Clarke & Clarke
[2008] FMCAfam 622
•9 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLARKE & CLARKE | [2008] FMCAfam 622 |
| FAMILY LAW – Children aged 9, 7 and 4 – planned relocation by mother of children from [W] to [C] – application of presumption of equal shared parental responsibility – father seeks shared care arrangement – necessarily such an arrangement has implications for mother’s plans to move to [C] for employment and personal reasons – allegations of family violence – mother alleges father has been violent towards her and shared care arrangement antithetic to children’s best interests – children’s entitlement to have a meaningful relationship with both parents – freedom of movement – evaluation of parties’ competing proposals – best interests. PROPERTY – Marriage of around eight years in duration – whether monies advanced by husband’s parents to husband to purchase a property prior to relationship should be included as joint liability – assessment of contributions – s.75(2) factors – just and equitable. |
| Family Law Act 1975, ss.4; 60B; 60CA; 60CC; 61DA; 65D; 65DAA; 65DAC |
| B v B [2006] FamCA 1207 unreported judgment delivered 15 November 2006 Goode & Goode (2006) FLC 92-286 AMS v AIF; AIF v AMS (1999) FLC92-852 A v A: Relocation Approach (2000) FLC 93-035 U v U per Hayne J KB & TC (2005) FLC 92-224 Fragomeli & Fragomeli (1993) FLC 92-393 B & B: Family Law Reform Act 1995 (1997) FLC 92-755 In the marriage of Patsalou (1994) 18 Fam LR 426 JG & BG 18 Fam LR 255 Lee Steere v Lee Steere (1998) FLC 91-626 Ferraro v Ferraro (1993) FLC 92-335 Clauson v Clauson (1995) FLC 92-595 Wardman & Hudson (1978) FLC 90-466 Biltoft & Biltoft (1995) FLC 92-614 Kessey & Kessey (1994) FLC 92-495 Pellegrino v Pellegrino (1997) FLC 92-789 Russell v Russell (1999) FamCA 187 Waters & Jurek (1995) FLC 92-635 D & D [2003] FamCA 473 T & N [2001] FMCAfam 222 Gosper & Gosper (1987) FLC 91-818 Aleksovski v Aleksovski (1996) FLC 92-705 Ferraro & Ferraro (1992) 16 FamLR 1 |
| Applicant: | MR CLARKE |
| Respondent: | MS CLARKE |
| File Number: | ADC 3739 of 2007 |
| Judgment of: | Brown FM |
| Hearing dates: | 3 & 4 June 2008 |
| Date of last submission: | 4 June 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 9 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Birchall |
| Solicitors for the Applicant: | Hume Taylor & Co |
| Counsel for the Respondent: | Ms Dickson |
| Solicitors for the Respondent: | Camatta Lempens Pty Ltd |
ORDERS
The husband and wife have equal shared parental responsibility for the children of the marriage [X] born in 1999, [Y] born in 2001 and [Z] born in 2004 (hereinafter referred to as “the children”).
The three children live with the wife and she be at liberty to relocate the children’s place of residence from [W] to [C] at the end of the mid-year 2008 South Australian school holidays.
The father spend time with the children as follows:
(a)On each alternate weekend, during school terms, from 5:00pm Friday until 5:00pm the following Sunday or 5:00pm Monday in the event that the following Monday is a public holiday;
(b)For half of all school holiday periods;
(c)From 11:00am on 25 December 2008 to 5:00pm on 26 December 2008 and for the same periods in each alternate year thereafter;
(d)From 12:00 noon on 24 December 2009 to 11:00am on 25 December 2009 and for the same periods in each alternate year thereafter;
(e)For special occasions, including the children’s birthdays, Father’s Day and Easter at times to be agreed between the parties.
In order to give effect to order 3 hereof the children be exchanged between the parties at any such places as may be agreed between the parties from time to time but failing agreement the wife deliver the children to the husband at the beginning of each period referred to in order 3 above and the husband return the children to the wife at the conclusion of each such period.
Both parties be at liberty to telephone the children at all reasonable times when the children are in the care of the other parent.
Both parties be at liberty to attend all of the children’s sporting and extra curricular activities and all school functions routinely attended by parents in respect of all and any of the children.
Each party be at liberty to obtain copies of the children’s school reports and school photographs and any other school related information in respect of the children.
The husband and wife do all reasonable things to ensure that the other is kept informed in a timely manner of any issues relating to the well being, health, education of the children whilst they are with each of them.
In full and final settlement of all claims for settlement of matrimonial property:
The parties forthwith do all things necessary and execute all necessary documents to place the former matrimonial home situate at Property D, [W] on the market for a price to be agreed between them and upon sale of the property the proceeds of sale be divided as follows:
(a)Firstly to pay the mortgage secured against the aforesaid property;
(b)Secondly to pay the costs, commissions and expenses related to the said sale;
(c)Thirdly to pay the husband’s parents the sum of $17,000.00; and
(d)Fourthly the balance to be divided as to fifty percent to the husband and fifty percent to the wife.
Concurrently with the payment referred to in order 9(d), the husband pay to the wife the sum of $10,000.00 from his share of the proceeds of sale.
Unless otherwise as specified in these orders and except for the purposes of enforcing the payment of any moneys due under these or subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses in action) in possession of such party as at this date;
(b)Each party hereby foregoes any claim that he or she may have to superannuation benefits belonging to or earned by the other which are standing in the other’s name;
(c)All insurance policies become the sole property of the beneficiary named thereunder;
(d)Each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
The husband forthwith return to the wife her personal journals and diaries.
The application and response herein be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Clarke & Clarke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3739 of 2007
| MR CLARKE |
Applicant
And
| MS CLARKE |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Clarke “the father” and Ms Clarke “the mother” are the parents of [X] aged nine, [Y] aged seven and [Z] aged four.
At present, the parents and children concerned all live in [W] and have done so for many years. As a result of an agreement, reached in April 2006, the parents agreed that the children would spend time with their father from Friday to Monday, in one week of each fortnight and overnight on Tuesday in each week, but otherwise live with their mother.
Ms Clarke now wishes to move to live in [C], where she was born and where her parents live. She wants [X], [Y] and [Z] to live with her there.
[C] is a small rural community, around 110kms southwest of [W]. All concerned agreed that it would be impracticable for the current arrangement to continue, if the children live in [C]. Necessarily, their time with their father would have to be reduced and other arrangements made.
Ms Clarke believes that her and the children’s lives will be better in [C], where she will have access to cheap accommodation and the support of her parents. She has been offered a good job, at the [C] Area School, as a student support officer, which she wants to take up.
Of equal importance to her is the fact that she has recently formed a relationship with Mr T, who lives in [C]. For personal and family reasons, Mr T is unable to move from [C] to live in [W]. Ms Clarke is fearful of losing her relationship with Mr T and so her chance of personal happiness with him, if she cannot move to [C].
Above all, Ms Clarke asserts that she is deeply unhappy living in [W] because of her difficult and conflictual relationship with Mr Clarke, whom she says has harassed and threatened her, since the parties separated in late September 2005 and with whom she finds it practicably impossible to communicate.
Accordingly, the thrust of the mother’s case is that she personally will be much happier and more fulfilled in [C] and this must be a good thing for the children concerned. In addition, she points to the distance between [C] and [W] which, when the size of Australia is considered, is not a great one and, as such, will not present an insuperable barrier to the children maintaining a meaningful relationship with their father, as they will be able to see him regularly on weekends and during school holidays.
Mr Clarke concedes that his behaviour towards his former wife has not been without fault, in the almost three years since their separation.
It would be difficult for him to assert otherwise. He is currently subject to a domestic violence restraining order, which was made on 22 December 2005, for a period of three years. Mr Clarke has been convicted of breaching this order, as a result of an incident which occurred in June of 2007.
Mr Clarke is opposed to any proposed order that would see the children living away from him in [C]. He is well settled in [W], where he was born and where his parents live. More importantly, Mr Clarke thinks it would be extremely disruptive for [X], [Y] and [Z] to live in [C]. Such a move would necessitate a change in schools for [X] and [Y] and would disrupt their friendships and recreational activities, particularly [X]’s interest in Irish dancing and netball.
Above all, Mr Clarke asserts that the move would inevitably cause the strong relationships he has with each of the children and they with him and their paternal grandparents to diminish and become less meaningful, to the children’s long term detriment. As such, he contends that the mother’s proposed move cannot be considered to be in [X], [Y] or [Z]’s best interests.
As a result of the emphasis Mr Clarke places on the children having a meaningful relationship with him, he proposes that the parties have equal shared parental responsibility for their children [Family Law Act section 61DA][1] and as a consequence the children should live with each of their parents on a week about basis [section 65DAA(1)]. Necessarily, such an outcome would prevent the mother living in [C] with the children. Ms Clarke is not prepared to consider living in [C], without the children, notwithstanding the consequences for her of such an outcome.
[1] Hereinafter each reference in [ ] is a reference to the Family Law Act (Commonwealth) 1975
Mr Clarke acknowledges that his relationship with Ms Clarke is poor and the two seldom talk directly with one another, a circumstance of which the children, particularly [X], are well aware. Notwithstanding these difficulties, he asserts that the children are doing well in the current arrangement. He contends that the mother has overstated her concerns about him and has latched on to them to buttress her claim to move to [C] with the children.
