Clayton and Clayton
[2016] FCCA 119
•15 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLAYTON & CLAYTON | [2016] FCCA 119 |
| Catchwords: FAMILY LAW – Children & property – departure application – spousal – child almost 3 at trial – father vigorously pursuing equal time arrangements since child 15 months – continues in face of evidence that child not coping with separation from mother – and not emotionally or developmentally ready for his proposals – father undertakes various parenting courses and has professional assistance to understand child’s frailties – no genuine acknowledgment of child’s distress but rather father alleges mother preventing him having a relationship with child – relies on this to prosecute his own domestic violence application family violence – father engages in financial abuse – sole parental responsibility – parent’s toxic relationship – property – weight given to initial contribution – father’s working capacity – no evidence father retrenched – at separation father pays significant funds to his parents due to an alleged loan and for his own legal fees rather than support the wife – non disclosure – weight to be given to mother’s non-financial contributions – spousal maintenance – departure application – increase from father’s current assessment of $9.00 per week based on his earning capacity – order for spousal maintenance. |
| Legislation: Family Law Act 1975, ss.60 CC, 65DA, 72, 74, 75(2), 79 Child Support (assessment) Act 1989, Part 6A, s.117 |
| Cases cited: Mazorski & Albright [2007] FamCA 520 Kowaliw & Kowaliw (1981) FLC 91-092 |
| Applicant: | MS CLAYTON |
| Respondent: | MR CLAYTON |
| File Number: | BRC 6501 of 2013 |
| Judgment of: | Judge Willis |
| Hearing dates: | 16-18 March, 25 May, 29 June and 16 December 2015 |
| Date of Last Submission: | 16 December 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 15 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Baston |
| Solicitors for the Applicant: | Lynn & Rowland Lawyers |
| Counsel for the Respondent: | Ms Pendergast |
| Solicitors for the Respondent: | Williams Lawyers |
ORDERS
Child Matters
Parental Responsibility
That the mother have sole parental responsibility for the care, welfare and development of the child X born (omitted) 2012 (“the child”)
In exercising her sole parental responsibility the mother will (save and except for emergency situations) advise the father in writing of the decision she proposes making and the basis for that decision. The father is permitted to reply once and only once in writing within 14 days. Thereafter there is no further requirement for her to engage in any further dialogue of any kind with the father or those representing him.
Living arrangements
That the child live with the mother.
That the father spend time with the child as follows:
(a)From 9:00 am Saturday until 5:00 pm Sunday each alternate weekend; and
(b)For a period of 3 hours each Wednesday afternoon.
After a period of three months (commencing from the from the date of this Order) the child spend time with the father:
(a)From after Prep or kindy Friday afternoon until 5:00 pm Sunday each alternate week; and
(b)In the other week, from after Prep or Kindy for 4 hours on a Tuesday afternoon.
When the child starts grade 1 at primary school the child spend time with the father:
(a)Each alternate weekend from after school Friday to before school Monday; and
(b)In the other week from after school Tuesday to before school Wednesday.
(c)On half of the school holidays.
Telephone Time
That the Father is to communicate with the child by telephone/skype or face time no more than twice a week, and the mother is to facilitate this contact. The mother is to nominate which days fit in with X’s schedule within 7 days of the date of this Order and is to take account of the father’s work commitments. In the event that a change is required from time to time due to school or other extracurricular activities, the mother is to give the father sufficient notice of the change of days.
That the Mother and Father communicate with the child by telephone/ skype or facetime no more than twice a week during school block holiday periods (when they commence) pursuant to these Orders and each parent is to facilitate this contact.
Special Days
The child shall spend time with the parents on special occasions as follows subject to the conditions in Order 14 herein.
Christmas Day
From 12 noon on Christmas Eve until 12 noon Christmas Day in even numbered years with the mother and in odd numbered years with the father; and
From 12 noon Christmas Day until 12 noon Boxing Day in odd numbered years with the mother and in even numbered years with the father NOTING THAT until the child commences block time pursuant to these Orders, this time is not to be added to the regular time to form a block time.
Birthdays
The mother will always spend time with the child for the day on Mother’s Day and the father will always spend time with the child for the day on Father’s Day.
Each of the mother and father will spend time with the child on the child’s birthday as follows:
(a)The parent with whom the child is not otherwise living will spend time with the child from 3:00pm until 6:00pm when the birthday falls on a school day; or on a non school day for one half of the day, with parents to agree as to the timing of the one half of the day.
(b)On each of the mother’s and father’s birthday, when the child is not otherwise living with the birthday parent, the child will spend time from 3:00pm until 6:00pm when the birthday falls on a school day; or on a non school day from 9am to 5pm.
In the event that either the mother or father’s birthday, mother’s day or father’s day or the Christmas days falls during a period in which the child would otherwise be on block holidays with a parent (when that commences) as referred to in Order 6(c) herein, the provisions of Orders 9, 10, 11, 12 and 13 herein will not apply. The Court notes that these special days are not intended to interfere with the either parents block holiday time with the child as provided for in these Orders, unless there is prior written agreement to do so.
Changeovers
Should the child be attending prep or school or a child care facility at the commencement or conclusion of either parent’s time with the child, then that parent shall be responsible for collection or delivery of the child to or from the educational facility at the applicable time.
Where changeovers occur on non-preschool/ school or day care day, the changeovers will always occur at an agreed public location other than the homes of each of the parties.
Video Footage
That within ten months of the date of this Order, the mother is to provide the father with copies of a representative selection of video footage of X (as solely determined by the mother) taken prior to separation (assuming some video footage exists and if it does not, then the mother has no further obligation and in any event, she is under no obligation to go beyond any video footage of her own in her possession). The cost of copying the footage is to be borne by the father. The mother will obtain a quote for the cost of reproduction and provide it to the father, and only upon his payment to the mother in advance, is the mother to authorise and provide the copies in line with this Order.
Specific Issues
Each of the parties are restrained from denigrating the other parent or that parent’s family or partner, in the presence or hearing of the child and each parent will remove the child forthwith from the presence or hearing of any other person engaging in denigration of the other party, their family or partner.
That the mother and father will keep the other informed at all times of their residential and email address, landline and mobile contact telephone numbers.
In the event that the child needs medical assistance whilst spending time with the father:
(a)the father will notify the mother forthwith;
(b)the father will ensure that the child is always taken to his regular general practitioner nominated by the mother (save and except if that is not possible in the event of a true medical emergency and in this event the father will inform that medical practitioner that the mother has sole parental responsibility and advise the mother forthwith of the identity of the medical practitioner). The mother will keep the father advised at all times of the name of the regular medical practitioner or medical centre.
This order authorises the father to request a copy of the child’s school report or school photos (at his own expense) from the school attended by the child.
The father’s application to remove the child from the Commonwealth of Australia for the purposes of a holiday is dismissed.
Property Matters
That the property of the parties as determined in this judgment, be divided between the husband and wife on the basis of 45% to the wife and 55% to the husband as follows:
To effect this division the wife will retain to the exclusion of the husband her interest in the following:
(a)Her interest in Property O;
(b)Her Suzuki Motor vehicle;
(c)Her superannuation entitlements;
(d)All other personal chattels and bank accounts and items in her care and control.
It is ordered that the husband is to pay to the wife the sum of $194,395.00 within 30 days from the date of this Order.
That upon payment of the sum referred to in Order 25 herein, the husband will retain to the exclusion of the wife, his interest in:
(a)Property C;
(b)Property P;
(c)Sale proceeds from the sale of Property R;
(d)His Ford Motor vehicle;
(e)His superannuation entitlements and all other bank accounts and chattels in his possession.
Default Sale
In the event that the husband fails to comply with Order 25 herein, the parties will do all acts and things necessary and sign all documentation as required to place the property known as Property P in the State of New South Wales (the property) on the market for sale on the following terms and conditions:
(a)That the property be listed for sale by private treaty with such agent or agents as the parties may mutually agree, or failing agreement, then the wife shall nominate three real estate agents and the husband shall choose one from that list within 7 days of being sent the list. If the husband fails to do so in time required, the wife shall nominate the agent.
(b)In the event the property is not sold by private treaty on or before three months from the date of these Orders (or such further date as agreed in writing between the parties) then the parties shall forthwith take all reasonable steps to sell the property at auction as follows:
(i)That an agreed auctioneer within the area of the location of the property be appointed. In the event that the parties do not agree on the auctioneer to be employed then the wife shall nominate three such auctioneers and the husband shall choose one from the list within 7 days of being sent the list. If the husband fails to do so in the time required, the wife shall nominate the auctioneer.
The parties shall execute all necessary documents that may be required to authorise the auctioneer to sell the property by auction. If either party fails to do so, the Registrar of the Federal Circuit Court of Australia is authorised to do so pursuant to Order 35 herein.
In the event the parties cannot agree to a reserve price for the property at auction then such price will be determined by the auctioneer.
That on either sale by private treaty or by auction the parties will do all acts and things necessary to sign all documents necessary to effect the sale including executing the contract, the transfer documents and any other documentation required to release any mortgage liability on the property.
The husband will co-operate in every way with the agent in relation to the sale by private treaty or by auction to effect an early sale including making the keys available to the selling agent, allowing inspection of the property at all times that are reasonably requested by the agent and ensuring that the property is in a neat, clean, saleable condition at the time of inspection by prospective purchasers.
That the date of the auction shall take place on or before one (1) month after the initial three (3) months allowed for sale by private treaty herein, or such further date as agreed to in writing by both parties.
That in the event that the property is not sold by auction or private negotiation within one month of the auction referred to herein (or such further period of time as may be agreed in writing by both parties) after the said auction, then the parties shall pay equally all monies in accordance with the above sub clauses to procure a second auction within a further one (1) month or such further period of time as may be agreed by the parties in writing on the same terms and conditions as applied in the first auction.
That on completion of the sale either by private treaty or by auction the proceeds of sale shall be divided as follows:
(a)Firstly to pay all real estate commissions, valuer fees, advertising expenses, auctioneer fees and legal costs if applicable;
(b)Secondly, to extinguish any mortgage over the property including that currently held with (omitted) Bank financial institution;
(c)Thirdly, the balance then remaining to be divided as follows:
(i)The amount of $194,395.00 to the wife.
(ii)Balance to the husband.
