Clements & Clements
[2017] FCCA 1609
•10 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLEMENTS & CLEMENTS & ANOR | [2017] FCCA 1609 |
| Catchwords: FAMILY LAW – Parenting – Husband’s capacity – Wife’s attitude to Child’s relationship with the Husband – family violence – time to gradually increase – property – short relationship – 3 years since separation – debt to Husband’s father upheld – waste – superannuation splitting order – Wife’s application spouse maintenance dismissed. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61DA, 65DAC, 72, 74, 75, 79 |
| Cases cited: AF Petersens (1981) FLC 01-095 Bevan & Bevan [2013] FamCAFC 116 Bevan (1995) FLC 92-600 Pierce & Pierce(1999) FLC 92-844 at 85,881 Sippel & Sippel [2004] FamCA 201 Stanford & Stanford [2012] HCA 52 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 |
| Applicant: | MR CLEMENTS |
| First Respondent: | MS CLEMENTS |
| Second Respondent: | MR D CLEMENTS |
| File Number: | SYC 6421 of 2013 |
| Judgment of: | Judge Sexton |
| Hearing dates: | 19, 20 and 21 October 2015 and 18, 19 and 22 August 2016 |
| Date of Last Submission: | 27 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Longworth |
| Solicitors for the Applicant: | Doolan Wagner Family Lawyers |
| Solicitors for the First Respondent: | Browns The Family Lawyers |
| Counsel for the Second Respondent: | Mr J. Levy |
| Solicitors for the Second Respondent: | Yuill Lawyers |
ON 22 AUGUST 2016, THE COURT MADE FINAL ORDERS BY CONSENT AS FOLLOWS:
The parties have equal shared parental responsibility for the X born (omittied) 2012.
The parents will both be entitled to attend all events involving the child including:
(a)Sporting fixtures;
(b)Extra-curricular activities that allow for parental attendance;
(c)School and pre-school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions;
(d)And the parent who has the child in their care on the day of such activity will be responsible for their day to day care at such event and the child’s transportation to and from that event.
For the purposes of changeovers:
(a)Until the child attends school:
(i)The father will collect the child from the mother’s residence prior to his commencement of time with the child and the mother will collect the child from the father’s residence at the conclusion of his time with her.
(b)Once the child attends school:
(i)The father shall collect the child from school or deliver her to school whenever a period in which he spends time with X starts or finishes on a school day;
(ii)Otherwise, the father will collect the child from the mother’s residence prior to his commencement of time with the child and the mother will collect the child from the father’s residence at the conclusion of his time with her.
The mother shall ensure that the father is kept informed of:
(a)any medical problems or illnesses suffered by the child while in the mother’s care;
(b)any medication that has been prescribed for the child;
(c)any major social, school or religious functions which the child is to attend;
(d)the residential address of the mother and particulars of the others who may reside with the child;
(e)any other matter relevant to the child’s welfare.
The father shall ensure that the mother is kept informed of:
(a)any medical problems or illnesses suffered by the child while in the father’s care;
(b)any medication that has been prescribed for the child;
(c)any major social, school or religious functions which the child is to attend;
(d)the residential address of the father and particulars of the others who may reside with the child;
(e)any other matter relevant to the child’s welfare.
For the purposes of communicating information between the parties the mother and the father shall communicate by telephone matters of an urgent nature and otherwise communicate by telephone message or text message or email about day to day matters including arrangements for each party to spend time with the child.
Each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
Each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven days of such change occurring.
Neither party will make any appointment for the child to be attended by a specialist medical practitioner, psychologist, psychiatrist, counsellor or therapist without first consulting the other parent. Should an appointment need to be made for the child to see any such practitioner, then each parent shall give the other parent reasonable advanced notice of the appointed date.
Each parent do all acts and things to ensure that the other parent is provided with all reports by any such consultant.
Within 14 days of these orders and within 14 days of the child’s subsequent enrolment at any pre-school or school each parent do all acts and things and give all authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the other parent copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.
During any period referred to in these orders, in the event of the child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
Both parties do all things to continue the current course being the “Keeping in Contact” program with Unifam for as long as recommended to do so by the convenors of the program.
AND THE COURT FURTHER ORDERS:
X live with the Wife.
X spend time with the Husband as follows:
(a)Until the first weekend in November 2017:
(i)For the first 3 of every 4 weekends in a 4 weekly cycle commencing the first weekend after the making of these orders, from 9.30 a.m. Saturday until 2 p.m. Sunday.
(ii)Each Tuesday from 5.30 p.m. to 7 p.m. or an alternate afternoon if agreed by the parties in writing.
(b)From Christmas Day 2017 at 2 p.m. until Boxing Day at 5.30p.m.
(c)From the first weekend in November 2017:
(i)Each alternate weekend from after school (or 3 p.m. until she starts school) Friday until 5.30 p.m Sunday; and
(ii)Each alternate Tuesday from after school (or 3p.m. until she starts school) until 7 p.m., with the exception of the first Tuesday in January 2018 when time will be suspended.
(d)From the first term school holidays in 2018, weekend time be suspended during all school holiday periods.
(e)From the commencement of 3rd term in 2019:
(i)Each alternate weekend from after school Friday until 5.30 p.m. Sunday; and
(ii)Each alternate Tuesday from after school or 3p.m. (if a non-school day) until before school on Wednesday.
(f)From the commencement of first term in 2020:
(i)Each alternate weekend from after school Friday until before school Monday; and
(ii)Each alternate Tuesday from after school until before school on Wednesday.
(g)During the short school holidays (Terms 1, 2 and 3):
(i)From 9.30 a.m. on the first Saturday until 9 a.m. on the first Wednesday morning (4 consecutive nights) in 2018;
(ii)From 9.30 a.m. on the first Saturday until 9 a.m. on the first Thursday morning (5 consecutive nights) in 2019;
(iii)For half the holidays, commencing in 2020 being the first half in even years and second half in odd years unless otherwise agreed in writing, from either 9.30 a.m. Saturday to midday on the second Sunday, or from midday on the second Sunday to the following Sunday at 5.30 p.m. (or Monday if a pupil free day or holiday).
(h)During the Christmas school holidays:
(i)For two non-consecutive blocks of 5 nights and a weekend of 3 nights at time to be agreed and failing agreement from Boxing Day for 5 nights; from the second Saturday in January for 5 nights and for the weekend immediately before the last weekend of the school holidays for 3 nights in 2018/19.
(ii)For two non-consecutive blocks of 7 nights and a weekend of 3 nights at time to be agreed and failing agreement from Boxing Day for 7 nights; from the second Saturday in January for 7 nights and for the weekend immediately before the last weekend of the school holidays for 3 nights in 2019/20.
(iii)For half the holiday period, being the first half in 2020/21 and alternate years thereafter and being the second half in 2021/22 and alternate years thereafter, unless otherwise agreed.
(i)Notwithstanding any other order:
(i)From Christmas Eve at 9.30a.m. until 2 p.m. Christmas Day in 2018 and all even years thereafter and from 2 p.m. Christmas Day until 5.30p.m. Boxing Day in all odd years.
(ii) From 9.30 a.m. until 5.30p.m. on Father’s Day.
(iii)From 2 p.m. on Easter Sunday until 5.30 p.m. on Easter Monday in 2018 and all even years, and from 9.30 a.m. on Easter Saturday until 2 p.m. on Easter Sunday in 2019 and all odd years thereafter.
(iv)From 5.30 p.m. until 7 p.m. on X’s birthday if a weekday and from 2 p.m. until 6 p.m. on a weekend day if X is not in his care.
(j)At any alternate time or additional time by agreement in writing, in particular, if a special family event falls outside the time arrangements.
Notwithstanding any other order, X spend the following times with the Wife:
(a)On Mother’s Day from 9.30 a.m. until 5.30p.m
(b)On X’s birthday from 2 p.m. until 6 p.m. if on a weekend day and X is not in her care.
AND IT IS NOTED that the Husband agrees that if X becomes highly distressed whilst in the Husband’s care and he is unable to settle her, he will contact the Wife and if necessary, return X to the Wife.
Each party be at liberty to telephone X on any two occasions each week when in the other party’s care and each party facilitate X telephoning the other party at any reasonable time upon her request.
Each party conduct changeovers personally or nominate another adult familiar to X to conduct changeover.
For a period of 2 years:
(a)Within 24 hours following any time event where X has spent weekend time with the Husband, the Husband shall send the Wife a brief email communicating how X had been over that event and any issues which arose.
(b)In the 24 hours preceding any time event where X is to spend weekend time with the Husband, the Wife shall send the Husband a brief email communicating how X had been since X last saw the Husband.
The Husband be restrained from exceeding the legal limit for alcohol consumption (in relation to driving a motor vehicle) at any time X is in his care.
Each party have leave to show a copy of these orders and Reasons for Judgment to his/her therapist.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Within 7 days, the parties do all acts and things, sign all documents and give all directions and authorities necessary to cause the whole of the monies held in the Yuill Lawyers Controlled Monies Account being Westpac Business Cash Reserve Account No. (omitted) to be paid to the Second Respondent.
Within 7 days, the parties do all acts and things, sign all documents and give all directions and authorities necessary to cause the whole of the monies held in the trust account of Michael Brown Family Law (the Wife’s solicitor) to be paid to the Second Respondent.
Except as otherwise provided in these orders, the Husband and the Wife be solely entitled to the exclusion of the other to all other real and personal property of whatsoever nature and kind in the possession, custody and control of each of the parties as at the date of these Orders.
Except as otherwise provided in these orders, the Husband and the Wife remain liable for any debts, howsoever arising, in their own name at the date of these Orders and in this respect shall indemnify, keep indemnified and hold harmless the other from any liability in relation thereto.
In the event the Husband or the Wife refuses or neglects to comply with any of the Orders herein, the Registrar of the Federal Circuit Court at its Sydney Registry be appointed pursuant to section 106A of the Act to execute, in the name of the Husband or the Wife as the case may be, all deeds and instruments necessary to give effect to the orders herein, or any of them, and do all acts and things necessary to give validity and operation to the said deeds and instruments.
The Husband’s solicitor forthwith draft a superannuation splitting order in favour of the Wife from the Husband’s Suncorp Fund in the amount of $27,284.49, and forward a copy of the proposed Order to the Trustee of the Fund for approval.
The matter be adjourned to 9.30a.m. on 22 August 2017 noting that if the Court has a copy of the minute of the proposed Order, and verification that the Fund has been afforded procedural fairness, the Order will be made in Chambers and the mention date vacated.
The Wife’s application for spouse maintenance be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Clements & Clements & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6421 of 2013
| MR CLEMENT |
Applicant
And
| MS CLEMENT |
First Respondent
| MR D CLEMENT |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The parties are in dispute as to parenting arrangements for their only child X, aged 4 and a half years at the time the trial concluded, now aged 5 years, and in relation to property settlement. The Second Respondent, the Husband’s father, seeks repayment of a debt alleged to be owed to him by the spouse parties, before the balance of the net assets is distributed between the spouse parties.
