Clyatt and Lemm
[2013] FamCA 889
•15 November 2013
FAMILY COURT OF AUSTRALIA
| CLYATT & LEMM | [2013] FamCA 889 |
FAMILY LAW – PARENTAL RESPONSIBILITY – BEST INTERESTS OF CHILDREN – Where the mother seeks an order for sole parental responsibility – Where the father seeks an order for equal shared parental responsibility – Where the Court considered the presumption that it is in the best interests of children for their parents to have equal shared parental responsibility and found that the presumption had not been rebutted in this case – Where the Court made an order for equal shared parental responsibility but did not consider that it was in the children’s best interests for them to spend equal time or substantial and significant time with the father FAMILY LAW – PROPERTY SETTLEMENT – DE FACTO RELATIONSHIP – Where the parties cohabited for more than two years and where there are two children of the relationship – Where it is not contested that the parties were in a de facto relationship – Where the Court considered whether it would be “just and equitable” to make orders altering the parties’ interests in their property, having regard to the High Court decision of Stanford & Stanford (2012) FLC 93-518 (“Stanford”) and the Full Court’s consideration of Stanford in Bevan & Bevan [2013] FamCAFC 116 – Where the Court found that it would be just and equitable to make orders under section 90SM of the Act altering the parties’ interests in their property – Consideration of the parties’ respective contributions in circumstances where the overwhelming contribution to the net asset pool was an unencumbered property which was an initial contribution of the father – Where the mother’s parenting contributions post separation have been far greater than the father’s – Consideration of relevant factors under section 90SF(3) of the Act in circumstances where the mother will in the future have the primary care of the children – Where an adjustment was made in favour of the mother | ||
| Family Law Act 1975 (Cth) | ||
Family Law Rules 2004 (Cth)
| Bevan and Bevan [2013] FamCAFC 116 Stanford & Stanford (2012) FLC 93-518 |
| APPLICANT: | Ms Clyatt |
| RESPONDENT: | Mr Lemm |
| FILE NUMBER: | SYC | 6817 | of | 2011 |
| DATE DELIVERED: | 15 November 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 8, 9 August 2013 and 28 October 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie |
| SOLICITOR FOR THE APPLICANT: | Dimocks Family Lawyers |
| RESPONDENT: | In Person |
Orders
PROPERTY
That within three calendar months of the date of these orders the Respondent Father pay to the Applicant Mother the sum of $150,000.
That in the event that the Respondent Father has not complied with Order 1 by the due date, then the Respondent Father shall do all acts and things required to sell the property at D Street, Suburb E and to pay to the Applicant Mother from the proceeds of sale the sum of $150,000, or so much thereof as remains outstanding, together with interest from the due date until the date of payment, at the rate prescribed by the Family Law Rules 2004 (Cth).
That other than as specifically provided for by these orders, each of the Applicant Mother and the Respondent Father is solely entitled, as against the other, to any item of property in his or her possession at the date of these orders.
PARENTING
That the parents have equal shared parental responsibility for the children B born … 2007 and C born … 2009 (“the children”).
That the mother’s application to relocate the place of residence of the children to Country F is dismissed.
That the children live with the mother.
That the mother be permitted to live with the children at a place outside the Sydney Metropolitan Area provided that the nearest railway station to her place of residence is not more than 90 minutes’ journey by train from Central Railway Station, Sydney.
That, from the date of these Orders until the end of the school term in December 2013, C spend time with the father each Thursday (or such other day as the parties agree) from 9.00am until 6.00pm, with changeover to take place at Central Railway Station, Sydney.
That, from the beginning of the holidays at the end of Term 4 in 2013, provided that both parties agree, the children spend time with the father from after school on Friday until 5.00pm on Sunday afternoon each alternate weekend and for half of each school holiday period, except as provided in Order 13.
That the mother not withhold her consent to overnight time in accordance with Order 9 if;
10.1the father has premises in which it is safe for the children to be cared for overnight; or
10.2the overnight time with the children takes place at the home of Mr and Ms G or at some other place agreed to by the mother.
That in the event that no agreement is reached for the purpose of Orders 9 and 10, the children spend time with the father:
11.1each alternate weekend from 9.00am until 5.00pm on Saturday and from 9.00am until 5.00pm on Sunday; and
11.2during school holiday periods, in addition to the time in Order 11.1, that C spend time with the father on one day each week (and in the absence of agreement, each Thursday) from 9.00am until 5.00pm and that B spend time with the father from 9.00am until 5.00pm on one day each week (and in the absence of agreement, each Tuesday).
