a school day and from 9:00 am until 2:00 pm if her birthday falls on a non school day
7. That for the purpose of the child having time with both parents during the Christmas period, Order 4.2 is suspended from 5:00 pm on 24 December until 5:00 pm on 25 December and the child shall spend time with the parent whose care she would not otherwise be in.
8. That the child spend time with the wife and the husband during the Orthodox Easter period on an alternate year basis, such time to be agreed between the wife and the husband in writing and, if no agreement as follows:
8.1.in years ending with an odd number:
8.1.1.with the husband from after school (or 3:00 pm if a non-school day) on the day before the Orthodox Good Friday until 3:00 pm on the Easter Saturday; and
8.1.2.with the wife from 3:00 pm on the Easter Saturday until 9:00 am (or the commencement of school if a school day) on the Orthodox Easter Monday; and
8.2.in years ending with an even number:
8.2.1.with the wife from after school (or 3:00 pm if a non-school day) on the day before the Orthodox Good Friday until 3:00 pm on the Easter Saturday; and
8.2.2.with the husband from 3:00 pm on the Easter Saturday until 9:00 am (or the commencement of school if a school day) on the Orthodox Easter Monday.
9. That where changeover does not occur at the commencement or conclusion of a school day, the parent who has the child in their care at the time of changeover shall ensure that the child is delivered to the other parent's residence at the commencement of the child’s time with that parent.
10. That during school term the child shall communicate with the wife via Skype or telephone at a minimum of once per week.
11. That during school holiday periods the child shall communicate with the parent she is not in the care of via Skype or telephone at a minimum of once per week.
12. That the wife and the husband are hereby restrained by injunction from:
12.1denigrating the other parent; and
12.2discussing these proceedings or the contents of any court documents
in the child's presence or hearing.
13. That either parent be at liberty to apply for a passport or passport renewal for the child and the other parent shall not withhold their consent or signature unreasonably.
14. That for periods of time when the child's passport is not being used for travel purposes the husband shall retain the child's passport and the husband shall, subject to compliance with the following orders, provide the passport to the wife at the times that the wife proposes to travel overseas with the child.
15. That either parent be at liberty to travel overseas with the child during periods of time that the child is in their care in accordance with this order, subject to the following:
15.1the travelling parent shall provide the other parent with at least 42 days notice in writing of their intention to travel, including but not limited to an itinerary and contact details for where the child will be staying while overseas;
15.2the travelling parent shall provide the other parent, at least 28 days before departure, with a copy of the e-tickets or other travel document confirming the flights are paid for and confirming a return date for the child to Australia; and
15.3the travelling parent ensures that the child communicates with the other parent by phone or Skype (or a similar form of face to face communication) at a minimum once per week while the child is away.
16. That the wife and the husband keep the other informed at all times of their current residential address, landline telephone number for that address, email address and mobile telephone number.
17. That, unless the wife and the husband otherwise agree in writing, the child shall continue her schooling at S School until the conclusion of her HSC Studies.
18. That the wife and the husband do all acts and things and sign all documents necessary to ensure that the child's school is authorised to send to both parents a copy of all newsletters, notices, reports and documents normally sent to a parent of a student at that school.
19. That the wife and the husband inform each other as soon as practicable of any medical injury or illness suffered by the child whilst she is in that party's care.
20. That the wife and the husband keep the other informed at all times as to all medical, dental or health related treatment being undertaken by the child and the identity of the treating professionals and shall forthwith give such authority whether written or oral as is required to permit the other to communicate directly with that treating professional concerning the child's treatment and shall forthwith after the appointment has been made notify the other of all appointments with any such treating professional.
21. That, within 14 days, the husband shall nominate three medical practices in the Suburb M area that bulk bill and the wife shall choose one of those practices and notify the husband of her choice, in writing, within 14 days of having received the nominations. Thereafter, the wife and the husband shall use that medical practice when the child needs to attend upon a general medical practitioner, except in the case of emergencies.
22. That the wife and the husband pay equally the professional costs and disbursements of the Independent Children’s Lawyer in the total sum of $16,148, being $8,074 each less any amount either party has already paid towards the costs of the Independent Children’s Lawyer, such payment to be made simultaneously with the payment referred to in Order 24.
23. That Legal Aid New South Wales be authorised to pay the sum of $750 plus GST to Dr L from the amount of $2,000 held in the Legal Aid New South Wales trust account, such payment being for Dr L’s account for reading time and giving evidence.
PROPERTY
24. That at the expiration of two months from the date of these Orders the husband pay to the wife or as she may direct the sum of $769,082 less 50 per cent of the costs of the single experts’ fees paid by the husband.
25. That the husband shall sign all documents, ownership and registration papers and do all acts and things so as to transfer to the wife free of encumbrance the motor vehicle registered number ….
26. That simultaneously with compliance by the husband with Order 24 above, the wife shall:
26.1.vacate the former matrimonial home leaving the home in good condition and repair; and
26.2.leave in the former matrimonial home the items listed in schedule “A” hereto which shall be retained by the husband and which the wife shall leave in good condition and repair.
27. For the purpose of compliance by the wife with Order 26 hereof, not less than seven (7) days prior to the payment by the husband referred to at Order 24 hereof, the husband shall be at liberty to undertake an inspection of the former matrimonial home for any damage to the home or to the Items listed in Schedule “A” hereto. Other than as is provided by these Orders, the wife is declared to be the owner of all other property, including her entitlements to superannuation, in her possession, custody or control as at the date of these Orders.
28. Other than as is provided by these Orders, the husband is declared to be the owner of all other property, including his entitlements to superannuation, in his possession, custody or control as at the date of these Orders.
29. That in the event that the husband does not make the payment referred to in Order 24 by the due date, then the husband shall do all acts and things required to sell the property at Q Street, Suburb M (“Suburb M”) and to pay to the wife the sum specified in Order 24 together with interest at the rate prescribed by the Family Law Rules, from the due date until the date of payment.
30. That until the payment to the wife of the sums due to her pursuant to these Orders, the husband is restrained from encumbering or disposing of Suburb M except for the purpose of complying with these Orders.
31. Pursuant to s106A of the Family Law Act 1975 (Cth) the Registrar of the Family Court of Australia at Sydney is hereby appointed to execute all Deeds and documents in the name of the person to whom the direction is given and to do all acts and things necessary to give validity and operation to all such deeds and documents so as to give effect of these Orders.
SCHEDULE “A”
The following items owned by the Husband prior to the parties’ marriage and presently located in the former matrimonial home:
·The bed located in the husband’s former bedroom
·The wardrobe in the husband’s former bedroom
·coffee table
·kitchen table
·Dining table and chairs and wall units
·display cabinet
·Crystal glasses and fine cutlery and plates located in the dining room
·washing machine and dryer
·Large mirror with frame located in the entryway to the home
·Crystal glass vase located in the entryway to the home
·10 Crystal flowers located in the entryway to the home
·pot located in the entryway to the home
·table located in the entryway to the home
The following items acquired during cohabitation and presently located in the former matrimonial home:
·50 per cent of the kitchen utensils
·camera
·Garden hose
·Long extension cord located in the garage
·Garden tools
·The lounge located in the television room
·A's bed and cupboards
·50 per cent of the doonas and linen,
·Cupboard in the husband’s former bedroom
·The older of the two televisions
IT IS NOTED that publication of this judgment by this Court under the pseudonym Christos and Christos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT SYDNEY FILE NUMBER: SYC 4025 of 2012
Ms Christos Applicant
And
Mr Christos Respondent
REASONS FOR JUDGMENT
1.A (“the child”) was born in 2005 and is now nine years old. Her parents, Ms Christos (“the wife”) and Mr Christos (“the husband”) are in dispute about the proper living arrangements to be made for the child and about the division of their property.
2.The husband and the wife married and commenced to live together in 2000. They separated under the same roof on 6 June 2012. The husband moved out of the shared home on 18 July 2013.
THE PARENTING PROCEEDINGS
3.From the time of her birth until 18 July 2013 the child lived with both her parents. From 6 June 2012, although the parents were separated, the husband remained in the home and continued to be involved in the child’s daily care.
4.The parties each make allegations about the manner in which the other parent treated the child.
5.The Court was assisted by an Independent Children’s Lawyer (“ICL”) and a report from a single expert, Dr L.
ORDERS SOUGHT
6.The wife asks the Court to make orders that the child live with her and spend time with the husband each alternate weekend from after school Friday until Monday morning, overnight on Wednesday in the following week and for half of all school holiday periods.
7.The husband, at the commencement of proceedings, asked the Court to make orders that the child live with him and spend time with the wife, during school terms, from the conclusion of school on Friday to the commencement of school on Monday in each alternative week and for one half of all school holiday periods.
8.At the end of the evidence of Dr L, the husband modified his position and sought orders which included alternate Monday nights.
9.With the exception of the issue of parental responsibility, the husband and the ICL sought the same orders at the commencement of submissions.
10.The husband asks the Court to make an order that he have sole parental responsibility for the child and the wife asks the Court to make an order that parental responsibility be equally shared between the parents.
11.It is the wife’s case that the husband has manipulated and distorted the evidence to paint a picture of the wife as an abusive parent. She contends that, although she has had problems in the past, the husband has sought to misrepresent the truth and mislead the Court and Dr L, about the extent to which the wife has been, and continues to be, abusive towards the child.
12.The husband contends that the wife has been physically and psychologically abusive towards the child, raising significant risk of harm to the child in the mother’s care.
13.As is so often the case when allegations of this sort are made there is little independent evidence available. However, assistance is available from notes of the Department of Child and Family Services (DCFS) who were involved with the family in 2011 and from the notes of the child’s teachers and school counsellors.
14.The parties and the child were interviewed by a Family Consultant, Ms N (“Ms N”) for the preparation of a Child Responsive Memorandum (“memorandum”). Further, the family participated with Dr L in interviews for a Family Report.
