Clements and Parris
[2016] FCCA 1807
•18 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLEMENTS & PARRIS | [2016] FCCA 1807 |
| Catchwords: FAMILY LAW – Parenting – whether the children should live in a week about arrangement – property – initial contributions – s.75(2) factors – disparity of incomes. |
| Legislation: Family Law Act 1975, ss.4(1), 11F, 60B 60CA, 60CC, 61DA, 64, 65D, 65DAA 75(2), 78, 79(1), 79(2), 79(4), 90MT, 106A Family Law (Superannuation) Regulations 2001 |
| Cases cited: Pierce v Pierce (1998) FLC 92-844 Williams & Williams [2007] FamCA 313 Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 Stanford & Stanford [2012] HCA 52 Watson & Ling (2013) 49 Fam LR 303 C & C (2005) FLC 93-220 Waterford and Waterford [2013] FamCA 33 Mazorski and Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR and GR [2010] HCA 4 |
| Applicant: | MR CLEMENTS |
| Respondent: | MS PARRIS |
| File Number: | MLC 6694 of 2014 |
| Judgment of: | Judge Harland |
| Hearing dates: | 30 November 2015 & 20 June 2016 |
| Date of Last Submission: | 20 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 18 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Matta |
| Solicitors for the Applicant: | Barbayannis Lawyers |
| Counsel for the Respondent: | Ms Swann |
| Solicitors for the Respondent: | Aughtersons |
ORDERS
Parenting
The wife and husband are to have equal shared parental responsibility for the children X born on (omitted) 2003 and Y born on (omitted) 2008 (‘the children’).
During school term the children shall live with the wife.
During the school term the children will live with the husband as follows:
(a)Each alternate week from the conclusion of school on Friday (or 3.30pm if not a school day) until the commencement of school on Monday (or 9.00am if not a school day);
(b)Each Wednesday from the conclusion of school until the commencement of school on Thursday.
In the event that the children are in the wife’s care on the following occasions, the children spend time with the husband as follows:
(a)From 5.00pm on the day preceding Father’s Day until the commencement of school on the Monday following Father’s Day;
(b)From 5.00pm on Christmas Day until 5.00pm on Boxing Day in even numbered years;
(c)From 5.00pm on Christmas Eve until 5.00pm on Christmas Day in odd numbered years;
(d)For three hours on each of the children’s birthdays by agreement and failing agreement as follows:
(i) If a school day, from the conclusion of school until 6.30pm; and
(ii) If a non-school day, from 10.00am until 2.00pm.
(e)Such other times as may be agreed between the parties.
In the event the children are in the husband’s care on the following occasions, the children spend time with the wife as follows:
(a)From 5.00pm on the day preceding Mother’s Day until the commencement of school on the Monday following Mother’s Day;
(b)From 5.00pm on Christmas Eve until 5.00pm on Christmas Day in even numbered years;
(c)From 5.00pm on Christmas Day until 5.00pm Boxing Day in odd numbered years;
(d)For three hours on each of the children’s birthdays by agreement and failing agreement, as follows:
(i) If a school day, from the conclusion of school until 6.30pm; and
(ii) If a non-school day, from 10.00am until 2.00pm;
(e)From 5.00pm New Year’s Eve to 5.00pm New Year’s Day in 2016/2017 and each alternate year thereafter.
All changeovers take place at the children’s school at school times and otherwise at McDonalds on (omitted).
Without admitting the necessity for the Order, both parties, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating each other, the children or any of the parties’ respective family members in the presence and/or hearing of the children and from allowing anybody else to do so; and
(b)discussing these proceedings with, or in the presence and/or hearing of the children or any of them and from allowing anybody else to do so.
The wife attend upon a counsellor for the purposes of addressing the marital breakdown and co-parenting the children with the husband.
Each party keep the other informed of their residential address and telephone number at all times and notify the other within seven days of any change to either their address or telephone number.
Each party shall notify the other as soon as possible of any illness or injury suffered by the children and any medical, dental, hospital or like treatment received by the children which occurred whilst the children were in the care of that party and the other party shall be at liberty to contact the doctor, dentist, hospital or other medical professional or like person who treated the children to make enquiries about the health of the children.
Both parties be at liberty to approach the schools or educational institutions attended by the children to obtain copies of school reports, photographs, newsletters, notices and the like and further each party shall be at liberty to attend parent teacher nights, school concerts, prize and special nights, sporting events and like school functions.
Each party be at liberty to attend all sporting and extra-curricular activities which the children may participate in.
In the event that either parent has a significant or special event such as a family gathering, christening, wedding or other special event that parent shall give notice to the other parent of their desire for the children to spend that time with them and attend the event and the parents may agree in writing by text message to vary the time that the children are to live with each of them so as to permit the children to attend the event and where variation of these Orders is required then the parents shall arrange for make-up time.
Property
The parties do all acts and things necessary to divide the net proceeds of sale of the property situated at Property L as follows:
(a)53% to the wife;
(b) 47% to the husband.
The parties do all acts and things necessary to divide the education funds held in the names of the children as follows:
(a)53% to the wife;
(b) 47% to the husband.
Pursuant to s.78 of Family Law Act 1975 (Cth) (“the Family Law Act”), each of the husband and the wife shall be and are hereby declared to be the sole and absolute owners at law and in equity of:
a) all items of furniture, furnishings, personalty, chattels and jewellery;
b) all monies (whether held in cash or in deposit with any financial institution);
c) any motor vehicle; and
d) all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;
in the possession, custody or control of each party or in which either party has an interest which is not otherwise dealt with in these Orders.
In the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by law or to give effect to these Orders pursuant to s.106A of the Family Law Act, the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in their place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
By Consent
That:
(a)Pursuant to s.90MT(4) of the Family Law Act, a base amount of $21,607.50 (“the base amount”) be allocated to the wife out of the husband’s interest in the (omitted) Superannuation Scheme (“the fund”), member number (omitted).