The parties separated when X was 16 months of age. X remained living with the Wife in the matrimonial home, a property owned by the Husband in (town omitted), and when it was sold approximately 18 months later, she and X moved to her parents’ residence in (town omitted). The Husband moved to his parents’ home on the (area omitted) until October 2014. He now lives independently in a unit in (omitted). The parties agree that X will live primarily with the Wife. Interim parenting orders were first made by the Court in April 2014 in relation to X’s time with the Husband, and have been varied since.
It is the Husband’s case that the Wife has obstructed X’s relationship with him to X’s detriment, by denying him the opportunity to spend more than limited time with her. It is the Wife’s case that as a result of the Husband’s limited parenting capacity, and his past behaviours involving excessive alcohol use and violence, X’s time with the Husband should increase very gradually.
When the hearing concluded in August 2016, X was spending twice weekly daytime periods with the Husband but no overnight time. In October 2015, interim orders had been made by consent providing for X to spend increased time with the Husband including overnight time, however, with the exception of one night in February 2016, the parties did not comply with the order for regular overnights due to have started in May 2016.
The questions for determination on the parenting issues concern how much time X ultimately spends with the Husband, and the rate of progression to that final arrangement.
The Husband was represented by Mr Longworth and the Second Respondent by Mr Levy of counsel. The Wife was represented by her solicitor, Mr Brown. Ms LL, a Regulation 7 Family Consultant, prepared a report for the Court.
The trial required 6 days of evidence, (3 days in October 2015, and a further 3 days in August 2016) and further time for written submissions, despite the Court (the matter was before me for the first time) inquiring as to the anticipated length of hearing, and being assured by the parties’ legal representatives, 10 months in advance of the hearing, that the matter would be contained to 3 days. When the matter was listed for hearing, the Court noted that the property aspect of the matter would not commence until the third day of hearing, and the parties’ solicitors advised the Court that the only issue in relation to the property aspect concerned the nature of advances made by the Husband’s father and the extent to which those advances have been repaid. None of the legal representatives notified the Court in that 10 month period that 3 days was a substantial underestimate. Final written submissions were filed by 27 October 2016.
Background facts
The parties commenced cohabitation on (omitted) 2009, married on (omitted) 2010 and separated on 23 July 2013. X was born on (omitted) 2012.
The Husband, now aged 36 years, is employed full time as an (occupation omitted) with (employer omitted). He lives in a 2 bedroom unit in (omitted). By August 2016, he had commenced a relationship with ‘Ms M’ whom he had known for 18 months. Ms M has a daughter W, slightly older than X. The Husband does not live with Ms M and W, but some of X’s time with the Husband has been spent in their company.
The Wife, now aged 38 years, lives in (town omitted) with X, her parents and two of her three brothers. The Wife worked as an (occupation omitted) with (employer omitted) before taking maternity leave on 1 February 2012. She was made redundant in January 2013 and has not returned to the paid work force since. She is at home full time, as are her parents who have both retired. She relies on Centrelink payments and child support from the Husband for hers and X’s financial support.
X commenced preschool at (omitted) Preschool on Thursdays and Fridays in early 2016, and according to the evidence would be attending 3 days a week this year. She will start school in 2018.
Litigation history
The Husband commenced proceedings for parenting and property orders by application filed on 1 November 2013.
The Wife filed a Response on 23 January 2014 seeking parenting, property and spouse maintenance Orders.
On 28 January 2014, the matter was before Her Honour Walker J and listed for interim hearing on parenting issues, and referred to a conciliation conference in relation to property.
On 11 April 2014, the court made interim parenting orders providing for X to spend time with the Husband for one period of 3 hours each weekend, and one period of one hour each Tuesday evening, unsupervised. The Husband was ordered to undertake CDT tests for alleged excessive alcohol use. The parties complied with those orders.
On 17 July 2014, the Court made further interim parenting orders providing for an increase in time by 30 minutes on Tuesdays and Sundays, and ordered a family report.
On 24 December 2014, the Court named the Husband’s father as the Second Respondent and made interim property orders by consent providing for the Husband to pay the Wife $30,000, for the Wife to vacate the (town omitted) property, for the sale of the (town omitted) property and for disbursement of the sale proceeds, $265,000 to the Second Respondent, $20,000 each to the spouse parties, $155,000 to a Controlled Monies Account established by the Second Respondent’s solicitor, and the balance to be held in trust for the spouse parties.
On 21 January 2015, the Family Report was released to the parties.
On 28 January 2015, the matter came before me for the first time. The Court made further interim orders increasing X’s weekend time with the Husband to a period of 5 hours on condition that X have her lunchtime sleep. The parties complied with those orders. The Court made trial directions and listed the matter for 3 days in October 2015.
On 22 October 2015, the Court adjourned the hearing part heard to 7 March 2016, but those dates were subsequently vacated and the matter listed in August 2016. Interim parenting orders were made by consent in October 2015 for X to live with the Wife, for the parties to have equal shared parental responsibility and for the parties to engage in the Keeping Contact programme. Interim orders were made for X to spend time with the Husband each weekend on alternate Saturdays and Sundays for 7 hours, as well as Tuesday evenings for 1.5 hours, and overnight on one Saturday night in February 2016. The orders provided for overnight time to commence on 24 May 2016 each weekend from 9.30a.m. Saturday until 9.30a.m. Sunday with Tuesday evenings to continue. Orders were made for telephone time and changeovers, and the order for monthly CDT testing continued. Apart from the single night in February 2016, the overnight time order was not complied with.
On 22 August 2016 (the final day of evidence) the Court made final orders by consent providing for equal shared parental responsibility, for the parties to be permitted to attend all events relating to X, for changeovers, for information sharing, for neither party to denigrate the other in X’s hearing, and to continue in the Keeping Contact Programme with Unifam.
X’s Care history
The Wife has been available full time to care for X since her birth, and has always been her primary carer. X was breastfed for 14 months.
The parties disagree as to the extent of the Husband’s involvement in X’s first 16 months of life, before their separation in (omitted) 2013. The Husband deposes to taking an active role in X’s care during that period. He played with X, cooked for her (once she was eating solid food), bathed her and sang to her as part of her bedtime routine. He took X for walks around the garden, touching the leaves and grass, played with her on the floor, encouraged her developmental milestones, and from 6 months or so, took her to the beach to introduce her to the water, played hide and seek with her, with her toys, dolls and trike. The Husband attended her immunisation appointments with the Wife. The Husband deposes to sharing X’s care when he returned from work in the evenings.
In January 2014[1], the Wife acknowledges that the Husband played an important role in X’s life, enjoyed and continues to enjoy a close relationship with X. While deposing to him having limited involvement in her physical care, the Wife acknowledged the Husband’s practice of playing with X. Contrary to this evidence, in December 2014, the Wife told Ms L[2] that the Husband showed no interest in X, had no interaction with X, refused to do anything at all to help her with tasks around X, and did nothing with X in a recreational sense. In her trial affidavit in September 2015, the Wife says the Husband had a limited role in the care of X before separation, because of his social activities, excessive alcohol consumption and television watching.[3]
[1] Exhibit 6 at paragraph 11
[2] Exhibit 1
[3] At paragraph 14 of Mother’s affidavit sworn on 14 September 2015
Ms L says if the Wife’s claims were true, the Husband’s lack of interest in X during cohabitation would be hard to reconcile with her assessment of the quality of X’s relationship with him, given that X has spent such limited time with him since separation. Ms L believes that the Wife understates the Husband’s involvement with X prior to separation to have a reason to restrict his access to X, and perhaps to cement her position that the Husband does not have the capacity to care for X. I am satisfied the Husband had more to do with X’s care during the marriage than acknowledged by the Wife, but that the Wife always took the primary caring role, particularly as she was breastfeeding until only 2 months before the parties separated.
From 11 April 2014 when interim orders were made, X’s time with the Husband has been unsupervised. Initially, X spent 1.5 hours each Tuesday and 3.5 hours each Sunday with the Husband. X’s time was slightly increased in July 2014 and further increased by the Court in January 2015 when her time on Sundays was extended to 5 hours. In October 2015, the weekend daytime period was increased to 7 hours each weekend with the 1.5 hours on Tuesdays continuing. X spent one overnight with the Husband in February 2016, but no further overnight time until August 2016, after the trial ended and before submissions were filed. As already noted, this was despite the Court’s interim order that 24 hour periods (including one overnight) commence each weekend from 24 May 2016.
X’s current arrangements
In August 2016, the Husband’s counsel advised the court that the Husband had forgotten the order for overnight time from May 2016 had been made. However, correspondence between solicitors annexed to the Husband’s affidavit of August 2016, discloses that the Husband nevertheless sought agreement to further overnight time (after the single occasion of February 2016) and was refused. The Wife says that the Husband did not “push for them”[4] (the overnight time) and she therefore did not comply. When he was reminded in early August 2016 about the terms of the October 2015 orders, the Husband sought the Wife’s agreement to overnight time starting as ordered, and again he was refused. The Husband says X had no additional time with him on ‘special days’ unless they fell during his allocated time, although the Husband visited X’s preschool for an hour on 19 February 2016 to share morning tea with her.
[4] At page 70 of 18 August 2016 transcript of proceedings
From October 2015, X spent time with the Husband in week one from 5.15p.m. to 6.45p.m. on Tuesday, and from 9.30 a.m. to 4.30 p.m. on Sunday, and in week 2, the same on Tuesday and from 9.30 a.m. to 4.30 p.m. on Saturday.
On Christmas Day 2015, X had 4 hours with the Husband pursuant to the Court’s orders. On Easter Day 2016, X was returned late after a 4 hour ordered visit as a result of the Husband misinterpreting the orders.
Since late August 2016, as far as the Court is aware, X has been spending from Saturday morning to Sunday morning with the Husband as well as sharing a meal with him on Tuesday evenings.
Parenting Orders sought by Husband[5]
[5] Updated minute of parenting order sought by Husband dated 16 August 2016
The Husband seeks an order for equal shared parental responsibility (this order was made by consent on 22 August 2016). He seeks final orders providing for X to live with the Wife, and to spend time with him each Saturday overnight until December 2016 from 9.30 a.m. Saturday to 2 p.m. Sunday, as well as each Tuesday from 5.30 p.m. to 7 p.m; from December 2016 to June 2017, as well as Tuesday evenings, each weekend from 9.30 a.m. Saturday to 6 p.m. Sunday during daylight saving, otherwise 5 p.m Sunday; he proposes that weekend time be suspended each 5th weekend (so X has weekend time with the Wife); from June 2017 to February 2018 he proposes each alternate weekend from 6 p.m Friday to 6 p.m. Sunday (5 p.m if not daylight saving) as well as Tuesday evenings. He seeks half the 2017/18 Christmas school holidays for block periods not exceeding 5 days at a time. From February 2018 and thereafter, he proposes X’s time extend from after school Friday until before school Monday on alternate weekends and in the other week from after school Tuesday to before school Wednesday. He seeks 5 nights in short school holidays from the time X starts school in 2018, and for one half of the holidays in the short school holidays thereafter. He seeks half all Christmas school holidays in 2018/19 and 2019/20 in 7 night blocks and thereafter he seeks an order for half the Christmas school holiday periods, alternating first and second half. The Husband proposes an Order restraining him from excessive alcohol consumption before and during X’s time with him. He seeks time on special days referred to later in these Reasons.