In the event either party fails to sign any document necessary to give effect to these Orders, the Registrar of the Federal Circuit Court is authorised to sign on behalf of that party. An affidavit by the other party deposing to such failure will be sufficient evidence.
Child Support - Departure Application
THAT for the period 16 March 2015 to 16 March 2017 there be a departure from the provisions of Administrative Assessment of Child Support payable by the liable parent MR CLAYTON for the child X born (omitted) 2012 as follows:
(a)THAT for the said periods the liable parent’s child support income be fixed in the sum of $100,000.00 the obligation to pay child support otherwise assessed in accordance with the provisions of the Child Support (Assessment) Act 1989.
THAT the Child Support Registrar be requested to make the necessary calculations and to amend the Child Support Assessment accordingly.
That the husband is to provide copies of his own and his company’s financial documents, (including BAS statements, balance sheets, tax returns and assessments) for each quarter, commencing forthwith, to the wife.
Spousal Maintenance
That the husband pay to the wife the sum of $100.00 per week, by way spousal maintenance for a period of two years from the date of this Order. The husband is to forthwith organise an automatic weekly deduction from his own bank account to an account nominated by the wife.
Costs
Any party seeking costs is to file and serve submissions within 21 days of today’s date together with a minute of Orders sought setting out the costs as per the scale claimed. Any response is to be filed 21 days after being served. The matter will listed for an oral hearing on a date to be fixed at the discretion of the Court. The parties are to indicate their preference to oral submissions at the time of submitting their written submissions.
In relation to the costs sought against Mr Baston of Counsel by the father, the application is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Clayton & Clayton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 6501 of 2013
| MS CLAYTON |
Applicant
And
| MR CLAYTON |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is Ms Clayton (the mother/ the wife) and the respondent is Mr Clayton (the father/ the husband). These parties are unable to agree about the future living arrangements for the child of their relationship, X, born (omitted) 2012 (X). They are also unable to agree upon a property division. The applicant in her amended initiating application filed on 18 February 2015 also sets out the orders sought in relation to spousal maintenance and a departure application in relation to a child support assessment.
The parties started cohabitation in (omitted) 2008, married on (omitted) 2011 and separated on 27 June 2013, their cohabitation being just short of 5 years. At separation X was only 15 months old. The parties have been in litigation since then with the first application being filed on 7 August 2013. At the time of trial, X was almost three.
The parties have had two privately funded mediations and two family reports have been prepared with fairly specific recommendations. The parties have separately and together attended upon a family therapist as recommended by the report writer. They have had contested interim hearings regarding the removal of caveats, spousal maintenance and the time that the X will spend with the father. Each has spent considerable funds on their respective litigation.
Mother’s proposals for time between X and the father
The mother seeks orders for sole parental responsibility noting that she will seek the opinion of the father about the long term major decisions prior to making her own decision. The mother seeks Orders wherein X continues to live primarily with her. The mother told the Family report writer that she would like X to spend developmentally appropriate time with the father. The mother does not see overnight time commencing any time before X reaches aged two and would wish that X could communicate before overnight commenced.
The mother seeks orders that when X reaches the age of three he spends time with the father from 9 am Saturday until 5 pm Sunday each alternate weekend and also for a period of three hours each and every Wednesday afternoon.
The mother’s orders then progress to seek orders that when X reaches four years of age, he spends time with the father from after prep or kindergarten on Friday afternoon until 5 pm Sunday each alternate week. In the other week, the child will spend four hours on the alternate week on a Tuesday afternoon. When X starts primary school, he spends time with the father each alternate weekend from after school Friday to before school Monday on one weekend and in the alternate week, from after school Tuesday to before school Wednesday and one half of the school holidays.
There are other orders sought as set out in the amended application at orders 5, 6, and 7. The mother seeks orders that the child live with her at all other times.
Father’s proposals for time to be spent with X
The father filed an amended response on Friday 13 March 2015, the last business day before the trial commenced on Monday. The father has explained in his evidence that he has had a rethink about X’s living arrangements and that he now wishes to work co-operatively with the mother. The father’s Counsel Ms Pendergast submits in her helpful written submissions that the father adopts all of the recommendations in the Family Report, however this is not completely accurate. A comparison of the Orders sought by the father and the comprehensive recommendations in the Family Report, reveals that the father seek a time schedule regardless of the measures that the Family Report writer included to accommodate the child’s time with the father to progress according to his maturity and emotional wellbeing. None of those recommendations make their way into the father’s Orders sought. The father seeking Orders for increased time based on increases occurring according to a schedule of set dates has been a feature of his proposals for X.
In his Orders filed on Friday 13 March 2015, the father seeks Orders that the child live with the father as may be agreed upon and failing agreement, as set out in the provisions of order 5. Essentially, the father sets out a gradually increasing schedule starting with a period of four weeks from the date of the orders, when the child is to live with the father each Tuesday and Wednesday from 10 am to 4 pm and each Saturday from 10 am to 6.30 pm, with the father having bathed and fed the child prior to the child being returned to the mother. That is 6 days a fortnight.
The second step at 5.2 is that after the first four weeks, then for a period of the next three months, the child spends time with the father each Tuesday and Wednesday from 10 am to 4 pm and each weekend from 10 am Saturday to 10 am Sunday. That is 8 days a fortnight.
At 5.3, at the conclusion of the three month period in the previous step of 5.2, that the time the child spends with him becomes each week from Wednesday at 10 am to 4 pm Thursday and each and every weekend from 10 am Saturday to 10 am Sunday. The time therefore moves from 8 times a fortnight for day time only, to three full days (Wednesday, Thursday, Saturday), Sunday morning and two nights each week which is 6 full days per fortnight and four nights.
Thereafter, until the child commences formal schooling (which is defined to include prep school) in week 1, from Wednesday 10 am to 10 am Friday and week 2, from 10 am Wednesday to 5 pm Thursday, and each alternate weekend from Friday after day care or 3 pm, whichever is the earlier, to 4 pm Sunday. That becomes 2 nights and three days one week and 4 days, an afternoon and two nights the next week. A total of 7 days and an afternoon and four nights a fortnight.
Thereafter, at 5.5, upon the child attending prep and for the first year, the child is to live with the father for the period concluding on the last public school day in 2017 as follows and set out at 5.5 being Week 1: from Wednesday after school or 3 pm, (whichever is the earlier), to Friday before school or 9 am, (whichever is the earlier) and then week 2 from Wednesday after school or 3 pm, (whichever is the earlier) to Thursday before school or 9 am, (whichever is the earlier) and each alternate weekend from Friday after school or 3 pm, (whichever is the earlier) to Monday before school or 9 am, whichever is the earlier. That time becomes 6 nights a fortnight.
At 5.5(2), the father seeks orders that upon the child commencing his second year of schooling (likely grade one) in January 2018, he spend time with the father each week from Wednesday after school or 3 pm, (whichever is the earlier) to the commencement of school on Friday or 9 am, (whichever is the earlier) and each alternate weekend, from Wednesday after school or 3 pm, whichever is the earliest, to Monday before school or 9 am, whichever is the earlier I observe that “Wednesday to Monday” is not an alternate weekend, it’s a six day period and ought not to be described as a weekend. That order means that the child will live with the father 2 nights during the school week in week one, and 5 nights the following week which includes the weekend, so bringing the total fortnightly time to 7 nights.
The orders also seek that upon the child starting school (meaning prep), he spend time with him during the school holidays for one half of the holidays, being no more than one week, for each of the first two years of the child’s schooling, in odd-numbered years and alternating in even-numbered years as set out and in order 5.6(1) and 5.6(2) and that the child live with the mother at all other times.
There are orders sought about special occasions, Christmas day, Mother’s Day, Father’s Day, the child’s birthday and each of the parent’s birthdays. Changeovers are to occur from McDonald's (omitted) at the commencement of the mother’s time and the father collecting the child from McDonald's (omitted) at the commencement of his time, including that should the child be attending school or child care, at the commencement or conclusion of either parent’s time with the child, then that parent shall be responsible for collection or delivery of the child to or from the educational facility at the applicable time.
There are other specific issues including telephone communication to occur each time the child reasonably requests when the child is old enough to and that each parent will ensure the child is able to access the telephone to make the call, arrange for the child to telephone the other parent if for any unforeseen circumstances the child is unable to make the telephone call at the first attempt and ensure the child has privacy.
The father also seeks orders about overseas travel with the child and other specific issues, such as in the event the child becomes unwell, the child is to remain in the care of the parent which he is currently attending until the illness is alleviated, with the time lost to the other parent to be made up in full within eight weeks.
Property
Mother’s Property Orders
The parties have also been unable to resolve their property matters and each seeks property orders.
In terms of the orders for property, the wife is seeking orders that she retain her interest in the property at Property O (the “Property O property”) to the exclusion of the father; her Suzuki motor vehicle; her own superannuation entitlements. This part of the orders sought is not opposed by the father. The mother’s orders sought continue that she retain all other personal chattels and that the father pay to the mother such sum to equate to 85% of the pool within 30 days of the date of these orders. The wife proposes that the husband then retain his interest in Property C, Property R; Property P; sale proceeds from the sale of Property R, his Ford motor vehicle and his superannuation entitlements and all bank accounts and chattels in his possession.
The mother agrees that the sum of $5,360.00 is to be paid by her from her entitlement as being her one half of the cost of both the Family Reports and the valuations.
There is also an order sought by the mother that there be a departure application in respect of the child support assessment date of 1 October 2013 in relation to the child, X, as set out at order 13.[1] There are default provisions sought by the mother as well in terms of property being sold. The Court is invited to treat the departure application in one of three ways as set out in the written submissions of Mr Baston.
[1] Wife’s submissions, page 42 of 78.
In terms of spousal maintenance the mother seeks an Order that the father pay the sum of $480.00 per week or a lump sum, both amounts which are to be based on the father’s actual earning capacity, not his current income.
Father’s Property Orders
The father seeks orders that the mother retain the Property O property, the Suzuki Vitara and her own superannuation entitlements. He proposes an splitting order of his superannuation with (omitted) Superannuation with a base amount of $20,000.00 going to the wife and that she retain her jewellery, bank savings, shares, inheritance from her father’s estate, furniture household items and other property in her possession and control. The husband also seeks an order that he pay the wife $10,000.00 within 14 days of the final order.