THE RECORDS OF THE DEPARTMENT OF CHILD AND FAMILY SERVICES (DCFS)
15.A notification to the then Department of Community Services (“DOCS”), now known as the Department of Family and Community Services (“DFCS”), was made by the child’s speech therapist who observed an injury on the child’s face.
16.The husband was interviewed on 11 May 2011.
17.The wife was interviewed by two officers of DFCS on 12 May 2011.
18.The wife told DFCS “I have anger issues but the kid just does what she wants”.
19.It was put to the wife that abuse is not accidental and that “you’ve hit her, bent fingers back, threw her on the floor” and the wife replied “She’s got me to this point – it’s all true but it’s not every day. I’m always alone on this – problem is with my husband – he needs to take a bigger role”. Significantly the wife did not deny the allegations put to her by DFCS at that point although she later said “I didn’t do it”.
20.When asked “What do you think life is like for the child?” the wife, after seeking clarification said “I can’t control her and she makes my life a hell”. The wife explained that the child had run away from her, that she is an only child and that she is spoiled by her grandparents.
21.The DFCS officer suggested to the wife that she needed assistance with managing her anger and her parenting skills. The notes record the wife replied “These kids today – I can’t do nothing to her – as a mother I have to think twice now – she’s a good kid but she’s a difficult child – tried naughty corner – doesn’t work – you say I abuse her – I don’t call it abuse.”
22.When the DFCS officer said to the wife that she needed to see what is happening, the notes record that the wife replied “I didn’t want it to come out it’s about the anger with my husband – anxious all my life – I did the clothes thing because of the germs”. (The husband asserted that the wife had a phobia about germs and insisted that the child undress immediately when she came in from pre-school or school). The DFCS officer suggested that the wife may want to see a counsellor about her “germs concerns”.
23.The wife commented about the child “She thinks she can get away with murder”.
24.The wife said, in response to the suggestion of counselling “I don’t want to hurt her – I want to fix this – I wanted to do this privately behind closed doors but now it’s out”.
25.The wife was told by DFCS that they had instructed the husband to remove the child from the home if there was another incident. When asked what she would stop doing, the wife replied that she would stop hitting the child on the bottom. She said “I need to see someone to get rid of my hostility. I slapped her on the face”. The wife asked “Have I damaged her already”.
THE NOTES OF THE SCHOOL COUNSELLOR AND TEACHERS
26.A started school in January 2011.
27.On 18 June 2012, the husband had a meeting with the child’s teacher. He reported that the wife had been verbally abusive to him in the presence of the child and was verbally abusive to him on a regular basis. The husband raised his concerns about the wife being phobic about germs and that the child was required, by the wife, to take off all her clothes in the garage when she gets home and walk upstairs and shower before she touches anything. He said that he is not allowed to hug the child until he has a shower after he returns from work. He told the teacher about the report to DFCS in May 2011. The meeting notes of the child’s teacher record that in the middle of the meeting, the husband received a text message from the wife saying something along the lines of “you have been too long, bring the child home or I am reporting you”. A further meeting was arranged for the same afternoon.
28.When the husband returned for the meeting in the afternoon, he showed the teacher his reading glasses which had been stretched out of shape and a swelling around his eye. He told the teacher that when he returned home the wife was angry and threw a glass bottle at him, in the presence of the child. The husband in oral evidence said that the wife threw a glass, not a glass bottle.
29.Documents produced by the school indicate that the school had significant concerns about the child, commencing in about July 2012.
30.On 20 July 2012 the child went to school with a scratched and swollen eye and said she had accidently scratched herself. She told the teacher that her dad was at work and her mum was home but that her mum was too busy this morning.
31.On 31 July 2012 there was a meeting organised with both parents. A document was produced recording various agreements such as an agreement on which parent will supervise homework and that the other parent will not be present during this time. Both parents agreed not to speak disrespectfully of the other in front of the child and to ask other significant adults to do the same. The mother agreed to speak to her psychologist about helping the child sleep in her own bed again.
32.Under the heading “Advice” the document records:
· Mum to continue with her counselling and have the child involved to form a healthy positive relationship.
· Mum is undertaking parenting classes.
· Dad to receive counselling as well, extremely tense and frustrated.
· Dad to spend quality time with the child in (sic) their own, not always taking her to his parent’s house.
· They are both to behave as adults, and maintain a healthy safe and stable home environment for the child.
· They are to inform the school of any issues that may arise, or any changes to the above agreement.
· (I assume the school counsellor) will see the child weekly, and assess the situation as we go.
33.On 17 July 2012 the wife requested a meeting with the teacher. The notes record:
She told me that last night (16th July) her and her husband had a verbal and physical argument at home. [The child] was not in the room however she believes that she is aware of what is going on.
34.On 3 August 2012 the child is reported to have told her teacher that she had heard her father say he is going to kill her mother. The husband in his oral evidence said that on an occasion when the wife had suggested that he perform a sexual act with his mother, he said to her words to the effect that some people would kill her for saying that.
35.On 9 August 2012, the school raised concerns about the wife bringing a hot meal for the child at lunch time. A note was written in the child’s book explaining to the wife that this was not permitted. In her oral evidence, the wife said that once she was informed that it was not permitted to take a hot lunch to the child she stopped doing so. However, on 21 August 2012, the school noted the mother brought a hot lunch for the child.
36.On 14 August 2012 (wrongly dated 2011) the child told her teacher that she was late because her parents were fighting over her dad’s car keys and her father called the police.
37.On 16 August 2012, the child was upset and told her teacher that her mother had been angry and screaming that morning. The child told the teacher that her mother broke the child’s favourite candle on purpose and took her crystals away from her. The child told the teacher “she got mad and now she has to fix the window cause it’s broken.”
38.On 29 August 2012, the wife collected the child early from school, telling the teacher the child had an appointment. The husband came to the school at 3.00 pm to collect the child and was told that she had left with the wife. The next day, the child told her teacher that there was no appointment.
39.On 4 September 2012, the child was upset because her mother would not let her spend the following Sunday, 9 September with her father. She also said that her mother still showers her immediately after school but she is allowed to change in her room.
40.In October 2012 the teacher was concerned about the child’s behaviour both socially and academically and asked that a meeting be arranged with the parents.
41.On 30 October 2012 the child appeared to be happy that she was spending time with both of her parents. On the same day, the husband called the teacher asking for assistance in dealing with the child’s behaviour at home.
THE CHILD RESPONSIVE MEMORANDUM
42.The parties were interviewed by Ms N on 4 December 2012 and together with the child on 13 December 2012. At the time the parents and the child saw Ms N the parents were separated under the one roof.
43.Ms N prepared a memorandum. In relation to her interview with the child, Ms N recorded that the child expressed strong reservations about her mother being told some of what she related to Ms N. the child said she was frightened of her mother and that she viewed herself as annoying her mother. The child described her mother reacting in physical and verbal ways to being annoyed.
44.Ms N says that some of what the child said was confirmed by the wife who admitted to hitting the child and calling her names. The wife in cross-examination withdrew some of those concessions. Particularly she denied that she had said to Ms N that she had called the child a “stupid bitch” as Ms N recorded in her memorandum. Ms N’s notes were in evidence. The notes clearly record that statement by the wife. I accept the evidence of Ms N.
45.A told Ms N that it was “OK” for Ms N to tell the child’s mother that she was scared of her and that her mother hurt her feelings by, for example, throwing away her toys.
46.To Ms N, the child described things she enjoys doing with her mother when her mother is not angry with her. Ms N concluded that the child’s statement would seem to suggest that she has not been alienated from her mother but also said that the negative side of her ambivalence was focused on the frightening aspects of her mother’s anger and her mother’s reported expressions of negativity about the child’s father and paternal family whom the child believes her mother hates.
47.A told Ms N that her mother says that her father is “an idiot”, “psycho”, “full of crap” and that her mother thinks that her father is dirty. The child told Ms N that she hugs her father when her mother is not looking and he “wasn’t even dirty (he) always had a bath”.
48.Ms N reported that the child did not appear to feel the same level of ambivalence about her father and that, in her opinion, this would seem to be related to her experiencing him in a non-frightening way.
49.Ms N reported that the child seemed to view her father as being generally less negative about other people that she loves (including her mother). The child commented that her father is “really important to me” and that she missed him and that she loved him so much.
50.Ms N discussed with the child her perception of her parent’s relationship with one another and concluded that the child views her parent’s relationship as being highly conflicted. The child said that rather than being sad that her parents had separated she was happy that they did so.
51.The wife expressed concerns to Ms N about the child having no routine and no stability in the husband’s care and that the child has not been focused on work but on wanting to play.
52.The wife did not believe that the husband could provide appropriate parenting for the child such as providing her with discipline and having her do her homework. The wife further complained to Ms N that she and the husband have different ideas about parenting and she said that this had always been the case. The wife described the husband as making excuses for the child’s behaviour, providing no discipline and overriding the wife’s discipline. She also alleged that the husband belittled her in front of the child.
53.Ms N discussed with the wife the involvement of DFCS with the family and the wife said that this occurred because the child’s speech therapist had noted marks on the child’s face and reported this to DFCS. The wife said that she was not proud of smacking the child and saying things to her such as “stupid bitch”. The wife said that she had apologised to the child for what she had done and told her that she would always apologise to her if she called her a name in the future.
54.The wife claims not to have slapped the child since DFCS was involved.
55.The husband expressed concerns about the potential impact on the child on what he viewed as the wife’s rigidity in relation to rules and her methods of discipline. The husband alleged that the wife disciplined the child by swearing at her and had allegedly hit her with a stick.
56.The husband told Ms N that he viewed the wife as being very controlling and becoming very angry when things don’t happen the way she wants them to and he described the child’s feelings towards her mother as being confused.