Mr Clarke contends that he has taken steps, through psychological counselling and anger management, to resolve the powerful feelings which were precipitated within him by the parties’ separation. As a result, it is his position that the mother’s concerns must now be largely regarded as historical in nature.
Perhaps needless to say, the mother asserts that the father’s previous violent behaviour towards her, to which she asserts the children have been exposed, necessarily abrogates any presumption, arising at law, of the parties having equal shared parental responsibility in respect of the children concerned in this case [section 61DA(2)].
As this brief introduction shows, this is a complex case. Because the primary emphasis, in children’s cases, is on the best interests of the children concerned [section 60CA], it is usual for an independent expert to be commissioned to provide evidence to the court about the needs of the children involved and, if appropriate, for their views about an appropriate outcome to be canvassed.
Such a report was prepared, for this case, by an experienced psychologist Ms Marta Lohyn. She identified a number of areas of complexity in the case. These included the difficult parental relationship between the parties, particularly Ms Clarke’s fear of
Mr Clarke and her perception that he was disrespectful of her; the implications of such a relationship on the children concerned; [X]’s apprehension about potentially moving to [C]; and the potential such a move would have on the children’s level of relationship with their father.
In her report, Ms Lohyn provided the following evaluation:
“If [Ms Clarke] were to move to [C], the children would necessarily have considerably less time with their father. [X] has made it clear that she would not want this and would miss her father. I think that [X] in particular is still sensitive and upset about her parents’ separation; my view is that a further disruption in both her time with her father and her school would be untimely and inappropriate for her. Further, [Mr Clarke’s] good connections and involvement with the children should be encouraged and supported rather than limited by geographical distance.
…
However, I am concerned about the viability of an ongoing shared care arrangement if [Mr Clarke] does not noticeably change his attitude and dealings with [Ms Clarke]. It is thus very important that he manages himself properly and communicates respectfully to and about [Ms Clarke]. Talking in a respectful and non aggressive manner to [Ms Clarke] and encouraging the children to phone their mother when they are with him would be signs that he is moving in the right direction.”[2]
[2] See Family Report at page 13
As a result of her interviews with each of the parties and the children concerned, Ms Lohyn recommended that the children should continue to live in [W] and see their father in accordance with the current arrangements. She was not in favour of a shared care arrangement for [X], [Y] and [Z]. But, at this stage, Ms Lohyn was not prepared to rule out such a shared care arrangement being appropriate at some stage in the future.
However, before the court consider such an arrangement, she recommended that the parties should undergo a process of professional counselling, to see if this would assist them to normalise their parenting relationship with one another. As such, Ms Lohyn recommended a review of arrangements for the children in about six months time. This recommendation was predicated on the basis of a maintenance of the current regime. It would result in the possible permanent deferral of Ms Clarke’s aspirations to move to [C].
Ms Clarke’s primary position is that the children should predominantly live with her in [C]. However, if this outcome is not possible, it is her subsidiary position that a shared care arrangement, as sought by the father, would not be in the children’s best interests. Rather, it is her position that the current arrangement should be modified and that the children should spend less, rather than more time, with their father, because of what she sees as his poor parenting abilities.
Both parties wish to play as large a role as possible in [X], [Y] and [Z]’s lives, as they grow to maturity. Both Mr Clarke and Ms Clarke wish to be involved in every aspect of the children’s lives – their sporting activities; their education; their intellectual and social development; as well as having the opportunity to just “hang out” with them; – as they grow to maturity. These mutual parental aspirations are reflected in recent amendments made to the Family Law Act 1975.
Concurrently with these aspirations, Ms Clarke wishes to live in [C], where she believes she will be more financially secure and happy, as she will be pursuing career, relationship and lifestyle opportunities of her own choosing, untrammelled by interference from Mr Clarke. These are legitimate expectations, on her part, which the court is required to consider.
Mr Clarke does not wish to move away from [W], where he has lived for nearly all of his life and where significant members of his family also live and where he is involved in an [omitted] business, with his step-father, to whom he is very close. For obvious reasons, he does not want [X], [Y] and [Z] to live outside of [W]. He wants them to be as close to him as possible.
However, if Ms Clarke feels that she has been compelled to remain living in [W], because of the father and the satisfaction of his aspirations, at the expense of her own, she will be unhappy and potentially rendered more bitterly disposed towards Mr Clarke, which cannot be satisfactory for the children concerned. Inevitably, regardless of the ultimate outcome in this case, one or other of the parties will feel hard done by.
Accordingly, there can be no outcome in this case, which will be satisfactory to all the parties involved and to all those who will be affected by the outcome, such as the children’s relatives, on both their maternal and paternal sides. The various options available to the court, in the outcome eof this case, cannot be manipulated, like the surface of a rubik’s cube, to reach a perfect result.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future.
On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship, with both his or her parents, in the now changed circumstances of his or her parents’ separation.
These proceedings are directed to resolving this complex dispute between the parties. When parents, who no longer live together, ask the court to determine where their children should live, it is the best interests of the children concerned which are paramount. The court must decide which of the parties’ competing proposals is most likely to advance the best interests of the children concerned.
It is also open to the court to consider other outcomes, which it considers likely to achieve this goal, independent of the positions of the parties themselves. However, at the same time, the court cannot overlook the legitimate expectations of a parent, as to where he or she wishes to live in future.
The balancing of these considerations has been described by Warnick J as both “a delicate interplay of concepts” as well as “an imbroglio of principles.”[3] The level of complexity is intensified by the fact that the Commonwealth Parliament has recently passed the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006. Accordingly, the law relating to arrangements for the parenting of children is not well settled, particularly in regards to the issue of parental relocation.
[3] See B v B [2006] FamCA 1207 judgment delivered 15 November 2006 at paragraph 1
For obvious reasons, in the presentation of their respective cases, the parties have concentrated on what each considers is the appropriate outcome regarding the care of [X], [Y] and [Z]. However, the arrangements for the children are not the only aspect of the case.
The parties also seek orders regarding the division of their matrimonial property.
The parties’ pool of assets is not large, chiefly consisting of their former family home located at Property D, [W] and their respective entitlements to superannuation. The parties agree that it is necessary for the Property D property to be sold, so that both can receive their proper entitlements.
The major area for dispute between the parties concerns whether or not moneys advanced to Mr Clarke, by his parents, which were used by him to purchase a property owned by Mr Clarke in [W], the proceeds of sale of which were ultimately utilised, in part, to purchase the Property D property, should be included as a joint liability of the parties or dealt with in some other way.
Apart from this area of dispute, the parties agree that their various contributions, during their marriage of approximately seven years, should be regarded as being essentially equal. It is clear that both regarded their marriage as a partnership, to which both fully contributed, albeit at times in different ways.
The other area of dispute concerns an assessment of the parties’ prospective needs and the implication of those needs in regards to the division of the parties’ property [section 75(2)]. This issue is tied up with final arrangements for the care of the children.
If the children live with her in [C], Ms Clarke contends that she should receive a greater proportion of the parties’ property than Mr Clarke.
On the other hand, it is Mr Clarke’s position that the parties’ prospective needs are about the same and there should be no further allowance made, in respect of either party, particularly if a shared care arrangement is preferred.
These proceedings are designed to resolve these various disputes between the parties and, as far as possible, finalise their financial relationship with one another.
The legal principles applicable
a) The children’s aspects
Part VII is the part of the Family Law Act which deals with orders relating to children. The service of [X], [Y] and [Z]’s best interests is the most important consideration in this case [Family Law Act s.60CA].
The aims and principles of Part VII [section 60B] emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm arising from the child being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people include parents but also other relatives, particularly grandparents [section 60B(2)(b)].
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA.
If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time, provided this outcome is both likely to be in the child’s best interest and reasonably practical.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again this outcome is subject to considerations of the child’s best interests and practicality.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the children concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[4]
[4] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
The application of the presumption of equal shared parental responsibility and the parenting arrangements which flow from it are rendered particularly problematic in cases involving one parent wishing to relocate permanently the children involved far away from the other parent concerned. Obviously, in such circumstances, an equal time, or a substantial and significant time arrangement, becomes highly impracticable, if not impossible.
In practice, regardless of the application of the presumption, the optimal parenting arrangements, envisaged by the legislation concerned, become redundant, unless restrictions are placed by the court on the freedom of movement of either one or both of the parents concerned. This, of itself, raises complex constitutional and legal issues.
Pursuant to rights read by the High Court into the Australian Constitution, Australian citizens, and those resident in this country, have a right to freedom of movement, both internally within Australia and indeed overseas. Australia is a free and democratic society, which prizes the rights of its citizens to live where and how they choose.
These principles are often difficult to reconcile, in relocation cases such as this one, with the entitlement children have, pursuant to the Family Law Act, to maintain and develop relationships, within their families, which are likely to be significant to them, both in the short and long term.