The father also seeks to retain exclusively for his own interest, to the exclusion of the wife, 3 properties in his sole name; Property P, (“the Property P”), Property R (“the Property R property”) and Property C, (“the Property C property”), along with the Ford Territory, his remaining interest in (omitted) Superannuation entitlements in his name, his bank accounts, share investments in his name and under his control, furniture and household items and all other possessions under his control.
Counsel for the father submits that on the percentage split proposed by the husband is that the wife will retain 26.7% of the pool and the husband will retain 73.3%. The husband himself sets out at paragraph 268 of his trial affidavit that the matrimonial property pool should be divided 70% in my favour and 30% in Ms Clayton’s favour and that is also included in the schedule of orders sought attached to the trial affidavit at proposed order 18.
The husband seeks orders that the spousal maintenance application be dismissed and that the Departure application be dismissed.
Background
The history of these parties seems to be agreed and is set out in each of the case outlines and chronologies. The mother was 38 at the time of trial and that father was 35. The parties separated on 27 June 2013.
At the time the parties met the mother was living in her own townhouse, which she owned, the Property O property and the father was living on his property at Property H in either the house that he built or the shed next door to it. The father’s parents lived in the house at Property H and had done so since about 2007 at which time the father lived in the shed next to the house. The father says he took about four years to build the house with help from relatives and others between the years 2004 to 2007. It seems his parents lived there rent free.
In (omitted) 2008, when the parties decided to move in together, the father purchased a house at Property P. Each of the parties owned a vehicle at the time that they moved in together, with the mother owning a (omitted) Suzuki which she had purchased new and the father owned a Holden Commodore ute.
The parties decided to have a child in about 2010. It is agreed that this was a joint plan. When the parties were unable to conceive naturally and they engaged in the process of IVF after attempting to conceive naturally for about 12 months. That process has resulted in them conceiving their beautiful son X, born on (omitted) 2012. It was agreed between them that the mother would stay at home with X and be the primary carer of their baby, as the father at that stage was working away for two weeks at a time.
During 2011, the father commenced working at (omitted) as a (occupation omitted) and then in 2012 worked in (omitted) as a (occupation omitted), working on two weeks on and one week off. X was born on (omitted) 2012. The father worked away from home during the pregnancy and also for the entire time after X was born. When he worked at (omitted), he would sometimes leave home in the early hours of the morning and return later in the evening after X was asleep.
Not unexpectedly, baby X became primarily attached to his mother, who was undoubtedly his primary carer, who breast fed him and provided for all his needs. Whilst this does not sound remarkable given the division of roles between the parties, namely the mother, taking on the stay at home mother role and the father working, generally away from home, despite concerted efforts by the mother and professionals to explain to the father the consequences of this arrangement, the father has been resistant to that advice. The father has not accepted that because baby X has been and remains so young and primarily attached to the mother, it has not been in X’s best interests to be removed from her from long periods of time or to assume that it is appropriate to head to an equal time arrangement based on a time schedule. Rather than accept this, the father has chosen to regard the mother’s refusal to agree to the time frames and arrangements proposed him, as evidence that the mother has deliberately set about to prevent him from having a relationship with X and “prevented” him from having a good bond with X. As the father told the report writer in the first report, when speaking about his understanding of attachment needs for children, was that “the most heartbreaking thing is that the bond has been taken away.”[2]
[2] Paragraph 28, first family report.
The father further alleges that the mother has acted quite deliberately to alienate him from the child. The mother’s position is that she respects the role that the father has in X’s life and she wishes X to have a fulsome relationship with his father, however, she wishes this to occur at a pace that X can cope with, not according to the father’s time schedule. The mother has not support an equal time arrangement in the past as proposed by the father and she does not currently support an equal time arrangement. The mother’s position he is insensitive to X’s emotional needs putting his own desire to have X for increasing and then equal time above all else. She alleges that the father is competitive in his parenting of X and that he shows no respect for her role as the primary carer.
The father has set out in his material in this Court and the State Court in their Domestic Violence litigation, his firm belief that the mother is deliberately seeking to deny him an opportunity to spend time with the child and build up a bond with the child. He has repeated this to report writers and counsellors.
The documents filed by him show that he has been seeking to build up time with X incrementally with an expectation that it will build to equal time. There appears to have been continual agitation for an equal time arrangement by the father throughout this litigation. He expresses much angst that he has been prevented from having the appropriate time with X, yet the first Orders made between the parties on 25 September 2013 was an Order was made by consent. The Orders provided that; the parties have equal shared parental responsibility; the child spend time with the father each Tuesday, Wednesday and Saturday, from 2 pm to 5 pm, whilst the father is available to care for the child and the child lives with the mother at all other times. At that time, X was aged 18 months old, parties having been separated for 3 months.
The parties agreed then that they would privately fund a family report prepared by Ms L. Procedural orders were made in relation to the property application and that the parties agreed to participate in a private mediation.
On or around the 12 November 2013, the first Family Report was released. The recommendations included amongst other things that the child’s care regime remain unchanged for the next three months to permit the mother to wean X from his midday feed; that in three months after that time the father’s time increase to include from 10 am until 4 pm each and every Tuesday and Saturday. In a further three months’ time, the time with the father was to increase to include 10 am until 4 pm each and every Tuesday, Wednesday and Saturday. Reference was made by the report writer to X moving to overnight time when he reaches three years of age, provided he is coping with the regime. The report writer cautioned against moving to two consecutive nights for the reasons stated. A further recommendation was the father,
“be required to attend upon an appropriate child developmental psychologist to gain an understanding of attachment needs and the benefit to his future relationship with X in allowing these to be met. Should X continue to struggle emotionally, it is recommended that the parents together consult with the developmental psychologist to be assisted with a child sensitive regime that will take into account his primary attachment needs whilst simultaneously allowing time for his time with the father to be increased.”
Another recommendation was that the parents engage in periodic Family Dispute Resolution to plan and co-ordinate X‘s ongoing developmental needs and in particular his feeding and toilet training requirements. The parents were recommended to commence a once weekly telephone dialogue with the purpose being to inform each other of X’s activities and needs in both households.
On 24 March 2014 Judge Spelleken heard a contested interim application as the father wished to increase his time with X beyond what was recommended and the mother sought orders in terms of the recommendations. Her Honour Judge Spelleken, concluded that it was in the best interests of X that he spend time with the father as recommended namely each Tuesday and Saturday from 10 am to 4 pm, commencing 25 March 2014 and after three months, commencing on 24 June 2014; that X spend time with the father each Tuesday, Wednesday and Saturday from 10 am to 4 pm.
On 1 October 2015 the parties were again in Court on a contested hearing with the father again bringing a further application in relation to property. This application was seeking to remove the caveats on the properties at Property R and Property C. The father’s position was unemployed and needed to sell the properties to reduce debt and the caveats were preventing him from doing so. The Court ordered that two caveats be removed to enable the sales of two out of three properties. AT the time of final hearing, one property was under contract and the other had not even been listed, the father saying he can only cope with selling one property at a time.
The father, says in this matter that he is only the respondent and “would not be here but for the fact that he is a respondent.” The father is prosecuting his own orders sought in his response to both children and property and also spousal maintenance and a departure application. He is seeking different Orders from those of the mother, as he is perfectly entitled to do. He has been the applicant in at least two interim hearings. The father says he was successful in seeking Orders that the mother not be paid spousal maintenance or interim costs in relation to litigation funding. The father has also opposed the mother’s application for a Domestic Violence Order and filed his own application for a Domestic Violence Order in the State Court. At this final hearing, the father was given the opportunity by Counsel for the mother, to re-think his position about continuing to oppose the mother’s order. This suggestion was in keeping with the father’s newly expressly stated intention in his affidavit filed on the eve of the trial, to co-parent with the mother in to the future and his speculation that once the litigation stopped he was sure that they would be able to work co-operatively in their parenting. However, the father remained unequivocal in terms of maintaining his intention to defend the mother’s application and to prosecute his own application. Whilst he is perfectly entitled to do this, it ill behoves him to say that he is “just a respondent” and that somehow the ongoing litigation is all due to the conduct of the applicant.
Following the conclusion of this trial, I heard an application by the mother to re-open the evidence to receive into evidence the judgment of the learned State Magistrate. I granted leave to re-open the case and admitted the judgment into evidence, and heard brief submissions relating to that evidence. The mother was successful in having a permanent Order made against the father based on acts of domestic violence by the father. No order has been made against the mother.
Each of the parties has read their material into the record. Each party filed case outlines and written submissions. I thank each Counsel for their helpful written submissions and their assistance during the trial.
I have had regard to all of the evidence at trial filed by each of the parties and to the exhibits. In these reasons, a statement of fact represents a finding unless stated otherwise.
The Law
Children
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).” The Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 made significant changes applying to matters filed on or after 7 June 2012, which this application is. As a result of those legislative changes, when applying the primary considerations under s 60CC (2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.
When I determine the best interests of X, I will consider also the additional considerations set out in s.60CC(3) when evaluating each of the parties proposals for X’s future living arrangements. Reference will be made to the allocation of parental responsibility. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked. The mother seeks an order for sole parental responsibility and the father asks that an order is made for equal shared parental responsibility.
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time. It seems to me that the father has very little, if any, understanding of the application or relevance of the s.60CC factors, the primary considerations and generally the basis upon which a Court determines the orders in the best interests of X.
Witnesses
The Mother
The mother gave evidence and was cross-examined. She is described in the family report as a quiet, competent, conscientious, devoted mother. Having observed the mother in the witness box under cross-examination, I formed the same view. The mother is extremely in tune with and conscious of X’s strengths and weaknesses and his anxieties. This is understandable, given that she has had considerable experience not only parenting but parenting on her own day in day out during their marriage. The mother had many hours, days and weeks being a single parent for two weeks at a time, essentially from when X was born until the time of separation. Post separation she has remained the primary carer of X.
She is a quietly-spoken woman who appears to also be competent in her work and who was regarded very highly by her former employers at (employer omitted). My strong impression of the mother was that she is very organised, mature, and very cognisant of the distress that X suffers at times of separation. She is very connected to X and he to her. The mother and X have lived their daily lives primarily as a close family unit of two. The mother has given thoughtful consideration to the periods of time that the father is wishing to remove X from her care and the effect upon X of these requests. The mother genuinely believes X has had and continues to have difficulties in coping with the increasing and additional times that the father has been proposing X be away from her. She has always proposed ongoing and regular time between X and the father.