(b)In accordance with paragraph 90MT(1)(a) of the Family Law Act, whenever a splittable payment becomes payable to Mr Clements (“Mr Clements”) from his (omitted) Superannuation Fund, member number (omitted), Ms Parris is entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using a base amount of $21,607.50 and that there be a corresponding reduction in the entitlement (“Mr Clements”) Mr Clements would have had but for these Orders.
(c)The operative time for Order 18(b) of these Orders be four business days from the date a sealed copy of these Orders is served on the Trustee.
(d)Order 18(b) of these Orders have effect from the operative time as defined in Order 18(c).
(e)Orders 18(a) to (d) inclusive of these Orders are binding on the Trustee.
(f)The husband do all such acts and things and sign all such documents as may be necessary for the Trustee to determine the nature and quantum of the superannuation entitlement to the wife in accordance with the obligations set out under the Act and created by these Orders to enable the said payment to the wife.
(g)Until such time as the superannuation split is paid to the wife pursuant to these Orders:
(i) The husband shall direct and advise the Trustee to communicate with the wife and/or any other person authorised by her in writing to ensure any reasonable enquiries is made by her from time to time in relation to her entitlement in the fund AND to provide the wife a copy of any notice of any application or request by the husband which seeks release of entitlements in the fund insofar as that release may affect the wife’s entitlement in the fund pursuant to these Orders.
(ii) The husband, by himself, his servants and/or agents be and are hereby restrained from doing any act or thing which would prevent the wife from receiving the benefit in the fund to which she is entitled pursuant to these Orders and accordingly should the wife predecease the husband or die prior to the date upon which the husband’s benefit becomes payable, then the sum due to the wife pursuant to these Orders shall be paid to the estate of the wife.
(h)The wife be at liberty to do all such things necessary to exercise her request pursuant to the Superannuation Industry (Supervision) Regulations 1994 as amended from time to time (or its equivalent) for the rollover or transfer of the transferrable benefits out of the husband’s interest in the fund to a fund of the wife’s election in accordance with the Superannuation Industry (Supervision) Regulations 1994 as amended from time to time (or its equivalent).
(i)In the event a superannuation split to the wife pursuant to these Orders can be rolled over into a separate account to the wife, each of the parties hereto shall each do all such acts and things and execute all such documents that may be necessary to facilitate and to implement that rollover.
(j)There be liberty to apply to each party and the Trustee in relation to the implementation of these Orders affecting the superannuation interest of the husband.
(k)As a matter of procedural fairness, the Trustee, having been given no less than 28 days’ notice of the intention of the parties to seek the Orders in the form set out in this Order, and no objection having been made is bound by them as and from the date of these Orders.
(l)The wife serve a sealed copy of these Orders on the Trustee by ordinary post following the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Clements & Parris is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6694 of 2014
| MR CLEMENTS |
Applicant
And
| MS PARRIS |
Respondent
REASONS FOR JUDGMENT
The parties cannot agree on property adjustment and parenting issues for the two children X (known as X) born (omitted) 2003, aged 12 and Y (known as Y) born (omitted) 2008, aged seven.
The parties were married in (omitted) 2001 and separated in July 2014.
Issues arising shortly after separation
In the time leading up to the parties’ separation, the parties and the children lived in a property owned by the husband’s father. The husband asked the wife to leave. There is a dispute between the parties as to whether or not the husband locked the wife out of the house and did not allow her to retrieve her personal property. The husband says his father changed the locks after the wife moved out and had taken her belongings. The wife says she had not moved out but had gone away for the weekend. The husband could have asked his father not to do it. In my view it does not matter whether it was the husband or the husband’s father who changed the locks.
The wife complains that she was not able to obtain all her belongings. She tendered Exhibit A, which were photographs of the parties’ belongings on the nature strip outside the home. The husband conceded that he did send the wife a text about a week after he required her to move out saying that he would throw out her belongings. The wife says she was distressed when she saw some of her belongings on the nature strip along with other household belongings when she was driving by. The husband did not tell her that he put items out on the nature strip because she had taken what she wanted from the house. She stopped and took away a box. The wife said that included in the box of belongings she found on the street were personal documents and also photos of the children. They were bundled up with other items of hers. She says she used to do scrapbooking. I prefer the wife’s evidence to the husband’s on these issues.
The husband was cross-examined about an email he sent to the wife shortly after separation. In that email he refers to making a massive mistake and he feels terrible about his actions. He then refers to the actions of his parents. He says he does not excuse what they did but asks her to put herself in his shoes. He goes on to say that he thinks the children would be better living with him as he is close to the school and that she could have them on weekends. He says that he was not willing to pay for outside of school care. It shows a lack of insight on the husband’s part. He was not seriously able to suggest that the wife was not the one who carried out most of the care for the children, with his assistance when he was not at work. The only reason why he is close to the children’s schools is because he forced the wife to move out. There is no consideration by him of the effect on the children of his proposal.
The husband says that he was apologising for pulling the wife’s hair and was not referring to the incident where the wife alleges he assaulted her. He says by writing the email, he was leaving the door open for the wife. The email does not read that way.
The husband did not call either of his parents to give evidence. It is not disputed that the husband’s parents did not get on with the wife and that has been the case for many years. The only witnesses in the case were the parties and the Family Report writer.
Children’s Issues
The husband says he has a close relationship with his parents. They give him significant assistance taking the children to and from school and supervising the children until he gets home from work.
When the parties separated and the wife was locked out she moved to live with her parents. The husband moved out about a week later to live with his parents. Both parties remain living with their parents. Both intend to move into their own accommodation after these proceedings have concluded.
The husband complains that the wife lives far away from the children’s school and complains that X is often late for school. The husband did not provide evidence to support his claim. Exhibit D is a document from X’s school showing he had a 92% school attendance rate in second semester 2015. Significantly, this was tendered by the wife. If the husband was so concerned about the distance from school he could have asked his father to allow the wife and children to reside in the former matrimonial home pending property settlement. In the circumstances where she had to move with very little notice he must have known that it was likely she would move in with her parents. He would have known the distance from her parents’ house to the children’s school. Either the husband’s complaints are disingenuous or show his lack of insight.