Parenting Orders sought by Wife[6]
[6] Minute of final orders sought by the Wife dated 18 August 2016
In her Amended Response filed in August 2014, the Wife sought an order for equal shared parental responsibility, for X to live with her and to spend time with the Husband for 2 hours on Wednesday afternoon and 5 hours on Saturdays until X was 4 years of age, and thereafter each alternative weekend unsupervised for 6 hours on each weekend day, as well as 2 hours on Easter Sunday, Christmas Day, X’s birthday and 5 hours on Father’s Day. The Wife sought a restraint on the Husband consuming any alcohol from 12 hours before contact occasions and during contact periods. At the time of the assessment in December 2014, the Wife told Ms L that she proposed X spend 2 hours each Wednesday afternoon and 5 hours each Saturday with the Husband until X was 4 years of age. From then, she proposed alternate weekends for 6 hours on the Saturday and Sunday and 2 hours on certain special days. She did not support any overnight time. In the Mother’s proposal relied on at hearing in October 2015, the Wife sought no Orders for X to spend holiday time with the Husband, and her final position for X’s time with the Husband was one overnight each fortnight from the age of 5.
In August 2016, the Wife’s solicitor advised the Court that the Wife was seeking sole parental responsibility, contrary to her agreement in October 2015 to an interim order for equal shared parental responsibility. However, when all the evidence had been heard, the Wife again proposed an order for equal shared parental responsibility, an order made on a final basis by consent on 22 August 2016.
The Wife sets out her proposal for final orders in her Minute of Final Orders dated 18 August 2016 as follows: until she is 5 years old, X spend time with the Husband each Saturday from 9.30 a.m. to 4.30 p.m. and each Tuesday evening for 1.5 hours; for 6 months following her 5th birthday, one 24 hour period each weekend from 9.30a.m. Saturday until 9.30a.m. Sunday, except Mother’s Day; from 2 September 2017 on each alternate weekend from 9.30a.m. Saturday until 4.30p.m. Sunday, with such period to be suspended for one period of 2 weeks or two periods of one week each during the Christmas school holiday period on the giving of 2 months written notice as to precise times; from her 6th birthday, from after school Friday until 4.30p.m. Sunday on each alternate weekend; from her 7th birthday, from Friday after school until Monday morning each alternate weekend. She does not propose time in the alternate week. She proposes limited time in school holidays once X starts school: 3 nights in the short holidays in 2018, 4 nights in 2019 and half the short school holidays from 2020; 3 block periods of 3 nights in the 2018/19 long school holidays, of 4 nights in 2019/2020, 5 nights in 2020/21, of 6 nights in 2021/22, increasing to half the holidays from 2022/3. She proposes limited time on Christmas Day, Easter Sunday and Father’s Day, addressed later in these Reasons.
The Wife’s solicitor submits the Wife’s approach of “hastening slowly” has been shown to be in X’s best interests because she is now thriving in her relationships with both parties.
Assessment and recommendations of expert
Ms L prepared a report for the Court dated January 2015,[7] having assessed the parties in December 2014 on the day of the Lindt Café siege. Ms L says the parties were asked if they wished to defer the assessment, but neither wished to do so. The time taken for the assessment was not affected by the events of that day. Ms L recommended the parties have equal shared parental responsibility, (as sought by both parties at the time of the assessment), that X live with the Wife and spend time with the Husband from 9 a.m. to 5 p.m. on either Saturday or Sunday each week, each Tuesday from 4p.m. to 6 p.m. with changeover at the Wife’s home. After approximately 9 months, (late 2015) Ms L recommended time occur from 2 p.m. Saturday until 6 p.m. Sunday each weekend with the Tuesday afternoons continuing. She recommended time increase after approximately a further 6 months from Friday to Sunday each weekend. Once X starts school, Ms L recommends X spend time with the Husband each alternate weekend from Friday to Sunday, one afternoon in the alternate week and half school holidays. I had difficulty reconciling Ms L’s concerns about the impact of the Wife’s marginalisation of the Husband on X, with her recommendation for an increase and then a decrease in time when she commenced school. Interestingly, the Wife’s final position exceeds the number of nights recommended by Ms L in her report. However, it is noted that Ms L did not have the benefit of considering the Wife’s final position for an extension of the alternate weekend to 3 nights.
[7] Exhibit 1
Given the concerns raised by the Wife about the Husband’s heavy drinking over a long period, Ms L recommended ongoing CDT testing for the Husband for another 12 months (that is, until early 2016). Ms L believed that the ongoing testing may alleviate the Wife’s anxiety and perhaps modify her rigid view that the Father is continuing to drink heavily. [8]
[8] At page 57 of 19 October 2015 transcript of proceedings
Ms L agreed with the Husband that by restricting and controlling X’s time with him, the Wife is “seeking to maintain power and control of the situation in order to punish him for past transgressions”[9] and that the Wife was seeking to marginalise the Husband from X’s life by ‘drip feeding’ contact. However, Ms L observed that X had formed an attachment to the Husband, had established a close bond with him, although the Wife’s behaviour has restricted the attachment further developing.[10] Ms L believed that the Wife was most concerned about the Husband’s parenting capacity as a result of his consumption of alcohol, not family violence. Ms L was troubled by the Wife’s refusal/inability to even consider the possibility that the Husband had changed his behaviours since they were living together. Ms L strongly supported an increase in X’s time with the Husband to overnight time because relationships “are built and then nurtured and grown on time.”[11] While she acknowledged some risks if time increased in a less cautious way, she said there are also risks if caution continues. In her opinion, it is about how the risks are managed.[12] In October 2015 in oral evidence, Ms L recommended an immediate increase to a full day Saturday and then an overnight after 3 months[13] to occur just before X’s 4th birthday. When the hearing was adjourned part-heard in October 2015, the Court made interim orders in line with those recommendations. However, as already noted, those orders were not followed by the parties until the end of the trial in August 2016.
[9] At paragraph 50 of Exhibit 1
[10] At paragraph 29 of Exhibit 1
[11] At page 45 of 19 October 2015 transcript of proceedings
[12] At page 51 of 19 October 2015 transcript of proceedings
[13] At page 52 of 19 October 2015 transcript of proceedings
Legal principles
These proceedings were commenced in November 2013 (after 7 June 2012). Relevant amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore apply.
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations, when determining what orders are in the best interests of the child, I must consider all the factors before making a determination.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
Section 60CC(2A) requires the Court, in applying the primary considerations, to give greater weight to the consideration set out in section 60CC(2)(b).
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). An additional object has been included to give effect to the Convention on the Rights of the Child.
PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both the child’s parents
X is much loved by both her parents. The Wife readily acknowledges X’s loving and close relationship with the Husband and the strong bond between them.[14] She says that X enjoys spending time with the Husband, their relationship is important and meaningful and she wants to ensure it improves. Ms L observed a “close and affectionate relationship”[15] between X and the Husband and observed X’s secure attachment to him. The Husband deposes to X’s excitement when he arrives to collect her.
[14] At page 46 of 18 August 2016 transcript of proceedings
[15] At paragraph 13 of Exhibit 1
It is common ground that X’s primary attachment is to the Wife, and Ms L assesses a secure warm and loving relationship between X and the Wife.
The Husband seeks increased time with X and is frustrated and disappointed by the Wife’s position on the amount of time they should spend together. In the Wife’s opinion, it is important that X’s relationship with the Husband is taken in slow steps to allow X to adjust to the routine and continue to build an emotional connection with the Husband.
Ms L says that relationships are built, and then nurtured and grown on time. In her view, X needs a range of interactions and a range of activities with the Husband to further promote their relationship with each other. In her view, the Wife’s proposal for an incremental increase in time is too cautious. I have regard to Ms L’s opinion, but I am also satisfied that on each party’s proposal, as long as the orders made are complied with, X will enjoy the benefit of a meaningful relationship with both her parents.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
“Abuse” is defined in section 4 of the Family Law Act 1975 as:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
The Wife relies on a Notice of Risk filed in January 2014. She does not allege that the Husband has ever abused X or that he would do so in the future[16], although she reported to Ms L that X was fearful of sitting in the bath after a contact occasion, telling the Wife that something hurt in her bottom in the bath at “Daddy’s house”.[17] The Husband wondered whether X had chafed her bottom which caused stinging in the bath because that afternoon she had been playing in the water and on the grass in a swimming costume that was too small. The Wife did not suggest abuse, but did not explain why she reported the event to Ms L.
[16] At page 43 of 18 August 2016 transcript of proceedings
[17] At paragraph 40 of Exhibit
“Neglect” is not defined in the Family Law Act and therefore must be given its ordinary meaning.
Section 4AB(3) says that “For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.”
Family violence is defined at section 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family….or causes the family member to be fearful.”
The Wife alleges that during their relationship, the Husband used highly offensive language towards her, yelling names including “bitch” “cunt” and “wog” “loudly directly in my face.”[18] She alleges the Husband was also physically violent towards her and exposed X to his verbal abuse and violence. The Wife also highlights her serious concerns about the extent of the Husband’s and his family’s alcohol consumption, suggesting X may be at risk of neglect in the Husband’s care. She has been frustrated by the Husband’s failure to tell her anything about X’s time with him particularly as X’s behaviour after contact occasions has worried her: she is excessively clingy, she is more aggressive including biting the Wife, hitting her and pulling her hair; she has nightmares, then refuses to sleep in her own bed; she comes back hungry and thirsty and looking exhausted.
[18] At paragraph 114 of Wife’s affidavit sworn on 14 September 2015
Ms L assessed X’s behaviours after contact as within the normal range for a young child moving from the care of one attachment figure to another, because of the confusion and emotional difficulties this causes the child. Ms L expressed concern that the Wife dismissed her (Ms L’s) opinion out of hand, insisting the behaviours were maladaptive. Ms L wondered whether the issue about the bath “may be the upping of the ante in regard to allegations of risk” and whether the Wife might use allegations of sexual abuse to justify restricting X’s access to the Husband[19].