I accept that the mother had quite a difficult time with the IVF procedures, then pregnancy and the birth of X which unexpectedly ended in an emergency caesarean. The stressors of being a first time mother, breast feeding, lack of sleep and raising a colicky baby essentially for the most part on her own, represented personal challenges and significant responsibility for the mother. The mother is and has been appropriately protective of young X as a baby, toddler and now young infant, in terms of his transitions in spending time away from her.
Throughout her testimony I found the mother to be an accurate historian and an honest witness. I formed the impression that she is a sensitive mother, who has found herself unexpectedly living in very straightened circumstances following the separation, with limited to no financial support from the father by way of child support and no spousal maintenance. Without doubt, the father has been content to leave the mother with the primary financial burden of securing accommodation for herself and X and with the primary cost of raising X. This has all added to the mother’s load. The mother and X have been housed through the good grace of the mother’s sister with the mother and X sharing a room in her home. The father has rented a two bedroom unit with ocean views. The mother has had no income whilst in comparison, the father has ceased is his well-paid employment, paid around $70,000.00 to his parents and around $70,000.00 to his lawyers all out of funds existing in accounts at the end of their relationship. The father has borrowed further funds to pay his lawyers around another $20,000.00.
The mother has had to borrow funds from family to pay her legal fees as set out in exhibit R2. Having paid $14,375.00 and $9,200.00 from borrowed funds there remains around $80,000.00 still to pay.
Whilst it seemed to be a very important plank in the father’s case that he came home to find that “his wife and child had gone”, I am satisfied that the mother has given an honest account of the circumstances at separation, including that the father had on two occasions told her to “get out”. A text message that the mother sent to the father fairly well corroborates the mother’s evidence of a significant argument that they had had when the father was at home in the last visit before separation. It read in part:
“Mr Clayton, I was clearly extremely busy undertaking tasks that you had requested, in moving out of home within a short time frame, handing in the lease documents as per your instructions for your lease, and more which I need not mention to you. I have not had time to redirect your or my mail. New mail redirections will need to be arranged separately.”
The father swung into action organising mediation straight away.
The mother set out evidence of the parties having difficulties with their marriage before separation and that even prior to X being born, they attended for mediation. These parties have had a relationship marked with disharmony. Her affidavit makes reference to the father wishing to call off the wedding a week before it occurred in (omitted) 2011. The father says in his material he felt pressured to marry the mother who he says insisted on marriage before the impending birth of their baby when the mother was 4 months pregnant. The mother explains the parties’ relationship was again on the brink of breaking down completely in 2012. The father called a family meeting and the mother says that on that occasion the father told her to “fuck off and find a way to pay the mortgage yourself.” She subsequently learnt that the father had covertly recorded the whole meeting.
I accept that the mother finds the father overbearing at times and that he has been quite ruthless in placing the mother under unnecessary financial and emotional stress. The mother has tried to be accommodating in organising time between the father and X whilst still enabling X to function properly by maintaining a routine which is important for his ongoing wellbeing and his stage of development. On one occasion the mother mediated until she was exhausted and made concessions in the mediation that she immediately regretted regarding the living arrangements of X. The father condemns the mother for back tracking on child arrangements agreed at this lengthy mediation.
The father demonstrates a forceful personality in dealing with the mother. Her material describes the father post separation trying to get her to hurry up with breast feeding whilst the father impatiently waited inside the mother’s home for his time to start with X. Finally, the mother told him he was not welcome to remain standing over her in her own home and he should leave and wait elsewhere. The father purports to know the mother’s frailties as set out in his material and alleges the mother had to rely on him. If this was so, it makes the father’s conduct post separation all the worse. He has in my view, tried to exploit her quiet and accommodating nature. Given their very different personalities and the father’s overbearing conduct towards the mother, I have significant reservations about the fairness of any process of any future mediation or attempts to jointly resolve differences of opinion between these parties.
Allegations by the father that the mother has engaged in alienating conduct or attempted to “break the bond” between X and the father are completely without foundation. The father need only look at the good relationship he has with X to know that his claims regarding alienation and the mother not promoting a relationship between himself and X are completely contrary to the evidence and to the reality of his relationship with X. The father has unfortunately engaged in a campaign of criticisms towards the mother and falsely portrays himself as being the victim of parental alienation. The father has completely misrepresented represented what has happening in terms of his history of regular time he spends with X, namely 3 days each week and fails to acknowledge X’s difficulties that have been encountered to enable his time to occur.
The mother has been an accurate historian and shows a parental maturity and understanding of X’s emotional needs and wellbeing, not displayed by the father.
The Father
The father is described by the family report writer, the mother and his own family as a loving father. This is not in question.
However, having observed the father in the witness box, and read the other evidence, I am satisfied that whilst the father is likely a pleasant affable son and brother to his family and popular with his friends, unfortunately this cannot be said about his relationship with the mother. The father has given much self-serving evidence in his affidavit material including “I am a calm person who has never been aggressive to anyone in my life and I am known as a very caring person who has respect for others and whenever I find myself in a situation where tension is arising, I remove myself from that situation, as is the case with Ms Clayton, who, has at every turn sought to bait me, and to limit my time with our son.”[3]
[3] Exhibit M7, Affidavit 9/01/15, paragraph 158.
Whatever the father’s opinions are about himself, having heard the evidence I am satisfied that the father has demonstrated that in his dealings with the mother, he has been entirely unreasonable in his criticism and demands to spend time with X over and above court ordered time. The father has been less than honest with the mother and shown a lack of respect for her role as a mother.
The father, under cross-examination, gave me a strong impression he is a somewhat immature young man who appears to have engaged in this litigation with a game plan to demean the mother’s parenting, forcefully push for equal time and create circumstances where the mother is under pressure both emotionally and financially.
All of the mother’s refusals for extra time over and above Court ordered time, or her refusal to move to equal time are interpreted by the father as the mother trying to prevent him having a relationship with X. The report writer has described the father has being focused on his time with X, and I accept that this is so.
The father’s unshakeable position appears to be based on a mistaken assumption on his part that he has an entitlement to have equal time with X. The father’s strong belief that he has an entitlement to equal time, seems to be primarily based on the fact that he is now “ready willing and able” to take on the care of X having given up his employment. The father makes no allowance for X’s age, emotional attachments, ability to sustain periods of time away from his primary carer, nor how X is managing emotionally. The father’s view has no regard for the mother’s views, experience or observations as to how X is managing, or for the incidents of family violence that have occurred, nor does it factor in the parties difficult relationship and his hostilities towards the mother. The father’s views centre around his opinions of how he is managing X. The father does not see any impediment to X spending as much time with the father as the father would request at any given time.
I observed no genuine understanding on the father’s part of the importance to X of having spent from birth onwards in the primary care of his mother and the consequences of that. Having worked away from home for most of the time that X was a baby (for legitimate reasons namely to provide financial support for himself, his wife and child, as part of their overall family plan) upon separation the father decided that notwithstanding he has been an largely absent father, he would now forthwith assume significant care of X. Further he focused solely on his own ideas about “the time” X should spend with him.
Whilst the father made comments in his affidavit to the effect that he understands X’s attachment to the mother, this was not borne out by his conduct, including a story line developed for this litigation, that the mother is “preventing him” from having and developing a bond with X. This theme, seen throughout the father’s material, in this Court and the State Court is contrived and without foundation.
The father does not trust what the mother tells him about X being emotionally very young and very attached to her and somewhat emotionally fragile in managing transitions or being distressed after being away from the mother.
The mother’s position was validated when X was observed as being a sensitive child showing signs of distress as observed by the independent professional witness, the Family Report writer, who prepared two reports. If the father did not accept what the mother said about X being too young to move to the times sought by the father, all of the rationale behind this was carefully explained in the first comprehensive Family Report which did not recommend overnight time.
The father’s inability to come to grips with the issues surrounding X being removed from his mother to spend time with the father were observed by the Family Report writer who noted that the father was struggling to understand the child’s need to be primarily with his mother given his care history to date. He spoke of others he knows who have children who spend alternate weeks with each parent, and of how children spend time in day care away from their mother’s early in their lives. (X was aged 19 months at the time of this interview).
At the trial, the father engaged in rhetoric that he was ready willing and able to take on any amount of parenting, that his times were flexible, and that he now wanted to move forward with increasing time and aim for an equal time arrangement by the time X was in grade 2. The father said he had engaged in various courses (five) and taken on board all of the helpful comments of psychologist Ms A. I do not accept that the father has genuinely engaged with the mother in good faith in his co-parenting of X, nor do I accept that he has developed an understanding of the emotional needs of young X. His rhetoric was unconvincing.
The father has pressed and discussed at length with the mother, his desire for an equal time father at a time of his own choosing. The concept of moving to an equal time arrangement, in the face of professional reports stating that the child was having difficulty settling and having difficulty leaving his mother, has remained a priority for the father. The first Family report stated right at the outset that X does not appear to have a robust level of developmental tolerance to spend time away from Ms Clayton at the present time. The father wanted more time than the recommendations when no expert has suggested the child was ready for significant and substantial time or equal time. The first interim hearing occurred following the release of the Family Report when the father decided he wanted more time than was recommended. I note also that the father has been recommended to attend two experts to help him learn to understand the background to the attachment that was observed by the report writer and the perils that flow from disrupting X’s living arrangements to introduce time away from his mother too soon. It was hoped the father would learn that the pace of X being removed from the mother’s care was all about addressing X’s emotional needs, not about the father being a poor or bad father or the mother being unreasonable.
At a time when there is no forensic report or evidence of any kind to suggest that the drastic and radical step of changing X’s primary residence was warranted or even suggested, the father has filed affidavits, as recently as January 2015[4] in which he is postulating as to whether he should take on the full time care of X. He states:
“I believe the contents of Ms Clayton’s affidavit shows a person who is consumed by anger and bitterness. This does give me grave concern of the environment in which our son X is being raised. I believe that X is being exposed to unnecessary anger and bitterness which I hope will not have long term effects on him. Due to Ms Clayton’s behaviour, I am giving serious consideration to whether or not it is in X’s best interests for him to remain living with his mother. Ms Clayton is a very anxious at times erratic person and I need to ensure that our son is safe.”
[4] Exhibit M7.
The expert evidence could not be clearer. The mother is a loving capable mother, who is quiet in her demeanour. The child is primarily attached to her and always has been.