The husband was cross-examined about paragraphs 45 and 46 of the wife’s first affidavit. In those paragraphs she alleges the husband refused to give the boys to her or let her speak to them on 13 July 2014. She says the husband told her that he was not obliged to return the children to her and that he had sought legal advice and had also spoken to the police. He said he would return the children to her on 19 July 2014 at soccer. The husband said he could not recall those conversations or seeking advice from the police. These events only took place 15 months ago and are significant events. One of the wife’s complaints is that the husband imposed the week about arrangement upon her. This will be discussed further.
The week about arrangement has been in place since July 2014. The husband wants this arrangement to continue. The wife does not.
X's School Books
The parties agreed initially that the husband would pay two thirds of the children’s expenses and the wife would pay one third. There is a dispute about whether this came into effect or not. The husband says that they are part of the heads of agreement the parties reached at the Conciliation Conference. The husband says that the wife resiled from that agreement. The husband says that he stopped paying his share because the wife sought a Child Support Assessment. The wife says she asked the Child Support Agency how much she would be entitled to receive. The Agency took out 2 payments from the husband’s pay. The wife did not receive those payments. The husband received them back.
This occurred in January 2015 shortly before the children were due to go back to school. The husband’s rigid attitude is demonstrated in a series of text messages annexed to the wife’s affidavit. The wife indicated that X was anxious about his first day at school and needed some books and an iPad. The wife paid for her one third share and was seeking the husband pay his. The husband told the wife not to bother him as she had asked for the Assessment. When she pointed out to him that she had paid her share he responded that it was a ‘small donation’ towards the uniform costs. The husband also says he would not contribute anything until he received confirmation that the child support was stopped. Given his superior earnings and the fact that he knew that X was anxious about starting school and not having his belongings, he could have paid for them and sought reimbursement later thereby avoiding X being distressed. That would have been a child focused decision.
Instead the husband engaged in brinkmanship and only paid it shortly before the start of the school year. This decision does not reflect well on him. The husband denies that X was stressed and claimed that the wife was overreacting. It was put to him that X was placed in an awkward position. He rejected this. He said that X knew that he would not let him down. This is inconsistent with the text messages that the husband sent. It illustrates a real lack of insight on the husband’s part and an inability to put the children’s interests first.
School Photos
There was also an incident with respect to the school photos. The husband conceded that he did not order any photos from school. The wife did. The photos were put in the children’s school bags at a time they were staying with the husband. Instead of simply sending the photos in the school bags for when the wife was due to collect the children, he texted her to ask if she wanted all or half and then complained when she did not respond. It is true that she could have responded to his text but he also could have dealt with the issue much more simply. This was unreasonable in circumstances where he did not order or pay for the photos; he should have simply returned them.
The wife was asked why she did not respond to the husband’s text message. She said that she had contacted the school about their mistake. The husband then texted her, criticising her for involving the school and said he would not return the photos. It was not unreasonable for the wife to contact the school given that she ordered and paid for the photos. This was not a basis for the husband not to return the photos to the wife.
Soccer
There was another incident surrounding X’s enrolment in soccer. What is most concerning about that incident is contained in Exhibit E. The series of text messages show that both parents involved X in the dispute over the soccer payment inappropriately. The parents need to do better at protecting the children from these issues. X should not be aware of any dispute about who pays for his soccer fees and in what proportion. The husband would not concede that he talked about this. It is clear that both parents did and it is not to either of their credit.
The wife complains that the issues around school fees and soccer are indicative of the husband’s continuing economic abuse. I would not go so far as that. Rather I think it is indicative of the parties’ poor relationship and the husband’s rigidity.
The husband tendered a bundle of text messages to show that the parties can communicate well at times. I am satisfied that that is the case. However, it is also clear that at times the parties do not communicate effectively or constructively. It is also clear from the text messages that sometimes the wife asks questions of the husband multiple times within a few minutes. She should not expect that the husband will always be looking at his phone and will respond straight away. Such bombardment will not illicit a positive response.
Mother’s Day
The husband complains about what happened on Mother’s Day weekend but this says more about his inflexibility and insensitivity than any criticism of the wife. Orders in place provide for the children to spend time with the wife from the day before Mother’s Day until the commencement of school on the following Monday. The husband says that X asked if he could stay with the husband until Sunday morning after soccer. He complains that the wife refused the request and insisted on collecting X in accordance with the Orders. The wife complains that the husband had X call her the day before Mother’s Day to tell her that she should collect him from soccer the next morning. She says that the agreement was that X would be collected from 5.00pm that afternoon. She says that X then accused her of “making it up”. The wife then says that she text messaged the husband to clarify what was happening and that the husband responded that it was X’s decision. The husband never should have put X in that position. The husband should have made it clear to X that they had agreed that it was a special weekend and that he would spend more time with the wife. It shows a lack of insight on the husband’s part that he would think it appropriate to use X as the decision-making power and have X call the wife on that point rather than taking the responsibility of the adult. It was compounded by the fact that they had agreed to Orders and the husband’s conduct is consistent with the concerns that the family consultant raises in her report and in her oral evidence.
Other evidence from the parties
The husband was cross-examined about the s.11F memorandum and the Family Report. From the way he answered those questions I am concerned that the husband is not able to speak about the wife in positive terms. The husband then suggested that he might need counselling to assist his relationship with the wife.
The husband was cross-examined about making a threat to the wife in front of the children that he would put a bomb under her car. He says that this was taken out of context. He says that he and the wife were discussing what they would do if they found out the other was having an affair. He says the wife said that she would cut his penis off. The wife denies the husband’s version of events and says that the husband was sitting in the study and that she was by the computer and he said “by the way if you ever leave, I’ll put a bomb under your car”. X was playing nearby. The husband says it was just a conversation. The wife says it was a threat. My impression is that this reflects the parties’ very differing perceptions rather than either one of them being untruthful.