[19] At paragraph 55 of Exhibit 1
In relation to family violence, the Wife alleges:
a)In early 2010, the parties argued over the Husband’s wish to have strippers at his buck’s party. The Husband admits to grabbing the Wife’s arms with force during the argument, to her resisting and to later apologising to her for his behaviour.
b)In 2010 the Husband became angry when she brought him the wrong breakfast order and he threw two McMuffins at her. The Husband describes throwing a muffin to the Wife when she was not looking and it broke over her. While the Wife includes the incident in her Notice of Risk, the Husband was not asked about it, and I am not persuaded it is relevant to the family violence factor.
c)In 2011, when she was pregnant with X, the Husband, during an argument, threw a floor lamp, causing a dent in the lampshade. The Husband denies the allegation and says X knocked it over. He gave consistent evidence in his affidavit and in cross examination that X knocked it over. I make no adverse finding in relation to this incident.
d)In November 2011, the Husband slashed her gym ball. This was denied by the Husband and not referred to in the Wife’s Notice of Risk. The Wife did not see it happen. I find insufficient evidence to make any finding about how the ball was damaged.
e)In March 2012[20], approximately 3 weeks after the Wife came home from hospital with X, the parties argued and the Father pushed the Wife onto the bed. The Wife denies any chance of her conflating this incident with the next incident referred to, but I find it likely that she has. The Wife says that the parties were arguing, the Husband started yelling, grabbed her hair and pulled her across the bed. She was crying and called out “stop” as he dragged her across the bed. X was in the next room. The Husband recalls only one incident involving a physical altercation when, during an argument, the Wife threw a shoe at him and was “clobbering me around the shoulders and head.”[21] To calm her down, he held her by the wrists pinning her on the bed with “some force” for about 10 seconds, as she yelled “get out, get off me or I will call the police”.[22] The Husband acknowledged being physically stronger than the Wife and thrusting her onto the bed with some force. The Husband says he tearfully apologised, and that they were both distressed and disturbed by what had happened. He said[23], “It’s an awful thing that a couple would get to that stage.” The Wife says[24] “he did violently grab my hair and push me on to the bed”, but denied throwing a shoe at the Husband’s head, and did not recall threatening to call police. I am unable to make a finding about the precise detail of the incident. Whether or not the Wife threw a shoe, I am satisfied that the Husband’s actions constitute family violence.
[20] At paragraph 108 of Mother’s affidavit sworn on 14 September 2015
[21] At page 239 of 21 October 2015 transcript of proceedings
[22] At page 234 of 21 October 2015 transcript of proceedings
[23] At page 241 of 21 October 2015 transcript of proceedings
[24] At page 125 of 18 August 2016 transcript of proceedings
f)In 2012, the Husband grabbed her arm violently and pushed her into a space between the wall and the walk-in wardrobe, then put his arm across so she could not escape. She was crying. The Husband denied this occurred, adamant that the only incident involving physical violence towards the Wife was the incident involving pinning her to the bed, just described. I find it likely this was all part of that one event.
g)In early 2012, the Husband broke a fan following an argument. The Husband admits kicking the fan in anger and with force causing it to break against a wall. He concedes the “almighty crash” would have frightened the Wife who was in the house. He later regretted what he had done. I find the Husband’s conduct amounted to family violence.
h)In March 2012, shortly after she was home from hospital with X, the Husband violently pushed her out of bed during an argument and she slept on the couch until he asked her to return to bed. The Husband denies any form of violence but acknowledges forcing her to leave their bed, then soon after asking her back. He said it was not uncommon for one of them to end up sleeping on the couch. While I am not satisfied the Husband’s conduct on this occasion constitutes family violence, I am satisfied the Husband’s conduct was distressing to the Wife.
i)In November 2012, the Husband threw a side table towards her, and the table broke. The Husband agrees he cracked a leg of the table when angry, and that he pulled the other legs off and threw them in the bin. He denies throwing the table towards the Wife. He says that in the Wife’s absence, he slapped the table hard with the palm of his hand causing a leg to crack, the table was ‘weak’ and although the leg was not completely off, it could not be fixed. Ms L reports him telling her he hit the side table against the wall with his hand (in anger) and the Wife saw the damage when she came home.[25] The Husband says the Wife has exaggerated the event and elevated it to an incident of family violence. I am not persuaded the Husband threw the table towards the Wife aiming to strike her. However, I am satisfied the Husband damaged the table in an angry, aggressive outburst which would have been frightening for the Wife and therefore constitutes family violence.
[25] At paragraph 17 of Exhibit 1
j)In January 2013, the Husband punched her hard in the back one night because she was snoring, and at other times gave her a hard kick because she was snoring. The Husband denied the allegation and was not cross examined on it. It was not in the Wife’s Notice of Risk. I do not make a finding of family violence.
k)In 2013, the Husband slammed his fist into the bathroom wall while crying uncontrollably. The Husband admits crying at times in the lead up to the parties’ separation. I accept this incident occurred but am not satisfied it would have caused the Wife to be frightened for her safety.
l)In early 2013, the parties were arguing in the kitchen with X a few metres away in the playpen. The Husband was verbally abusing her, shouting at her. X was crying because of the argument. The Husband picked up X and was holding her in one arm. With the other hand he grabbed the Wife by the neck for a few seconds. X was screaming with her hands held out for the Wife. The Husband says he was upset because the Wife was referring to X being “her” daughter, not “their” daughter. This is denied by the Wife. The Husband does not recall shouting between the parties, nor X screaming. He says they made a point of not shouting in front of X. The Husband says X cried to get out of the playpen so he picked her up. The Wife (he says ‘as usual’) was upset because she saw herself as the one who should always have X and wanted to take X from him. He emphatically denies grabbing the Wife by the neck. The Wife includes this incident in her initial affidavit and in her Notice of Risk. I find that X would have been frightened by the parties arguing in front of her and was holding out her arms for the Wife. I find the Wife wanted to take X from the Husband but he withheld her, and physically restrained the Wife from taking X from him. I am not persuaded the Husband violently grabbed the Wife by the neck as the Wife describes. I find this another example of the parties’ volatile and destructive exchanges, with both parties behaving badly.
m)In early 2013, the Husband slammed doors causing the latches to break, and by the time of separation all the internal latches in the home were broken. While the Husband was not asked about these allegations in particular, he does acknowledge feeling increasingly frustrated in the months before separation and at times acting out, including lashing out at objects in the house. Whether or not the hinges and doors were of poor quality, as the Husband argues, I am satisfied his conduct was aggressive and destructive.
n)In early 2013, the Husband yelled at the Wife, very close to her face, and spat into her face causing spit to go all over her face and on the mirror of the built in wardrobe. The Husband denied spitting on the Wife’s face. The Wife includes this allegation in her Notice of Risk. I am satisfied a ‘spitting’ incident occurred which constitutes family violence.
o)In early 2013, X was near the Husband’s collection of scotch glasses when the Husband said to the Wife, “[Ms Clement], I swear if X breaks my scotch glasses I will hit her very hard”[26] and to X, “you break that and I’ll break your arm”. The Wife contends this was a genuine threat to X, though does not include it in her Notice of Risk. While admitting the comment, the Husband claims it was said in jest and that the Wife well knew that he was being silly and certainly not threatening X. I do not accept the Husband threatened X. I agree with the Husband’s counsel that had the Wife genuinely believed X was at risk of harm (which she would have been had he meant what he said literally) she would have included it in the Notice of Risk and taken immediate action to protect X.
p)On 27 June 2013,[27] the Wife woke at 2.50 a.m. because X was crying. As she went to close X’s bedroom door, the Father slammed it while shouting. X became frightened and cried. When in bed again, the Husband yelled again, violently pulling bed clothes off saying “if I can’t sleep then you can’t either.”[28] The Father denies the incident. While he was not cross examined on the incident and it was not included in the Wife’s Notice of Risk, it was referred to in the Wife’s first affidavit. I am satisfied the incident occurred along the lines described, but am not persuaded it constitutes family violence.
q)Before separation in 2013, the Husband broke the glass in the bathroom cabinet during an argument. While he admits flicking the cupboard door closed with too much force[29] causing it to break, he says it was an accident. I find this, and the allegations about slamming his fists into the bathroom wall, into the fridge door, kicking the walls and slamming doors, all demonstrations of the Husband’s poor impulse control.
r)In April 2013 on the Wife’s birthday, the Husband threatened to hit her brother Mr P, having referred to Mr P as a “poofter” during dinner with her family. He was yelling at the Wife in the car, with “spit flying from his mouth” that she should side with him, not Mr P. X was screaming. On 18 April 2013, the Husband sent the Wife a text apologising for his behaviour and acknowledging he was wrong.[30]
s)In September 2014, during contact in her home, the Husband “shouted at her violently” very close to her face causing X distress and fear.[31] While I accept that the Husband may have been annoyed and raised his voice, I do not find family violence.
[26] At paragraph 72 of Exhibit 6
[27] At paragraph 112 of Wife’s affidavit sworn on 14 September 2015 and at paragraph 69 of Exhibit 6
[28] At paragraph 112 of Wife’s affidavit sworn on 14 September 2015 and at paragraph 69 of Exhibit 6
[29] At page 258 of 21 October 2015 transcript of proceedings
[30] Annexure M to Wife’s affidavit sworn on 14 September 2015
[31] At page 113 of 18 August 2016 transcript of proceedings
The Husband acknowledges the parties’ many arguments and insult exchanges. He acknowledges using abusive language and to bursts of aggressive behaviour towards his Wife at times, particularly in the final months of their marriage, which may have frightened her. He admits he drank too much and yelled, acknowledging that he has to take responsibility for that behaviour. At interview with Ms L, the Husband confessed to not knowing how to handle his emotions, but denied he was an angry or violent man. He says he was frequently offering the Wife an apology, even if not in the wrong, to get some resolution because “it was a very difficult marriage”.[32] He strongly denies the nature and extent of the Wife’s allegations, telling Ms L that the Wife either fabricated or exaggerated various incidents to improve her position.
[32] At page 241 of 21 October 2015 transcript of proceedings
The Wife did not move from her position in cross examination, and does not accept that the Husband has changed his behaviours. I found the level of her rigidity of concern. She was not willing to even consider the possibility that with the benefit of hindsight, she might not have managed their relationship difficulties as well as she might have.
In Ms L’s view, the violence alleged was “conflict instigated couple violence” based on the fact that the parties did not have a positive or appropriate way of resolving conflict.[33] She believes the Husband was at least verbally abusive in the last few months of the relationship, but was not persuaded that family violence would be an issue into the future.[34] She explained that conflict instigated family violence is where the parties struggle to deal with their disagreements in a way that is healthy or appropriate: things might be thrown, someone might be pushed, lots of insults hurled, and this is what happened here. But once the relationship is over, the violence virtually disappears, though it is necessary to assess the interactions between the parties at changeovers.[35] There is often not one perpetrator and one victim, but rather both parties struggling to react appropriately to conflict.
[33] At page 31 of 19 October 2015 transcript of proceedings
[34] At page 32 of 19 October 2015 transcript of proceedings
[35] At page 33 of 19 October 2015 transcript of proceedings
Ms L assessed the parties’ relationship as lacking in mutual trust or respect and “where both parties lacked either the skills and/or the motivation to deal with their conflict appropriately.”[36] In her opinion, the Wife’s actions post separation “bear the hallmarks of someone who is seeking to maintain power and control of a situation in order to punish someone for past transgressions.”[37] She finds nothing in her assessment to suggest that X would be at risk or physical or verbal abuse in her Father’s care.[38] She says that even if the Court accepts the Wife’s evidence as to family violence, it would not change her recommendations as to the time X should spend with him.[39] In her opinion, if X had been exposed to family violence to the extent alleged by the Wife, when she saw her parents in close proximity, “it is likely I would have seen a child who was much more wary about what could happen between these two people because she would have been exposed to that sort of unpredictable and uncertain behaviour.”[40] Ms L did not see that. She saw a child excited about seeing her parents together in the one room[41], and a child upset at leaving her father and then an animated goodbye. She “did not display any overt anxiety in separating from her Wife…and went happily to her father”.[42] She moved between her parents during the day “with no overt anxiety or distress.”[43] X “appeared to be relaxed, happy and comfortable in his presence and she was desperate for him not to leave at the end of the day.” [44]
[36] At paragraph 49 of Exhibit 1
[37] At paragraph 50 of Exhibit 1
[38] At paragraph 53 of Exhibit 1
[39] At page 35 of 19 October 2015 transcript of proceedings
[40] At page 50 of 19 October 2015 transcript of proceedings
[41] At page 50 of 19 October 2015 transcript of proceedings
[42] At paragraph 43 of Exhibit 1
[43] At paragraph 46 of Exhibit 1
[44] At paragraph 53 of Exhibit 1
I agree with Ms L’s assessment of the risk issues.