As to the suggestion that the mother is alienating the child from the father, or that she is deliberately trying to break the father’s bond with X, I am satisfied that this rhetoric is entirely without any factual basis. The Court is left with little to no confidence that the father has actually taken in the expert advice he has been exposed to.
I note in one of the recommendations in the first Family report, the report writer refers to the father being “required to attend upon a clinical psychologist independently of the child to undertake self-scrutiny and enhance child focus. In particular, to be encouraged to be less dismissive of the legitimacy of the child’s behaviour and what this might reflect and to be accepting of Ms Clayton’s expressed concerns and comments about their son. It would not be to convince the psychologist of the legitimacy of his own experiences and views.”
In light of the evidence of the mother being described as a competent, conscientious and devoted mother in the Family Report, a description which accords with my own observations, the father postulating in this cavalier fashion could be seen as a further attempt to intimidate and undermine the mother. If it is not that, given all the expert advice and education that the father has had about parenting and attachment of X and his emotional wellbeing, and the five courses that he says he has attended, the father shows an alarming lack of insight into X’s emotional wellbeing and needs.
The father has prosecuted a domestic violence order against the mother on the basis that, the act of violence complained about by him include the mother refusing to agree to him spending extra time with X. There is a complete disconnect between the reality of the situation, namely that the father spending three full days each week with X and the assertions made by him in his affidavits and to others, that his relationship with X is under attack. The allegations are false.
The father has alleged the mother has broken court orders. There is no evidence of a finding that the mother has breached court orders. I do not consider it unreasonable for the mother to advise the father, as she has done on various occasions when X was a baby that has slept later than normal, or he is unsettled, clingy or unwell, and requesting to start contact a little later, or modify the time on a particular day to be made up later. Being flexible and child focused and respectful of the other parent is the essence of co-parenting. The father however, regards the mother’s conduct in explaining that X is unwell, or X has overslept, as underhand and done in furtherance of her desire to prevent the father from developing a bond with the father. He is not child focussed at these times. It is notable in the second family report, that since the first report, that “X has become more attached to his father and is more comfortable in leaving his mother.” If the father was able to put aside his animosity towards the mother for a moment, he would realise that the time that X has been spending with the father has been successful and enabled X to slowly transition to spending more time away from the mother.
It seems to me that the father shows little understanding of the difficulties of having the responsibility of primarily raising a very young child as X is and was, working around day time sleeps and the other contingencies which arise on a daily basis with young children, to operate precisely according to the times set out in Orders.
Father’s allegations that the mother has been coaching X
The father’s reference to “coached” is an allegation made by the father because the child once repeated what the mother said to the father namely “Goodbye Mr Clayton”, at a handover. The father alleges that the mother was coaching X to call him Mr Clayton. The father accepted under cross examination that this is the sole basis for his allegation.
There is no evidence to support the allegation that the mother is or has been coaching the child to call the father Mr Clayton. The circumstances were entirely innocent. As can be seen, the father is prepared to twist the most innocent incident into an allegation against the mother. This conduct demonstrates his lack of trust and strongly held suspicions towards the mother. Clearly the court will be deeply concerned about X being exposed to the effect of this strongly held hostile and mistrustful attitude by the father towards the mother.
Financial matters
The father says in his affidavit for his protection order, I have had to endure Ms Clayton’s controlling and intimidating behaviour for more than 1 year now. She has deliberately tried to control me financially. In reality, from the time at or around separation, the father has controlled the finances. The mother was essentially left without an income and relied on the support of her sister with whom she lives and pays board of $100 per week for a room for herself and X.
Just prior to X’s birth, the mother resigned from the workforce to be a full time mother to X, and she and X were then dependent on the father for financial support as the father was the only parent still in the work force. The father not only had sole control of his own income stream, the properties acquired during the marriage were in the father’s name only and he was the master of the bank accounts doing transfers and payments at his discretion. The father prioritized his own and his parent’s financial security over and above that of the mother and X. The father was working in full time employment earnings around $150,000.00 a year and immediately at separation, gave up this work with (employer omitted). There is no evidence at all to support the father’s assertions that his work was running out, or that he would not have got his job back, that he was retrenched, or any other of the speculative self-serving opinion evidence given by the father about his work ending or his future prospects. The decision of the Child Support Agency of 27 June 2014 issued following an application by the mother for a change of assessment refers to the father providing the Child Support Agency with a copy of his Employment Separation Certificate from (employer omitted) showing that he ceased work voluntarily on 31 July 2013.[5]
[5] Father’s trial affidavit annexure ABC 17.
The father admitted under cross examination that he had leave entitlements available to him at separation when he made his decision to give up his work and that if he had wanted to come home and “sort the family out” he could have availed himself of that leave. I consider that the father’s behaviour in immediately abandoning his work at separation was erratic and unnecessary. The father then chose to work three days a week as a (occupation omitted) in work place health and safety for (employer omitted). His income reduced significantly and after about 12 months, in July 2014, the father chose to leave that work. His income continued to diminish as did his child support obligations.
For some months immediately following separation, the father paid child support and health insurance, I think the latter was about three months.
The father took this radical step of leaving his highly paid employment and leaving the mother without cash financial assistance in the context of their joint plan which had been to undergo IVF treatment, have a child and for the mother to remain home looking after their newborn baby. The father left his employment when he knew that the mother was reliant on him for financial security, for accommodation and for the cash to pay for her day to day needs.
There are a number of facets to the father’s conduct which have satisfied me that he has quite deliberately failed to support his wife and child when he had an opportunity to do so and when the mother was reliant on him for financial support.
Father pays funds at separation to family and his lawyers
Around the time of separation, the balance of the investment accounts operated during the marriage was up at around $130,000.00. Despite this and despite the mother being financially dependent on the father, the mother did not receive any financial support from the father. Instead, as a priority, just at and after separation the father unilaterally decided that he would use $65,000.00 of those funds to repay alleged debts to his parents, the debts dating back years earlier in 2003 and 2007. He says his mother and father lent him separate sums amounting to $65,000.00 when he built the Property H house. Having made these transfers in various smaller amounts from funds sitting in their accounts, the father then decided he would use the balance of the funds to pay his own legal fees. He paid a lump sum of around $70,000.00 to his own lawyers. His legal fees currently stand at around $90,000.00. He says he has also borrowed around $20,000.00 from his sister since then.[6] Even after making these significant transfers of funds to those representing him and his parents, it seems that when the father received a lump sum payout of around $10,000.00 at the end of his employment with (employer omitted), he also retained those funds for his own use.
[6] Transcript 17/3/15, page 130 line 45.
The transfers are hidden
The father transferred the alleged loan repayments via a series of bank transfers, starting just prior to or at separation, 27 June 2013 and continuing over a period for a few weeks into July 2013. The cryptic messages on the transfers were insufficient for anyone to be able to ascertain what the transfers represented. In the process of this litigation, the father, who has been represented by two firms of solicitors, has sworn two separate financial statements. After being cross examined by Mr Baston of Counsel for the mother about the transfers, his methodology and his admitted refusal to provide commentary to the wife or her solicitors about the transfers of over $70,000.00 when asked to do so, I am satisfied that the husband has been deliberately secretive and lacking in candour in his dealings with the mother, her solicitors and this court, in order to cover up his decision to deal with their joint funds in a manner determined solely by him.
Unfortunately when he was being questioned on this and other matters, I was left with a strong impression that the father will literally say anything that needs to be said to further his case. This was seen in his answers in evidence in the property issues and also the children’s matters. It was only through thorough and sustained cross examination by Mr Baston on behalf of the wife, that the full account of the father’s shifting of funds and repaying alleged debts, became apparent.
Certainly a reading of the father’s affidavit and the structure of his written evidence, it is not apparent that the father paid off significant loans to his parents just on or after the parties separated in 2013. Quite the reverse is the position. The father in giving his evidence at paragraphs 196 onwards, relates the history of him building the house back in 2003 and that he had already paid off his block of land and that he did borrow the sum of $40,00.00 from “my father and the sum of $25,000 from my mother to purchase other necessary material. My parents were happy to lend me these funds. I have since repaid these loans to my parents. My parents have resided in the property since 2007” and so the narrative continues leaving the reader with the impression that this has all happened years ago.
What the father does not explain anywhere in his material however, and what he refused to explain to the wife’s solicitors prior to the trial, even when specifically requested to do so, is that he repaid these alleged loans at separation in 2013 and without reference to the mother. He does not give details of how this occurred.
The father does not explain what prompted his unilateral decision to repay alleged loans or why this was even necessary given that his parents lived rent free in the home he built from 2007 until it was sold to them in 2012. It is not explained why the loan amounts were not deducted from the purchase price when the father sold the house to his parents a year earlier in June 2012, which would seem a logical time to square off any alleged debts as opposed to a year after the property conveyance had concluded.
These transfers have depleted the property pool considerably. There is no evidence by the father’s parents or any third party to corroborate the allegations of old loans. Nor are any documents produced to corroborate the allegation that the funds were advanced in the first place or that there had been any demand for repayment at any time ever, or that there was some urgency about the need to repay these debts around 10 or 11 years old.
Finally after further questioning, the father admitted that he chose not to provide information about the continuing transfers between his own accounts and those of his parents, when requested by the wife’s solicitors to do so. Rather he fell back on his decision to provide about 600 documents by way of disclosure but admitted that he refused to provide any explanation of what he had been doing in transferring funds out of accounts held during the marriage. There is a very specific request from the mother through her solicitors to provide details of significant sums removed in 27 October 2014, which was followed up in 6 February 2015.[7] The father refused to answer the questions about whom he had transferred money to.
[7] Exhibit F3
Added to this, the father did not put messages that could be understood to explain the nature of the transaction. He explained in the witness box that random hieroglyphics which was literally a series of characters of the alphabet or numbers being the first keys that he hit with his fingers on the keyboard. He says that this was a sign for himself that he was doing a ‘transfer’ from one account to another. Only when he transferred out of his account to somebody else did he put some identifying message like repayment of loan. The father’s disclosure in terms of the moneys that he disposed of after separation was totally inadequate.
I am satisfied that the father left it to the mother’s solicitors to trawl through hundreds of documents knowing that he had used a system where no person could identify what transactions were being undertaken when funds had been removed from accounts and transferred to other accounts. I am satisfied the father was content to have the details of these loans and transfers go under the radar unless they were unearthed by the mother or her solicitor.