In AMS v AIF; AIF v AMS[5] Kirby J set out nine general propositions, derived from the relevant authorities, concerning relocation, which can be summarised as follows:
[5] AMS v AIF; AIF v AMS (1999) FLC92-852 at 86,041-86,043
·Each relocation case is unique and so the facts of each such case require a careful and delicate analysis;
·As a result, no single factor will be dispositive in a relocation case. Each case requires the application of an individualised judicial discretion. Although the child concerned’s welfare is the paramount consideration, it is not the only consideration for the court;
·Accordingly, the court cannot ignore the legitimate expectation of a parent that he or she should be free to live how and where he or she chooses in future. There is no universal rule that requires separated parents to live in close proximity with one another to ensure that their children have the optimal relationship with both their parents;
·Democratic societies, for obvious reasons, place a high store on the entitlements of adults to decide where they will live. Accordingly, courts are reluctant to interfere with a parent’s right to freedom of movement, particularly if that parent is the unchallenged custodian of the child concerned. Interference, by court order, in the life of such a parent, may lead to resentment on that parent’s part, which, of itself, is likely to have negative implications for the child concerned;
·However “the touchstone” remains the best interests of the child concerned and not the wishes and interests of parents;
·One of the primary functions of Family Law legislation is to provide mechanisms for separated spouses to begin a new life for themselves, independently of their former partners. Accordingly, any legislative rule regarding the right of a child to maintain frequent and direct relations with both parents cannot be interpreted as an absolute one;
·Courts in Australia have a more relaxed attitude to relocations within Australia, when compared to overseas relocations, because of the availability of reliable transport and telecommunication facilities within Australia and because of the homogeneity of social and cultural factors in this country;
·When considering a relocation application, the court will be required to assess the adequacy of new contact arrangements with the other parent concerned, and particularly whether those arrangement are in the child concerned’s best interests.
·The court retains the discretion to depart from the norm of shared parental responsibility, in appropriate cases.
In A v A: Relocation Approach,[6] the Full Court of the Family Court, following the decision of the High Court, stipulated that certain guidelines should apply to the determination of a parenting case that involves a proposal to relocate the residence of a child.
[6] A v A: Relocation Approach (2000) FLC 93-035
It held that the best interests of the child remained the paramount consideration but not the sole consideration. As such, the court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation. It is necessary for the court to evaluate each of the proposals advanced by the parties.
That evaluation must assess the advantages and disadvantages, for the child’s best interests, of each proposal and consider each relevant section 60CC factor. When evaluating the proposals, the court must have regard to the fact that neither party bears an onus (the court must have regard to the whole of the evidence relevant to the best interests of the child) and the importance of a party’s right to freedom of movement.
In particular, the court should be careful not to fall into the error of dissecting a relocation case into separate or discrete issues, namely who of the parties concerned should have primary responsibility for the care of the children concerned and secondly whether that parent should be “permitted” to relocate with the child.
The High Court again considered the question of relocation in U v U.[7] This was an international relocation case. In the case, the High Court again reiterated that a first instance court was obliged to give careful consideration to the proposed arrangements put forward by each party, but was not specifically bound by them.
[7] U v U (supra)
As the best interests of the child concerned remained the paramount consideration, it was incumbent upon the court to investigate the possibility of the other parent moving to be closer to the child concerned, rather than first considering restraining the parent who wished to relocate the children from moving.[8]
[8] U v U per Hayne J at 89,103
This was so because proceedings concerning the welfare of a child are not exclusively adversarial proceedings. Accordingly, the court could examine outcomes, independent of the positions primarily put forward by the parties themselves. This was said to be a prelude to the “deeper inquiry” of what will best serve a child’s best interests.
Courts, such as this one, have also recently been cautioned about applying a too formulaic approach to relocation cases. Rather, it has been said that the proper approach is to weigh and assess each of the competing proposals of the parties, against the yardstick provided by section 60CC and consider all the other relevant factors, including the right of freedom of movement of the parent, who wishes to relocate. However the court must always bear in mind that ultimately the decision it makes must be the one which is in the best interest of the child concerned.[9]
[9] See KB & TC (2005) FLC 92-224 at 79,699
As a result of these considerations, I conclude that the main thrust of the enquiry, in this case, remains what outcome is likely to best serve the children’s best interests. I must determine who of the parties is better placed to provide a home for [X], [Y] and [Z], after having considered all of the applicable section 60CC factors.
If I conclude that the mother is better placed to provide a home for the children, I am not entitled to dissect the case into a subsequent or contingent issue, regarding whether Ms Clarke should be “permitted” to live in [C] with the children.
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible, with both their parents, there is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved. If such a principle was indiscriminately applied, in children’s cases, it would necessarily result in the negation of a parent’s entitlement to freedom of movement. The court cannot ignore this entitlement.
Of itself, a parent’s freedom of movement may have implications for the welfare of the child concerned, particularly if that parent has principle responsibility for the care of the child, who is subject to the relocation. For obvious reasons, a parent’s ability to function effectively, as a parent, is likely to be important to the child’s welfare. It is often said to be axiomatic that a happy parent is likely to be a more competent parent. Essentially, if the court unduly interferes with the way of life which a “custodial” parent legitimately wishes to adopt, the resulting frustration and bitterness may adversely affect the child concerned.[10]
[10] See Fragomeli & Fragomeli (1993) FLC 92-393 at 80,023
As the child’s best interests remain the paramount consideration in the outcome of any relocation proposal and as one of the components of a child’s best interests is the right to have a meaningful relationship with both his or her parents, I must consider the adequacy of the arrangements proposed by the relocating parent for the child to spend time with the other parent concerned. Such considerations may be crucial in determining whether a particular relocation is likely to be in a child’s best interests and so should occur.
The potentially deleteriously consequences, for children, of locating away from one of their parents, compound with the distance involved. The tyranny of distance develops by degree.[11] For obvious reasons, it is likely to be more difficult for a child to maintain a meaningful relationship with a parent, if an international relocation is involved or the move involved is to a far distant part of Australia – say from Cairns to Hobart or Broome to Bairnsdale.
[11] See B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,196
The age of the child concerned may also be a relevant consideration, as is the state of development of the child/parent relationship involved and the parties’ financial capacity to maintain such a relationship, over distance [section 60CC(3)(e)]. It is a common occurrence for a parent to move voluntarily away, from the child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. For obvious reasons, one of the frequent consequences of marital breakdown is that parties concerned form new relationships. Accordingly the interests of new partners become involved.
In such circumstances, children are frequently able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[12]
[12] See D and S V (2003) FLC 93-137 at 78, 280
In conclusion, the case requires no ready solution. Every relocation case is different and requires careful analysis. As is apparent from this survey of the law, the exercise I must undertake is “to attempt a resolution of often irreconcilable considerations”[13], which arise from complex issues.
[13] See AMS v AIF (supra) per Kirby J at 86,041
However, the ultimate issue in the case is the best interests of the children concerned. In this regard, the parties’ competing proposals and any other outcomes which are reasonably open to the court must be weighed and assessed, against the yard stick provided by section 60CC and the principles which underpin it. However, such assessment must not occur in a vacuum, isolated from any considerations of Ms Clarke’s right to freedom to movement.
A central plank in the mother’s case is that the presumption of equal shared parental responsibility should not be applied in this case because of the father’s violent and abusive behaviour towards her. It is also her position that her life will be more palatable, if she is able to live in [C], away from what she characterises as the father’s ongoing and persistently denigratory attitude towards her. The subtext of her case being that, if she is a happier and more fulfilled person, it will have beneficial consequences for the children and her ability to parent them effectively.
Given the significance of family violence in the case overall, it is appropriate to consider its significance in the legal context. It is clear from the structure of the Family Law Act that the court must closely examine allegations of family violence, bearing in mind the serious consequences exposure to such violence may have for any children concerned.
Family violence is defined as “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety” [section 4].
Accordingly, it is not necessary to demonstrate an actual injury on the part of a person complaining of family violence. Behaviour which cause fear or apprehension to a member of a person’s family is sufficient to constituted family violence.
Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force, on the other of a child’s parents, are not appropriate psychological role models for children. For obvious reasons, it is also potentially psychologically damaging for a child to be exposed to violence, involving his or her parents.[14]
[14] See In the marriage of Patsalou (1994) 18 Fam LR 426
Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.
However, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned.[15] Obviously the latter behaviour is the more damaging, so far as children are concerned.
[15] See JG & BG 18 Fam LR 255 at 261
Again these are factors, which the court must bear in mind, in examining issues of family violence, in the context of determining the best outcome for the child concerned. Not all incidents of family violence will be necessarily damaging to children.
The fundamental task for the court is to assess prospective dangers for the children concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or indeed as a result of provocation or incitement.
Finally, as can be seen from the definition quoted above, family violence, in the context of Family Law proceedings, has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable. It is not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents, which have previously occurred, either unintentionally or for tactical reasons.
b) The property aspects
The process to be followed, for the division of the parties’ property is well established by law.[16] The relevant legal principles are primarily contained in sections 79 and 75(2) of the Family Law Act 1975. I am required to follow a number of specific steps.
[16] See Lee Steere v Lee Steere (1998) FLC 91-626; Ferraro v Ferraro (1993) FLC 92-335;
Firstly, I must ascertain what are the parties’ assets and liabilities as at the date of trial.[17] As has been indicated, the parties have been able to agree upon the value of most items of their property, particularly their respective superannuation entitlements. As it has been agreed that the Property D property needs to be sold, the market place will ultimately determine its value.