The wife says that if she gains employment she will utilise before and after school care if necessary and that her parents will also assist her.
The wife was cross-examined about the incident between herself and the paternal grandmother. She says that the husband had assaulted her the day before and the situation escalated when his parents came over the next day. She says he was present during the argument. She says she told the grandmother to get out of the property and she attacked her.
She conceded that she did not have high regard for the husband. She conceded that the children have a good relationship with the husband.
The wife says that reducing the husband’s time from seven nights a fortnight to five nights a fortnight is in the children’s best interests because they were settled in her care because she is able to put conflict aside and treat both boys equally.
The husband was not able to say positive things about the wife. He says he does not know if the wife helps the boys with their homework. He complains that the boys are late to school but did not provide evidence in support of that. He also appears to accept what the children say at face value. He would not accept the wife’s evidence that the hot water system did not work for one night, preferring to believe X when he said that it was three weeks. He would not accept that X could have been exaggerating. He also says that he does not believe that X has a close relationship with his mother. The husband’s lack of insight is such that he does not appreciate that the children, in particular X, knows that he gets a good reaction from his father if he tells his father negative things about his mother.
The husband raised concerns about the wife’s mental health. He says he found a pamphlet for antidepressants close to the time of separation which caused him to be concerned about the wife’s mental health. He did not know if the wife took the medication or not. When cross-examined on the topic he said that he believed the wife had mental health issues when she was younger. He did not refer to this in his affidavit. He did not seek an Order during the course of the proceedings to have the wife assessed by a psychiatrist or psychologist yet continues to raise this as an issue of concern to him in his trial affidavit. Many people are prescribed antidepressants at some point in their lives. It is not unusual for a person to struggle with reactive depression in the period shortly after the breakdown of a relationship. That does not mean that a person’s parenting capacity is impaired.
The husband does not give any other evidence to suggest that the wife’s mental health is of real concern to him. He could not see how what he was saying was inflammatory and how this would be detrimental to his application for equal time when in order for such an arrangement to work successfully, they need to co-parent effectively. It is another example of the husband’s lack of insight.
The wife complains that the husband does not pack the boys healthy snacks in their lunchboxes. The husband denies this. This could well be the wife taking the boys at face value. What is clear is that the parties do not trust each other and struggled to see anything positive about the other. Both are willing to interpret things they hear in the most negative light. Both parents need to work on this for the children’s sake. Whatever they think of each other now, at one time they loved each other. They created two children together who they both love dearly. If they continue to give such negative messages about the other parent to their children, the children will start to think that their parents don’t love all of them because they felt such antipathy to the other parent. As the children grow older they would be aware that they are the product of both parents.
The husband says that X has expressed a strong desire to live with him and that in recent times has shown a reluctance to attend the wife’s residence. He deposes that X complains that the wife is angry and that she pays no attention to him at her home. X did not say any of these things to the family consultant. This could be seen as being supportive of the family consultant’s concerns.
The wife also complained that the husband had initially agreed to have extra time with the children when the children’s cousins were having a birthday and that the husband did not respond on that day. When cross-examined about that, the husband said that the children both changed their minds and no longer wanted to go. He said the boys had told him that they had told the wife this. This is another instance of the husband inappropriately involving the children in a dispute and undermining arrangements that had been consented to. If the parents make arrangements they both need to stick to them and not allow the children to decide whether to honour them or not. The children are not the adults. The parents should not rely on the children to relay messages to the other parent. It exposes the children directly to the conflict between their parents.
The husband complains about the lack of amenities in the wife’s home. He complains that the hot water system at the wife’s parents’ home, where she and the children are living, did not have hot water for 3 weeks. The wife said that it was only overnight. I prefer the wife’s evidence on this point. The wife intends to find alternate accommodation after the property issues are resolved. I observe again that the husband could have asked his father to allow the wife and children to stay in the home post separation if he was concerned about the quality of her accommodation.
Parties communication
The parties only communicate with each other by text. There is a final Intervention Order in place for two years which was granted after a contested hearing where the husband was cross-examined. The husband is aware that after the expiry of the Intervention Order the wife will be able to talk and agree on issues concerning the children. Whilst agreeing it was not an amicable relationship, he did not see that as stopping them from communicating. Unless there is a real change in both parties’ attitudes towards communicating with each other it is unlikely to improve. It is clear that both parties contribute to the communication difficulties at times.
The evidence also shows that at times both parties have involved the children inappropriately in what should be adult communication, although the husband has done this more often. Examples include X texting his mother about his soccer fees, X calling his mother about wanting to stay with his father until after Soccer on Mother’s Day, and the boys telling the mother that they did not want to go to their cousin’s birthday as prearranged. The husband gave some of this evidence himself. The husband and wife do not appear to appreciate how damaging this can be to the children in both short-term and long-term. The children should not know anything about any financial dispute between their parents. The children should never be used as messengers between their parents. The children are not the adults and should not be put in that position.
The parents either need to mutually agree to a change to the Orders or apply the Orders. My impression is that the wife has a greater understanding of this than the husband. It was clear from the husband’s evidence that he thinks that advising the wife of something he is going to do is the same as asking her, whereas telling her is saying that he will do it whether she wants to or not. Advising is not asking. Asking her would be putting a proposal to her giving her a chance to think about it and come back to him to discuss it. The husband’s inability to see the distinction is consistent with the wife’s complaints about the husband’s unilateral decision-making style.
S.11F Report
The parents and the children attended a Child Inclusive Conference on 19 September 2014. The family consultant, Ms D, prepared that report and noted that the parties had only recently separated so feelings of grief were acute. The wife made allegations that the relationship was characterised by family violence and emotional abuse with one instance of physical abuse in 2005. She noted that the parties have strained communication.