57.In her memorandum Ms N expressed the opinion that the child had experienced harsh discipline and verbal abuse from her mother which appeared to have affected her feelings of safety with her mother. In the conclusion of her memorandum Ms N said “Finally, the child made it clear during her interview that her father is of great importance to her. It seemed that she might feel some anxiety about the future in terms of where she might live and what times she might spend with each of her parents.”
INTERIM PARENTING PROCEEDINGS
58.The husband brought an application before the Court seeking interim orders which would have the effect that he would move out of the home where the wife and the child would remain and move into the home in which his mother lived. He proposed that the child should live in an equal shared arrangement, on a week about basis, with each of her parents.
59.The wife opposed that application. That application came before the Court on 3 July 2013. The wife was not in a position to meet the application but Ms N was available for cross-examination and it was agreed that she would be cross-examined in relation to the issue of the best arrangements for the child and the matter would be stood over to 11 July 2013.
60.Ms N in her oral evidence expressed a strong view that it would be in the child’s interests if the parents were to physically separate. It was also Ms N’s view that the time that the child spends with her father should not be reduced.
61.In the course of Ms N’s oral evidence it became clear that the views which she had expressed in her memorandum were guarded and that the information in the memorandum had been edited. The memorandum did not contain the whole of the material in Ms N’s notes.
62.Ms N said that had been a deliberate decision on her part. She said that writing a memorandum is a different exercise from writing a family report in which all of the detail would be included “but given the children have to go on living in circumstances they’re living in, one is much more circumspect about what one writes about what children say in these issues assessments.”
63.Ms N said that she had edited the information which was included in the memorandum because the child was afraid of her mother and had to go on living with her mother (at least for a portion of her time) and that the editing was directed to protecting the child.
64.Ms N gave evidence that the child said she wished her father could take her to live with him. It was Ms N’s evidence that the child had ambivalent feelings about her mother. That is, that she loved her mother as well as being afraid of her.
65.It was Ms N’s recommendation that, if there were to be a change in the status quo based on her assessment in December 2012, she would recommend that the time the child spent with her father be increased rather than reduced.
66.Included in the wife’s affidavit, relied upon in the interim proceedings, was a report of a conversation between the husband and the wife and the school principal who said to them both “If you are both making me feel nervous, can you imagine what the child is going through? One of you has to leave the house.” The wife’s affidavit was redolent with the conflict between the parents and its effect on the child.
67.Orders were made on 11 July 2013 for the husband to vacate the former matrimonial home and for the child then to live with the husband (in the home of the paternal grandmother) from before school Monday to the commencement of school Thursday in one week and from 9.00 am Sunday to the commencement of school Thursday in the alternate week. Those orders provided for an approximately equal shared parenting arrangement.
68.Orders were also made for the preparation of a Family Report by the agreed single expert, Dr L.
69.The transcript of Ms N’s evidence was provided to Dr L and was an exhibit in the final hearing.
THE NOTES OF THE FAMILY CONSULTANT (MS N)
70.In the course of the cross-examination of the wife, a call was made for the production of the notes made by Ms N in the course of her interviews for the memorandum. The notes had been the subject of cross-examination of Ms N in the interim hearing.
71.The notes were inspected by the legal representatives of the parties and the ICL only, on the basis that the contents of the notes were not to be communicated to the parents.
72.Counsel for the husband then sought to tender the notes and Senior Counsel for the wife objected, primarily on the basis that the prejudicial effect of the notes would outweigh their probative value.
73.After argument, the notes were tendered.
74.The notes of a Family Consultant who has prepared a Child Responsive Memorandum for use in parenting proceedings are in no different category to the notes of any Chapter 15 Expert. Parties are entitled to know what material was relied on in the production of the Child Responsive Memorandum, including what material might be available to the writer that was not included in the Child Responsive Memorandum.
75.It was clear from the evidence of Ms N on 11 July 2013 that her objection to inspection of her notes on that day, and her reason for having excluded some material from her memorandum, was the fact that no trial dates were in sight and that the child needed to be protected from her mother’s reaction to the child’s statements for as long as possible. Ms N made clear the distinction between the information that might be included in a Family Report prepared for a final hearing and the material which might be excluded, for reasons of child protection, from a Child Responsive Memorandum when no trial was in sight.
76.If there is, contained in Ms N’s notes, material that is relevant to the determination of the child’s best interests, then that information should be before the Court at a final hearing. If the information is to be before the Court, then all of the parties must have the same access to it.
77.The argument raised by Senior Counsel for the wife that she would not be in a position to refute statements made by the child to Ms N would apply in any expert report where an expert interviews a child in the absence of a parent. That argument could not be persuasive to exclude evidence of what the child said to the expert and is not persuasive here.
DR L’ REPORT
78.Dr L interviewed the parties and the child on 6 November 2013 when the child had been living in a shared care arrangement between her mother’s house and her paternal grandmother’s house for about three months.
79.Dr L, having discussed with each of the parents the routines which prevail in their respective homes, commented that the differences in the parenting routines are quite striking and are likely to cause confusion for the child.
80.Dr L observed the child with her mother. He comments that the observation of contact was quite pleasant, that the child was demonstrative and gave her mother a cuddle at both the beginning and at the end of the contact. Dr L observed that, compared with the child’s contact with her father, she was somewhat more reserved and quiet in her relationship with her mother. Dr L said that, in general, the wife appeared to have a fairly good atunement with the child and that the child was comfortable and confident around her.
81.Overall, Dr L observed a good level of attachment between the child and her mother although he commented “I suspect that the child has learned to be somewhat more cautious and reserved in her interaction with her mum as compared to her father.”
82.In relation to the assertions of the wife’s inappropriate behaviour towards the child, Dr L raised with the wife the incident which had caused the DFCS to be involved. The child’s speech therapist rang DFCS and made a Risk of Harm allegation. The wife told Dr L that on one occasion she had scratched the child accidently, although she admitted to Dr L that she had also slapped the child in the face. The wife told Dr L that she was not proud of the fact that she had slapped the child in the face but said that she was under a lot of stress and strain at the time. She told Dr L that despite this, there had been no excessive behaviours and that the incident had occurred two or three years ago.
83.The wife told Dr L that, from her perspective, the husband is continuing to make unfounded complaints of her abusing the child. Dr L observed “She said that she would never harm her daughter, although from my perspective she expressed a lot of behaviour that suggested she did get easily frustrated. She says that she does sometimes ‘lose it’, and she will yell and scream in her frustration.” Dr L’ comment is phrased in the present tense, suggesting that the wife was referring to behaviour that was continuing at the time of the interview.
84.The wife told Dr L that she “does get cranky about the child being on the computer, and that causes a flash point in the mother-daughter relationship.” The wife was of the view that the child was clever and knows how to use the court processes. She gave an instance of wanting the child to do her homework and the child saying things like “I will tell daddy”. Dr L observed that:
…seemingly, from the mother’s perspective, [the child] has a sense of entitlement and manipulativeness about the situation. One of the concerns I have, given that [the child] is currently seven years old, is this may reflect a somewhat blaming attitude towards the child and this kind of cognition may underlie at times the aggressive or frustrated behaviours that might result in abuse.
85.Dr L specifically stated that the wife had identified that she was not always patient as a parent and that she can lose patience and get angry. When asked by Dr L what things about her parenting she wanted to change,
…she identified that she needed to be more patient and not to raise her voice. She says that this kind of anger comes upon her and she wishes that she did not do it. She says she does get angry, although nowadays she says that she will walk away and in a sense put herself in time-out as a means to calm herself down.
86.Dr L explored with the wife her discipline procedures with the child. The wife said that she would use a reward chart, a technique that she picked up from her Triple P Parenting Program, but she said that the child is quite creative and will go and change the chart. The wife said the child will put herself in timeout and the wife herself will also use timeout and uses the Triple P Rule of one minute for each year. Dr L observed
However she says the situation between her and [the child] can get tense and when that happens she will walk away and put herself in her room. It does appear that the mother does get quite generally dis-empowered in her response to [the child] and responds in a kind of frustrated anger as a result. She gave an example that [the child] won’t eat her Weetbix for breakfast, which has been part of the established routine. Instead she will want something like toast and jam, or biscuits, or something else like that and conflict will emerge over this change in the routine. She says people tell her that she has to give in, but she said she would not; as she sees it is not good for the child to grow up without structure.
87.Dr L observed time between the child and her father. He commented
It was noticeable that [the child’s] level of involvement and general demeanour was far more exuberant with her father than with her mum, a much higher energy level. That may have been in part because she was more familiar with the room and more familiar with being observed, but I suspect it also had something to do with the dynamic between herself and her mother, and herself and her father.
88.Dr L commented that the child did not demonstrate the same degree of physical touch that she had shown with her mother but nonetheless there is no doubt that the child enjoyed her time with her father and that a good relationship exists between them.
89.Dr L spoke separately with the child.
90.A told Dr L that she sees her mum from Thursday to Saturday and sometimes she would spend Sunday with her as well. The child said that living with her mum was nice sometimes, although she said she could be naughty and then her mother would call her names and pull her hair and smack her. She demonstrated being smacked on the arm.
91.When Dr L asked the child what made her angry the child said that the only thing that made her angry was her mother. When asked why, she said that was because her mother hit her.
92.A told Dr L that living with her father was more fun than living with her mother and that living half time with her mother and living half time with her father was “okay”. When Dr L suggested to the child that it was unlikely that her parents would reconcile the child said that if they could not be together, she would prefer to spend more time with her father “because he is really fun”.
93.A did not identify being so much in fear of her mother as the fact that she simply has a better time when she was with her father.
94.When Dr L asked the child if anything worried or upset her, she said the only thing that would worry her was if she didn’t live with her father.
95.When asked by Dr L about the fun things she did with each of her parents she did not spontaneously identify any fun thing with her mother although she identified a number of activities which she did with her father.
96.Dr L commented that the child appears to have a very positive relationship with her paternal grandmother but does not have as close or involved a relationship with her maternal grandparents.