The father remained evasive and failed to readily admit that he had refused to answer upfront what were reasonable questions posed by the mother’s solicitors about the bank statements. Mr Baston of Counsel put to the father:
“And you started transferring the money out in a way that provided no information to anybody, other than yourself, about how it was – where it was going. Correct?
The father replied:
“Yes.”
Mr Baston continued:
“Yes and you didn’t provide any information to anybody, including the court, until today about it?”
The father replied:
“In regards to the – the notes that I’ve put into - in my transfers?”
Mr Baston: “Yes?” …
Father replied: “No.”
The father was then taken through each of his two financial statements sworn and filed in this litigation and his obligation of disclosure. The father was equally obtuse in his answers trying to justify his failure to show on either Financial Statement filed by him reference to him giving money to his mother and father, and in particular under section M about disposal of property, and also his general obligation to be open and transparent in his obligation of disclosure.
The father’s answer to why he didn’t disclose the transfers of his financial statement at part M, to the effect that he “didn’t know cash at bank was property” was bordering on contemptuous and inherently implausible. The father was legally represented at the time each financial statement was sworn to. I note that he has listed out under another section (Part I) which asks about asking property owned by you, that funds in bank are included, along with other real estate and investments and the father has answered on each occasion as to the quantum of bank deposits.
The cross examination which occurred should have been unnecessary if the father had complied with his obligation of full disclosure. Instead, the Court’s time was consumed and wasted whilst Counsel for the mother tried to delve into the financial quagmire of transfers created by the father and listened to the details of his efforts to disguise the transfers. Even throughout the process, the father did not willingly volunteer what ought to be have been sworn to in his affidavit.
Valuation and Purchase price of the Property H house sold to the father’s parents in June 2012
In his affidavit material the father has sworn to the statement that his parents paid $400,000.00 for the property at Property H. The father said “Accordingly, my parents purchased the property for $400,000.00. Attached is a copy of the valuation report”.[8] There is no other explanation offered to the Court about this sale transaction, except, “Upon receipt of the sale proceeds from my parents, I deposited the sale proceeds directly in the mortgage account for the matrimonial home in Property P heads which completely discharged the mortgage secured by the property.”[9] The father failed to inform the Court of other information relevant to this sale transaction and no documents were provided by the father regarding the sale.
[8] Above n, paragraph 205.
[9] Above n, paragraph 203.
The father’s assertion as to $400,000.00 being the amount paid by his parents for the Property H house was made without any supporting evidence. The father’s evidence was however contradicted by the CITEC search conducted by those representing the wife, which shows a sale price of $350,000.00, not $400,000.00.
When advised under cross examination that documents lodged for official purposes, including stamp duty, shows a sale price of $350,000.00 and not $400,000.00 as sworn to by the father, the father then gave evidence not previously sworn to, or indicated on any financial statement. The father said that this discrepancy was explained by yet another amount of money being given to him in the past by his mother and that money constituted the balance of the purchase price in June 2012 between the CITEC amount $350,000 and the alleged purchase price of $400,000.00. The father said that his mother, many years earlier, back in 2009, put some funds into an account totalling $40,000.00 and that this was treated as part of the sale proceeds in 2012.
The father, when questioned as to the discrepancy between his own affidavit evidence and the CITEC search, said, “Because there was $40,000.00 that was from a previous time when my mum had put that into my offset account. For the house at Property P. And that’s where the $40,000.00 is. I thought the sale price was recorded as $356, and then there was the $40,000.00 that Mum had put into my offset account back in February 2009 and that was to get up to the $400,000.00 valuation. And the valuation amount we were told was the amount that they work out stamp duty and what-not on.”
Counsel for the mother queried whether this new $40,000.00 was the same $40,000.00 that he had allegedly repaid his mother at the time of separation as set out at paragraph 199 of his affidavit (reference to the father saying he borrowed money from his parents to buy materials for the Property H house), the father said “No its not.” I was left with a strong impression that the father was making up the evidence as the cross examination proceeded.
The father agreed that stamp duty for the transfer purposes was likely the amount based on the CITEC search and consideration of $350,000.00. He said the amount of $350,000.00 was then paid off the mortgage on the Property P property purchased by the parties during the relationship.
The evidence of the father as the valuation on the Property H house was inconsistent with the supporting documents. The father swore to having received a valuation for $450.000 on the Property H house however he annexed a valuation for $400,000.00 dated 19 June 2012, not $450,000.00.[10] It is clear to me that he has some very fluid and convenient financial arrangements with his parents who have not given evidence.
[10] Affidavit of Mr Clayton dated 5/02/15,annexure C15.
All of this conduct, together with the father’s refusal to provide financial support to the mother, together with other issues referred to in these reasons, gives credence to the mother’s belief that she does not accept that the father is dealing with her in good faith and that despite his rhetoric, he did not show any real regard for her position in relation to their financial affairs or her and X’s financial support.
Father’s allegations of being controlled financially by the mother
The father exacerbated the financial pressure he placed the mother under, by filing an application for a Domestic Violence Order portraying himself as being intimidated and in fear of the mother and giving sworn evidence that “she has tried to control me financially” and “she has done countless acts to try and stop me having a relationship with my young son including breaking court orders and using psychological techniques to coach him into negative behaviour which was extremely stressful for him.”
These allegations are without foundation and confirm my strong impression that the father will say whatever he believes will achieve his desired outcome.
The father’s repeated speculations regarding mother’s mental health
Given their personalities, as I have observed, I am satisfied that the mother has been genuinely intimidated by some the father’s conduct and that she has had valid reason to be intimidated.
In material in this Court and in the state court domestic violence proceedings, the father has made repeated reference to the mother being anxious. Counsel questioned the father about the recurring reference in his material and through statements to report writers. I am aware that there is reference in the first Family Report to the mother being protective and anxious about the welfare of young X in the context of the father’s requests for more time and likely overnight time, rather than being obstructive as was alleged by the father.
The father appears to have seized on this and attempted to distort what was reported and the context, to discredit the mother by speculating and making assertions that essentially the mother has a diagnosable mental health condition of generalised anxiety such that it is affecting the X. The father has followed up this speculation by adding that if necessary, (meaning if the mother can’t continue with her role as a parent given her condition) he is ready, willing and able to step in and take over.
As part of this platform of the father’s, he has on various occasions, openly raised the tragic suicide death of the mother’s father back when she was 21. The mother makes reference to the father continually raising this issue post separation. I accept that the father is raising this issue and attempting to use it to his own strategic advantage. The father generally couples this with his alleged concerns of the mother being anxious. The father gave a stream of evidence at paragraph 69 onwards of his trial affidavit sworn 5 February 2015, in what appears to be a somewhat patronising tone that:
(a) he was able to dilute the mother’s anxiety by being able to calm her, which also had the added effect of her anxiety not generally passing on to others including our son.
(b) since we have separated I have noticed that the mother is continually “wound up” and though I am not a medical practitioner psychiatrist or psychologist, in my experience with being with the mother, she exhibits to me what appears to be behaviours which evidence high anxiety and which appear to be unchecked.
I have also made a finding that it is reasonable for the wife to remain as a stay at home mother given her primary obligation to raise young X. X has much difficulty in separating from the mother and his time with the father has been decided based upon X’s best interests which involve a very slow transition to more time away from the mother. In the circumstances of the distress experienced by X, the history of his primary care arrangements and his age, I am satisfied that it is entirely appropriate for the wife not to seek employment for the foreseeable future. I therefore reject the submission that the wife should be out looking for work.
The wife’s financial statement shows she receives no income from employment. Her income is derived from rent which meets a mortgage obligation and social security.
In the notice of decision from the Child Support Agency annexed to the husband’s material[48] in May 2014, the wife contended that the child support assessment was unfair because of the husband’s income, property and financial resources or earning capacity. At that time the Senior Case Officer concluded that the application must be refused. Whilst the case officer was satisfied that the father was not working despite ample opportunity to do so (then working 3 days a week) and he was satisfied that the father’s decision about his working arrangement was not justified by his caring responsibilities or his state of health, the Case Officer was not satisfied on the material before him that the father’s decision about his work was not substantially motivated by the effect that this would have on the child support assessment. This Court is appraised of much more evidence following this contested evidence, than was before the Case Officer.
[48] Husband’s trial Affidavit annexure C17.
In the previous decision of Senior Case officer Mr A, the assessment was based on the wife’s income based on 2013-14 of $18,276.00 for the period 1 July 2014 to 15 December 20-14 and her adjusted taxable income was $15,642.00. The wife’s current financial statement shows a “nil” salary. Her income is rent of $297.00 (to pay mortgage repayment of $235.00 plus $84.00 for rates and body corporate fees). Her other income is a single parent payment of $398.65 and family assistance payment (family tax benefit and rent assistance) of $102.85. Each of these pensions is an income tested benefit. [49]
[49] Family Law regulations 12A Prescribed pensions, allowances or benefits – subsection 4(1) of the Act. And meaning of social security pension with subsection 23(1) of the Social Security Act 1991.
The husband’s financial statement shows no salary or wages (Financial statements 21 August 2013, 5 September 2014 and 5 February 2015) showing “nil”. He estimates he has income of $400.00 per week according to his financial statement apparently drawn from his own business. I am not aware of what other expenses are paid for him by his business. The husband has not disclosed information relating to his business venture saying it is a new venture, there are no financial records and the business is worth nothing. There is no documentation to support his “estimate” of $400.00. Similarly there is no independent evidence that the father was retrenched from any of his previous employment with (employer omitted). Quite the opposite is the case. The previous decision of Senior Case Officer Mr A referred to material provided by the husband including a copy of the husband’s Employment Separation Certificate from (employer omitted) stating he ceased work voluntarily on 31 July 2013.
Generally, the husband has been less than co-operative in providing full disclosure, as I have referred to in this judgment under the property section. In fact, the husband has engaged in deliberate obfuscation in regards to disguising transfers of considerable sums of money and he has refused to answer specific questions posed to him prior to the trial as to the nature of these transfers. Overall, the Court is very sceptical about any estimates or evidence given by the father in relation to financial and other matters.
On reviewing the assessed periods, it can be seen that the husband’s rate of child support was $7,496.00 per year for the period 16 January to 30 June 2014 which was based on the husband’s 2013/2014 estimated income of $67,876.00 and the wife’s income for the same assessment period of $18,276.00.