As already noted, I am satisfied the Husband’s conduct did constitute family violence on occasions and that the Husband has understated the extent of his aggressive behaviour towards the Wife during their cohabitation. However, I am also satisfied that the Wife has exaggerated various events to assist her case. The Wife is protective of X. It is difficult to reconcile her stated position on the Husband’s violence with her habit of supervising X herself when in the Husband’s care, and her proposal for X to spend unsupervised time with him from 2.5 years. I find the Husband shows some insight into the impact of his past conduct on the Wife by admitting he was wrong, and acknowledging the importance to X of the parties avoiding conflict in the future.
I give substantial weight to my findings here.
ADDITIONAL CONSIDERATIONS
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the child’s views
This factor does not apply given X’s age.
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
I have already addressed X’s relationships with her parents including Ms L’s assessment of those relationships.
X lives with her maternal grandparents and is their only grandchild. They see her every day and they are actively involved in her day to day life. X has daily interaction with her two uncles who live in the same home. The Wife describes a close and loving extended family who lavish attention on X. The Wife has two sisters and three brothers all of whom live in Sydney and the whole family gather together weekly. I am satisfied that X is close to them all.
I accept that X enjoys time with the Husband’s parents and extended family, but have limited evidence about the strength of those relationships. It is unfortunate for X that the Wife is not comfortable with the Husband’s parents, so is unlikely to nurture those relationships independently of the Husband.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long‑term issues in relation to the child; to spend time with the child; and to communicate with the child.
The Husband has had limited opportunity to fully engage in decision making for X, given the Wife’s opinion of his conduct and capacity for child focussed decisions. I have addressed these issues elsewhere in these Reasons.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The Husband is paying $248.73 a week by way of child support for X in accordance with a Child Support Agency assessment. He also pays other expenses from time to time including swimming lesson fees and clothing.
The Wife relies on Centrelink payments, but has the benefit of her parents providing herself and X with accommodation and the majority of household expenses.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child) with whom the he or she has been living.
The parties agree that X will live primarily with the Wife and an interim order has been made by consent to that effect. X did not commence regular overnight time with the Husband until the hearing concluded, so there is no evidence of how X has managed regular weekly overnight time ordered on an interim basis in October 2015.
However, on 20 February 2016, X spent one overnight with the Husband at his home in (omitted), in accordance with the interim orders made in October 2015 (though the date was changed by the parties). The Husband describes an active happy Saturday with X, to her routine in the evening before bed at 7.30 p.m. He says she did not ask for the Wife, nor show any sign of distress going to bed or during the night. In the morning, she helped the Husband crack eggs into a hot pan and caught the rim of the pan with her wrist. He attended to her burn, and they finished breakfast with no complaints. They went to the park before the Wife collected X at 9.30a.m. The Husband deposes to X saying goodbye to him with hugs and kisses and “I love you”. The Wife’s solicitor wrote to the Husband’s solicitors on 6 March 2016 with a number of complaints including his lateness, X’s diet, his new partner and a request for further CDT results. However, no complaint was raised about X’s first overnight visit. While the Wife deposes to X being very anxious in the week before the overnight visit, and not wanting to be away from her overnight, it seems the night itself went well. It may have been easier for X if the Wife had not given her a week to think about it.
I accept Ms L’s opinion that X needs more time with the Husband to nurture and develop further their warm comfortable relationship, and if the Wife is supportive of that increased time, (which she is as long as increases are gradual) X will not suffer any detriment spending more time away from the Wife.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Given Sydney’s traffic, the time it takes to travel by car between the Wife’s home in (town omitted) and the Husband’s home in (omitted) varies considerably according to the time and the day of the week. It is not disputed that for the contact period of 1.5 hours late on a Tuesday, the Husband does not have time to take X to his home. The Husband has therefore been spending that period with X playing and giving her dinner within reasonable proximity of (town omitted). The Wife is concerned that X is not eating properly on Tuesday evenings, that the Husband gives her ‘junk’ including sweets and twisties. She does not accept his assurance that they eat fish and chips or pasta and that treats are limited. The Husband says the Wife is making it difficult for him on a Tuesday evening by giving X food just before he collects her, so she is not interested in a proper meal. The Husband proposes that he keep X overnight on a Tuesday so she can eat home cooked food at his place, but the Wife is against X being with the Husband overnight during the week. She wants the time to remain at 1.5 hours until X starts fortnightly weekends, when she proposes that weeknight time ceases altogether.
I have regard to this practical issue.
The capacity of each of the child’s parents and any other person (including grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The Wife has been X’s primary carer since she was born. The parties have agreed that she will remain X’s primary carer. The Wife describes X’s routine in her care and the diverse range of activities and experiences they share together. I am satisfied that the Wife is a committed and capable parent.
Ms L assessed the Husband as attuned, engaged and appropriately responsive[45]:
[the Father] was noted to be warm and gentle in his manner with X and he seemed to be genuinely interested and engaged in what she was playing with, and X responded to this with even greater levels of enthusiasm…
[45] At paragraph 45 of Exhibit 1
Since separation, the Husband deposes to X enjoying her time with him, to her excitement on a Tuesday evening about their routine of fish and chips, to her surprise bag, and her monkey who joins them for dinner. On a Sunday he describes her excited welcome “daddy” when he approaches the door and to the fun they share together at his home with toys and dress ups, riding her bike, cooking and movies, their various excursions to the beach, on the ferry, to the zoo, to the aquarium, to the playground in the park. X attends swimming lessons on Saturday mornings. In early 2016, the Husband visited X’s preschool for an hour to share morning tea. He had promised her he would come, and she was very excited by his arrival, introducing her friends and teachers.
While the parties used alcohol together before X was conceived, the Wife has rarely consumed alcohol since. The Wife alleges the Husband’s parenting capacity is compromised by his excessive consumption of alcohol, her observations/assessment of his alcohol detailed in her affidavit and in Ms L’s report. Considerable time was spent on this issue at trial. The Husband concedes that he was drinking more than usual in the last months of the marriage, but denies the level of alcohol use asserted by the Wife. The Wife has not been reassured by 15 months of CDT testing showing no sign of the Husband drinking to excess. She is convinced that ‘a leopard does not change its spots’ and that his excessive drinking poses a risk to X. The Wife is particularly concerned about X’s safety if she is with him overnight or on special days such as Christmas Day, when the Husband, from her experience, is likely to drink excessively. She says that the Husband comes from a family who used to give him alcohol as a child, and who drink heavily. The Husband used to talk about giving X “beer froth” soon, and once let her suck on a beer can he was holding. The Husband became heavily intoxicated at X’s first birthday party. He would often walk to the pub on weekends and come home “very intoxicated”, and when his sister came for dinner they would walk to the pub together and arrive home late and intoxicated. He used to drink heavily with his mother when she came to stay. The Wife says he took a flask of scotch to a work conference and a long neck bottle of beer to the pool at 10 a.m. Once a month he would vomit from excessive alcohol use.
Ms L questioned the Husband about his alcohol use[46]. He said it has been his habit to drink a “couple of wines” 3 times a week with dinner, and a “couple of beers and half bottle wine on each weekend night.” He would consume approximately 3 beers at the end of bi monthly work functions, and approximately once a fortnight, usually a Friday, went to the pub after work. He estimated he consumed approximately 3-5 alcoholic drinks on a weekend night at home. He strongly denied the Wife’s assertion that he was in the habit of drinking 4 small bottles beer, half a bottle wine and number of glasses of scotch each night, consuming 750ml of whisky in 3-4 days. He did not mix his drinks and has never had a “drinking problem”. He certainly has no intention of giving X alcohol, nor has he ever seriously said that he has.
[46] At paragraph 21 of Exhibit 1
Ms L was troubled by the rigidity of the Wife’s position, given the results of the CDT testing over the 3 months before the assessment. The Wife dismissed out of hand that the test results may indicate that the Husband had moderated his drinking. Ms L therefore recommended a further 12 months of testing.
I am unable to make precise findings about the amount of alcohol the Husband was consuming when living with the Wife, or how much he consumes now. It is clear he was at least a moderate drinker and was drinking more in the months leading up to separation. The Wife’s solicitor submits that the Husband has minimised his alcohol consumption. While I accept that may be so, there is no evidence upon which the Wife can rely to suggest that the Husband has been drinking to excess since the CDT testing began in July 2015. The Wife has not seen him drinking, does not complain about the Husband’s presentation at changeover, nor report any feedback from X that would suggest the test results are misleading. I also agree with the Husband’s counsel that, given the Wife’s concerns about the Husband’s family’s drinking habits, it is noteworthy the Husband’s father (the Second Respondent) was not asked about this.
As Ms L says, if the Husband drinks to excess with X in his care, it will compromise his capacity to care for her. However, I am satisfied the Husband is aware of his responsibilities in this regard. I am not persuaded X would be at risk if in the care of the Husband on Christmas Day after lunchtime, as submitted by the Wife.
The Wife raised the possibility that the Husband was using illicit substances, relying on a conversation the parties had when they started their relationship in 2007. She says that the Husband told her he was (in the past) “heavily into drugs” including marijuana and cocaine and had “tried pretty much everything”.[47] The Husband says he has only ever used drugs recreationally, and not for 12 years. The Wife did not pursue the issue.
[47] At paragraph 57 of Wife’s affidavit sworn on 20 January 2014
The Wife is concerned about what the Father gives X to eat, although agrees that if he gives her what he says he does at paragraph 189 of his affidavit, he is promoting a healthy balanced diet. The Husband deposes to the range of foods he offers X, having researched meal ideas for a child of her age: eggs and bacon; chicken and vegetables; pasta; fish and potatoes; ham sandwiches; bbq meat and salad; fruit. He gives sweets only as a treat. On a Tuesday evening he and X eat grilled fish and chips; sushi; wood fire pizza or spaghetti. Sometimes the Husband takes a picnic to the bike track or another local park.
The Wife does not believe the Husband because of what X reports to her, particularly on Tuesdays. She says: “I haven’t had any dinner. I only had twisties”; “I’ve had pizza and I’ve had ice cream.”;[48] “Daddy gave me lots of lollies.”[49] The Wife acknowledged that the Husband does not have time on a Tuesday to take her home to (omitted) to cook a meal, but says fish and chips or a pizza should not be given to X each week. The Wife rejected the option of X staying overnight with the Father on a Tuesday night to ensure he could prepare a nutritious meal.