97.Dr L commented that “It seems the paternal grandmother is a focus point for extended family." Dr L also reported that “([A]) said that at her father’s place (the paternal grandmother’s home) a lot of the family come around and there are often celebrations.”
98.Dr L says that the child was clear in her view that she liked spending more time with her father than with her mother. Dr L gives an example that, when the husband arrived with the child to the assessment, he gave the child the opportunity to be cared for by her mother for a couple of hours until he had finished interviewing her father. The child chose to sit in the waiting room and play on her Ipad rather than spending time with her mother.
99.Dr L said:
The essential issue is that [the child] appears to view her mother as a punitive person compared to her father. However, such a perception could be a manipulation on [the child’s] part because she is objecting to the limits and routines that her mother appears to be determined to place upon her. Nonetheless, it is clear that parenting differences appear to be critical element in the deterioration of the relationship between the child and (the wife). On the basis of the information provided by both the child and the father (the wife’s) attitude towards the child and her punitive approach towards her daughter does play an important part in the deterioration in that relationship.
100.Dr L reviewed the available documentation.
101.He noted that the file of DFCS shows that a complaint was made to DFCS in May 2011. The DFCS file notes that the wife appears to have accepted a need to manage her anger better and that she complied with a referral to a psychologist and undertook the Triple P Parenting Program. The DFCS file notes indicate the wife not admitting to child abuse but agreeing she that struggled with anger and had problems disciplining the child.
102.He noted that although not accepting her behaviour as abusive, the wife indicated she had scratched and hit the child on the face, bent her hand and fingers backwards (for not finishing her broccoli), and that she felt that the child was playing each parent off the other. The wife positioned her anger as a function of her intense anger toward her husband at the time.
103.Dr L comments that although the wife denied a “germ phobia” which is alleged by the husband, her account in the DFCS file appears to support that she had such concerns and required the child to strip off her clothes when she came home and that she feared she may have passed her anxieties on to her daughter.
104.Dr L noted that the DFCS file appears to quote that the wife has concerns that she had done ‘irreparable harm’ to the child. The DFCS response appears to have been that the wife could take positive steps to undo such harm, given the child’s young age. Dr L notes that the child’s behaviour seems to improve after the intervention of DFCS as communicated by the husband to DFCS on 18 May 2011.
105.It is also noted in the DFCS file that the husband appeared anxious not to destroy his marriage and seemed quite concerned at the possibility that the DFCS intervention might so enrage his wife that that might happen. The wife is recorded as suggesting her frustration with the child was the husband’s lax approach to discipline and boundary setting and the child’s being spoilt by the paternal grandparents. The DFCS file also records an interview with the child’s teacher who described the wife as having a “short fuse”.
106.A’s school report for the first half of 2010 notes that the child appears tired. She reports hearing her father saying he will kill her mother and her mother screaming at her and being angry and destructive. She reports her parents fighting over things such as keys. An incident is reported on 29 August 2012 where it seems the wife concocted a false account of an appointment to remove the child early from school so that the husband could not pick her up. Dr L expressed concern that the child’s school time should be interrupted when it is obvious, he says, that the child is struggling with her approach to her education. In the same month the wife told the school that she wants to stop the child seeing her paternal grandparents and there are references in the teacher’s material to the husband’s complaining of physically violent behaviour of the wife towards him.
107.Dr L reviewed a speech therapy report provided by the child’s speech therapist on 10 September 2010, the child having been in therapy since April 2008. The therapist made a point about the child’s poor capacity to maintain focus and Dr L commented
Given the deterioration in [the child’s] behaviour in late 2012 and the concerns raised in the speech therapist’s report, it seems [the child] is a more vulnerable child for her age than the average child, and such concerns have to be factored into any comments and recommendations about her placement and parenting.
108.Dr L commented, in relation to the husband’s allegations as to the wife’s behaviour:
Perhaps the greatest concerns are the multiple references he makes to (the wife’s) alleged uncontrolled aggressive verbal and threatening behaviour towards (the husband) in the presence of [the child] revealing (if true) not only an intemperate behaviour, but also one without consideration for the protection of the child. As the dates of such behaviour map onto the time when [the child] is revealing significant difficulties at school, the concern arises that [the child] is demonstrating a significant psychological effect to the alleged intemperate and undisciplined behaviour of (the wife).
109.Dr L further notes that in the memorandum of Ms N, the wife accepted that she had slapped the child in the face and called her a “Fucking bitch”.
110.Dr L in his report says:
Although she appeared calm and reasonable on interview, the documentation supports the view that (the wife) has been quick to anger, poor in her judgment about expressing that anger, and frankly abusive at times to her daughter. I have no doubt that (the wife) regrets the worst excesses of her behaviour, but equally appears to have struggled despite treatment and programs, to modify her behaviour. (The wife) has already attended appropriate parenting programs, but if the child and (the husband) are to be believed without much genuine change in her behaviour. She is also attending on a therapist and it seems to me that (the wife’s) parenting problems are so entrenched in her behaviour and psychology that any significant change in parenting will only occur following significant change in personality and behaviour brought about as a result of ongoing therapy.
Dr L goes on to say:
There is no doubt that angry interactions have occurred between the parents and frank violence has erupted. [The child] has been witness to such scenes. I believe it is highly likely that once enraged (the wife) loses judgment and has been denigrating and vilifying to both her husband and her daughter. [The child] has been exposed to domestic violence as a result, as well as some psychological and physical abuse from her mother. Although (the wife) positions such violence as the product of (the husband’s) behaviour, it is more likely whatever violence he emitted was a result of frustration and reactive anger associated with the intemperate behaviour of (the wife). Domestic violence is often mutual, but in this case I believe that whatever violence (the husband) did produce, it was in response to difficult encounters with his wife. He does not appear to be a typically aggressive, demeaning or hostile man.
111.Dr L says that the child appears aware of the conflict between her parents and has come to expect a less fraught and more child focused regime from her father then from her mother.
112.Dr L recommends that it is in the child’s interests to experience stability in her parenting. He says that the equal time regime which has been set in place is not effective for the child because there is no agreement about maintaining routines and the discrepancy in parenting style appears to be problematic for the child, whilst also encouraging her to play favourites in response to her parents.
113.Dr L expressed the opinion that a shared parenting arrangement is likely to increase the child’s instability. Dr L concluded that there is more harm than otherwise in maintaining the current equal share arrangement. He has no doubt that the wife, although she loves the child remains a punitive figure towards her. He comments “(the wife) does seem to have a number of anxieties and some communication of them to the child may well be occurring.” Therefore he concludes it would be in the child’s best interests to spend more of her time with the husband.
114.Dr L recommended an arrangement where the child spend one weekend per fortnight from Friday after school to Monday morning with the wife and an overnight in the other week either Friday night or Saturday night. He recommended that school holidays be equally shared.
HAS THE FATHER EXAGGERATED OR INVENTED THE CHILD’S COMPLAINTS ABOUT HER MOTHER?
115.In her case outline, the wife contends that the husband has manipulated and distorted the evidence to paint a picture of the wife as an abusive parent.
116.In cross-examination, the wife variously said that the things which the husband reported as having been said to him by the child were either made up by the husband or made up by the child.
117.If the complaints were made up by the child, she said that was because the child wanted to live with her father and was trying to achieve that result.
118.In cross-examination, the wife said that although she had called the child names in the past, she had not done so since the interview with DFCS in May 2011.
119.It is not necessary to set out here every complaint that the child made. It is sufficient to record that the child complains that her mother called her names; that her mother screamed at her; that her mother physically abused her by pulling her hair, hitting her and pushing her; and that her mother spoke in very derogatory terms about the father and the paternal family. Those complaints have been made to the father by the child as recently as March 2014.
120.A made complaints in similar terms to Ms N and to Dr L.
121.I accept the evidence of Ms N that the wife told Ms N that she had smacked the child and called her a “stupid bitch”.
122.In cross-examination the wife admitted that she has called the child an “idiot”, “stupid” and a “stupid idiot”. It did not appear, from the manner in which she gave that evidence, that she saw anything untoward in that behaviour.
123.She gave evidence that in recent times it was the child who called her names. When asked where the child might have learned to use those words she conceded that the child had learned from her.
124.To Dr L, the wife identified that she was not always patient as a parent and that she can lose patience and get angry.
125.The wife also told Dr L, when asked what things about her parenting she would like to change, that she needed to be more patient and not to raise her voice.
126.Dr L writes, “She says that this kind of anger comes upon her and she wishes that she did not do it.” The wife in cross-examination denied that she had made the latter statement, however this was not put to Dr L.
127.Dr L expressed the opinion that the child views her mother as a punitive person.
128.The wife told Dr L that “she does sometimes ‘lose it’, and she will yell and scream in her frustration.” Dr L expressed his opinion that, from his perspective, the wife “expressed a lot of behaviour that suggests that she did get easily frustrated.”
129.Dr L reported that “([A]) said she could be naughty and then her mother would call her names and pull her hair and smack her and she demonstrated being smacked on her arm”.
130.A said to Dr L, when asked what things made her angry, that the only thing that made her angry was her mother because her mother hits her.
131.In oral evidence, the wife denied having hit the child but admitted that she and the child argue. She said that not a day goes by when the child is with her that they do not have an argument.
132.In relation to the complaint that the wife denigrated the paternal family to the child or in her hearing, the wife gave evidence that she had not spoken to any member of the paternal family for five years. She said that she hated all of the paternal family.
133.The husband was cross-examined in relation to parenting matters and, particularly, his allegations about the wife’s behaviour towards the child. His affidavit evidence was re-iterated. Numerous allegations made by the husband were unchallenged.
134.The husband’s mother gave evidence that the child had told her “My mum hits me all the time” and that “Mummy says ([the paternal grandmother]) is a witch”.
135.That evidence was not challenged in cross-examination.