[17] See Wardman & Hudson (1978) FLC 90-466; and Biltoft & Biltoft (1995) FLC 92-614
Regardless of this substantial level of agreement, there exist a number of issues, between the parties, regarding what should and should not be included, as liabilities, in their pool of assets and how these liabilities should be dealt with. These issues can be summarised as follows:
·When the parties began their relationship, Mr Clarke owned a property at Property P, [W]. It is his position that he was lent the sum of $15,000.00, by his parents, in order to purchase the property, which has now been sold, the proceeds being used to purchase other matrimonially owned real property.
·However, Mr Clarke asserts that around $10,000.00 of the debt to his parents remain outstanding and, as such, should be regarded as a joint debt of the parties, which should be repaid now, from the proceeds of sale of the Property D property.
·Ms Clarke does not agree. It is her position that she knows nothing of the alleged loan, which she says has never been formally documented or repayment demanded, during the course of the parties’ marriage. As such, she asserts it would be inappropriate to include the sum as a joint matrimonial debt.
·During the hearing of the case, Ms Clarke acknowledged that the parties owed a sum of around $17,000.00 to Mr Clarke’s parents. This sum was advanced by Mr and Mrs C Senior to enable the parties to purchase a property at Property B, [R].
·The parties’ other significant liability is the amount currently outstanding on the mortgage secured against the Property D property. It is agreed that the balance outstanding is $112,000.00.
·It is further agreed that the husband has superannuation entitlements of $50,736.15 and the wife’s superannuation of $30,648.00.
Secondly, I must ascertain the contributions which each party has made towards those assets. Contributions fall into two broad categories.
The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of home maker or parent.”[18]
[18] See Family Law Act s.79(4)(c)
It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
In assessing the parties’ contributions to the acquisition of the assets of their marriage, it is necessary to consider whether the court should adopt a global approach or an asset by asset approach. In the former, the court assesses the parties’ contributions to their assets in a total or comprehensive manner. In the latter, the court assesses the parties’ contributions to individual items of property.
The global approach is the method generally adopted because it is usually the more convenient, particularly when the court is assessing different types of contributions – home making and financial – towards the acquisition of the various assets concerned.[19]
[19] See Norbis v Norbis (1986) FLC 91-712 at 75,268
The second step occasions controversy between the parties in the following areas:
·The husband asserts he brought more property into the marriage, at its inception, particularly in the form of his interest in the Property P property.
·In addition, the husband asserts that if the moneys he alleges were advanced to him by his parents to purchase the Property P property are not to be regarded as a loan, which requires immediate repayment, the sum advanced by them should be regarded as a contribution to which he alone is entitled.[20]
·On this basis, the husband’s position would be that his financial contributions, during the marriage, have been superior to those of the wife.
·On the other hand, it is the wife’s position that, in addition to her direct financial contributions, provided as a salary earner, she has made significant contributions as a parent and homemaker.
·To his credit, the husband acknowledges the wife’s substantial contributions as both a homemaker and parent.
[20] See Kessey & Kessey (1994) FLC 92-495, Pellegrino v Pellegrino (1997) FLC 92-789
At the end of the second stage, it is the husband’s position, that if the $10,000.00 loan is repaid, the parties’ contributions should be assessed as being essentially equal but otherwise he should have a slight advantage.
On the other hand, it is the wife’s position that the loan should be disregarded and the parties’ contributions assessed as being equal overall.
The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in section 75(2) of the Family Law Act 1975. Pursuant to section 75(2)(o), the Court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
In the main, section 75(2) deals with the prospective needs of the parties. This area too, occasions some controversy between the parties in the following areas:
·If the wife is successful in her application to live with the children in [C], it is her case that more of the financial responsibility for providing for them will fall on her shoulders [section 75(2)(c)].
·On the other hand, if Mr Clarke’s position, regarding the children is preferred, namely a shared care arrangement, he asserts that the parties will be equally financially responsible for the children.
·Currently Mr Clarke is assessed to pay child support, in respect of the three children, at a monthly rate of $59.33.[21] The wife contends that this is a factor which favours her [section 75(2)(na)].
·Ms Clarke also points to the fact that she is a modest wage earner and is likely to remain so, as a factor which favours her.
[21] See Exhibit W1
The husband contends that there should be no adjustment, in either parties’ favour, by reason of any of the applicable section 75(2) factors. On the other hand, it is the wife’s case, that overall the applicable factors favour her, by a figure of around ten percent of the pool of assets available, which is small.
Finally, in determining what order the court should make under section 79, the court must be satisfied that in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the court must consider.[22]
[22] See Russell v Russell (1999) FamCA 187
The “overriding requirement” of section 79 is that considerations of justice and equity should inform each step of the process. The exercise I must undertake is not a “process of social engineering”[23] or of equalisation of assets or financial resources.
[23] See Waters & Jurek (1995) FLC 92-635
At the outset, I am at pains to point out to the parties that the task I must undertake is not a simple accounting or arithmetical task. In the jargon of the times, I cannot “crunch the numbers” to come up with a division of their property, which is not open to challenge or incapable of different interpretation.
Marriage is by and large a joint enterprise. How much buffer spouses must give one another, when financial set backs occur, must depend on the degree of consultation and acquiescence in their relationship.[24]
[24] See D & D [2003] FamCA 473 at paragraph 49
The task, set out for me in this case, requires me to balance and compare contributions which are by their nature different, within the framework of a marriage. Many contributions in a marriage, such as being a homemaker, do not result in the direct acquisition of assets. They are also difficult to value. The discretion I have is a wide one.
The evidence
Mr Clarke commenced these proceedings on 9 July 2007 seeking a shared care arrangement for [X], [Y] and [Z] and a fifty-five/forty-five percent division of property in his favour. Ms Clarke responded on
25 October 2007, seeking to relocate with the children to either [C] or [L] and a sixty/forty percent division in her favour.
It is the father’s case that it was only in response to his application that the mother sought to relocate. The implication being that his past behaviour towards the mother has been neither as bad nor as intolerable as the mother now asserts. This is the most significant evidentiary aspect of the case and raises the following issues.
·What is the father’s attitude towards the mother? Is he constantly denigratory, controlling and abusive towards her and likely to remain so, as the mother asserts.
·Or is it more likely that the father is now passively indifferent to the mother, as a result of the efflux of time and the effectiveness of his psychological counselling and anger management, as the father asserts.
Other evidentiary issues in the case, concern the following:
·What is the nature the parties parenting relationship? Is it likely to be amenable to the shared care of the children; is one of the parties more responsible than the other for its current poor state?
·What are the attributes and qualities of each of the parties, as parents?
·What are the children’s views on the proposed relocation, particularly [X]’s? If the children do have a view about the matter, what is their level of insight into the matter and what factors are likely to have influenced them in reaching that particular view?
·Will the children be able to maintain a sufficiently meaningful relationship with their father, if they move to [C], given that it is an hour’s drive from [W] and he will be available to them regularly on weekends and during school holidays?
·Obviously and most fundamentally, it will be necessary to contrast and compare the parties’ proposals and assess the pluses and negatives involved from the perspective of the children’s best interests.
In these reasons for judgment, findings of fact are made on the balance of probabilities, following my observation of each of the witnesses concerned. In what follows, statements of fact constitute findings of fact.
Mr Clarke relies on the following documents:
i)an affidavit of himself filed 9 May 2008;
ii)a statement of his financial circumstances filed 12 May 2008;
iii)an affidavit of his parents, Mr and Mrs C Senior filed 13 May 2007.
Ms Clarke relies on the following documents:
i)an affidavit of herself filed 27 May 2008;
ii)a statement of her financial circumstances filed 28 May 2008;
iii)an affidavit of her mother, Ms J filed 2 June 2008;
iv)an affidavit of Mr T filed 2 June 2008.
Each of the deponents of these affidavits was skilfully cross-examined by counsel for the other party. As a result, I had an opportunity to observe each of them, but particularly the parties themselves at close quarters.
The issues in this case are subtle and complex. They have arisen over several years and have created powerful emotions, on the part of each of the parties concerned. Mr Clarke, in particular, was emotionally devastated at the end of the parties’ marriage, which took him unawares. My apprehension is that he remains bitterly disposed towards Ms Clarke because of the circumstances surrounding the parties’ separation.
As a result of the level of complexity, which invariably arises in family law cases, it is often fatuous for the court to decide cases involving children, on the basis of findings of credit relating to the parties themselves – that is the court believing one parent over the other. In affect determining one is truthful and the other not. That is often a simplistic reduction. It is also very often the case that the parties concerned are honest witnesses but nonetheless have totally different views as to what has occurred between them in the past, as a result of their different perspectives on it and often as a result of their different personalities.
It is, I think, becoming increasingly recognised that it is difficult, if not impossible, for courts to make findings of fact about myriad issues, which have arisen over many years, through the imperfect tool of assessing evidence provided in the artificial (and to many intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits.
In addition, given the importance for children of their parents maintaining at least the possibility of having a functioning parental relationship with one another, following court proceedings, the court should avoid making potentially hurtful findings of fact, wherever possible, which may unwittingly be damaging to the parties’ future parental relationships, unless it is absolutely necessary to do so.