For the period of 1 July to 15 December 2014, the husband’s assessed rate of child support was $6,402.00 per year based on the husband’s 2014/2015 estimated income of $60,584.00 and the wife’s 2012/2013 adjusted taxable income of $15,642.00.
The Senior Case Officer was satisfied on two out of three criteria in terms of determining the success of the wife’s application for an amended assessment for the husband. The case officer was satisfied that the husband changed his weekly hours of work to below fulltime work; he was also satisfied that the husband’s decision to alter his working arrangements was not justified on the basis of caring responsibilities for X. As to the third criterion, considering the evidence he had before him, the Senior Case Officer was however not satisfied that a major purpose of the father’s decision (to leave his employment) was to effect the child support assessment. In that regard I have significantly more evidence before me in hearing this trial.
I have discussed extensively in my reasons for judgment the circumstances which existed at the time of separation and in particular the husband’s conduct. I am not satisfied that there was any valid reason for the husband to end his employment abruptly as he did when he gave up his well-paid position with (employer omitted) which had been the financial stream that supported the family once the mother left work to give birth to X.
On 26 August 2013 the husband commenced part time employment earning around $68,000.00 per year working only 3 days a week. After 12 months in July 2014, the husband then gave up that work and became unemployed. His income reduced again and his child support has reduced dramatically to $9.00 per week, the level referred to in his latest financial statement of 5 February 2015.
After a period of unemployment, he set up his own company through which to market his own skills as a (omitted) in (industry omitted). The husband says that the business is worth “nil” and he shows his income from wages as “nil” on his financial statement. On the evidence before me, I am not satisfied that there was any valid reason for the husband to leave his employment of 12 months with (employer omitted).
The husband has retained the bulk of the asset pool in this property distribution amounting to around $500,000.00. I am not sure what the husband will do workwise at the end of this litigation. There is no evidence to suggest that he cannot return to full time employment. Whatever he does it is clear to me that he has an income earning capacity higher than his current assessment which results in a weekly assessment of $9.00.
Looking at all of the evidence I am satisfied that at minimum he has the capacity to earn an income comparable to the income he earned when working for (employer omitted) as a (occupation omitted) and that he could do this full time. Adopting the $68,000.00 figure (before he resigned and thus had a reduced income and was working locally) and expressing that figure in a five day week, results in an income earning capacity $113,333.00. I am therefore prepared to adopt the figure of $100,000.00 as the father’s income earning capacity.
The orders I have made for the husband to spend time with X do not require him to abandon full time employment. He has plenty of opportunity to work full time he has experience and has recently improved his qualifications. He is a healthy young man. .
I am therefore satisfied that in the special circumstances of this case, the application of the application of the administrative assessment results in an unjust and inequitable determination of the level of financial support to be provided by him for X because of his income earning capacity.
Would it be just and equitable as regards the child, the carer entitled to child support and the liable parent and otherwise proper to make a particular order under this Division?
In considering the just and equitable requirements, I am required to have regard to the matters set out in section 117(4), set out earlier, though as the Full Court said in Gyselman (1992) FLC 92-279 at 79,078) However, some of the matters listed in sub-section (4) may overlap with matters already considered under sub-section (2) and some of the paragraphs in sub-section (4) may be more significant in one case than they would be in another or of little relevance in a particular case. It is an essential part of the s 117 exercise to carry out the obligation under sub-section (4). However, that does not mean that it is necessary in each case to slavishly go through each of the paragraphs. The extent to which it is necessary to do so will depend upon the facts and conduct of the individual case and the analysis already performed under sub-section (2).
I am mindful of the nature and duty of a parent to maintain a child and that section 3 of the Act makes it clear that the parents of a child have the primary duty to maintain the child and that this duty has priority overall all commitments of the parents other than the commitments necessary for self-support or the support of another person the parent has a duty to maintain. It is clear on the current assessment that the primary carer is paying essentially the bulk of the costs each week to raise X, save for the $9.00 paid under the current assessment for X. In looking at the proper needs of the child, the mother sets out in her financial statement the costs associated with the food, medical costs, clothing and shoes for X at $325.00 per week. That amount does not include any portion of a cost towards housing X and nothing is included as a portion of the petrol, telephone or electricity.
The father lists out $85.00 per week for the child which is for expenses for day time only from 10 am to 4 pm, just three days a week and no breakfast or evening meals or other costs associated with his permanent housing costs which the mother incurs.
I have already concluded that the father has capacity to earn at least around $100,000.00 per annum. . The mother’s income is the same as the period of assessment that the Review Officer was dealing with. The wife is in receipt of social security and the rent for the Property O property. All of the rent from the Property O property is required to pay the mortgage for the property which the wife retains under the property Orders. However, she will need to pay for her own cost of living. During the child support review (and at trial), the wife and X have been living in a room of her sister paying $100.00 per week. The cost of either paying her mortgage (even a reduced mortgage) or rent needs to be factored into her average weekly expenses when considering her income. Either way she will be living off her social security payments as income. I am satisfied that the wife does not have any greater capacity to earn at this point.
As seen in the property distribution, that father is retaining the bulk of the parties’ assets and in doing so he has significant assets and financial resources. The mother receives the minority of the assets and will be struggling to provide a permanent home for X, given the debt she is maintaining and her income.
In looking at the husband’s commitments that are necessary to enable him to support himself, the father lists in total his average weekly expenses[50] of $603.00. The husband says that figure includes expenses for X of $85.00 per week. These expenses ought to be seen bearing in mind that X at the time of the orders did not spend overnight time with the father and spent three days per week between the hours of 10 am and 4pm.
[50] Financial statement of 5 February 2015.
In turning to the husband’s own expenses shown on his financial statement the father’s discretionary expenditure reveals that he spends $50.00 a week on his own entertainment which brings in to stark contrast his payment of $9.00 per week currently assessed based on the husband’s nil income.
I note that the figure for the husband’s own expenses does not include rent or a mortgage repayment. The husband at the time of trial was renting an apartment for $370.00 per week and the Property P house was tenanted. It is unencumbered. It will be a matter for the husband if he moves back into the Property P house or not.
The property orders require the husband to pay the wife a sum of money. The husband will either need to borrow this, or sell the Property P house. Either way, it is appropriate to allow the husband a sum representing paying rent or mortgage as part of his weekly expenses. I will adopt the current figure of $370.00. That brings the husband’s weekly expenses to $973.00 which still includes the $85.00 the father says he is spending on X.
I have already made findings against the credit of the husband that in giving evidence he will say whatever needs to be said to support his case. I therefore approach the husband’s alleged expenditure very cautiously and in any event, I consider the husband’s expenditure on his own entertainment ought to be prioritised as less pressing than his duty to support X. I am also aware that the figures referred to by the mother required for X’s financial support are consistent with her living frugally and being in financial distress.
Neither parent has a duty to support another person.
I am satisfied that hardship will be caused to the primary carer of X and thereby X, in the event that the current administrative assessment is not adjusted upwards as to do otherwise will leave the mother with essentially the entire burden of the financial costs associated with raising X and release the father from his duty to contribute according to his capacity to do so given his income earning capacity.
I am satisfied that the father has placed himself in a position of having a nil income which I consider is entirely artificial and contrived. Even allowing for him to be working locally in order to see X more frequently, the current assessment does not reflect his income earning capacity. He has decided to diminish cash funds which could have been used to provide proper support for X by making false claims of owing his parents significant loans and then transferring those funds to his parents, some $65,000.00. I have made findings about the father’s conduct in this regard. In so doing, he has also chosen to give money to his parents rather than ensure he was in a position to continue to be in a position to comply with his duty to support X.
The father also chose to advance at least $70,000.00 at separation for his own future legal fees, again, instead of preserving funds to ensure that he could comply with his duty as a father to support X. Added to the father’s conduct in this regard, he then continued to leave paid work until he walked away entirely from working with (employer omitted) to set himself up with a nil income.
The father has made hollow offers of wishing to pay for more costs relating to X, however, he has steadfastly refused to agree to be assessed at a higher income, which was his position in June 2014 and remains his position in March 2015 at the time of trial.
In terms of the father’s income earning capacity, I am satisfied that the father does not work to his capacity, despite having ample opportunity to do so and I am satisfied that the father has changed his occupation and working patterns when his decision to do so is not justified on the basis of his caring responsibilities or his state of health. The father, as I have said elsewhere, provides no independent evidence that he was retrenched from (employer omitted); nor independent evidence that he has tried to find other similar employment in keeping with his skills and experience. The Court is satisfied that the father has walked away from the opportunity to be fully employed and I doing so, he has failed to comply with his duty to support X. He has done this at a time when he knows that the mother was left living in frugal and dire financial circumstances and when she alone was the main financial provider for X.
Given the findings I have made about the father’s financial abuse of the mother explained elsewhere in these reasons, his decision to give away significant funds rather than provide financial support for the wife and his decision to walk away from paid employment without any compelling reason, I am also satisfied that the father has not demonstrated that it was not a major purpose of his decision making to affect the administrative assessment of child support in relation to X.
In turning to the particular assessment that ought to be made taking into account the factors necessary and my findings, the child support assessment calculation and adopting a figure of income for the father becomes $100,000.00 and adopting the mother’s income for child support purposes as referred to in the child support decision (her income has not changed) results in the father having a child support income of around $175.00 per week. Noting the time that X is to spend with the mother and father, the child support calculator results in an assessment of $9,120.00 per year.
I do not consider that he will suffer any hardship by having the current assessment increased to reflect his assessed income earning capacity. The father has been content to house himself in comfortable surroundings, re-train himself at his leisure and spent money on non-essential discretionary expenditure on himself rather than given priority to the financial support of X.
Is it otherwise proper to make an order?
I rely upon but do not repeat what I have already stated about the primary duty of these parents to ensure that they provide financial support for raising X, and that, currently the father is not complying with this duty.
The Orders being sought by the wife have been framed to seek a departure order for the periods set at Order 13 of the mother’s amended application filed on 18 February 2015. Those periods commence on 1 October 2013 and continue through until 15 January 2015. The father paid child support up until he left the second (employer omitted) position in July 2014. I therefore do not intend to backdate the assessment until 1 October 2013. I am mindful that there ought be no doubling up in the consideration of the section 75(2) factors under the property assessment.