136.The husband’s sister gave evidence that the child had said to her “[Ms T]…my mother is mean to me. She is evil and she hates me.” The child also told the husband’s sister that “My mother says bad things about you [Ms T]…She says you are a slut.”
137.That evidence was not challenged in cross-examination.
138.There was an incident between the husband and the wife on 16 July 2012. The wife gave evidence that the child had been put to bed and was asleep. In the course of that incident the police were called by the husband and an application was then made by the police for a provisional Apprehended Domestic Violence Order (“ADVO”) for the protection of the husband. An application, setting out the husband’s version of events in the same terms as the version in his affidavit, was prepared by the police for those proceedings. That version was put to the wife in cross-examination. She conceded that, in the course of their argument, she had said to the husband “Your sister is a fucking slut” and “Go to your mummy and tell her to wank you”.
139.The wife later sought to resile from that evidence. When asked if she had ever said such things to the husband she denied having done so. It was only when she was reminded of her earlier evidence that she conceded having used those words.
140.The application produced for the ADVO proceedings was tendered. The document notes “During the interview (the wife) agreed to the above stated facts however she disputes that she initiated the physical altercation claiming (the husband) hit her first, before grabbing her hair and kicking her on the ground”.
141.In relation to her paternal aunt, the child reports her mother saying exactly the same thing to the child as she admits having said to the husband. It is more likely than not that the wife said the same thing to the child.
142.Ms N, in her memorandum, expressed the view that the child has not been alienated from her mother (as seems to be the basis of the wife’s case) but rather that the negative side of the child’s ambivalence about her mother arose from the frightening aspects of her mother’s anger and her negativity towards the paternal family whom the child believes her mother hates. The wife confirmed in her oral evidence that the child’s belief is correct.
143.Having regard to the records kept by the school, the records of DFCS, the admissions made by the wife, the similarities in the child’s statements and those admitted by the wife and the statements made by the child to Ms N and Dr L, I find that it is more likely than not that the wife has behaved towards the child in the ways in which the child alleged, in that she has called the child names; screamed at her; physically abused her by pulling her hair, hitting her and pushing her; and spoken in very derogatory terms about the father and the paternal family.
A’S VIEWS
144.The wife conceded in cross-examination that the child wants to live with her father and that her complaints against her mother are designed to achieve that effect.
145.A told Ms N that she wanted to live with her father. Ms N’s notes record the first of the child’s three wishes as “to live with Dad”.
146.In his report, Dr L commented that “([A]) said that “living with her mum was nice sometimes”. However, Dr L goes on to say that “([A]) said that the only thing that would worry her was if she didn’t live with her father”.
147.A is nine years old. Her wish to live with her father has been consistent at least since 13 December 2012 when she saw Ms N.
148.On the evidence of her mother, the child is a strong willed child. The wife described the child to Dr L as having a strong personality and having “a wilful and feisty nature”.
149.A’s views should be given the weight appropriate to her age and the strength of her views.
THE NATURE OF THE CHILD’S RELATIONSHIPS WITH HER PARENTS AND SIGNIFICANT OTHERS
150.It is not disputed that the child has a warm and loving relationship with her father.
151.Her relationship with her mother is ambivalent. She loves her mother but also, as she told Ms N, is frightened of her and views herself as being annoying to her mother. The child gave permission for Ms N to tell her mother that she was scared of her mother and that her mother hurt her feelings.
152.The wife herself gave evidence that she and the child argue every day they are together.
153.The wife told Dr L that she had maintained a good relationship with the child “until things started going downhill last year (2012)”. That evidence does not accord with the wife’s statements to DFCS in 2011.
154.Dr L suspected that the child had learned to be somewhat more cautious and reserved in her interaction with her mother than with her father. He said that although the wife loves the child, she is a punitive figure for the child.
155.A spoke to Dr L about her paternal grandmother and paternal family. It is not disputed that the child has a close and loving relationship with her paternal grandmother, her paternal aunt, and is particularly close to her paternal cousin who attends the same school.
156.Dr L reported that the child said she “sometimes sees the maternal grandparents, but she is not really sure about what to say about them”. Dr L expressed the view that the child’s relationship with her maternal grandparents is not as involved or close as her relationship with her paternal grandmother.
157.The wife, in oral evidence, told the Court that she hates the paternal family and has not spoken to them for five years. If the child were to live primarily with the wife, she would only see the paternal family on the weekends when she is with her father. This was also the case when her parents were separated but still living in the same home. The child has been living on alternate weeks in her paternal grandmother’s home since July 2013. It is likely that a significant reduction in the time she spends with her paternal grandmother would be distressing for the child.
158.The wife told Dr L that one of the strengths of her parenting was her ability to maintain family connections. I do not accept that evidence in relation to the paternal family or the father.
159.One example of the wife’s deliberate actions to distance the child from the paternal family is her refusal to allow the child to go to the six month memorial service for her late paternal grandfather. The wife said she refused to allow the child to go with her father because this was the day that her parents (the maternal grandparents) were celebrating their wedding anniversary at a lunch. Ultimately she conceded that the child could have attended the memorial service which was in the morning and still have attended the lunch.
160.Another example is her deliberate decision to take the child into the city on the night before the husband’s birthday to stay in a hotel and not bring her back so she could spend the day of the birthday with her father. The wife said she did that out of spite. That action was evidently pre-meditated. The child had told her teacher on 4 September 2012, before the birthday, that she was upset because her mother would not let her spend the day with her father.
PRACTICAL CONSIDERATIONS
161.The parents both agree that the child should remain at her present school until she completes secondary school and that they will continue to live in close proximity to each other. Whatever parenting regime is put in place, there are no practical difficulties in the child’s spending time with both of her parents.
THE CAPACITY TO MEET THE CHILD’S NEEDS
162.The wife expressed to both Ms N and Dr L her view that the husband was not capable of providing the child with structure, routine and discipline. She said that, when the parties were together, the husband undermined her attempts to discipline the child and that he was an indulgent, laissez faire parent.
163.The wife has not been to the home where the child lives with her father and her paternal grandmother and she was not in a position to give any evidence to support her concerns about the child in that household.
164.The husband did not accept that criticism. In his oral evidence, he said that he ensures that the child eats her meals, does her homework, showers and goes to bed at a reasonable time. He said that he allows her some choices, for example whether she does her homework after dinner or before, or whether she showers when she gets home or later.
165.The husband has recently completed a parenting course and was able to explain in cross-examination some of the things he had learnt during the course and how he applied that new knowledge to his parenting.
166.A’s current school reports were tendered. The child received the highest grade in relation to completing homework and social development.
167.The husband’s sister, in her affidavit, gave evidence of appropriate interactions between the husband and the child about doing homework and behaviour at the dining table. She said that the child becomes angry and aggressive when she does not get her own way but the husband speaks calmly to her. She said that the husband has successfully introduced a rule that there are to be no electronic gadgets at the dining table although that has taken some weeks.
168.This evidence was not challenged.
169.The husband’s mother, in her affidavit, gave evidence of appropriate discipline.
170.This evidence was not challenged.
171.Dr L said about the husband’s discipline
I worry that he is perhaps somewhat ineffective in his discipline and thus does create such a difference in parenting style from (the wife) that there is some force to the mother’s argument that her difficulties with [the child] are concentrated because of the lack of boundary setting and discipline provided by the father’s routines.
172.If that is so, it is the wife’s response to the child’s behaviour that causes concerns.
173.I have already set out my findings in relation to the child’s complaints about the wife’s discipline and the wife’s inappropriate behaviour towards the child.
174.Dr L expressed the view that the wife “has been quick to anger, poor in her judgement about expressing that anger, and frankly abusive at times to her daughter”. Dr L in his report says “I have no doubt that (the wife) regrets the worst of her behaviour, but equally appears to have struggled, despite treatment and programs, to modify her behaviour”.
175.There were a number of incidents involving the child and her parents that suggest that Dr L’ observation is valid.
176.During the incident on 16 July 2012 to which reference was made earlier in these reasons, the wife agreed that, on three separate occasions that evening, the husband walked away from the argument and went to his bedroom. She agreed that each time he re- appeared she renewed the argument. She agreed that the husband had asked her to stop but said that she wanted to have “the discussion”.
177.Ultimately, that event ended with a physical altercation between the parents which was witnessed by the child.
178.It was put to the wife that she had ample opportunity, when the husband went into his bedroom, to end the argument and she agreed.
179.There was a further incident on 7 October 2012 when the husband wanted to collect the child from her swimming lesson. The wife would not allow him to do that. The wife agreed that the child wanted to spend time with her father after the lesson. Her only explanation for her refusal was that she was the person who usually took the child to swimming. Ultimately, the incident descended into the child being pushed and pulled between her parents.
180.The wife was unable explain why it was so important that she either take the child to swimming or bring her home that she was prepared to subject the child to that ordeal.
181.Another incident occurred on Tuesday 8 October 2013 after the husband collected the child from school. The child rang the wife from the car and told her that she needed her sports uniform as there was a special sports day the next day. The wife did not accept what the child said and the child called the wife a “stupid idiot”. The husband remonstrated with the child.
182.The wife insisted on speaking to the husband. The husband photographed the note from the school about the special sports day and forwarded it to the wife from his phone. She then agreed that he could come and collect the sports uniform.
183.When the husband and the child arrived at her home, the wife refused to hand over the sports uniform unless the husband gave her a school uniform in exchange. The husband drove back to his mother’s home and collected a school uniform to exchange for the sports uniform.
184.When she handed the sports uniform to the husband, the wife told him that he would be hearing from her lawyers about the incident.
185.A was due to return to the wife’s care the following Thursday when she would have been sent to school from the husband’s care in her school uniform. The wife was unable to explain why she needed a school uniform on that day or why she made the simple exercise of collecting the child’s sports uniform so difficult.
186.Dr L expressed the view that the wife’s “problems are so entrenched in her behaviour and psychology that any significant change in parenting will only occur following significant change in personality and behaviour brought about as a result of ongoing therapy”.