Ms D noted that X presented as an engaging, well-spoken and personable preadolescent who said that the week about arrangement that was currently in place worked for him and enabled him to maintain a relationship with both parents. He expressed some concern about the mother being angry. He also said that he wanted the father to take him to soccer each Saturday but otherwise wanted to maintain a week about arrangement.
Y was described as bubbly, personable and engaging. He said he was happy with each parent and enjoyed the spend time arrangements. He wished the mother lived closer to their school.
Ms D noted that the wife was emotional and was having difficulty post separation. It was recommended that she engage with a counsellor and that both parties attend a post separation parenting programme.
The wife says she saw a psychologist for around 10 sessions and that she had started seeing the psychologist before the family consultant made that recommendation in the 11F report.
Ms D recommended that the arrangements continue, with negotiations to take place in three or six months’ time when the emotional impact of the separation had settled down. The wife consented to Orders keeping that arrangement in place. The husband places much emphasis on the fact that the wife consented to these Orders. Mr Matta submitted that the wife was represented by counsel and could have objected. It needs to be seen in context of a busy duty list the fact that Ms D recommended the arrangement continue. Her recommendation that the arrangement be revisited in 3 or 6 months did not occur.
Ms M prepared a Family Report dated 12 October 2015.
The Family Report Writer
The family consultant observed the children with their parents separately and expressed concern that the husband did not seem to be able to divide the tension between the two children. X was demanding of attention and Y quietly withdrew. She observed that the husband mostly paid attention to X. She observed that the wife comfortably divided her attention between the two children.
Y told the family consultant that he was sad when his parents separated. He said that he still feels sad about that and would like his family to be nice and use “good words”.
X told the family consultant that the father told him he was to see the family consultant to talk about “how I feel about mum and dad…If you want to live with me or mum tell how you feel.” He said he had gotten used to the separation and would prefer to stay with the father on Friday nights in order to go to soccer with the father on Saturday. He said the mother could be more cooperative. The family consultant expressed the view that the children were attached to both parents but that the children presented as settled in the wife’s care and that the wife impressed as the more confident parent.
She noted that developmentally, children between 6 and 13 years can generally manage a shared parenting arrangement but that the arrangements work better when the parental relationship is characterised by respect and good communication. She expressed concern that the parents only communicated by text message and that the current arrangement did not arise following agreement but rather as a result of unilateral decisions made by the husband. She also expressed concern that X is aligned to the husband and influenced by the husband’s negativity towards the wife. She thought the wife was the parent who is best able to balance the competing needs of both children to satisfy conflict to focus on the children’s best interests.
She expressed concern about the father’s unilateral style of decision-making and noted that it may have an alienating effect on the children’s relationship with the mother. She also expressed concern about Y’s emotional needs not being met sufficiently when in the father’s care.
She said that during the observation of the husband and the children, X had a competitive relationship with Y and resulted in Y being excluded. She thought that the husband would benefit from educational counselling support with regard to his parenting.
She did not recommend the current arrangements continue and recommended that the husband spend time with the children every second weekend from Friday after school to Monday before school and each Wednesday from after school until before school Thursday, the school holidays shared.
She recommended that if the Court finds the current arrangement should be continued, that the current handovers be changed from Friday to Sunday.
Cross-examination of the Family Report writer
The hearing had to be postponed part-heard on a couple of occasions because the Family Report writer was seriously unwell for several months. This is not a criticism of her but on the previous occasions when she appeared in Court and when she was cross-examined she was defensive and at times aggressive. The Family Report writer was cross-examined in an appropriate manner so her reaction is hard to understand. In this instance despite this, the views she expressed in the concerns that she had about the husband mirror my own concerns which I formed during the husband’s cross-examination prior to the Family Report writer giving evidence.
The Family Report writer identified all areas of concern that results in her recommendation that the husband’s time be reduced. She made it clear that all of these issues together led to her recommendation. Those are:
a)The parties limited communication;
b)The husband unilaterally imposing a shared care arrangement rather than it being by agreement;
c)The husband being unable to devise his time consistently between the two children; and
d)The husband’s influence on children.
Turning to each of these issues, I have already discussed the parties’ communication at some length. Referring to the incident with X’s school books she said the issue of concern to her was not who was right or wrong in the argument but the fact that a child entering high school did not have his books until the last minute. It does not matter who was at fault. It is the lack of communication between the parents that is of concern.
The Family Report writer when cross-examined said that the husband told her that he put the shared care arrangement in place. He said it was just done and he did not have a conversation with the wife. She said the husband told her this directly. The Family Report writer had her notes and report with her in the witness box. She said that she has concerns about the husband being controlling and says she found that the wife presents as being timid. Both of them told her that the arrangement was not agreed to, but just imposed upon the wife.
The husband disagreed with the Family Report writer’s characterisation of his interactions with the children during the observed session and addresses this in his affidavit. She was taken to the heart of the husband’s affidavit and referred to her notes which were clearly detailed. Her notes recorded that X was chatting with his father and that Y was quiet. Y tried to join in the conversation but was left out so he fiddled with the complex puzzle she has in her office. They tried to work on the puzzle and Y tried to take the lead but X took over. She described more details of the observations of the interaction saying that Y was sitting looking on at X and the father. She noted that X was far more controlling and competitive than when the children were with their mother. She says that X interacted very differently with Y when with their mother and was operative and helping his younger brother but in his father’s care he was far more competitive.
The Family Report writer says that that the observation generally provides a good snapshot of what is happening at home.