If the mother is residing at a place where the nearest railway station is not more than 30 minutes’ journey from Central Railway Station, Sydney, changeovers for the purpose of the children’s spending time with the father shall take place at Central Railway Station, Sydney (unless the parties otherwise agree).
If the mother is residing at a place where the nearest railway station is more than 30 minutes’ journey from Central Railway Station, Sydney, changeovers for the purpose of the children’s spending time with the father shall take place at the railway station closest to the mother’s residence (unless the parties otherwise agree).
That the mother be permitted to travel with the children to Country F for five weeks in the Christmas school holiday period in 2013/14 and in each alternate year thereafter. During any period when the children spend time with the mother in Country F, she shall ensure that they communicate with the father by Facetime, if possible, or by telephone, at a time agreed upon between the parties at least each alternate day.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Clyatt & Lemm has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6817 of 2011
| Ms Clyatt |
Applicant
And
| Mr Lemm |
Respondent
REASONS FOR JUDGMENT
Before the Court are proceedings arising out of the relationship between the applicant, Ms Clyatt (“the mother”) and the respondent, Mr Lemm (“the father”). They commenced cohabitation in June of 2007 and there are two children of the relationship: B, born in 2007 and now aged six; and C (a boy) born in 2009 and now aged four (together, “the children”). The parties separated on 7 November 2009 and since that time the children have lived with the mother.
The mother, who was born in Country F, came to Australia in March of 1998. Also in 1998 the father acquired a property at D Street, Suburb E (“the Suburb E property”). The mother now seeks an order for property settlement and an order that she be permitted to relocate to Country F with the two children.
jurisdiction
There is no dispute that the parties lived in a de facto relationship between June 2007 and at least August 2009, a period of more than two years. In August 2009, the mother took the children to Country F to stay with her family, as the house was uninhabitable due to building work. The father, in his Financial Questionnaire, says that he and the mother separated at that point. The mother says they separated when she returned from Country F and found the condition of the house unsuitable for the children. On either version, they lived together for a period of more than two years.
There were two children of their relationship.
It is not contested, and I find, that both of the parties to the de facto relationship were ordinarily resident in Australia when the application in relation to the division of property was made and were, in addition, ordinarily resident in Australia when the relationship broke down.
Thus jurisdiction to deal with the parties’ applications relating to financial matters is established.
parenting
The two children born to the parties are B, who is now aged six years of age, and C, who is now aged four years of age.
The parties separated in November 2009 when C was five months old and B was two years old. Since that time the children have lived primarily with their mother and have spent time with their father, initially each Sunday. More recently, C has spent the whole day with his father on Thursdays and both of the children have spent the whole day with their father on Sundays.
It is not disputed that the father has not had overnight time with the children. The mother’s objection to overnight time is based solely upon her assertion that the condition of the home in which the father lives is unsuitable for the children.
The mother gives evidence that, from the time the parties separated, she has offered the father overnight time with the children provided they resided at the home of the father’s mother or at some other suitable place. It is her evidence that she has offered the father overnight time with the children in her own home on the basis that she would not be present.
The father agrees that the mother offered him overnight time in her own home but said that he would feel uncomfortable being in her home. That is understandable. The father also gave evidence that, although the mother would agree to the children staying in the home of the paternal grandmother, the paternal grandmother is unwilling to facilitate overnight time in her home.
On 26 July 2012 the parties were assessed by the Family Consultant, Ms H (“the Family Consultant”). The Child Responsive Program Memorandum prepared by the Family Consultant on that date indicates that the parties had agreed that consent orders would be filed providing for the children, on an interim basis and pending further order, to spend time with their father each Thursday from 8 am until 5.30 pm and also each Sunday between 9 am and 5 pm. The consent orders were also to provide that the children would spend time with their father on one weekend a month from Friday until Sunday, with the following condition attached:
Until such time as the father’s home is declared to be safe for children by someone qualified to undertake an inspection of this type, any overnight time that the children spend with their father shall be spent at a location other than the father’s home.
The mother was unable to find a suitably qualified person to prepare the report as to the state of the home, which was contemplated in the agreement, and instructed her solicitors to prepare draft orders which removed the reference to the children spending overnight with the father in his home. Instead, the draft orders provided for the father’s overnight time to be exercised at the residence of a family member or friend.
There is no evidence of any response by the father to the mother’s draft orders and no such orders were made. When the matter came before the Court on the first day of the Less Adversarial Trial, on 13 February 2013, the father signed the draft orders and the parenting orders were made.