[48] At page 153 of 19 August 2016 transcript of proceedings
[49] At paragraph 155 of Wife’s affidavit sworn on 14 September 2015
The Wife worries about what X tells her after time with the Husband. For example, she believed X had fallen over, been taken to the doctor without her knowledge, and without being placed in a child restraint.[50] The Husband responded within a few minutes of the Wife alerting him to X’s report, that neither had occurred, reassuring the Wife that X also says things to him about what happens at her home which he doesn’t accept as true. The Wife was not willing to accept that X’s comments to either party were not always accurate, telling the Court “From what I’ve known X to say, she has always been very truthful”.”[51] I find this to be another example of the Wife’s unwillingness/inability to trust the Husband to look after X’s wellbeing in her absence. It also highlights the importance of the parties communicating regularly and constructively with each other so that over time, trust can be rebuilt.
[50] At paragraph 37 of Wife’s affidavit sworn on 4 August 2016
[51] At page 105 of 18 August 2016 transcript of proceedings
I am not persuaded either party’s capacity to care for X physically and intellectually is an issue in this case. Any issue here concerns each party’s capacity to meet X’s emotional needs, arising from their currently poor alliance and lack of trust in each other.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
X is of mixed heritage. The Husband is of (omitted) Anglo-Australian origin and the Wife of (omitted) heritage. X will have the benefit of being exposed to the (omitted) culture given the majority of her time will be spent with the Wife and the maternal family.
The Husband’s counsel submits that the Wife has limited X’s opportunity to share the Husband’s family’s traditional gatherings and to benefit from her Australian background. For example, the Wife offered X minimal opportunity for her to celebrate her 2nd birthday with the Husband and his family, by insisting they meet in a café with X, always in the Wife’s line of sight. On another occasion the Wife determined X’s cousins should not attend her party because they were older than her, did not know her well, and their presence might overwhelm X. Counsel submits that the Wife’s proposal for X’s time with the Husband, and therefore his family, would limit X’s ability to know and benefit from her Anglo-Australian background. In March 2016, the Wife would not allow X an extra half an hour with the Husband to enable her to visit her newborn cousin, before being returned to the Wife.[52]
[52] Exhibit 3
I agree with the Husband’s counsel’s submission that the Wife’s inflexibility around special paternal family events will, if allowed to continue, limit X’s opportunity to experience and benefit from her Anglo-Australian culture. I give some weight to these findings.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The significant issue here concerns the Wife’s attitude to X’s relationship with the Husband, and whether she is genuinely able to support X’s relationship with the Husband.
At the assessment, Ms L records the Husband presenting as calm, thoughtful and “genuinely reflective” about the situation and appearing to have “good self-insight.”[53] He recalled a good relationship between the parties until X was born, and between the Wife and his parents, and then to the Wife becoming “obsessed” with X to the exclusion of all else, and all others, including him.[54] The Wife spent most of her time at home alone with X. He needed her permission to take X for a walk or to the shops. The Wife would only leave X with her mother, and did not want his family involved with her. The Husband responded by turning to prostitutes and is “deeply ashamed and remorseful” for this behaviour.[55] He believes the Wife has a good basis for hating him, but is concerned that X is being used “as a means of punishing him for his past behaviours.”[56] He says things became worse when he rejected the Wife’s suggestion they try to reconcile shortly after separation. The Wife says “the breakdown of my marriage was a very painful and hurtful time for me when I had found out [Mr Clements] was cheating on me. So within the week we separated, I destroyed all the photos on the laptop; the photos that we had of us together.”[57] She rang his Manager at work to tell him what the Husband had done. The Husband deposes to the Wife saying to him after separation, in relation to X’s time with him, “if you had cared you would not have cheated on me. You cheated on me so you must not love X and therefore you don’t deserve any say. You shouldn’t have done it.” And “you have ruined my life and X’s life.”[58] The Husband says her attitude towards him has not changed and she has also excluded his parents from X’s life. The Wife confirms that she has never taken X to see the paternal grandparents or his siblings since separation, nor invited them to any event. She says they have not communicated with her.
[53] At paragraph 14 of Exhibit 1
[54] At paragraph 15 of Exhibit 1
[55] At paragraph 16 of Exhibit 1
[56] At paragraph 16 of Exhibit 1
[57] At page 118 of 18 August 2016 transcript of proceedings
[58] At paragraph 122 of Husband’s affidavit sworn on 21 September 2015
As already noted, Ms L observed a loving and warm relationship between X and the Husband. And while the Wife raises concerns about X’s behaviours before and after contact with the Husband, she also says that the Husband is loving and caring,[59] that X loves her time with her father and acknowledges their strong bond. The Wife interprets X’s behaviours as showing the need to limit time until X is older, to “hasten slowly” as her solicitor submits. The Husband deposes to X always being “very excited” to see him,[60] to enjoying their time together, never asking for the Wife, but always being happy to see her when she arrives to collect her. He deposes to only a couple of occasions when X showed a reluctance to going with him: once she was quite unwell, and he returned her to the Wife after 10 minutes; and another when he first collected her from the maternal grandparents home, which he felt was because of the changes X was dealing with. The Husband says he would “absolutely” return X to the Wife if she became overly distressed. He would agree to an order to that effect.
[59] At page 153 of 19 August 2016 transcript of proceedings
[60] At paragraph 183 of Husband’s affidavit sworn on 21 September 2015
I find that the Second Respondent is therefore entitled to the whole of the funds held by Yuill Lawyers held in a Controlled Monies Account for the Second Respondent and the whole of the funds held in trust for the parties by Michael Brown Family Law, a total of $187,531 and any interest accrued.
Property between spouse parties
The parties cohabited for 4.5 years and had been separated for 3 years at the conclusion of the hearing. They have a young child, now 5 years, who will remain in the primary care of the Wife. The Husband earns a salary of just over $100,000 while the Wife left the workforce over 5 years ago, before the child was born. She has chosen not to return to the paid workforce, at least at this stage.
The Husband initiated property proceedings in November 2013. At that time he was seeking that the Property A property be sold and the Second Respondent be paid the loan balance outstanding to discharge the mortgage, and then a division of the balance of the sale proceeds between the parties.
The Husband’s counsel now submits that given there are no sale proceeds any longer available for distribution and in light of the Wife’s conduct since the Husband initiated the proceedings, it would no longer be just and equitable to make any property adjustment between the spouse parties. On the other hand, the Wife’s counsel submits the Wife is entitled to a substantial adjustment if the Second Respondent’s claim succeeds, given the modest size of the remaining asset pool.
Legal principles
Section 79 of the Family Law Act1975 (Cth) gives the Court power to alter the interests of the parties to a marriage in the property of the parties to that marriage. Prior to the High Court’s decision of Stanford & Stanford [2012] HCA 52, it was generally accepted that the approach to the determination of an application under s.79 involved a “4 step process:” identification of the pool of assets, an assessment of contributions, both direct and indirect, an assessment of s.75(2) factors, and consideration as to whether the actual orders are, in all the circumstances, just and equitable. This hearing was conducted substantially in accordance with this 4 step process, and neither of the spouse party’s counsel submitted that the Court’s approach should change as a result of Stanford.
The Full Court in Bevan & Bevan [2013] FamCAFC 116 discussed the impact of the High Court’s decision in Stanford on the 4 step approach. The Full Court said that Stanford will serve as a reminder that the 4 step process “merely illuminates the path to the ultimate result”… “it is no more than a shorthand distillation of the words of a statute which has but one ultimate requirement, namely not to make an order unless it is just and equitable to do so.”
The Full Court in Bevan emphasised that the pre-condition to making any order for property adjustment is a finding that it is just and equitable to do so in accordance with s.79(2), but did not accept that s.79(2) forms a threshold issue or that the requirements of s.79 must be followed in a particular order. Section 79(2) provides:
The 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.
In the Full Court decision of Hearne & Hearne[130], the Appellant argued that “unless a finding is made as to whether it is just and equitable to alter property interests, the court has no power to make a s.79 order.” The Full Court rejected that submission. His Honour Justice Strickland said:
It is readily apparent from what the plurality said in Stanford, that “satisfaction of the s 79(2) requirement can be inferred, at least in part, from the issues joined, and importantly, not joined, between the parties” (Chapman & Chapman (2014) FLC 93-592 at [22]). Further, there need not be an express finding that the hurdle of s 79(2) has been overcome; it can be by necessary implication from the totality of the trial judge’s reasons for judgment….
[130] [2015] FamCAFC 178[130]
The first step requires identification of the property in which the parties have a legal or equitable interest.[131] The Court may make such Orders “as it considers appropriate” and shall not make any order to alter the parties’ property interests, unless it considers it “just and equitable” to make the Order.[132] The Court must determine what Orders are just and equitable by applying section 79(4) of the Act.
[131] Bevan at paragraph 77
[132] Family Law Act 1975, ss. 79(1) and (2)
The High Court explained the meaning of “just and equitable” as follows:
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.[133]
(Footnotes omitted)
[133] Stanford & Stanford [2012] HCA 52 at paragraph 36
Existing property interests of the parties
The Court was provided with a Balance Sheet on 18 August 2016 which was relied on by the parties’ legal representatives in their written submissions.
The Husband and the Wife received interim property distributions of $20,000 and $50,000 respectively. Those amounts have been included in the Balance Sheet as “addbacks” by consent.
The only other issue on the Balance Sheet concerns the $10,000 withdrawn by the Wife from her superannuation entitlement after separation. The Husband submits that the Wife does not explain how those funds were applied and the $10,000 should be added back. The Wife includes a note in her Financial Statement sworn on 16 August 2016 at Part M, that she withdrew $10,000 as a result of a hardship application and it was “used for living expenses, payment of debt and motor vehicle expenses”.
In M & M [1998] FamCA 42 the Full Court said that the law did not require parties to go into a state of “suspended economic animation” after separation and pending resolution of their financial arrangements. The Court said:
There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses…
Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the Trial Judge.[134]
[134] M & M [1998] FamCA 42 at paragraph 2.11
Given the Wife’s difficult financial circumstances at the relevant time and that the Fund must have accepted her hardship application, I am not persuaded the $10,000 should be added back.
I am satisfied the existing assets and liabilities of the parties available for distribution as at the date of hearing are as follows:
Assets and liabilities at the date of hearing
$
Bank account (no. (omitted)) (W)
400
Bank account (no. (omitted)) (W)
100
(omitted) Shares (W)
885
(omitted) Shares (W)
5,212
(omitted) Car (W)
5,000
Household contents (W)
400
Interim property settlement (W)
50,000
Superannuation (W) (omitted)
52,852
Total net assets held by Wife (incl super)
114,849
Bank account (H)
300
(omitted) shares (H)
2,919
Household contents (H)
400
Interim property distribution (H)
20,000
Superannuation – (omitted) (H)
109,344
Superannuation – (omitted) #1 (H)
1,539
Superannuation – (omitted) #2 (H)
6
Total net assets held by Husband (incl super)
134,508
TOTAL NET ASSETS
249,357
If the Husband and Wife each keep assets and superannuation in their respective names, the Husband would receive 53.9% and the Wife 46.1% of the assets.