Unfortunately, but for obvious reasons, the parties in adversarial proceedings, such as these, tend to emphasise, in the presentation of their respective cases, the failings of the other party concerned and minimise their own. In addition, the extreme emotion created by such proceedings, which involved the persons the parties to them hold most dear – their children – blur perceptions and recollections of past events.
For all these reasons, the court must be cautious about making findings of fact. However, imperfect though it may be, the process still requires an adjudication, which adjudication can only be made on the basis of the evidence presented before the court. Necessarily therefore, the court must form some impression of the parties and the witnesses involved, so that this adjudication can occur.
In my assessment, both the father and mother were scrupulously honest witnesses, who attempted to tell the truth, as they each saw it, about the nature of their relationship with one another and their respective involvement with [X], [Y] and [Z].
Clearly, both the father and mother love the children very much indeed and both want the best possible outcome for them from these proceedings. I do not think that either Mr Clarke or Ms Clarke have adopted the positions, which they have in these proceedings, for any other reason than they each think it will provide the best outcome for the children. It would also I think be naive for me to think anything other than that both parties think their preferred outcome will also be the best one for him or her.
Certainly, I do not think the mother wishes to move to [C] out of any feelings of malice she feels for the father or out of any malign desire to reduce his influence in the children’s lives. Rather, it is my apprehension that she has struggled, over the last few years, to ensure the children have the best possible relationship with their father, in somewhat difficult circumstances.
I accept that she now feels at “the end of her tether”, whilst living in [W] and genuinely wants to make a fresh start for herself, in close proximity to those whom she holds dear and in an environment which is familiar and comfortable to her.
Similarly, I believe that the father wishes [X], [Y] and [Z] to continue to live in close proximity to him because he believes this will be the best outcome for them and not because he wishes to frustrate either the mother or Mr T’s ambitions and plans.
However, it was my impression that the father does not have any great capacity to empathise with the aspirations of the mother. Rather, I found him to be somewhat self fixated emotionally and to place a significant level of emphasis on what he perceived to be his ‘rights”, so far as the children are concerned.
To his very great credit, the father conceded that he had behaved atrociously towards the mother and her family, particularly Ms J, in the past. However, I am concerned that the father has a restricted level of insight as to the consequences of his behaviour on Ms Clarke, who did not strike me as being a particularly resilient person emotionally. I am satisfied that the father has been a threatening bully towards the mother in the past and she is fearful of him because of it, particularly as she believes that he has an explosive personality.
In this context, she is likely to be somewhat sceptical about the father’s protestations that he is no longer personally interested in her life and will be respectful of her in future. I suspect that it will take many years for the mother to come to a position, where she can accept that the father is able to control his emotions whilst around her.
In this context, it is apposite to note that the background of this case is the father’s desire to restrict the mother’s freedom of movement, ostensibly on the basis of the children’s best interests. In such circumstances, it seems self-apparent that the mother will perceive that the father wishes to continue to control her life, if he is successful in his application. Such an outcome inevitably will be a source of on-going resentment for the mother. Mr Clarke seemed to me to have considerable difficulty in appreciating this dynamic and its implications for the well-being of the children.
The only other witness, who gave evidence before the court was
Ms Lohyn.[25] Ms Lohyn has been a psychologist for around thirty years. Currently she is in private practice. A major component of her practice is preparing family assessments for this court and the Family Court. As a result, she has extensive experience of interviewing children and ascertaining their views, as well as assessing the nature of their parental relationships.
[25] Ms Lohyn’s family assessment was annexed to an affidavit of the father’s solicitor, Mr Byrne filed 22 May 2008
Ms Lohyn had a significant advantage, over me, in this case. She was able to see the children interacting with each of their parents and was able to hear each of them speaking with their own voices. Accordingly her opinion and evidence must be given a high level of regard by the court.
Ms Lohyn agreed with my assessment that this is a complex case, which presents no easy solution. Like me, she was concerned about
Mr Clarke’s previous behaviour towards Ms Clarke and was uncertain whether he had as yet turned a corner, so far as the issue of his anger towards Ms Clarke was concerned.
All family reports must be considered a “snap shot” in time, which is taken in somewhat artificial and stilted circumstances. Sadly, the children in this case, particularly [X] and [Y], are well aware of the conflict between their parents. In particular, both children are aware of the emotional investment both their father and mother have put into their respective preferred outcomes. As such, [X] in particular, must know how bitterly disappointed her father will be if the relocation occurs.
I found Ms Lohyn’s report to be thorough and well considered. However, given the emotional malestrem, which is likely to surround these children, I approach her final recommendations with some caution. I mean Ms Lohyn no disrespect in this regard.
In fact, it was my impression that she was somewhat guarded in her recommendations, particularly because of her ambivalence in making any findings about Mr Clarke’s previous conduct and attitude towards Ms Clarke. In addition, I am somewhat concerned that Ms Lohyn has failed to consider the potential impact upon Ms Clarke, if she perceives that her former husband is able to confine her to [W], on an indefinite basis, against her will.
a) Chronology
Mr Clarke was born in 1970. I believe he was born in [W]. Certainly, he went to school in [W], completing year 12 in 1987. His mother and step-father, with both of whom he shares a close relationship, live in [W], operating an [omitted] business in the town. Currently, Mr Clarke is working in this business.
Ms Clarke was born in [C] in 1973. She completed her education, to Year 12 level, at the [C] Area School. She was able to commence a tertiary science degree, in Adelaide, following her secondary education. She did not complete her degree but continues to be interested in science. She was working as a [occupation omitted], with [E] Mining, at [R], when she met Mr Clarke.
Currently, Ms Clarke is working as a part-time student support officer, at a secondary school in [W]. A large component of her work is preparing laboratory experiments. She does not have permanent employment status with the South Australian Education Department. One of the motivating factors, behind her desire to move to [C], is the fact that she has been offered a full-time and permanent position, as a student support officer, at the [C] Area School.
If she is able to take up the position, she will continue to work in the laboratory and also perform librarian duties. She enjoys this type of work and is well suited to it. I accept her evidence that there are few permanent student support officer positions available and she is unlikely to be offered one in the [W] area. As such, it would be a considerable benefit to Ms Clarke, in both a professional and financial sense, if she was able to take up the position offered to her in [C].
The parties met in [R] in 1997. The husband came to [R] to work for [B] as a concreter. He has experience in the building and mining industry, but prefers his current occupation as an [omitted]. In the longer term, he has aspirations to purchase his parent’s business, when they retire.
The parties began to live together, at [R], in late 1997. They married, at [C], in November 1998. There is no dispute that the date of final separation was 22 September, 2005. The marriage between them was dissolved on 10 November 2007.
[X] was born, in [W], in 1999. Ms Clarke took twelve months maternity leave, from her position at [E] Mining, following [X]’s birth. The parties purchased their first family home, in [R], at Property B, for around $101,000.00 prior to [X]’s birth.
It seems to be the position that neither party was particularly happy in [R]. Certainly, Mr Clarke could see no future for himself and the family in [R]. Accordingly, in early 2001, the family moved to [W] and Mr Clarke began to work for his parents. The Property B property was sold for $120,000.00 and shortly afterwards, the parties purchased their former family home, at 39 Property D, [W] for the sum of $95,000.00.
[Y] was born in [W] in 2001 and [Z] in 2004. Currently, [X] is in year 3/4 at [S] College, a private school in [W], which Mr Clarke himself attended. All agree that she is doing well at school and has been asked to join the adaptive education program, offered by the College, because of her “high level of literacy and numeracy skills, along with her love of learning.”[26]
[26] See Exhibit H1
[Y] is in Year 1/2 class at the [T] Campus of [S] College. He seems to be a more withdrawn child than [X] and there have been some concerns about his hearing. However, testing has revealed this to be normal. It is obviously too early to say how [Y] will progress at school in future. Ms Lohyn found [Y] to be a “quiet and shy little boy”.[27]
[27] See family assessment at page 8
[X] has played netball in the past. However, currently, her greatest love is Irish dancing, which she does weekly in [W]. She has attended Irish dancing competitions, in Adelaide, in the past, with her mother. She has also recently started to do modern dance classes, in [W].
It is a significant plank of the father’s case that all three children are well settled in [W]. This is undoubtedly the case. They have never really lived anywhere else. Mr Clarke is also a great enthusiast for the standard of education, which the children are likely to receive at [S] College. He is generally dismissive of [C] Area School, a school operated by the South Australian Department of Education. Although I note, in passing, Ms Clarke was able to reach university, after her education at [C].
It is common ground between the parties that Mr and Mrs C Senior have had a high degree of involvement in the children’s lives. From the father’s perspective, his parents are able to offer him a flexible workplace, which he can tailor around the needs of the children.
In particular, Mrs C Senior is happy and able to assist him with caring for the children, from time to time. Mr Clarke is concerned that, if the children move to [C], they will lose their currently close and warm relationship, not only with him, but also with their paternal grandparents.
The father was accompanied to court, for the hearing of this case, by his parents. The mother similarly was accompanied by her parents. Accordingly, it is clear to me that [X], [Y] and [Z] are surrounded by a network of close and loving familial relationships. Ms Clarke regularly spends her holidays, in [C], with her parents and the children.