In relation to time spent with the children overnight in other homes, the father gave evidence that he has proposed a number of different friends with whom he could stay overnight with the children and that the mother has not found those people to be suitable. The mother disputes that evidence. Annexed to her affidavit, filed in her case in reply on 2 October 2013, are copies of all of the text messages which passed between the parents from 6 November 2011 to 22 September 2013. There are no texts on the subject of appropriate venues for overnight time. In addition, on 23 August 2013, the mother caused a letter to be sent by her solicitors to the father proposing the home of two of the father’s friends as a suitable venue for overnight time with the children. My observation of the father in Court leads me to infer that he assumed that the mother would not agree to his friends being suitable and did not properly consider what she actually said to him. In his oral evidence, the father said that he assumed that, because his friends were smokers, the mother would not agree to their homes as being suitable.
The facts remain that the father has not cared for the children overnight and that the only bar to his doing so, as far as the mother is concerned, is the state of his home.
The father continues to spend time with the children on a daytime basis only. Numerous photographs of the father’s premises, being photographs taken by the father and photographs taken by the mother, were in evidence in the proceedings. The Family Consultant had the opportunity to look at the photographs and it was her oral evidence that the premises were unsuitable for children of the age of these children to spend overnight time. The Family Consultant was confident that during the daytime the father would vigilantly supervise the children but she expressed concerns about the children being supervised at night, if they woke when the father was asleep.
On that basis, whilst the father continues to live in his present accommodation, he is unlikely to have overnight time with the children unless he can persuade a relative or friend to provide suitable accommodation at those times. At the conclusion of the hearing before me, the father acknowledged that the mother would facilitate weekend time with the children overnight at the home of the two friends to whom reference has earlier been made. It is to be hoped that the father will be able to have those arrangements put in place.
In the event that the father is forced to sell the Suburb E property to satisfy an order for property settlement, the situation in relation to overnight time at his home may change. In those circumstances, the father will be in a position where he will rent accommodation and any rented accommodation is likely to be of a standard which would be appropriate for the children to stay with him overnight.
The circumstances of this family are complicated by the fact that B was born with Down Syndrome. There is not a great deal of evidence about the impact upon the family of B’s medical condition. The mother gives unchallenged evidence that B was required to attend a number of early intervention programs, medical appointments and therapy sessions which took place once per week for two hours. For the first eight weeks after she was born, the mother took B to an early childhood health centre for regular check-ups. B needs an ophthalmology check-up, a paediatric check-up and had an audiometry appointment in late August. Once the audiometry assessment is done, she will need to have an ear, nose and throat check-up. B is scheduled to have a sleep study, which consists of two appointments with a doctor and one overnight stay in hospital, and she is also booked in to attend speech therapy every Saturday until the end of 2013. She has occupational therapy but this is conducted at school and the mother is considering whether or not B needs behavioural therapy. B is attending school in the public school system. She has not yet been fully toilet trained. There is no expert evidence in relation to B’s prognosis in terms of her behaviour or development and any changes that might be expected.
The Family Consultant prepared a report dated 14 June 2013 (“the Family Report”). In the Family Report the mother is said to have described B as having started school at Ashfield Public School where she is “doing really well”.
The Family Consultant in relation to B says:
[B] (aged five years) presents as being a delightful little girl with Down syndrome who, whilst not having much expressive language at this point in time (which is said to cause her frustration at times), played creatively and with evident pleasure including with each parent. As noted in the Children and Parents Issues Assessment, [B’s] condition brings with it some behavioural issues, such as obsessive-compulsiveness and extreme stubbornness, the latter of which each parent was observed to manage effectively when it manifested.
the mother’s application and the father’s response
It is the mother’s application that she be permitted to change the residence of the children and to relocate with them to Country F. The mother’s reasons for seeking those orders are set out in her primary trial affidavit and no challenge was mounted by the father to her reasons or her evidence in that regard. That does not mean that her evidence must be accepted uncritically if other evidence conflicts with it.
The mother was born in Country F and grew up in Country F, relocating to Australia in about March 1998. She has no family in Australia and all of her family live in Country F. She last travelled to Country F in 2009. No member of her family has visited Australia since that time.
The mother says that she does not have an existing network of friends in Australia who are able to help her with the children. By contrast, she also deposes to “friends who have assisted me with the children”, including B’s godmother, friends who visit and a friend who has cared for the children on several occasions.
Her parents live in the South of Country F in Region I and her brother lives in City J. The children have ten cousins in Country F (although I infer from the Family Report that they are not first cousins but rather the children of the mother’s cousins).