Is it just and equitable to make any order?
It is necessary for the Court to consider “all the circumstances” to determine whether it is just and equitable to make any order for property adjustment.[135]His Honour Justice Murphy[136] described "circumstances of the parties' relationship" as "its nature, form and characteristics". His Honour quoted from Stanford[137]:
The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage. ..
...the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order. It does not permit a court to disregard the rights and interests of the parties in their respective property and to make whatever order may seem to it to be fair and just...
... the rights of the parties [are] to be determined according to law, not by reference to other, non-legal considerations..." (such as moral obligations)
[135] Section 79(2)
[136] Watson & Ling at paragraph 11
[137] Watson & Ling at paragraph 11
As already noted, the Husband’s counsel submits there should be no adjustment. The Wife’s counsel submits the Wife is entitled to a substantial adjustment if the Second Respondent’s claim succeeds, given the modest size of the remaining asset pool.
Contributions
In accordance with s.79(4), the court must consider all the contributions, both financial and non-financial to the acquisition, conservation and improvement of the parties’ assets as well as to the welfare of the family during cohabitation and after separation. The Court must consider the contributions in an overall sense.[138] The Full Court has held that it is not necessary for the Court to justify its decision in property cases by reference to precise mathematical calculations, but rather a broad approach is preferred.[139] The Court is nevertheless required to undertake an evaluation of each party’s respective contributions.[140] The Court must examine what actually happened, not make assumptions about what happened. It is not sufficiently rigorous to assume that what one party did is equal to what the other party did and conclude there is no distinction to be made in relation to each party's contributions. Neither counsel asked me to deal with this matter on an asset by asset basis. I have therefore adopted the global approach. [141]
[138] Norman & Norman [2010] FamCAFC 66; Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143; Kowalski and Kowalski (1993) FLC 92-342; G & G [2000] FamCA 1075
[139] In the Marriage of Burke (1981) FLC 91-055
[140] JEL & DDF (2001) FLC 93,075
[141] Norbis & Norbis (1986) 161 CLR 513
Although the parties had been separated for three years at the date of final hearing, there is no requirement on the Court to separately assess matters occurring after separation in arriving at an assessment of contributions.[142] I have assessed each party's contributions overall.
[142] Sippel & Sippel [2004] FamCA 201
In relation to the parties' superannuation interests, it is open to the Court to decide whether to treat superannuation interests as a separate list of assets, or as part of one asset list. The majority of the Full Court in C & C[143] said there is no binding principle as to the exercise of the Court’s discretion in deciding whether a one list or two list approach should be adopted. Neither party’s counsel made submissions on this issue. Given the modest size of the total asset pool, I have addressed the superannuation and the non-superannuation assets in the one list.
Section 79(4)
[143] (2000) FLC 93-220
Financial contributions
During cohabitation of 4.5 years, the Wife deposes to the parties continuing to use their own individual accounts. She says she managed the household budget. The Wife’s income was paid to her CBA account and from September 2010 she contributed to the loan repayments from her income. The Husband’s income was paid to the Second Respondent for the loan repayments and the remainder to his NAB account.
When X was born, the Husband added the Wife to his NAB credit card and transferred funds to her fortnightly for day to day expenses, although the Wife received maternity leave payments from her employment until September 2012 and the baby bonus. The Wife says she would adhere to her budget using her employment skills to manage the household. She always kept their spending under control, an assertion disputed by the Husband who says they always lived beyond their means.
Initial contributions
At the commencement of cohabitation in January 2009, the Husband owned the unit at Property A subject to the mortgage to the Second Respondent, which became the matrimonial home. The property had been purchased for $415,000 in May 2008 and the balance of the mortgage at January 2009 was approximately $412,000.[144] The Husband had other assets and superannuation which were not the subject of challenge[145] including a car valued at $4,000, furniture and household items, $19,132 in superannuation and $4,000 with (omitted).
[144] At paragraph 11 of Husband’s affidavit sworn on 21 September 2015
[145] At paragraph 12 of Husband’s affidavit sworn on 21 September 2015
The Wife owned a (omitted) car purchased in 2007 for $33,000, and savings of approximately $30,000, (unquantified) superannuation as well as furniture and household items.[146] The Wife does not produce bank statements for this period and it is not clear on the affidavit evidence how the Wife’s savings were used. The Husband’s counsel submits that “it is the nature of the (town omitted) unit in the parties’ overall portfolio which sets the Husband apart and ahead”. I accept that the Property A property was of particular value to the parties, because it became their home and they benefited from the favourable terms of the loan from the Second Respondent which made the purchase possible.
[146] At paragraph 182 of Wife’s affidavit sworn on 14 September 2015
As the Full Court affirmed in Cabbell & Cabbell[147], there is no formula to prescribe how a Court should deal with initial contributions in cases of property settlement given the wide discretion exercised under s.79. However, the Court must have regard to “the use made by the parties of that contribution”[148] and appropriate recognition must be given to the value of the property when realised “rather than simply paying attention to the initial value at commencement, while also recognising the other contributions over time.”[149]
[147] [2009] FamCAFC 205
[148] Pierce & Pierce(1999) FLC 92-844 at 85,881
[149] Williams & Williams [2007] FamCA 313
The Property A property was purchased in May 2008 for $415,000 (no equity), and its sale was settled on 19 January 2015 for $541,000. On the Second Respondent’s figures, which I accept, the debt outstanding at the time of sale was $392,756.
I find the Husband’s initial contributions were greater than those of the Wife, and generated the majority of the value of the parties’ assets (though the benefit of that contribution has been diminished by the Wife’s conduct as later addressed). I nevertheless give credit to the Husband for these initial contributions.
Further financial contributions
The parties both had incomes of approximately $70,000 at the time cohabitation commenced, but the Wife stopped work on 1 February 2012 in preparation for X’s birth. The Wife does not say how much she received by way of maternity leave payments until they stopped in September 2012. It is common ground that the Husband was the sole breadwinner from that time, and that his income increased to its current level of approximately $113,000 a year (including estimated bonus).
The Husband’s parents gifted the parties $10,000 towards wedding costs and $5,000 for holidays overseas. The parties received cash gifts for their wedding of approximately $5,000.
As earlier noted, each party contributed to the loan repayments. The Husband deposes to total repayments by the Wife, including the lump sums she contributed, of $78,016.[150] The Wife’s solicitor initially submits that the Wife contributed a total of $116,552 though later submits (in his written submissions) that her repayments totalled $83,016, which I find is correct on the basis of the Second Respondent’s corrected schedule filed in the Supreme Court proceedings. I find the Husband made total repayments on the loan of $170,248.
[150] At paragraph 14 of Husband’s affidavit sworn on 21 September 2015
The parties had a redraw facility as a result of the agreement reached between the Husband and the Second Respondent, which helped fund the parties’ lifestyle.[151] The Husband says they were always living beyond their means and drew down on the mortgage to pay household bills, holidays, entertainment and other living expenses. As already noted, the parties (through the Husband to his father) requested regular redraws which I find lends support to the Husband’s assertion.
[151] At paragraph 28 of Husband’s affidavit sworn on 21 September 2015
In January 2013, the Wife received a redundancy payment of $35,000 which was contributed in part to the mortgage ($18,000) and a credit card debt ($2,000). The parties agree that she retained the balance in savings but neither party adduces any evidence of how those funds were applied. The period covered by the redundancy is not clear, but as it was received 6 months before the end of the relationship, it is submitted for the Husband that the payment cannot be attributed to the Wife alone.
While it is common ground that the Husband ‘wasted’ funds on escort services, he deposes to expenditure of $2,000 which he says he repaid from post separation income.
Financial contributions after separation
From the date of separation in July 2013 until November 2014, the Wife had sole occupation of the Property A unit and made no repayments on the loan account, paid no utilities, rent or occupation costs. The Husband made no repayments on the loan from early August 2013 but paid his parents $250 a week for board as well as meeting his own day to day expenses. I am satisfied the mortgage debt increased by over $300 a week over that period. However, the Husband paid $1500 to meet the Wife’s credit card debt, $650 cash and $250 at or immediately after separation. Thereafter he paid the Wife’s private health insurance, mobile phone, car registration and comprehensive insurance, strata levies, council rates, electricity, internet until April/May 2014, when he temporarily ceased those payments. In June 2014 he re-commenced the payments but does not say when he stopped. The Husband’s unchallenged evidence is that those expenses totalled $417 a week, including child support. The Husband paid child support as assessed from separation and continues to do so. His assessment increased in 2015 and he is up to date. In or about January 2015, the Wife received $30,000 from the Husband and $20,000 from the sale proceeds of Property A by way of an interim property distribution. The Husband also received $20,000 from the sale proceeds.
The Wife deposes to incurring a liability to Centrelink of $4,187 after separation, the responsibility of both parties, and to repaying the debt from her limited income. There is confusion in her financial evidence as to when that debt was paid and according to the Balance Sheet relied on by both parties, she does not seek an addback from the Husband in relation to any part of that debt. I take her payment of this debt into account.
I have later addressed the Husband’s counsel’s submissions on the financial impact on the parties of the Wife’s resistance to vacating the Property A property.
Non-financial contributions and contributions to the welfare of the family
I accept the Wife was responsible for managing the household budget, to the extent that was possible without knowledge of the loan account or redraws. She deposes to undertaking the majority of the domestic tasks including cooking, washing and ironing, cleaning, grocery shopping, shopping for clothes. The Husband deposes to the parties sharing domestic tasks equally, including cooking, cleaning and sometimes food shopping.
While I am satisfied the Husband played a role in domestic tasks, I accept the Wife’s evidence that the majority of domestic tasks fell to her, given she was at home full time with X. I also accept her unchallenged evidence that she arranged for carpets/rugs to be professionally cleaned, and to her brother and father assisting with repair tasks in the home free of charge, especially in the bathroom.
I have addressed the parties’ care arrangements for X earlier in these Reasons. It is common ground that the Wife was X’s primary carer both during cohabitation and after separation, and while I have made findings adverse to the Wife in relation to her attitude to X’s relationship with the Husband, the fact remains that the Wife made the greater contribution to the myriad of day to day tasks involved in her care during cohabitation and post separation.
Assessment of contributions
The Wife’s solicitor submits that the parties’ contributions should be assessed as equal if the Second Respondent’s claim succeeds.
The Wife seeks 20% by way of adjustment under section 75(2), a division of 70/30 in her favour, her entitlement to include the $50,000 she has already received by way of interim property distribution, and the Husband’s entitlement to include the $20,000 he has received.
As already noted, the Husband’s counsel submits that there should be no adjustment, and therefore does not submit a percentage a figure on contributions.
On the basis of my findings, I have determined there should be a property adjustment in favour of the Husband. I assess the Husband’s contributions at 53% and the Wife’s contributions at 47%.
Relevant section 75(2) factors
The age and state of health of each of the parties
The parties are young and have no health issues.