187.The wife makes no real complaint in relation to the husband’s physical care of the child except that she perceives a lack of structure and routine. Given that she has not visited the husband’s home since the child has been living there in alternate weeks, she has no evidence to substantiate that criticism.
188.It is the wife’s insistence on routine and structure that brings her into conflict with the child and there is no evidence that she intends to relax that insistence.
189.Her behaviour towards the child creates an environment where the child is not physically safe from the wife’s anger and its consequences.
190.The wife and the child are at loggerheads and it does not appear to be likely that the situation is going to abate.
191.I have no confidence that the mother is able to meet the child’s emotional and psychological needs for consistent, calm and safe parenting.
192.I am satisfied that, although the husband’s parenting of the child is not as structured as that of the wife, he ensures that the child’s physical, educational and emotional needs are met.
193.Taking into account all of the matters that have been discussed, it is in the child’s interests that she live primarily with her father.
194.A loves her mother. She needs to spend sufficient time with her mother that their relationship can be maintained. The wife gave evidence that she does not have as much conflict with the child on weekends as she is able to divert the child with enjoyable outings. Hopefully, if the wife is not required to parent the child during the school week, the conflict between the two of them will be reduced and they can enjoy their weekend time together.
195.The husband suggested that, if there is to be overnight time in the alternate week, then this should be on a Monday because that would allow him to organize the child’s homework on the remaining week nights. He opposed an additional overnight on Friday or Saturday because that would interfere with the child’s weekend time with him.
196.Ultimately, both the husband and the ICL proposed that the child spend Monday nights with the wife in alternate weeks.
EQUAL SHARED TIME/SUBSTANTIAL AND SIGNIFICANT TIME
197.Neither parent proposed an equal shared regime. Dr L expressed the view that such an arrangement would cause more harm to the child than otherwise and that a shared parenting arrangement would increase the child’s instability. Both parents and the ICL agreed.
198.The orders which I will make will allow the child to spend substantial and significant time with the wife.
PARENTAL RESPONSIBILITY
199.There is a presumption in s 61DA of the Family Law Act 1975 (Cth) (“the Act”) that it is in the best interests of a child that the parents have equal shared parental responsibility when making parenting orders. The presumption is rebuttable.
200.Both the ICL and the wife proposed that parental responsibility be shared. The husband sought an order that he have sole parental responsibility.
201.The relevant paragraphs of s 61DA are set out below:
Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
202.There is evidence that the child has been subjected to physical and emotional violence by the wife. There is evidence that each of the husband and the wife has been physically violent towards the other. The presumption is rebutted.
203.The Full Court in Dundas & Blake [2013] FamCAFC133, in relation to parental responsibility, said at paragraphs 56 - 58:
Her Honour’s discretion in determining the question of parental responsibility was not at large. Her Honour’s discretion was circumscribed by s 61DA, which requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. In this case, as we have already indicated at [34], her Honour was required under
s 61DA(4) to rebut the presumption “by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
In our view, her Honour was in error in making an order for sole parental responsibility. Section 61DA is mandatory in its requirement that the presumption must be applied until a level of satisfaction upon the evidence is reached that it would not be in the interests of the child for it to apply.
It is not, in our view, sufficient for her Honour to point to the parties having poor communication or little confidence in each other’s parenting capacity.
204.At Paragraph 61 their Honours say:
........... In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
205.Therefore, in order to determine all of the issues between the parents, in particular the wife’s application for sole parental responsibility, it is necessary to look to the factors in s 60CC of the Act in order to determine what is in the child’s best interests.
206.There is no doubt that the parents have little ability to communicate and their interaction is almost entirely by text message. Each finds the other difficult to deal with.
207.However they are in agreement about the school the child will attend and her religious upbringing. There have been no issues in relation to the child’s health. The matters about which they disagree appear to be trivial (uniforms and the like) rather than matters of substance.
208.Dr L recommends equal shared parental responsibility. In his report he said:
…it appears necessary to maintain joint parental responsibility, despite the conflict between the parents. Each parent wants to be involved with [the child], and [the child] wants and needs both her parents involved with her. Joint parental responsibility will assist in maintaining the real presence of both parents in [the child’s] life.
209.In cross-examination by Counsel for the ICL, the husband said that the major long term issues for the child are not likely to be the subject of disagreement between the parents.
286.Ogilvie has been approved on numerous occasions since (for example, by the Queensland Court of Appeal in Haller v Arye[2005] QCA 224 at [26] - [30]; by Young J (as his Honour then was) in Drinkwater v Caddyrack Pty Ltd (No 3) (Supreme Court (NSW), 28 November 1997, unreported) and by Ward J (as her Honour then was) in Chidiac v Maatouk [2010] NSWSC 386 at [236]).
287.Nothing in the Deed dated 1 May 1992 suggests “other words or terms” which show an intention that the cause of action does not arise until some other event occurs.
288.Therefore, the limitation period commenced to run on 1 May 1992.
289.The husband’s parents were entitled to seek recovery of the full amount immediately after the money was advanced, that is, on 1 May 1992. Thus, they were unable to commence proceedings to recover the sum after 1 May 2004.
ON WHAT TERMS WERE THE SUBSEQUENT ADVANCES MADE?
290.The presumption of advancement was not raised in the wife’s case until submissions. Had the wife intended to rely on the presumption, it was incumbent upon her legal representatives to give some notice to the solicitors for the husband so that they had the opportunity to address that issue. No notice was given.
291.The husband’s father has died. The evidence of the husband’s mother in relation to the subsequent advances is found at paragraphs 36 and following her affidavit where she says, after setting out the amount, date and purpose of each advance:
These loans as well as the original loan of $450,000 were recorded in a Deed of Loan dated 17 June 2012, a copy of which is annexed hereto and marked “B”. The total amount owing to me by (the husband) under this Deed of Loan is $616,397.28. No interest is required to be paid by (the husband) on this amount.
292.There is no other evidence in relation to this issue.
293.The sum of $102,094 was advanced in July 2003. There is no document relating to the terms of the advance. There is no evidence about the intention of the donors at the time of the advance. There is no evidence about the proposed terms of repayment, if any.
294.Taking that transaction at its highest in the husband’s case, it is an advance subject to a contract on which the terms are that the advance is repayable on demand. If so, then the right to recover is statute barred as the limitation period is six years (Limitation Act s.14) from the date when the advance is repayable. As has already been explained in these reasons, that date is the date of the advance.
295.Similar considerations apply to the advance of $29,103.98 in July 2005.
296.The advance of $35,200 is not statute barred. However, it was an advance by the husband’s father. There is no evidence of the terms of the advance. No evidence of contemporaneous conversation establishes that the advance was a loan.
CAN THE RIGHT TO RECOVER BE REVIVED BY A SUBSEQUENT DEED?
297.The 2012 Deed recites:
A.In accordance with the terms of a deed between the Lender and the Borrower dated 1 May 1992 (First Deed), the Lender made an advance to the Borrower in the sum of $450,000 on the terms of the First Deed (the First Advance).
B.Pursuant to the First Deed, the First Advance was repayable on demand.
C.By verbal agreement between the Lender and the Borrower, the date for repayment of the First Advance was extended to 31 December 2010.
D.Between 2003 and 2010, the Lender made further advances to the Borrower.
E.The Lender and the Borrower now desire to record once and for all the terms of the total indebtedness of the Borrower to the Lender under the First Deed, or at all.
298.There is no evidence from the husband or his mother of the agreement to extend the terms of the repayment of the 1992 advance. The evidence does not establish when the agreement was said to have been reached or what the terms were. If the alleged conversation took place after the limitation period had expired, the conversation was not effective to extend the limitation period. The husband in his oral evidence, to which reference is made later in these reasons, specifically said that there was no conversation in those terms.
299.Clause 2.3 of the 2012 Deed says “The parties agree that the First Deed is superseded by the terms of this Deed and that the Borrower’s liability to the Lender will be governed solely by this Deed.”
300.The parents’ right to recover under the 1992 Deed had expired before the 2012 Deed was entered into.
301.Therefore, the issue that arises for determination is whether the husband and his parents can, by entering into the 2012 Deed, create a new liability in place of the liability which they were prevented from recovering.
302.I was not referred to any authority which suggested that the 2012 Deed could revive the right to recover on the 1992 Deed.
303.Nothing in the Limitation Act supports the contention that the right to recover on a Deed, which is statute barred, can be revived by a subsequent Deed. No reference was made by Counsel to any authorities in relation to that issue.
304.However, having regard to the circumstances in which the Deed was created, and the history of the advances by the husband’s parents, I am not required to determine that issue.
SHOULD THE ALLEGED LOANS BE TAKEN INTO ACCOUNT IN DETERMINING THE NET POOL AVAILABLE FOR DISTRIBUTION?
305.The 2012 Deed was entered into seven days after the wife commenced proceedings for property settlement.
306.The evidence about the circumstances in which the Deed was created and executed was given by the husband in cross-examination. The husband said that his father’s solicitors prepared the Deed; that he had no independent legal advice; that he did not turn his mind to re-documenting the 1992 loan until 17 July 2012; that he had no discussions about re-documenting the 1992 loan until 17 July 2012; and that his father gave instructions for the preparation of the 2012 Deed.
307.The husband said that his father approached him and said words to the effect “You owe me the money. I need you to sign this document”.
308.The husband’s evidence contradicts the terms of Recital C of the Deed.
309.The husband said that his father wanted to ensure that the money was paid and that it was a co-incidence that the wife had filed her application for property settlement a week before the Deed was executed.
310.It was put to the husband that the 2012 Deed was created only because the wife had commenced proceedings. He denied that suggestion.
311.The husband agreed that he had never repaid his parents a single dollar of the asserted loans.
312.There was no application in the wife’s case to set aside the 2012 Deed pursuant to section 106B of the Act.