The mother wishes to relocate so that she can move close to her parents, who have both retired and who will be able to provide her with emotional and practical support in relation to the children. Her father swore an affidavit in the proceedings deposing to the assistance which he could provide, were the mother and children to relocate to Country F. He was not required for cross-examination. The maternal grandfather said he could help in the event of an emergency, take B to appointments (or care for C while the mother takes her) and that, initially, the mother and the children could stay in his home. He also said that he could drop the children at extra curricular activities and care for them if the mother worked late. The grandfather could also assist with B’s speech exercises, having done so in 2009 when the mother and the children stayed with him.
The mother told the Family Consultant that disability services in Country F are similar to those in Australia.
The mother hopes to be able to work part-time from home in Country F doing freelance work as a graphic designer and also working as a web developer (she did not explain why similar opportunities would not be available in Australia). In the Family Report, the Family Consultant records that the mother has considered moving to Suburb K so as to have the opportunity to work in northern Sydney. The mother in her affidavit said that, if she remains in Australia, the children would miss out on extra-curricular activities “as my work constraints would not enable me to take them to activities”.
The mother hopes to be allocated public housing. There is no evidence about when such housing might be available (neither is there any evidence about the mother’s entitlement to public housing in New South Wales).
The mother hopes that by relocating to Country F the children will develop a strong bond with their Country F relatives and learn more about their Country F background. It is her case that moving to Country F would mean that C would be able to have some respite from B with relatives and friends. She says that C is not able to do this as there is no-one in Australia who can look after him. This, of course, ignores the fact that C currently spends two days each week with his father, one of which he spends entirely on his own without B, and that the father is eager to have more time with the children, even if overnight time is not available. It also ignores the mother’s evidence of a friend who looks after the children.
Additionally, the mother says that she would be able to provide more one-on-one attention to C while B stays with family and friends. Again, this ignores the fact that it would be possible for B to spend a dedicated day during the weekend with her father and for C to remain at home with his mother. B could also spend days with her father during school holidays.
The mother says that if she were permitted to relocate to Country F she would continue to ensure that the children spoke English and that, once they commenced high school, they would be able to study English as one of their subjects.
The children do not speak Country F.
The mother’s English is very fluent and there is no doubt that she can and will maintain the children’s English language fluency.
The mother proposes that the children maintain their contact with their father during the first two years of her relocation by his visiting the children during their summer vacation for up to six weeks during July and August. She says that she will pay for the father’s airfares and accommodation to spend time with the children. The practicality of that proposal was not explored in cross-examination but common sense suggests that it would be inappropriate for children of this age to spend six weeks away from their mother with a parent whom they have not seen for many months. In addition, whether or not the mother will be in a financial position to afford to pay airfares for the father is uncertain.
After the initial period of two years, the mother proposes that the parties travel on an alternate basis, where she would take the children to Australia for a period of six weeks every second year during the July/August school holidays. She would expect the father to provide suitable accommodation and to cover the costs of caring for the children during that six-week period.
In the alternate year, she proposes that the father travel to Country F and spend time with the children for six weeks during the July/August school holiday period. She also proposes that the father travel to Country F for a two-week Christmas holiday in odd numbered years and a two-week Easter holiday in even numbered years and that she would cover the cost of his airfares and accommodation to enable this to occur. Again, whether or not she would be in a financial position to do this is uncertain.
In addition, the mother proposes communication by Skype and by telephone calls.
The mother’s alternate position, if she were not permitted to relocate the children to Country F, is that she would relocate out of Sydney. Her primary motivation for moving is that rent would be cheaper. She would choose her location having regard to the availability of services for B. During her interview with the Family Consultant, the mother discussed moving to the lower Region L or to Suburb K, where she has friends and where there is a good train service which would allow her to work in the northern area of Sydney and to take B to medical appointments. She has also considered moving to Newcastle.
Again, the mother’s alternate position was not the subject of challenge as to her reasons and the father conceded that it would be appropriate for her to move to the lower Region L. It is her intention to move to a place where accommodation is cheaper but where she can still have easy access to Sydney by train. In principle, the father does not oppose that proposal.
The father opposes the mother’s application to relocate to Country F.