She then turned to the husband’s unilateral style of decision-making which she says can have an alienating effect. She said the reference X made that his mother could be more cooperative was a direct quote from him during their individual session. She was asked if X told her that his father told him to say that. She replied that her concern was that X told her that he was spoken to by his father prior to the session. She thought that it was not an observation a 12-year-old would ordinarily make and what X said he had observed was that his parents did not speak to each other. X also told her that his father told him to tell her if he wanted to live with him and to tell her how he felt. She said that the reference to the mother being more cooperative was not language that a 12-year-old would use and that she thought that was a product of the father’s parental influence. She said she did not ask him if the father told him to say that because if children are not too pressured they will blurt things out. She said it is not good for children to ask them who told them what to say. I accept her evidence that this is not a concept that would come up with X on his own.
With respect to Y she said that she was concerned that Y is not having his emotional needs met in the father’s household and that the father was more indulgent with and tended to focus on X. It was put to her that snapshot is limited and is not necessarily translated to the children’s relationship with their father generally. Her answer to that was that why would he leave his parenting skills behind for that session when he realises how important the session is. She says the reality is that that’s how he parents.
She did make positive observations of the husband’s parenting skills, including that he used language that was appropriate to the children’s development and he was very good with X.
She said reducing the husband’s time with the children is in their best interests because the wife is better able to balance the parenting and manage the children. The children interacted very happily with her and were cooperative and X interacted positively with Y rather than pushing him aside and competing with him. She said when there is poor parental communication it is better for the children to spend more time in the home that is routinely managed by one parent. Given her concerns about husband, it is more important for the children to spend more time in the wife’s home so that they do not risk losing the relationship with their mother.
The arrangement for the children to spend time with the husband for 5 nights a fortnight rather than 7 is a starting point. She said that if the issues remain problematic then the time should be further reduced. It is a delicate balancing.
The consultant said that the husband’s attitude is that if the wife doesn’t agree with him she is not being cooperative. But that is consistent with my own observations of him giving evidence. Text messages are fine for communicating about minor issues but not major issues including social behaviours that can arise with teenagers. She thinks the parties will struggle with the issue of communication. The wife’s counsel put to the family consultant that the husband’s view is that X is old enough to decide how much time he should spend with his mother. She disagreed with that and said that her overall perception based on interviews and the materials was that X has been influenced by his father. She feels that the husband’s insight is really poor and that it is not right to put this kind of decision-making on children. She observed X as always trying to attract his father’s attention and please him in contrast to his interactions with the mother.
She was then asked to comment on the concerns that the husband raised in his affidavit. They did not change her opinion. She does not think that the husband is aware of the limitations and thinks that he is doing good job. She says that he would benefit from educational counselling or a program teaching some practical parenting tips.
In the penultimate paragraph of the s.11F memorandum she referred to the possibility of the children becoming aligned with one parent. The Family Report writer says those concerns have come to pass.
Legal Principles and their application to children’s issues
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford and Waterford [2013] FamCA 33, Mazorski and Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount. There are no issues of family violence in this case.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR and GR [2010] HCA 4, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. At paragraph [13] of the judgment the High Court said:
“Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
The parties seek an Order that they have equal shared parental responsibility for the children. Despite the Intervention Order and the difficult relationship between the parties, I find that it is in the children’s best interests for the parents to share parental responsibility equally as it is important for the children that both parents have input into the major decisions affecting the children’s care, welfare and development given that both parents have been actively involved in the children’s lives and will remain so.
Both children have a meaningful relationship with their parents and this will continue.
The wife says that the husband was violent during the relationship including occasions of physical violence but also in a controlling and domineering way. The wife says the husband’s mother strangled her the day after the husband assaulted her. It escalated when his parents came to the property arguing. This happened years ago. It is clear that the wife found the husband and his parents difficult to deal with.
This case does not turn on the children’s views. I find that the children have close and loving relationships with both parents. X and the father share a passion for soccer. One matter I contemplated was whether or not during soccer season the handover should take place at soccer on Saturdays rather than Friday night. That would be X’s preference. On balance I have decided not to do that. The wife says that she will take X to his soccer games. It will be beneficial for X to see his mother take an interest in that as well.
In addition to their close relationship with their parents, both children currently live in their grandparent’s homes. I do not have any evidence from any of the grandparents. There is no reason to think that the children do not have a close and loving relationship with them as well.
Both parents have taken up the opportunities to spend time with the children and to participate in decision-making about the children’s long-term welfare. The issue is their different communication and decision-making styles.
The husband has re-partnered. The partner was not interviewed by the Family Report writer and should not be a criticism as they are not yet living together. The husband says that they intend to live together and that will be another significant change for the children.
Neither parent raises any issue of practical difficulty and expense of the children spending time with the other parent. Both intend to move into independent accommodation after the property Orders are implemented. The wife intends to move closer to the children’s schools.
Neither parent raises any cultural issue.
Both parties are able to provide for the children’s physical needs and have done so. Apart from the concerns about the husband’s unilateral decision-making style and lack of insight, which have been addressed above, there are no other concerns about either parents’ capacity to provide for the children’s emotional and psychological needs.
During closing submissions the husband’s counsel invited the Court to order the husband to attend the counselling and the parenting course recommended by the family consultant. The husband completed a post separation parenting course in 2014. The husband has been aware of the family consultant’s concerns for a long time. Ordering the husband to undertake that action now is not going to advance the matters. The Court cannot give the husband insight. If the husband genuinely wants to address the concerns raised he does not need a Court Order to do it.
As I have decided that it is in the children’s best interests of the parents to share equal parental responsibility I must turn to the requirements of s.65DAA. Whilst the parents live relatively close to each other there are real concerns about the parents’ current and future capacity to communicate with each other and resolve difficulties that would arise in a shared care arrangement. These issues have been addressed in detail above. I am not satisfied that it would be in the children’s best interests to continue the equal time arrangement. The Orders that I will make will reduce the husband’s time from seven nights a fortnight to five nights a fortnight but still provides that the husband spend substantial and significant time with the children.