Accordingly, [X], [Y] and [Z] are familiar with [C] and their paternal grandparents. As such, to a very large degree, it cannot be said that [C] is an unknown quantity for them. In particular, I accept Ms Clarke’s evidence that the older children have made friends in the [C] area, who currently attend school in the town.
There is no dispute between the parties that they separated, in difficult and acrimonious circumstances, on 22 September 2005. The father remained living in the Property D property, whilst the mother found rented accommodation for herself and the children in a unit in [W].
It is the mother’s case that she finds it a considerable financial burden to rent accommodation for herself. In addition, she deposed that her current home is not in one of the better areas of [W] and she fears for her safety and the safety of her children at her present address.
She does not have these concerns about [C].
Having grown up in [C], Ms Clarke is a great enthusiast for the town and its environs. She deposed warmly of the support likely to be available to her, in a closely knit rural community, where everyone knows one another. In addition, she painted a positive picture of the recreational opportunities available in the district around, including camping and boating. She deposed that modern dance classes would be available to [X] in [C], as [X]’s current dance academy visits the town, for classes, weekly.
One of the major attractions of [C] for Ms Clarke is that she could move into her great aunt’s home in the town. The lady concerned has recently moved into a retirement village and is willing to make her home available to the mother on condition that she keeps the property in a good state of repair and pays a modest rent and all the necessary outgoings in respect of it. Ms Clarke described the property as a comfortable three bedroom home, on a large block, in [C].
Up until this stage, neither party has sought any orders from the court, in respect of arrangements for the care of [X], [Y] and [Z]. Shortly after the parties separated, they began a process of mediation with one another at Relationships Australia. This led to the parties reaching an informal parenting agreement in April of 2006.
Pursuant to this agreement, the children were to spend time with their father from Friday to Monday in one week of each fortnight and overnight on each Tuesday. Time with the children, during school holidays, was to be shared between the parties, but otherwise they were to live with their mother. Other arrangements were agreed in respect of emergencies pertaining to the children; special occasions; and the payment of school fees and private health insurance.
In the preamble to the agreement, which is described as a memorandum of understanding, which is not legally binding, the parties acknowledge that they will communicate respectfully with one another, “without conflict, put downs or criticisms”.
From Ms Clarke’s point of view, she agreed to these arrangements, against her better judgment because she did not feel able to challenge either Mr Clarke or the mediator concerned. It is her case that she felt intimated by Mr Clarke during the mediation process.
On the other hand, it is Mr Clarke’s view that the fact that the parties have maintained these arrangements for around three years is clearly indicative that relations between the parties are not as poor as
Ms Clarke would have the court believe now and, it is only as a result of her wish to move to [C], with the children, that she has become so critical of the mediation process.
b) Family violence
In the context of the mediated agreement between the parties, it is appropriate to examine the present relationship between the parties, particularly in respect of whether it has been a violent one as defined by the relevant provisions of the Family Law Act, as a prelude to examining the potential impact of that relationship on the children concerned.
In my view, the nature of this relationship also has implications for
Ms Clarke’s legitimate expectations, in respect of her entitlement to live how and where she chooses. As previously indicated, this is the most significant evidentiary issue in the case.
Mr Clarke acknowledges that he did not cope well with Ms Clarke’s decision to leave the marriage. He describes himself as being “angry” and having difficulty coming to terms with her decision. He also deposed that he was not able to control his behaviour towards his former partner at times but previously had had no trouble controlling his anger, prior to separation.
Between October 2005 and December 2005, there were several incidents, when the father came to the mother’s home and abused her, on occasions in the presence of the children. He called her, amongst other things, a “slut” and “whore” and threatened to “knock her teeth down her throat”. At least one of these incidents led to a physical altercation between the parties. This involved a struggle for possession of family photographs.
On this occasion, Mr Clarke asserts that the mother dug her fingernails into him and he was defending himself. Ms Clarke has the father as the instigator of the violence involved in the incident. In my view, the interaction between the parties was obviously infused with a significant level of emotion, but the father must be regarded as having precipitated the incident by going to the mother’s home in the first place.
My impression is that he has had considerable difficulty in controlling his emotions, including anger, towards the mother, for a lengthy period of time. I do not think it can be said that the mother has provoked him or responded unreasonably to any aspect of the father’s behaviour towards her.
On 22 December 2005, South Australian Police officers applied for a domestic violence order, against the father, in the mother’s favour.
An order was made for a period of three years, from 2 December 2005. Mr Clarke was restrained from being on any premises where the mother works or resides or from contacting, following, harassing, threatening or intimidating her. I accept the mother’s evidence that the father has actually breached this order on several occasions and has also acted in an indirect manner to subvert its authority and intimidate Ms Clarke.
I accept Ms J’ evidence that Mr Clarke, for a period of around two years after the parties separated, subjected her to an intermittent barrage of abusive phone calls. He would ring her to such an extent, that Ms J installed a device on her telephone to enable her to identify his incoming calls, so that she would not have to answer them.
In addition, Ms Clarke herself also received many such calls, which she described as “abusive and emotional”. In my view, the concerning aspect of this evidence is the extent to which Mr Clarke felt driven to display his anger and emotional disequilibrium to persons associated with the mother and the duration of time over which this conduct took place.
As a result, from the mother’s perspective, every potential interaction she is required to have with the father is one permeated by anxiety. She is forever fearful that her mere presence will precipitate some vitriolic or violent response from the father. I accept her evidence that, notwithstanding the restraining order, the father has “lost control of himself”, in her and the children’s presence, on several occasions, since the parties separated.
As a result of these difficulties, these parties have utilised the home of the father’s parents to exchange the children between them. They communicate as little as possible. The father has some level of insight into his behaviour. In his evidence he deposed as follows:
“I try not to communicate with [Ms Clarke]. … if we talk, we get into an argument. ... more me than [Ms Clarke] I get angry at her. So I stay away…”
Ms Clarke informed me that she does not regard herself as being particularly frail or vulnerable. I agree with her assessment of herself. I do not consider her to be hyper-naturally sensitive or timorous, but she is not so robust that she would laugh of his behaviour or challenge him directly to stop. It also seems to me likely that she has elected not to involve the authorities in many of Mr Clarke’s transgressions towards her in the hope that his attitude towards her would moderate in time.
However it seems clear that the father’s behaviour towards her, which I characterise as unremitting, has had significant implications for
Ms Clarke’s emotional wellbeing. In mid-2006, her general practitioner placed her on a course of anti-depressant medication and referred her to a psychologist for treatment.
The psychologist concerned, Mr S diagnosed her as suffering with a major depressive order, recurrent with melancholic features.
He believed that her symptoms resulted from Ms Clarke’s “unhealthy relationship with her husband over the past 12 months during the course of their marriage separation.”
The mother reported to Mr S being fearful for her safety as a result of Mr Clarke’s volatile verbal and physical behaviour towards her.
Ms Clarke raised the possibility of moving to [C], with the children, to escape this behaviour. In his report, Mr S opined as follows:
“In summary, [Ms Clarke’s] condition is unlikely to improve if she remains in [W]. In my opinion, [Ms Clarke’s] condition and her ability to be the best mother she can be, is most likely to improve if she moves to live and work in [C]. In [C], [Ms Clarke] is likely to be well supported by her parents and close personal friends, benefit from permanent employment opportunities available in her area of expertise, and be somewhat removed from the ongoing stressors and emotional turmoil provoked by living in the same town as her husband.”[28]
[28] See report of Mr S dated 20 December 2006 in exhibit SC4 to the mother’s affidavit filed 27 May 2008
Mr Clarke was charged with breaching the domestic violence order, made in Ms Clarke’s favour, in respect of an incident which occurred around 14 November 2006. This was the parties’ wedding anniversary. Mr Clarke categorises the incident as a trivial one, involving him sending flowers to his former wife. Ms Clarke sees the matter in more sinister terms. I think Ms Clarke’s view of what occurred between the parties is likely to be the more accurate one.
Ms Clarke deposes that, when she failed to respond to the receipt of flowers from Mr Clarke, he telephoned her and inquired why she hadn’t contacted him “to apologise for wrecking my life …”. She also deposes that she was subjected to a campaign of telephone calls around this time and was also “tailgated” by Mr Clarke, when she was driving. However, there was insufficient evidence to enable a charge to be laid in respect of this.
In my view, the incident is significant because it demonstrates a level of obsession, which remained manifest long after the parties’ separation. It also demonstrates a lack of insight, on Mr Clarke’s part, in respect of the impact of his behaviour upon Ms Clarke.
However, the most significant incident of violence between the parties, occurred in late June 2007, when the parties found themselves on the same licensed premises in [W]. Mr Clarke concedes that he had been drinking at the time and by necessary implication, suggests this lessons the gravity of his behaviour.
It also seems to be his position that Ms Clarke in some way precipitated his behaviour by failing to be frank with him in respect of the presence of her brother, Mr D in [C]. I do not believe that either of these elements excuse the father’s behaviour or diminish its seriousness.
Mr D apparently suffered an acrimonious separation from his partner during the time Mr and Ms Clarke lived together. It seems it was suggested that Mr D had secreted images of child pornography on his computer hard drive. Mr Clarke deposes that he was requested by Mr D to destroy the computer in question, which he did.