313.In Af Petersens and Af Petersens (1981) FLC 91-095, Nygh J, dealing with debts owed to third party creditors said:
The next question is to what extent I should discount the assets of the parties having regard to their indebtedness. I do not for these purposes for any moment doubt the existence and enforceability of the debts that I have listed above. But in taking account of the ``obligations'' of the parties, I must consider how pressing such an obligation is. It is fairly common in this Court to meet a situation where a parent has made a loan to a child which is in all respects legally enforceable, but which is not in fact enforced and would not really be expected to be enforced. It is no doubt an ``obligation'' but if the obligation is not likely to have to be met, it should not be taken into account.
314.That statement was approved by the Full Court in Biltoft and Biltoft (1995) FLC 92-614.
315.The husband’s parents advanced the sum of $450,000 in 1992. There is no evidence of any demand for repayment until after the husband and the wife separated.
316.The husband’s parents entered into the purchases, in partnership with the husband, of Suburb R in May 2000 and of Suburb B in December 2007. In each instance, the husband borrowed his share of the purchase price. There is no evidence that his parents asked that the borrowings be extended so they could then be repaid the $450,000.
317.The husband sold his interest in Hospitality Business 2 in 2005 and received $280,000. There was no evidence that his parents asked for repayment of any part of the amount of $450,000 to them.
318.The husband’s interest in Hospitality Business 1 was sold in July 2013 and the husband received $76,000. Again no request was made for repayment of money asserted to be owed to the husband’s parents.
319.The husband’s parents advanced the sums to which I have referred. I am not satisfied that there were any specific terms of repayment or that the husband will, at any particular time, be required to repay those amounts.
320.On the husband’s own evidence, the creation of the 2012 Deed was for the sole purpose of his father securing repayment of money advanced once the marriage had come to an end and the wife had filed an application for property settlement.
321.There had been no discussions about repayment of the amounts in the 20 years that had elapsed between 1992 and July 2012.
322.It is appropriate that the sums advanced by the husband’s parents be given proper weight as contributions on his behalf but I am not satisfied that the obligation, even if it is legally enforceable, will be enforced unless the husband chooses to refund the money.
IS THE HUSBAND REQUIRED TO REPAY THE CHILD’S TRUST FUND?
323.The husband says that on 19 June 2012 he withdrew $17,248.08 from the bank. He says the withdrawal came from “monies that were gifted by my father for my daughter the child”.
324.He says “My father provided his consent for the use of these funds to pay for the child and my expenses”.
325.There is no evidence about the amount that was given by the husband’s father or the terms, if any, of the gift.
326.If the money had been given to the child, even if the husband held it for her, then it was the child’s money and only the child could authorise its use by the husband.
327.In the absence of any evidence that the money was not the child’s property, at least beneficially if not legally, then the husband was not entitled to the use of the money and it should be repaid to the child.
THE BALANCE SHEET
328.At the commencement of the proceedings the parties tendered a Joint Balance Sheet (“the Balance Sheet”) which is reproduced below (without the notes).
ASSETS
Ownership Description Wife’s value Husband’s estimated value
$
1 H Q Street, Suburb M NSW 1,600,000 1,600,000 2 H 25 per cent interest in 1-9/H Street, Suburb R 956,250 956,250 3 H 33.3 per cent interest in G Street, Suburb C 213,333 213,333 4 H 33.3 per cent interest in F Street, Suburb X 175,000 175,000 5 H 25 per cent interest in I Street, Suburb B 450,000 450,000 6 H NAB account no: … 1,508 1,508 7 H NAB account no: … 23,343 23,343 8 H NAB account no: … - E $840.02 (see Note 8) N/A N/A 9 H NAB account no: … (Business account) Hospitality Business 3 (see Note 9) NIL NIL 10 H NAB account no: ... (Business account – Hospitality Business 2 ) (See Note 10) NIL NIL 11 H Bank of Cyprus Account No: …
E $1,792 (see note 12)
NIL 12 H Telstra Shares 1,220 1,220 13 H 37 Ordinary Wesfarmer Shares and 37 Partially Protected Wesfarmers Shares (see Note 13) 2,881 2,881 14 H Lendlease 220 Total - Stapled Securities
(see Note 14)
1,848 1,848 15 H 714 Ordinary AMP Shares 3,106 3,106 16 H Motor vehicle 1 (see Note 16) 2,000 4,300 17 H Motor vehicle 2 (see Note 17) 17,400 17,400 18 W NAB account no: … 265 1,541 19 W Jewellery 600 NK 20 H Joint Household contents 30,000 30,000 Total $ 3,478,754
$ 3,481,730
LIABILITIES
Ownership Description Wife’s value Husband’s estimated value
$
21 H 50 per cent of fees owing to O Accountants in relation to Hospitality Business 1. NIL NIL 22 H 25 per cent of Mortgage –H Street, Suburb R
(see note 23)
450,000 450,000 23 H 25 per cent of Mortgage – I Street, Suburb B
(see note 24)
425,597 425,597 24 H Loan from Parents (Mr and Mrs Christos Snr) (see note 25) - NIL 616,397 25 H NAB Platinum credit card N/K 2,481 26 W NAB personal loan … 6,500 NK 27 W NAB personal loan … 11,000 NK 28 W Money owing to (Mr & Mrs Christos)
· Renovation for unit before selling 23,000
· Pay previous Barrister Mr TT 5,000
· Mr V – Barrister – AVO 3,750
· Cash 6/6/12 to 7/7/13 10,400
Money owing to Wife’s parents 50,000
92,150 (see note) 29 W David Jones American Express Card 30 NK 30 H David Jones Credit Card (see note 28) NIL 31 W Centrelink 2,972 NK Total $ 988,249
$ 1,494,475
SUPERANNUATION
Member Name of Fund Type of Interest Wife’s value Husband’s estimated value
$
32 H AXA Retirement Savings 21,342 21,342 33 W Tal Superannuation Accumulation Interest NIL 34 W REST Industry Super (see note 37) Accumulation NIL 8,846 Total $ 21,342 $ 30,188
Net Assets Ownership Description Wife’s value
Husband’s Estimated value
($)
35 Assets (excl. Superannuation) 3,478,754
3,481,730 36 Liabilities (988,249)
(1,494,475)
Sub-Total 2,490,505
1,987,255
37 Superannuation 21,342 30,188 Total $
2,511,847
$
2,017,443
329.As is readily seen, there are limited disputes arising from the balance sheet and they will be dealt with using the item numbers in the document.
330.Item 16 – the Motor vehicle 1
There is no valuation evidence. The husband proposes that the motor vehicle 1 be transferred to the wife. Her estimate of value is an admission against interest and will be adopted.
331.Item 18 – the wife’s bank account
There is no evidence of the amount in the account. The wife’s estimate of value is an admission against interest and will be adopted.
332.Item 20 – household contents
The parties agree that the contents of the former matrimonial home are worth $30,000. They have agreed to a division in specie of the contents and orders will be made by consent in relation to that division. There is no evidence of the value of the contents to be retained by each party. I therefore propose to remove this item from the balance sheet.
333.Item 24 – the asserted loan from the husband’s parents
This item has been dealt with earlier in these reasons and will be removed from the balance sheet.
334.Item 25 – the husband’s credit card debt
There is no evidence that the debt is referrable to expenditure during the time the parties lived together or for the purposes of the whole family and this item will be removed from the balance sheet.
335.Items 26 and 27 – the wife’s personal loans from the NAB
These loans were taken out by the wife after the parties separated. They have been used in part for legal fees and there is no evidence that the money was used for the benefit of the whole family. They will be removed from the balance sheet
336.Item 28 – money owed to Mr and Mrs Christos and the wife’s parents
In so far as part of the amount claimed is $23,000 used to renovate the wife’s unit before its sale, the unit was sold in 2009 and the wife received in excess of $370,000. She gives no explanation why, if the money should have been repaid, it was not. The wife used the proceeds of sale of the unit, as is set out earlier in these reasons, to buy a diamond ring for $75,000 and to buy clothes. If the advance was, in fact, a loan then it is statute barred after six years from the due date for payment. I am not satisfied that the money is owed and this item will be removed from the balance sheet.
337.In so far as the asserted loan from Mr and Mrs Christos was used for the payment of legal fees, both the wife’s and the husband’s borrowings for legal fees will be removed from the balance sheet. The husband has borrowed approximately $200,000 from his mother for legal fees. He does not seek to include that sum as a liability in the balance sheet.
338.The evidence in relation to the asserted debt to the wife’s parents was confused. In her Financial Statements sworn 3 July 2013 and 30 September 2013, the amount was said to be $39,900. No debt is asserted in the joint balance sheet dated 31 March 2014 prepared for the first day of the trial. The figure of $50,000 appears in the balance sheet handed down on the last day of the trial. There is no evidence of the terms of the advance or the purpose of the advance. The money allegedly owed to the wife’s parents in the sum of $50,000 will be removed from the balance sheet.
339.Item 29 the wife’s David Jones Credit Card
This is a post separation debt. There is no evidence that the items purchased were used for the benefit of the whole family. The debt will be removed from the balance sheet.
340.Item 31 – the wife’s Centrelink debt
In her Financial Statements the wife refers to a debt of $ 4,147 as “Debt owing by me to Centrelink and to Child Support Agency”. There is no other evidence from the wife about the debt. It may be that at least a portion of the debt arises from proceedings with the Child Support Agency after the wife claimed that she had 100 per cent care of the child in a period when both of the parties were living in the same house, although separated. However, if that is so, there is no evidence to establish the relevant amount. There is no evidence to establish how a debt to Centrelink arose. In those circumstances the debt will be removed from the Balance Sheet.
341.Item 34 – the wife’s REST superannuation
At July 2012 the wife had an interest in the REST Industry Superannuation Fund (“REST”) in the sum of $8,864. The wife, in her Financial Statement sworn 3 July 2013, disclosed an interest in superannuation of $6,361 with Tal Superannuation Limited. She also disclosed that she had received superannuation of $10,457 (gross) and spent that sum. I assume that this was from REST. The wife in the Balance Sheet asserts that she now has no interest in superannuation. I propose to remove that item from the balance sheet but take into account, in consideration of the s75(2) matters, the fact that she has spent her superannuation.