Property
Both parties seek “an equalisation” of the parties’ superannuation entitlements. That of course, is not a form of Order that the Court can make. The lawyers have subsequently prepared a Superannuation Splitting Order and afford the superannuation trustee procedural fairness. The wife seeks 60% of the net proceeds of sale and the children’s education fund. The husband seeks 65% of the net proceeds of sale. He seeks an Order that the education fund be excluded from the pool and that the parties use that for the children’s education. As I indicated during submissions when this was raised, I do not think that is a viable option given the lack of communication and cooperation between the parents. Furthermore, the pool is modest. If it was agreed that the funds should be quarantined in this way that would be one thing, but there is no agreement. It was not the subject of cross-examination. I find it should be included and divided in the same proportion as the net proceeds of sale. The husband’s Orders include an Order that the wife undertake a psychiatric assessment to be used as evidence in these proceedings. Clearly that is not a final Order.
The husband has re-partnered. He gave evidence that they intend to move in together after the property settlement. He says his partner is unemployed. She worked in the (omitted) industry. He says he will look for property in the same area near the children’s school.
The husband works for (employer omitted) and his hours are 9.00am to 5.00pm. He often gets home before 5.00pm and only gets home at 5.30pm rarely.
The former matrimonial home is located at Property S. The property was vacant for 10 months after separation before the husband’s father sold the property. The husband says he moved out of the property a week after the wife moved in with her parents. The husband says his father did not want the wife to live there as she was behind with the rent. Given the parties were married it seems erroneous to refer to her owing half the rent. It is more likely that the paternal grandparents felt such hostility towards the wife that they did not want her to remain in the home after the separation.
The parties agree that the legal and equitable interests to be adjusted are as follows:
Proceeds of sale of Property L $378,004.40
(omitted) vehicle (husband) $14,000
(omitted) BMW (wife) $14,000
Education fund for children $17,654
Loan on BMW $(18,856)
$404,802.40
(omitted) superannuation (husband) $80,355
(omitted) Super (wife) $37,140
$117,495
The parties owned an investment property at Property L. The parties sold that property. The proceeds of sale have not yet been divided.
Legal Principles with respect to property
Part VIII of the Family Law Act is the part of the Act dealing with property, spousal maintenance and maintenance agreement. The major provisions relating to marital property division are contained in ss.79(1); 79(2); 79(4); & 75(2) of the Act.
Pursuant to s.79(1) the Court is authorised to make such Order as it considers appropriate in order to alter the interest of the parties to a marriage in relevant property.
The expression “property” is defined in s.4(1) in relation to the parties to a marriage or either of them as meaning “…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”
Pursuant to s.79(2) the Court is actively prevented from making such an Order unless it is satisfied that it is just and equitable to do so in all of the circumstances prevailing. This follows from the use of the prohibitory words “shall not” in the relevant section.
Section 79(4) provides the mechanics of how a Court is to make an Order altering marital property interests.
Paragraphs (a), (b) and (c) categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the Court to take into account any Order regarding the earning capacity of either party to the marriage concerned.
Paragraph (e) directs the Court to consider a list of matters contained in s.75(2), which are germane to spousal maintenance or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs. Finally, paragraphs (f) and (g) apply to child support and previously made parenting Orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
Until the decision of Stanford& Stanford [2012] HCA 52, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78, 386 [39].
The High Court has recently considered the operation of s.79 in the matter of Stanford & Stanford. In the case, the majority stated at [35]-[36] that:
“It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
a)Firstly, in order to ascertain whether it is just and equitable to make a property settlement Order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing.’
b)Secondly, although s.79 gives the Court a broad power to make property settlement Orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
c)Thirdly, when considering whether making a property settlement Order is just and equitable the Court must not assume that one or the other party has the right to a property adjustment Order. The Court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
In Stanford & Stanford, the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation.
The High Court also pointed out that what is just and equitable is different in every case.
Initial contributions
In mid-2000, the husband purchased a property at Property S. He says he purchased the property at $113,500 and that he borrowed the whole amount. He does not provide any evidence as to the purchase price. He annexed a loan contract with the (omitted) Bank to his trial affidavit. The contract shows the husband and wife as the mortgagors. The contract refers to the disclosure date as 3 October 2001. He annexed a valuation that was obtained by the bank when he refinanced the property in October 2001 that values the property at $190,000. There is some comparative sales evidence. The husband says he attempted to find the valuer so that the valuer could give evidence. The husband seeks to rely on the exception to the hearsay rule and s.67 of the Evidence Act 1995 (Cth) which addresses the situation of when the maker is not available to be cross-examined. Usually a party seeking to rely on s.67 is required to give notice to the other party. The Court does have a discretion to dispense with the requirement for notice. Counsel for the husband said he relied on s.67 and that it would be a matter of weight.
One of the leading experts on evidence, Stephen Odgers S.C. states that it can be argued that service of an affidavit containing all the information required in a formal notice may be sufficient.[1] In his affidavit sworn on 30 October 2015, the husband says he intended on having the valuer swear an affidavit annexing the valuation but was having trouble locating the valuer as he is no longer at the same firm. Whilst not explicit, it is clear that the husband wanted to rely on the valuation. It is not surprising that he was having some difficulty locating the valuer given the valuation is over 14 years old. I will dispense with the requirement for notice and allow the husband to rely on it.
[1] See Stephen Odgers, Uniform Evidence Law, 11th Edition, (Thomson Reuters 2014) at 1.3.2440.
That is a significant increase in value over the course of 15 months. It is clear from the last page of the valuation that the painting work inside and outside of the home had been done as well as the landscaping. The husband was incorrect when he says in his affidavit that the valuation was done at the date of marriage on (omitted) 2001. It was three months later and after some improvements had been carried out on the property. Given the significant increase in value in a short time period it is reasonable to surmise, particularly in the absence of the availability of the valuer to give evidence, that part of that increase was due to the improvements carried out on the property.
Interestingly, under the heading with analysis on the first page of the valuation there is a risk of rating numbered 1 to 5. The property scores a risk rating of three or four with respect to local economy impact and market segment conditions. It scores a rating of four for market volatility. The number five is the highest risk rating. The last page indicates “the current market is buoyant with many sale prices exceeding event or expectation”. That provides at least part of the explanation for the increase in value.