In my view, it is germane to consider the issue of family violence, within the context of Ms Clarke’s legitimate expectation that she is entitled to live how and where she chooses. One of the central purposes of the Family Law Act is to provide mechanisms, to separated spouses, to enable them to sever their financial relationships with one another and make arrangements for the care of their children, in the changed circumstances which inevitably follow marital breakdown. There is no principle of law that separated parents are required to live in close proximity to one another upon the end of the relationship between them.
One of the implications of Mr Clarke’s proposals, in this case, would be that Ms Clarke would be required to abandon her personal aspirations and remain living in [W], so that Mr Clarke could have the best possible relationship with each of the children concerned. In my view, for this outcome to be successful, it would require a grace of spirit, on Ms Clarke’s part, which it is neither reasonable to expect from her nor likely to occur, given how Mr Clarke has behaved towards her in the past.
Ms Clarke has been supportive of the children maintaining their relationship with the father. This is to her credit. However, I do not think that she is likely to have access to extraordinary supplies of magnanimity, so far as the father is concerned. If Mr Clarke is successful in his proposal, given his previous behaviour towards
Ms Clarke, it seems to me inevitable that she will regard herself as a prisoner in [W] and Mr Clarke as her gaoler. This seems to me to be an untenable outcome, given his prior conduct towards her and not conducive to the service of the best interests of the children.
l) Whether it will be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive, in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant.
Whatever is the outcome of these proceedings, one of the parties will be bitterly disappointed. This can only lead to an escalation in the level of tension between the parties, which is already unacceptably high. These are not happy indicators, so far as the likelihood of there being further proceedings between the parties.
However, up to this stage, neither of the parties has seen the need to seek orders from the court in respect of arrangements for the care of the children. As such, once the difficult issue of relocation has been determined, it may be the case that neither will see fit to return to court in future. Certainly, it seems to be the case that both parties, in the past, have abided by the terms of the mediated agreement between them.
Accordingly, the matters which fall for consideration under this heading are not central to the outcome of this case. Certainly, it cannot be said that either of the parties has demonstrated an over-readiness to resort to litigation, when issues relating to the parenting of the children have arisen between them.
Conclusions regarding parenting issues
Relocation cases are very difficult. At the end of the day, it is necessary for the court to weigh up the pros and cons of each feasible outcome and focus on how it believes the best result may be achieved for [X], [Y] and [Z]. Their best interests remain the paramount consideration but not the only one. I must not lose sight of the fact that, as a citizen of a free and democratic country, Ms Clarke has an entitlement to live how and where she chooses.
Ms Clarke’s desire to live the life of her choosing, with Mr T in [C], is a legitimate matter for the court to consider. Australia, which occupies a large land mass and where language and cultural practices are largely homogenous, is a country whose citizens frequently move within it, very often as a corollary of marital breakdown.
A settled and happy parent is likely to be a parent who is functioning at the upper range of his or her capacity as a parent and obviously, this is a factor of prime importance to any children involved, particularly if that parent is the one who has had the majority of responsibility for caring for the children concerned and is adjudged as the more capable and insightful parent.
In this case, Ms Clarke has provided more of the care for [X], [Y] and [Z]. In my view, she has provided this care in an exemplary way. For understandable reasons, she now wishes to live in [C]. One of the reasons she wishes to move is to escape what has been an unhappy and abusive relationship with Mr Clarke.
In my view, when the various pros and cons of each of the parties’ proposals are considered, there are more benefits for the children in moving to [C] than remaining in [W]. The major negative of the latter being that this outcome can only be achieved at the price of a complete negation of the mother’s freedom of movement.
The major deficit of the mother’s proposal is that it will inevitably impact upon the nature of the children’s relationship with their father. Necessarily the children will be able to spend less time with their father than they do currently or he would wish for them in future.
However, the distance between [C] and [W] and the logistical difficulties in travelling between the two locations are not so great that the children will be robbed of the opportunity to have some level of meaningful relationship with their father in future.
Before making any parenting order, I am required to consider the presumption arising from section 61DA regarding equal shared parental responsibility. In this case, notwithstanding the significant issues of family violence, which the mother raises, I think the presumption should be applied. Up to this stage, both parties have been extensively involved in caring for the children. As such, both are vitally interested in every issue to do with the care, welfare and development of the children.
In such circumstances, it does not seem appropriate to me that one parent should be promoted over the other in respect of parental responsibilities for the children. Accordingly, it is my view that it would be in the best interests for the children concerned that the parties have equal shared parental responsibility for [X], [Y] and [Z].
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
The next part of the exercise is to consider what should follow from that presumption. The exercise of the presumption is subject to section 65DAA. In this case, I do not think that it would be either in the children’s best interests or reasonably practical for the children to live in a shared care arrangement.
The parties’ relationship with one another is poor. They do not communicate well. Above all, if such an arrangement is to come into place, it can only occur if Ms Clarke’s aspirations, regarding how and where she is to live in future, are denied.
Such an outcome is likely to intensify the ill feeling between the parties concerned. In my view, a parent’s entitlement to freedom of movement is a matter which I can consider as relevant, pursuant to section 65DAA(5)(e) as to whether a shared care arrangement is reasonably practicable.
The same considerations apply in respect of the children living for substantial and significant periods of time with both their parents.
At this point, given the parties difficult relationship with one another, Ms Lohyn was not in favour of a shared care arrangement. Rather, she advocated a maintenance of the current regime, which enables the children to spend significant periods of time with their father, encompassing weekdays, weekends, holidays and special occasions at the present time.
As I have previously indicated, my one criticism of Ms Lohyn’s report is that it did not give any significant consideration to Ms Clarke’s entitlement to freedom of movement. I can understand why this would be so, as it is more a legal concept than a psychological one. However, in my view, Ms Clarke’s legitimate wish to live and work in [C], is a factor which makes an outcome in which the children spend substantial and significant periods of time with Mr Clarke, within the meaning of section 65DAA(3), an impracticable one.
The recent amendments to the Family Law Act 1975 are significant ones and far reaching. However, in my view, they do not enshrine a principle that separated parents are obliged to remain indefinitely living in close proximity to one another, to ensure that their children maintain an optimal level of relationship with them both. Practical considerations may make such an outcome unworkable, particularly if it results in the effective negation of a parent’s rights, as a citizen, to live how and where he or she chooses.
In my view, the best interests of [X], [Y] and [Z] dictate that they should continue to live predominantly with their mother and she should be entitled to move to live in [C] with them. This move will not result in the extinction of the children’s relationship with their father. The children will be able to see him frequently. This may not be for periods for as long as the father would wish, but will enable the children to maintain a sufficient level of relationship with their father.
For all these reasons, I propose to make the orders in relation to the children as set out at the commencement of these reasons for judgment.
Property Issues
Step 1 – the pool of assets available for division
The major issue of controversy between the parties concerns whether the remainders of the moneys advanced by Mr and Mrs C Senior, which enabled Mr Clarke to purchase the Property P, [W] property in June 1996, should be accounted as a joint liability of the parties now. The sum is around $10,000.00.
I do not think it should be. I accept Ms Clarke’s evidence that she did not know of the alleged loan, which has never been formally documented. The moneys were advanced prior to the parties beginning their relationship. Ms Clarke herself has never lived in the property concerned.
Importantly, no recent demands have been made for repayment by Mr and Mrs C Senior. The logical time for such a demand would have been when the property was sold in 2002. In such circumstances, it seems to me that the sum is more analogous to a gift made to
Mr Clarke, by his parents, than a loan. As such, it seems to me to be more appropriate to consider its significance at the second stage.
Accordingly, on this basis, I find that the parties have the following assets and liabilities available to be divided between them:
Assets
$
Property D, [W]
$365,000.00
Liabilities
Mortgage
$112,000.00
Loan to Mr and Mrs C Senior
$17,000.00
Total liabilities
$129,000.00
Net assets
$236,000.00
Superannuation
Husband’s superannuation
$50,736.00
Wife’s superannuation
$30,648.00
Total Superannuation
$81,348.00
Total Assets
$317,384.00
Step Two – assessment of contributions
The marriage between the parties was one of around eight years in duration. It produced three children. For much of the marriage, the parties divided their responsibilities, to their family, along conventional lines. The husband being the main financial provider and the wife being more responsible for home making and parenting. There can be no criticism, of either of them, for this arrangement, which is a common one, particularly when young children are concerned.
The husband was employed throughout the marriage. I have no doubt that he worked hard. He utilised his wages entirely for family purposes. When the wife was not engaged in home duties, she too was engaged in the paid workforce. Both parties were busy people during their marriage and were fully engaged in it.
It is my finding that the marriage between the parties was one of equals, who pooled their financial resources and utilised them for joint family purposes. Both parties obviously worked very hard, during the marriage and each made extensive but different contributions, towards it and the support and sustenance of their family.
The only distinction between the parties’ various contributions concerns the weight to be given to Mr Clarke’s interest in Property P, which he had prior to the parties’ relationship commencing. In dollar terms, in 1997, the extent of Mr Clarke’s interest in the property was small, as most of its purchase price had been borrowed, other than the sum of $15,000.00 advanced by his parents.
During the course of the marriage, the Property P property remained discrete from the parties’ other assets. It was tenanted, the rent received from it being utilised to reduce the mortgage. During the course of the marriage, the property modestly increased in value and the husband’s equity in it increased, as the mortgage was paid off.