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
Each party will retain assets with minimal value as a result of these proceedings, and while each party has borrowed funds to meet legal fees, each bears responsibility for repayment of debt and the legal fees outstanding. Each has relied on family support. Each party has used funds from the interim property distribution to meet legal fees or to pay debt, and both parties’ Financial Statements reveal their minimal savings currently.
However, the Husband has a weekly salary of $2,019 (gross) + $4 (dividend) + an estimated $166 a week bonus payment. He therefore has a net $1526 available to him each week after payment of taxation and superannuation.[152] He pays child support of $228 a week, $510 in rent, and $30 a week for private health insurance. He deposes to other expenses of $570 a week + $372 a week in minimum credit card payments. It is not clear whether the credit card figure is interest only or whether there is double counting. Assuming it is interest only, he has a shortfall between his income and expenses each week. His expenses were not challenged. The Husband continues to accrue superannuation as a result of his employment.
[152] Husband’s financial statement sworn on 15 August 2016
I find that the Husband’s father (or parents) is a financial resource to him. The Second Respondent assisted the Husband financially from the time of the advance in 2008, and has assisted him financially since. The Second Respondent acknowledges advancing monies to the Husband since separation.
The Wife’s last paid position in 2012 was as an (occupation omitted) at (employer omitted) with responsibility for approximately 25 staff members, with responsibilities for monitoring how the business was performing. She completed qualifications at (University omitted) to “train the Trainer”. The Wife left the workforce before X was born and has remained out of the workforce since. Given this disruption in her career, (whether the length of the disruption should be regarded as reasonable or otherwise) I find that when the Wife returns to the workforce, it will take her time to achieve the income she was earning prior to taking her maternity leave. Her earning capacity is likely to have been affected by her time out of the workforce and is likely to be lower than the Husband’s. The Husband’s career has not been interrupted by the birth of X. I am satisfied that the Husband is therefore in a stronger financial position than the Wife as a result of his income and ongoing capacity to accrue superannuation.
The Wife is living with her parents and two brothers. She deposes to relying on income from Centrelink and child support payments. She deposes to expenses of $904 a week in September 2015 and to expenses of $1112.43 in August 2016. While she leaves blank the section “expenses paid by others for your benefit” in her Financial Statements of both September 2015 and August 2016, the Wife pays no rent, board or accommodation expenses, no electricity, gas or child care, all of which must be provided by her parents or others. She deposes to her parents giving her money by way of gift, to paying no rent or board and to her parents doing the shopping, though she says she contributes by purchasing food for herself and X and contributing towards the bills. While I find omissions and inaccuracies in her financial statements, I am satisfied her parents’ are a substantial financial resource to her. While I accept the Husband’s counsel’s submission that the Wife’s expenses (according to the sworn evidence) have almost tripled since January 2014 - $454 to $1,112 in August 2016, I do not find any of the expenses she has included are, on their face, unreasonable.
Whether either party has the care and control of a Child under 18 years
The Wife has, and will continue to have, the primary care of X.
Child support
The Husband has always paid child support as assessed and continues to do so.
The eligibility of either party for a pension or benefit under any superannuation fund or scheme, and the rate being paid to either party
The Wife relies on parenting benefits from Centrelink.
A standard of living that in all the circumstances is reasonable
Since the former matrimonial home was sold, the Wife has been living with her parents. While the Husband lived with his parents for many months after separation, he has been living independently for most of the period since separation. In her present financial circumstances, I am satisfied the Wife cannot afford to live independently.
Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account
The Wife’s refusal to vacate the Property A property resulted in the Second Respondent bringing proceedings in the Supreme Court for vacant possession and to recover his debt. The Husband’s counsel submits that the Court should find the Wife’s conduct in causing such an increase in the debt (each week adding over $300 to the debt) meets the standard laid down in Kowaliw’s case[153] for ‘waste’. His Honour Justice Baker said:
As a statement of general principle I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage, whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimize the effective value or worth of matrimonial assets;
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimized their value.
[153] (1981) FLC 91-092
Mr Brown submits that, even if the Second Respondent’s claim succeeds, the Wife’s conduct does not constitute economic recklessness or wantonness of the kind contemplated by Kowaliw.
From July 2013, the Wife was alone with a young baby, no income of her own, and limited financial resources. She says she could not afford alternative independent accommodation. I find it reasonable that she remained where she was for a short period. However, within a month of separation, the Second Respondent put her (both parties) on notice that he required the outstanding loan to be repaid, which meant she would need to prepare for the property to be sold within a reasonable time frame. A few months later the Wife was advised that the Second Respondent would be seeking his costs resulting from the default on the mortgage and was put on notice of the outstanding debt balance and the costs which were accruing. The Wife hung on for 18 months. She made no attempt to look at alternative accommodation options. She recalls being served with an affidavit, including bundle of documents showing the advance of $415,000, bank statements showing the payments, the schedule setting out all the interest and other payments made on the mortgage. She was aware the Second Respondent was owed money and was unable to access it while she remained in the unit. Had the Wife vacated the property within even a few months of the parties’ separation, the outstanding debt to the Second Respondent would have been significantly less, and the asset pool available for distribution between the parties, of substantially greater value. These property proceedings might also have been avoided altogether, or at least much less costly. I find that beyond the initial short period after separation, the Wife’s conduct did cause ‘waste’.
Counsel for the Husband also submits that the Wife’s conduct in resisting the Second Respondent’s claim for repayment of the debt by running a ‘no interest’ argument at the 11th hour, resulted in further ‘waste’. Although I am not persuaded this conduct constitutes ‘waste’ in the Kowaliw sense, I find that it is a relevant consideration. A great deal of time and financial resources have been spent on an argument which, on the evidence, had poor prospects of success. I have regard to the costs incurred by the Husband and by the Second Respondent (for which the Husband has also suffered loss) given the time taken at trial on the Wife’s argument.
Assessment of section 75(2) factors
The Court must weigh all the s.75(2) factors together and then make one adjustment.[154]
[154] Tomasetti & Tomasetti [2000] FamCA 314
The Husband’s counsel submits that there should be no adjustment. Mr Brown for the Wife submits that there should be a 20% adjustment. It is his submission that the smaller the pool, the stronger the pressure on the section 75(2) factors.
On a weighing of my findings on the relevant factors to which I have referred under s 75(2), I have decided the Wife will receive an adjustment of 10% in her favour. This means that the net assets of the parties will be divided as to 57% to the Wife, and 43% to the Husband.
Is the result just and equitable?
The Court must be satisfied that the actual orders provide for a just and equitable distribution of the property of the parties.[155]
[155] Family Law Act 1975 (Cth), s.79(2)
The parties own property with a net value of $249,357 inclusive of superannuation. Neither party seeks a transfer of any items of property in the other's name, or a superannuation splitting order.
On the basis of a 57/43 division, the Wife would be entitled to receive assets with a value of $142,133.49. The Husband would be entitled to receive 43% of the assets with a value of $107,223.51.
The Wife has net assets in her name with a value of $114,849 including her care, shares, superannuation. She would therefore need a payment of $27,284.49 to receive her entitlement.
The Husband has net assets in his name with a value of $134,508 including a few shares and superannuation. His current net assets would exceed his entitlement by an amount of $27,284.49.
The only assets available to the Husband to meet the Wife’s payment are his superannuation entitlements. This will necessitate a splitting of his (omitted) Fund. Neither party has prepared for this outcome by giving notice to the Fund of such an outcome, yet both must have foreseen this outcome as a probability if the Second Respondent’s claim was successful, and the Court made a property adjustment in favour of the Wife.
The law requires the Fund to be afforded procedural fairness before a splitting Order is made. The Husband’s solicitor will be directed to put the fund on notice of the splitting Order. The Order will be made, once the Court has been advised that the Fund has been afforded procedural fairness. The parties will otherwise retain the assets in their respective names.
Having regard to my findings in this case, I am satisfied that the proposed Orders concerning the spouse parties set out at the beginning of these Reasons are just and equitable.
Spouse maintenance
The Wife seeks spouse maintenance from the Husband until X starts school in the sum of $200 per week or a lump sum of $15,000. The Husband opposes the application.
Legal principles
Section 72 of the Family Law Act 1975 provides that a party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support himself 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 any relevant matter referred to in s. 75(2).
Section 74 provides that the court may make such order for spouse maintenance as it considers proper.
Section 75(1) provides that in exercising its jurisdiction under s.74, the Court shall take into account only the matters referred to in s.75(2). The Full Court in Bevan[156] held that the Court should pay proper regard to the factors set out in s.75(2).
[156] (1995) FLC 92-600
The Wife’s case
The Wife’s solicitor made no submissions on the spouse maintenance issue. The Husband’s counsel made brief written submissions.
The threshold question is whether the Wife can support herself adequately given her care of X.
I agree with counsel’s submission that the Wife’s financial evidence is unreliable and inaccurate. It is necessary in cases of this kind that financial evidence is prepared carefully and accurately. In her Financial Statement sworn in August 2016, the Wife deposes to expenses for herself in the sum of $593 a week and to income for herself from Centrelink alone. She does not explain why she receives no dividend from her 67 shares in CBA or her 58 shares in Suncorp when dividends (however minimal) would be payable by those companies. The Wife does not include the expenses paid for her benefit by others when her parents or family members must be paying at the very least, all her accommodation costs and the costs of her use of utilities. And although she deposes to a considerable shortfall between her income and her expenses (even taking her Centrelink payments into account), she has no credit card debt and gives no explanation as to how she meets that shortfall. As a result of the paucity of her financial evidence, I am unable to make findings as to the Wife’s reasonable needs and whether she can adequately support herself if she returns to paid work.
I am satisfied, however, that the Wife has the capacity for paid work. The Wife says she has not tried to find work, either full time, part time or casually, because she wishes to care for X herself and wanted to wait until these proceedings were finalised. I find contradictions in her evidence on this issue. The Wife acknowledges having held a responsible leadership position prior to taking maternity leave in 2012, to being qualified to train ‘trainers’ and to having the necessary skills to work. In her 2015 affidavit, the Wife says she plans to go back to work two days a week when X starts pre-school which she did in January 2016, but as at August 2016, she had not looked for a job.
The Wife deposes to her financial stress while living with her parents but tells the Court she enjoys spending time reading, dance classes, socialising including going out for dinner.[157] Despite her apparent financial stress, she has not made any attempt to find any paid work, despite being qualified to do so. I am not persuaded that her care of X would prevent her from engaging in some paid work outside the home. I agree with the Husband’s counsel’s submission that the Wife has chosen not to exercise her earning capacity and therefore the Court is unable to make a finding that she is unable to support herself adequately.
[157] At page 191 of 19 August 2016 transcript of proceedings
The Wife’s application will therefore be dismissed.
I certify that the preceding two hundred and ninety one (291) paragraphs are a true copy of the reasons for judgment of Judge Sexton
Associate:
Date: 10 July 2017
Key Legal Topics
Areas of Law
-
Civil Procedure
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Standing
-
Procedural Fairness
-
Natural Justice
-
Abuse of Process
0
9
2