The husband conceded that the wife did come over to the property “once a week if that” before they married. He says she only helped with the landscaping and painting the feature wall. The wife says she visited the property a couple of times a week. I accept that the wife contributed to the improvement to the property assisting the husband. The husband says he obtained a quote for renovations of $90,000. He did not have any evidence of that and did not provide any detail of what the quote was based on. It did not advance the husband’s case particularly as the property was sold in an unfinished state. Both parties made contributions to the improvement of properties during the relationship which included the wife assisting the husband and also looking after the children enabling him to work on the property.
It is also wrong at law to look at the equity of the property at the commencement of the relationship and say that it represents 20% of the current pool. That is not what the authorities require.
The parties met in May 2000. The wife says she contributed to improvements to the property before they married. She says she stayed there most weekends. The husband denies that she stayed there that frequently. The husband concedes that she did the landscaping of the garden but denies that she made any other contributions. He later said she did stay over once or twice a week before they married.
In Pierce v Pierce (1998) FLC 92-844 at paragraph 28, the Full Court said:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.”
In Williams & Williams [2007] FamCA 313, the Full Court states at paragraph 26:
“We think there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.”
Certainly the husband’s initial contribution acted as a springboard and that needs to be recognised.
Contributions
The parties married in 2001 and separated in 2014.
Both worked full time until shortly before X was born. The wife took maternity leave. She did not return to work for 4 years.
During the early years of the marriage the husband worked as a (occupation omitted) before obtaining work as a (occupation omitted). When working as a (occupation omitted) he left home at about 6.00am and worked from 7:30am until 3:30pm. The husband says that he has only been required to work overtime once every eight weeks on average in the past five years and that he is rarely required to travel outside Melbourne. The wife looked after the children.
The parties sold Property S in 2010 and bought a block of land at Property M. They moved into the property owned by the husband’s parents at Property S.
The wife returned to work part-time in March 2013. The wife worked part-time at (employer omitted) before Y was born. The husband had to concede that the wife did a greater amount of child care given his full-time work, although he assisted when not at work. The wife also performed the housework and prepared meals. When the wife returned to full-time work in September 2013 the parties shared ferrying the children to and from school.
The parties sold the Property M property in 2013 and bought the property in Property L. They had intended that property to be their home but they never lived in it. The husband says he did a lot of renovating to that home. He claims that it would have cost $90,000 for a builder to do it all but he did not obtain any evidence about that. He conceded that the wife did some painting and that she was either helping or looking after the children when he was working on the property. The property was sold in an unfinished state after the parties separated.
The wife was made redundant in December 2014. She says she applied for numerous full-time and part-time roles and has not been able to find employment. She annexes various online job application submissions which do not show details of the applications but show that she has made applications for employment consistently from February 2015. The husband says that the wife is deliberately not accepting the work so as to get an advantage in the proceedings. He says the children told him that she had not accepted a job. He did not give any details about the things that the children are alleged to have said. I do not accept the husband’s evidence on this point.
The wife says that the husband was domineering and controlling throughout the relationship. She says that on 11 January 2005, the Magistrates Court of Victoria granted her an Intervention Order protecting her from the husband’s mother after she tried to strangle the wife when she was holding X in her arms. X was 19 months old at the time.
She says that X was traumatised by that and had nightmares and bedwetting issues up until he was 7 years of age. She says that Y has nightmares about monsters and is unsettled. In cross examination she conceded these were not about the husband.
I am satisfied that both made contributions throughout the marriage to the best of their abilities. I find that apart from the husband’s initial contribution, the parties’ contributions were equal. I find that the husband should receive a 5% loading for his initial contributions.
In the husband’s case outline he submits that he made the greater financial contributions and non-financial contributions due to the renovations that he did and that the parties made equal contributions in relation to parenting. The evidence does not support his contentions.
Section 75(2) factors
The parties are of similar age and neither raise any health issues.
Both parties currently live with their parents, though they do not intend for this to be permanent.
The husband does not pay child support. There is no assessment in place. The parties have been contributing to the children’s expenses informally but it is one of the sources of tension.
It is clear from the parties’ tax assessments for the past three years which were tendered as Exhibit F, that the husband has consistently earned more than the wife. This is likely to remain the position. I do not accept the husband’s argument that the wife is deliberately not taking up employment in order to receive a greater share of the property. The wife says she is required by Centrelink to apply for several jobs each month and that she has had interviews. The wife agreed that if she worked full-time she could earn between $50,000 and $60,000. At the time of the first day of the hearing she was unemployed. When the hearing resumed on 20 June 2016 she had found part time work. If she was working full time she would be earning $52,000. She was unemployed from 2015 until April 2016. The husband is earning $76,000. Whilst not huge there is an income disparity between the parties that requires an adjustment.
It is also important to note that the size of the pool is modest.
Pursuant to these Orders the wife will have the care of the children for more of the time during school terms than the husband. This also requires an adjustment.
I find that that the wife should receive an adjustment of 8% for the s.75(2) factors.
Conclusion
The husband appears to be a rigid man who had difficulty in making concessions in the witness box. When their evidence was conflicting, I prefer the wife’s evidence. During the cross-examination of the husband, after being questioned about events which took place in July 2014 he said he could not recall. This was a significant period in the parties’ lives shortly after separation. There were other occasions when the husband said he could not recall. I find he was being evasive about those points.
Both parties need to work on being able to communicate constructively. This will benefit the children enormously.
I am satisfied that it is in the children’s best interest to change the current term time arrangements. To their credit the parties agreed on the holiday arrangements.
I am also satisfied that it is just and equitable to make Orders for a property adjustment Order and that the Orders I will make are just and equitable.
I certify that the preceding one-hundred-thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 18 July 2016
Key Legal Topics
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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