When the Property P property was sold, in 2002, it netted a sum in excess of $78,000.00, which was injected into the parties’ most significant asset, their former family home at Property D. When the extent of the parties’ pool of assets is considered now, this must be regarded as a significant contribution.
A component of this contribution is the moneys advanced by Mr and Mrs C Senior, which enabled the purchase of Property P in the first place. This advance was made to Mr Clarke alone. I categorise the advance as a gift, although a portion of it was paid back many years ago. I am satisfied that the motivation leading to the advance of the moneys by Mr and Mrs C Senior was the parent/child relationship, which they shared with the husband.
As such, I believe it is appropriate that the court should follow the general approach that a parental gift is to be treated as a financial contribution made on behalf of the child of the donor parent. As such, a significant proportion of the contribution made in respect of
Property P, should be taken to have been made on behalf of the husband alone.[40]
[40] See Gosper & Gosper (1987) FLC 91-818 and Kessey & Kessey (supra)
Without the injection of capital, represented by the sale of Property P, the parties would be significantly worse off now, by any material reckoning. This was an asset, which the husband brought into the marriage and which largely increased in value during it but not as a result of any direct efforts on the part of either of the parties.
This significant injection of capital, which must be accounted largely a contribution made on behalf of the husband, occurred some years ago now. In the past, there has been a tendency to suggest that such contributions of capital are “eroded over time” by other factors, particularly home making contributions. The Full Court has pointed out that such a formulation is erroneous.
Rather, it is necessary for the court to weigh any initial or other contribution with all the other contributions made by both parties during the marriage to reach an outcome, which is both “appropriate and just and equitable”.
In particular, having looked at all the circumstances of a case, one particular contribution “may be so disproportionate as to other contributions as to merit special recognition”. In assessing whether any particular financial contribution merits such special recognition, the Full Court has directed that regard be had to the use to which such a contribution is put.
In carrying out the section 79 exercise, the court is often called upon to compare fundamentally different things. It must carry out this comparison in respect of the entirety of the marriage concerned. In this regard, the eyes of the court must be careful not to be “dazzled” by the magnitude of any individual financial contribution.[41] In particular, the court must be careful to avoid a tendency to undervalue non-financial contributions made by homemakers and parents.[42]
[41] The metaphor used by Kay J in Aleksovski v Aleksovski (1996) FLC 92-705 at 83,443
[42] See Ferraro & Ferraro (1992) 16 FamLR 1 at 38
Cases involving one party having made a significant initial injection of capital, where the marriage concerned is of a significant period and which involve the court having to assess non-financial contributions pose particular problems. As the Full Court observed in Ferraro, a court such as this one must be careful not to undervalue the homemaker and other roles.
On the other hand, it may lead to injustice if, in a similar fashion, a major discrepancy in the respective contributions of initial capital or another major injection of funds in some way is overlooked. Rather, it is necessary for the court to weigh any initial or other contribution with all the other contributions made by both parties during the marriage to reach an outcome, which is both “appropriate and just and equitable”.
In particular, having looked at all the circumstances of a case, one particular contribution “may be so disproportionate as to other contributions as to merit special recognition”. In assessing whether any particular financial contribution merits such special recognition, the Full Court has directed that regard be had to the use to which such a contribution is put.
In this case, I consider that the husband’s financial contribution, in the form of the proceeds of sale of the Property P property is so disproportionate to the parties’ other contributions, both financial and non-financial, that it merits special recognition. At this stage of proceedings, I assess the parties various contributions as being 60/40% in the husband’s favour.
Step 3 – Section 75(2) factors – the prospective needs of the parties
The husband is thirty-eight years of age. The wife is thirty-four. They both enjoy good health. Accordingly, both can anticipate many active and productive years of life before them. These are not significant factors in the case [section 75(2)(a)].
Both parties are modest income earners. It seems to me to be unlikely that Mr Clarke will be able to purchase his parents [omitted] business in the foreseeable future. Accordingly, it seems likely that his salary will be in the range of the $40k’s plus for the next few years.
As a result of her move to [C], Ms Clarke will enjoy more permanency in her employment and a slight increase in her salary. In the longer term, if she completes her tertiary qualifications, she may be able to secure a teaching position. However, in the short to medium term, it seems that she too will receive a salary of similar magnitude to the husband. Accordingly, the income of the parties and any discrepancy between them is not a significant matter in this case [section 75(2)(b)].
The parties are the parents of three children, all of whom are at primary school or shortly to commence there. As a result of the decision made in this case, the children concerned will leave predominantly with their mother.
In all these circumstances, the burden of providing for the children will rest heavily on the wife. She does not have a large income or other financial resources, which will alleviate this noteworthy burden. This is a significant factor, which favours the wife [section 75(2)(c)].
The wife, of course, does not bear the financial responsibility for maintaining the children alone. She is and will remain entitled to claim child support from the husband, as indeed she has done. However, it must not be forgotten that the payment of child support, in no way compensates the principle care providing parent for the loss of career opportunity and the inevitable restrictions upon working hours and choice of work, which the obligation to care for children entails.[43]
[43] See Clauson & Clauson (supra) at 81,911
At the present time, the current child support assessment results in a payment of child support to the wife, from the husband, in an amount of $59.33 per month. Obviously such a sum is likely to provide little of the necessities of life for the children concerned. Whether the assessment will change, when the children move to [C], is unclear to me.
The basis of the current child support assessment is an income of around $34,000.00 for Mr Clarke. Given the nature of his employment, this income is not likely to increased markedly in the foreseeable future. The wife’s child support income is just over $31,000.00. Again, this sum is not likely to increase markedly in the next few years.
The weight to be attached to a child support assessment will vary in the circumstances of each particular case concerned. The court is directed to look at the amount of the assessment, the financial circumstances of each of the parties, the needs of the children concerned and whether child support is likely to be paid regularly and at an adequate rate in future.[44]
[44] See Clauson (supra) at 81,911
There is no suggestion that Mr Clarke has in the past or will in future attempt to avoid his child support responsibilities. However, it seems to me that Ms Clarke is likely to receive only a modest amount of child support from him and, as such, the greater proportion of the burden of providing financially for the children will fall on Ms Clarke’s shoulders. This is a very important factor, which strongly favours the wife [section 75(2)(na)].
At present, neither party is particularly well prepared for retirement. However, given their respective ages and likely future years in paid employment, these are not pressing concerns at the present time for either party [section 75(2)(f)].
The parties agree that the Property D property must be sold. Mr Clarke is currently living in secure rental premises, which he rents from his parents’ superannuation fund. Accordingly, his future accommodation needs seem to be secure. He has no proposals to purchase a property on his own account.
Accommodation requirements also seem to be settled in the short to medium term for Ms Clarke. She has attractive rental accommodation available to her in [C]. In the longer term, it is likely that she will move in with Mr T. Accordingly, both parties seem likely to be able to enjoy a reasonable standard of living in regards to the respective level of their accommodation [section 75(2)(g)].
I am satisfied that, upon an overall assessment of the relevant section 75(2) factors, a further adjustment in favour of the wife is appropriate. The greater difficulty is in assessing what that further distribution should be, in percentage terms, given the reasonably small extent of the property pool and the fact that it is unlikely to satisfy the needs of both parties.
It is all very well to talk in percentage terms, so far as orders are concerned, but at the end of the day, what matters to the parties is what the orders mean in dollars and cents and what affect they have on their respective long term aspirations. In cases such as this one, where the pool of assets available to be distributed between the parties is modest, the proper adjustment, in respect of factors after contribution, often becomes more critical.
For these reasons, the Full Court has commented that the centre of gravity, in the determination of property cases, has shifted towards the assessment of section 75(2) factors and, as such, courts such as this one, have been directed to give the provisions concerned “real rather than token weight”.[45]
[45] See Waters & Jurek (1995) FLC 92-635 at 82,376
Given Ms Clarke’s modest income and the fact that she will be primarily responsible for the financial support of [X], [Y] and [Z], I think that she is entitled to a further distribution of the parties’ property of ten percent of the asset pool.
Conclusions – section 79(2) – is this a just and equitable outcome
The final step in determining property proceedings is to stand back and consider whether the proposed result represents a just and equitable outcome. Considerations of justice and equity must inform each step of the court’s process and the overall result.
It is uncertain to me what sum the Property D property will bring, after payment of the necessary sale expenses and after the mortgage has been paid out and Mr and Mrs C Senior reimbursed. It is likely to be somewhere around $230,000.00.
Accordingly, if this sum is divided evenly between the parties, it will leave them each with a sum in excess of $100,000.00. Given the length of the marriage between the parties, the extent of the property pool and their respective contributions, this seems to me be a just and equitable outcome.
At present, there is almost exactly a $20,000.00 discrepancy in the parties’ respective level of superannuation. In order to achieve an equality of superannuation, I propose that the husband pay to the wife an additional sum of $10,000.00 at the time the funds from the Property D property become available. I do not think that it is warranted that there be a specific split, of such a sum, from the husband’s superannuation fund.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding four hundred and eleven (411) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 9 July 2008
and Clauson v Clauson (1995) FLC 92-595
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