342.I therefore find that the assets and liabilities of the parties, for the purposes of these proceedings are:
ASSETS Ownership Description value 1 H Q Street, Suburb M NSW 1,600,000 2 H 25 per cent interest in H Street, Suburb R 956,250 3 H 33.3 per cent interest in G Street, Suburb C 213,333 4 H 33.3 per cent interest in F Street, Suburb X 175,000 5 H 25 per cent interest in I Street, Suburb B 450,000 6 H NAB account no: … 1,508 7 H NAB account no: … 23,343 8 H Telstra Shares 1,220 9 H 37 Ordinary Wesfarmer Shares and 37 Partially Protected Wesfarmers Shares 2,881 10 H Lendlease 220 Total - Stapled Securities
1,848 11 H 714 Ordinary AMP Shares 3,106 12 H Motor vehicle 1 2,000 13 H Motor vehicle 2 17,400 14 W NAB account no: … 265 15 W Jewellery 600 Total $3,448,754
LIABILITIES Ownership Description value 38 H 25 per cent of Mortgage –H Street, Suburb R
450,000 39 H 25 per cent of Mortgage – I Street, Suburb B
425,597 Total $875,597
Net assets $2,573,157
SUPERANNUATION Member Name of Fund Type of Interest value 40 H AXA Retirement Savings 21,342 Total $ 21,342 343.The net assets of the parties, excluding superannuation, are $2,573,157. Of that sum, the husband has assets with a gross value of $3,447,889 and liabilities of $875,597, a net amount of $2,572,292.
344.The wife has assets of $865.
SECTION 79(2)
345.Both parties ask the Court to make an order dividing their assets between them. It would not be just and equitable not to do so having regard to the wife’s contributions to the assets which are primarily held by the husband.
CONTRIBUTIONS
346.The husband’s contributions were overwhelmingly greater than those of the wife. He contributed real property with a net value of $1,058,333 and his interest in two café businesses. The current value of the husband’s share in the real estate which was owned by the husband before marriage, being Suburb M, Suburb X, Suburb C and Suburb R, is agreed to be $2,944,583.
347.The investment properties which the husband had before marriage have an agreed value now of $1,344,583 less mortgage of $875,597 or a net value of $468,986. In so far as those properties have increased in value, it is not asserted by the husband that he made any physical contribution to that increase. The husband’s family administered the investment properties and the husband was not required to do anything.
348.The hospitality businesses were sold during the marriage and the husband received $280,000 for one and $76,000 for the other. Those sums were used for family purposes.
349.The Suburb B property has not increased in value, having been purchased for $1,860,000 (the husband one quarter share worth $465,000) and now having an agreed value of $1,800,000. The whole of the husband’s share of the purchase price was borrowed and the borrowing was secured against the Suburb B property and against the home of the husband’s parents. Again the administration of that property was undertaken by members of the husband’s family.
350.While the advances from the husband’s parents will not be included as liabilities, they must be taken into account as contributions on the husband’s behalf.
351.The husband’s father gave the husband $35,200 for the balloon payment on the motor vehicle 2 in March 2010. In cross-examination the wife said that she was aware of that payment and recalled a conversation when the car was bought where the husband’s father said to both her and the husband that he would pay the balloon payment when it fell due as a gift to both of them. There is no mention of that conversation in the wife’s affidavit. The existence of gifts or loans from the husband’s parents has always been an issue in these proceedings and it is unlikely that, if the conversation took place, it would not be included in her affidavit. I do not accept her evidence in that regard. I do not accept that the $35,200 was intended to be a gift to both parties. Even had it been so, the amount is a contribution by the husband’s father.
352.A total of $$616,397.28 was advanced to the husband by his parents.
353.The husband’s parents and now the husband’s mother have paid all of the child’s school fees of approximately $6,000 a year to date. The husband’s mother will continue to pay the fees until the child completes secondary school.
354.The husband’s father gave the husband $17,248 which was, at least in part, to be held for the child.
355.The husband’s parents allowed their home to be used as collateral security for the mortgage of $465,000 raised by the husband for the purchase of his share of Suburb B.
356.Both parties made a contribution as parent and homemaker. Insofar as the wife made a greater contribution in that regard, it is balanced by the fact that the husband made the major financial contribution from his earnings to support the family.
357.The wife contributed her unencumbered unit and the rent from the unit until it was sold in September 2009. It was not put to the wife that the rent she received was used other than for her expenses and those of the family.
358.She has not established that the whole of the net proceeds of the sale of the unit were contributed to the welfare of the family.
359.The wife does not claim to have made a physical contribution in relation to the investment properties which the husband had at the time of the marriage or to the Suburb B investment property.
360.The wife contributed money used for work done on the matrimonial home and her efforts as a homemaker.
361.In a net asset pool of $2,573,157, the husband’s overwhelmingly greater contribution commends an adjustment in his favour for contributions of 75 per cent.
SECTION 75(2)
362.Each of the parties will receive an amount of money.
363.Neither is currently employed.
364.Both have experience in hospitality work although neither has worked in recent years. The husband gave evidence that he may pay off the mortgages on the investment properties and then be able to live on his share of the rental income.
365.The husband is aged 54 years. The wife is aged 45 years.
366.The husband will be responsible for the majority of the child’s care although the wife will still need to provide a home for the child when the child is with her.
367.The wife will have to repay her personal loans from the NAB and the debt to Centrelink and the Child Support Agency.
368.The husband maintains that he has a liability to repay the money advanced by his parents. However, on the evidence of past history, his mother is unlikely to press for payment to his detriment.
369.Each of the parties has legal fees to pay. Costs disclosure letters were tendered for both. Litigants have the right to choose their legal representation but not the right to visit on the other party the consequences of that choice. The quantum of legal costs is affected by many variables including the hourly rates charged and the amount of time required for the legal practitioner to carry out the client’s instructions. The choices made by the parties in relation their legal fees should not lead to an adjustment.
370.The husband has a small interest in superannuation of $21,342. The wife had almost $17,000 but withdrew her entitlement and has spent the money. I do not consider that there should be an adjustment on account of their respective superannuation entitlements.
371.The husband will have to reimburse the child’s trust fund.
372.The wife, as a result of the findings I have made in relation to contributions, will be left in a lesser financial position than will the husband.
373.He is able to live with the child in his mother’s home indefinitely. He may be able to live from the income from his investment properties. He has a modest interest in superannuation.
374.She will need to find work and has been out of the paid work force for most of the past nine years. She is not likely to find highly paid employment. However the consequence of that situation is that she will not make a great contribution by way of child support and the husband will have the financial burden of the child’s care.
375.A modest adjustment is required in favour of the wife. There will be a percentage adjustment.
CONCLUSION
376.The wife will receive 30 per cent of the net assets or $771,947. She has assets of $865 so she will receive a further $769,082 from the husband and will also have the motor vehicle 1, valued by the wife at $2,000, transferred to her sole name. The husband can sell Suburb M or make other arrangements to raise the amount to be paid to the wife.
SPOUSAL MAINTENANCE
377.The wife seeks an order for the payment of spousal maintenance in the sum of $1,500 per week for a period of four years.
378.In her most recent Financial Statement sworn 30 September 2013, the wife deposes that her weekly living expenses are $499 per week. In addition she repays a loan from the NAB but that loan will be able to be discharged from her property settlement.
379.I do not propose to allow the sums claimed by the wife as payments to American Express or David Jones as they are payments for things already taken into account under Part N of the Financial Statement.
380.There is no evidence from the wife of her costs of rehousing herself.
381.There is no evidence to substantiate a claim for $1,500 per week.
382.Section 72 of the Act sets out the threshold test for spousal maintenance:
Right of spouse to maintenance
(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
383.The wife will not have the full time care of the child and the time that the child spends with her will not affect her ability to work full time.
384.On a number of occasions in her cross examination the wife expressed her intention to resume full time café work when the proceedings have been determined and the child’s arrangements have been finalised.
385.She gave evidence that she is experienced in café work although I accept that it might take a little time for her to find employment.
386.The wife will have approximately $772,000 from her property settlement.
387.I am not satisfied that she has met the threshold test of being unable to support herself and her application for spousal maintenance will be dismissed.
COSTS OF MR D AND DR L
388.The husband sought an order that the wife contribute one half share of the costs of Dr L’s attendance at court to give evidence. Ultimately, it was agreed that the wife would contribute half of that amount, the husband having paid in full. The wife will recompense the husband by paying one half of the amount or $412.50. The husband initially paid the fee for the preparation of the report by Dr L and the wife must recompense him for one half.
389.The husband also sought an order that the wife contribute half of the money he paid to the single expert valuer, Mr D who valued the real estate, including valuing the real property held by the husband at the date of marriage.
390.Counsel for the wife submitted that, because Mr D valued properties held by the husband at marriage, insofar as they were not properties owned by the wife, she should not be responsible to pay half of the costs. I do not accept that argument. There was at all times a live issue of the value of the real estate owned by the husband at marriage. No offers of compromise were made by the wife in relation to those values. The proper way to bring evidence before the Court when valuation is in issue is to appoint a single expert. The parties both consented to the appointment of Mr D.
391.The wife will have sufficient funds to contribute to Mr D’s fees and she should pay half.
COSTS OF THE ICL
392.The parties have agreed that they will each pay half the costs of the ICL but have not agreed when those costs will be paid. I accept the submission of Counsel for the ICL that the costs should be paid from the proceeds of sale of Suburb M.
393.This is the final paragraph of this judgment.
I certify that the preceding three hundred and ninety-three (393) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 21 July 2014.
Associate:
Date: 21/07/2014
0
2
2