In the all of the circumstances I consider that it is just and equitable and otherwise proper as defined under Division 4, to make a departure order departing from the father’s current administrative assessment to reflect his income earning capacity of $100,000.00. I consider that the commencement period for the adjusted assessment ought to commence in the first child support period following the conclusion of this trial in March 2015 and remain in existence for a period of 2 years, at which time the matter can be reconsidered.
I therefore order that for the period 15 March 2015 to 15 March 2017 the father’s adjustable taxable income is to be set at $100,000.00 and the mother’s adjusted taxable income is to be set at $15,642.00.
Spousal maintenance
The Law – Spousal Maintenance
The wife must demonstrate that she has a need for spousal maintenance and that the husband has a capacity to pay.
The jurisdictional basis of the Court making an order for spousal maintenance arises under section 72 of the Family Law Act which sets out the rights of a spouse to the marriage to obtain an order for spousal maintenance. If, and only if, the other party is unable to support him or herself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason having regard to the relevant matter referred to in subsection 75(2).
The power of the Court to order spousal maintenance is found in section 74, namely:
Section 74
In proceedings with respect to the maintenance of a party to a marriage, the Court may make such order as it considers proper for the provision of maintenance in accordance with this part.
In exercising jurisdiction under section 74 the Court must also take into account only the matters referred to in section 75(2) which are:
(a)The age and state of health of each of the parties;
(b)The income, property, and financial resources of each of the parties; and the physical and mental capacity of each of them for appropriate gainful employment;
(c)whether either party has the care or control of a child of a marriage who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person;
(f) subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under the law:
(i) any law of the Commonwealth of a state or territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established or operates within or without Australia
and the rate of any such pension, allowance or benefit being paid to that party.
Subsection (3), of course, states that the Court must also disregard any entitlement to an income tested pension, allowance or benefit (see section 75(3)). Section 75(3) says:
In exercising its jurisdiction under section 74, a Court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
The intention being that it is not up to the public to support a spouse when the other spouse has the capacity to do so. Continuing with s.75(2)(g):
(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k) the duration of the marriage and the extent to which it has effected the earning capacity of the party whose maintenance is under consideration;
(l) the need to protect a party who wishes to continue that party’s role as a parent;
(m) if either party is cohabitating with another person the financial circumstances relating to the cohabitation;
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
(na) any child support under the Child Support Assessment Act that a party to the marriage has provided, is to provide or might be liable to provide in the future for a child of the marriage; and
(o) any fact or circumstance which in the opinion of the Court justice of the case requires to be taken into account.
The types of orders that the Court can make are set out in section 80 and include a variety of options. Ultimately the Court can make any other order which it thinks necessary to do justice as referred to in (k) herein.
In essence then the Court’s power for making an order for spousal maintenance requires:
(a) a threshold finding of the right of a spouse to maintenance under section 75(2);
(b) consideration of the relevant factors in section 74 and 75(2);
(c) no fettering principle that pre‑separation standard of living must automatically be awarded where the respondent’s means permit it; and
(d) discretion exercised in accordance with the provisions of section 74 with reasonableness in the circumstances as the guiding principle.
This was set out in the Full Court case relating to the appropriate level of maintenance in cases such as Wilson & Wilson,[51] Gamble & Gamble.[52] I note in the property settlement that the basis of the division is 45% in favour of the wife and 55% in favour of the husband.
[51] (1989) FLC 92-033.
[52] (1978) FLC 90-452.
I note also that the Full Court has made comment that the quantum of maintenance was not to be determined upon a subsistence level and referred to earlier decisions. The Full Court in Mitchell & Mitchell[53] referred to earlier decisions such as Evans & Evans[54] and Bevan & Bevan.[55] In the marriage of Bevan & Bevan the Full Court set out the principles to be applied in spousal maintenance cases.
[53] (1995) FLC 92-601.
[54] (1978) FLC 90-435.
[55] (1995) FLC 92-600.
The Full Court in Maroney & Maroney[56] (at para 56) held:
“The “capacity” to meet an order for interim spousal maintenance is not confined to income. Once a party, such as a wife in this case establishes and entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouses reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets. “
[56] [2009] FamCAFC 45.
Wife’s need for spousal maintenance – threshold finding
I am satisfied that at least for the next two years the wife is not able to work due to her having the care and control of young X aged 3. That places her income through the workforce as nil. Her social security repayments are not considered in determining spousal maintenance.
Her income is rental on her unit, which is largely encumbered. The rental as I have referred to elsewhere, covers the interest only mortgage repayment. That property is included in the asset pool at a value of $285,000.00. The mortgage is $206,804.00 so the equity is $78,196.00. The property orders I have made provide for the wife to retain this property and the debt that goes with it. I accept her evidence that at the time of the trial, she could not afford to move into that unit, as her income is not high enough to pay the mortgage repayments.
The property orders provide for the wife to receive a sum of $194,395.00. That is still less than the mortgage on the Property O property retained by the wife though applying it to the mortgage would reduce it significantly. However, that would leave the wife with an asset and small mortgage but still no income.
The wife however has a debt for her legal fees which is not yet paid of some $80,000.00 plus she has had to borrow funds of around $15,000.00. Once that amount is deducted from the amount she is to receive the wife has around $100,000.00 left to invest or pay off the mortgage. This would still leave her with no income. If the wife retains the mortgage in place and pays out her legal fees, the amount left from which she could earn interest is significantly reduced.
I do not accept that the wife needs to exhaust all of her capital savings before applying for spousal maintenance. The amount she is to receive is modest and she has to organise accommodation for many years ahead for herself and X.
I have examined the needs of the wife as set out in her financial statement, which were not challenged. The sum of $882.00 per week is claimed and that does not include an amount for rent or mortgage repayment. I note the husband rents a property at $370.00 per week. Adopting a figure around that amount would take the wife’s own weekly expenditure to $1,252.00 per week. Even allowing for some modest income by way of interest, it is not difficult for me to conclude that the wife’s claim for $450.00 per week is sustainable.
I am satisfied that the wife is unable to support herself adequately given her having the primary care and control of X who is not yet 18 years of age.
Capacity
The husband’s income from wages and salary is shown as nil on his financial statement. The other income is from rental which will end when the second unit is sold (the other unit was under contract at the time of trial). The estimate of $400.00 per week shown as income from a business is qualified as an “estimate only.” This is a new business and no tax records have been completed. The husband says the business is worth nothing and has just started up. There are also liabilities shown at estimate of $5,000.00 but there are no records validating this. It may well be that this business will run at a loss by the time all claimable expenses are paid, and the husband’s income from the business will be a taxable loss or at best break even.
Given all of the husband’s financial conduct to date, the Court has no confidence that the husband’s ownership of this business will result in a taxable income which would allow financial support for the wife, or for that matter, child support for X.
I have made a determination in relation to the property division that the husband’s income of nil or $400.00 is well below the income he has a capacity to earn which I have determined is $100,000.00. I rely on but do not repeat those reasons.
The property division will result in a split between the parties require a cash payment to the wife. In order to pay this the husband will either have to borrow funds or the Property P property will need to be sold.
The husband is liable to pay spousal maintenance only to the extent that he can do so and an allowance must be made for his reasonable costs of living and outgoing liabilities.
If the husband obtained finance to pay out the wife, he will have that loan to repay. That would be in addition to his own costs of living. It will be up to the husband if he decides to move into the Property P home or rent it out. He does not know what he will do. Allowing the sum of $370.00 to $400.00 for rental or loan repayment plus the cost of living as set out in his financial statement $603.00 per week shown on his February financial statement (excluding loans on the 2 units, the second of which he says he will sell soon). The husband’s weekly expenses are $1,003.00.
I have determined that his income earning capacity is no less than $100,000.00 based on a five day week, on the basis of his previous 3 day a week position earning $68,000.00.
In terms of the husband’s financial obligations, I have made a departure application with the husband to be assessed on an income earning capacity at this time of $100,000.00. The monthly payment will be around $175.00 per week.
Allowing for his own living expenses, tax and child support and that $100,000.00 per annum results in a gross amount of just under $2,000.00 per week, namely $1,923.00, I consider that there is still scope for the father to have capacity to pay some financial support of the mother.
I am not however prepared to make an order for $485.00 per week as I am not satisfied that the father has the capacity to make this payment. I am however, satisfied on the figures I have referred to, that the husband is able to pay the sum of $100.00 per week by way of spousal maintenance to the wife. I intend to make that Order effective for 2 years from the date of this Order. After that time, it is the wife’s intention to seek to obtain some form of part time employment, so the matter will need to be reassessed.
I also intend to make an Order that the father provide copies of his own and his company’s financial documents, (including Bas Statements, tax assessments and returns ) each quarter to the mother as I am satisfied that the father will likely be evasive about his current income and that this will result in significant difficulties for the mother in the future.
Costs Application by husband: Delay in submissions
The husband through his Counsel makes an application for costs in relation to the delay by the applicant to submit written submissions. Costs sought are $2,256.00.
In what seems to be an irony, having sought costs from Mr Baston for delay in submitting his submissions, the Counsel for the mother concedes that her own submissions were late and sets out her evidence of a family tragedy and subsequent difficulties which lead to her submissions being late.
I have had regard to the submissions of Mr Baston and that he was ill enough not to be able to participate in his other professional obligations leading up to the due date of the written submissions.
I accept that that Mr Baston of Counsel was genuinely unwell and not in a position to comply with the dates provided for written submissions. I note that when the submissions did arrive they were comprehensive.
I also accept that Ms Pendergast of Counsel was genuinely delayed given her very difficult family circumstances. I intend to make no costs order against either Counsel. It goes without saying that Counsel, like the litigants that appear in this jurisdiction, from time to time have unavoidable family and health issues which arise. I consider some forbearance is required in this regard.
Costs application
In relation to costs generally, if either party is seeking costs, they are to file and serve an outline of submissions, and a document setting out the scale of costs being sought, together with a draft Order.
The respondent has 21 days to provide an outline of submissions, together with a response to the quantum of costs being sought, and a draft Order.
The matter will be listed for oral submissions on a date to be allocated.
I certify that the preceding four hundred and sixty-two (462) paragraphs are a true copy of the reasons for judgment of Judge Willis
Date: 15 March 2016
[17] Exhibit M6.
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Property Law
Legal Concepts
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Costs
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Remedies
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