While his opposition is not fully articulated in his affidavit, it is clearly set out in the Family Report in the following way:
[The father] opposes the children’s relocation to [Country F]. Aside from the impact that such relocation would have on his relationship with the children, he expressed concerns about how the changes involved would affect each of the children. He expressed the view that both [B] and [C] “like patterns of things”, such as, for example, having routines, and become upset when these patterns are disrupted. He perceives them as being comfortable with various aspects of their current lives, including their routines, visiting familiar places (and people) and having certain friends. [The father] reports that [C] has friends, both in [Suburb E] and at [the father’s] home, to whom he is attached, as well as a special friend … with whom he enjoys spending time. With regard to [B], [the father] indicated that she still engages in parallel play and is not yet playing in engagement with other children. The concern that he conveyed about her was related to the number of changes she has already experienced and how these changes, from his point of view, lead to some “set backs” in her functioning, for example with her speech development and her ability to do things. [The father] described his house and the area in which he lives as having been the things that have remained the same for the children in the face of the other changes in their lives. He expressed disquiet about the prospect of the children facing further changes without his being there to help them. Whilst he acknowledged the telephone and Skype as means for him to communicate with the children, [the father] said that [C] is a sensitive child who likes to be hugged and touched, which Skype cannot provide.
The father also told the Family Consultant that it would be difficult for him to visit the children in Country F and that he was unable to conceive how such visits would work.
Both parents recognised the benefits to the children of having a meaningful relationship with both of their parents. One of the most significant matters for determination by the Court is whether or not, in the circumstances of this case, these children can have a meaningful relationship with their father if they live in Country F and he remains in Australia.
No views have been expressed by the children. That is not surprising having regard to B’s language difficulties and C’s age. Even if C, at four years of age, had expressed any views they would carry little or no weight. However, it is clear from the oral evidence that C has expressed a clear wish to spend more time with his father and to stay overnight with his father. That was acknowledged by the mother.
The Family Consultant in her report said that the children enjoy loving and emotionally healthy relationships with both of their parents. There is no doubt that their mother has been their primary carer since birth and particularly since the mother and father separated. The Family Consultant reported that B was observed to approach each parent with confidence. The mother told the Family Consultant that she “has never had an issue about the children’s relationship with their father” and that she “views B and C as enjoying the time that they spend with him.”
In relation to the father the Family Consultant reported:
[The father] (aged 46 years) presents as being a unique individual who projects an air of gentle intensity when speaking about or interacting with his children and of bewildered, disorganizing distress when forced to think about the possibility of their relocating to [Country F].
My observations of the father in the course of the hearing accord with those of the Family Consultant.
The Family Consultant goes on to say:
[The father’s] descriptions of [B] and [C], which were detailed and lively, revealed an appreciation of each of them as individual people who have “divergent tastes” which need to be balanced. He gave the impression of having an intimate knowledge of their likes, dislikes, fears, preferred activities, the meaning of their behaviour, the challenges of limit setting, how each manages going to sleep and other things, as well as their other idiosyncrasies. He regards both of the children as being visually creative and he seems to, in different ways, encourage this in them.
The Family Consultant considered the relationship between the father and the children in the following way:
[The father] expressed great enjoyment of the children and pleasure in being with them. He remarked that, because of this, he finds it easy to focus on them when they are with him. [The father] said that he thinks that [B] and [C] also find him “interesting”, this being because he enjoys keeping them busy and entertained and because he engages with each of them according to their particular needs and abilities. Amongst other things, he described currently working with [B] on her dexterity, as well as using pretend telephone conversations with her to alleviate any feelings of being left out because of the differences between her and [C] in relation to their ability to communicate in words, and helping [C] overcome his fear of animals. [The father] also views the children as being attached to their mother who he considers to be a protective parent, although perhaps more inclined to take them to doctors than he would be, and as skilled in providing them with structure and discipline. He remarked that [C] has things that he does with “Mummy” and things that he does with “Daddy”.
In relation to the children’s relationships with both of their parents the Family Consultant observed in the report:
[T]he children were observed with the parents together and with each parent separately. Both [the parents] were observed to maintain an overarching calm awareness of both of the children throughout the time that they spent with them during the observations. This allowed each parent to intervene with [B] early when needed and to manage her behaviour, as needed, with minimum fuss. Their experience, competence and enjoyment were evident in all of their dealings with both of the children during the course of the Family Report interviews (as well as the Children and Parents Issues Assessment). The main observed difference between the parents was the degree to which each immersed themselves in the children’s play or activity. Overall, both [the parents], in their interactions with their children, impressed as being attuned and sensitive parents who maintained a high level of alert awareness of the children when they were with, and responsible for, them during the Family Report process.
The Family Consultant goes on to say:
[T]he parents are assessed as being skilled and sensitively attuned parents, both of whom give the impression of having an intimate knowledge of their children, including their quirks, likes, dislikes, strengths and weaknesses. While it manifests in different ways in each of them, both [the parents] also give the impression of being mindful of the children’s safety. In [the mother] this is apparent in her understandable concern about the children’s safety in their father’s house in the condition it was shown to be in the photographs. The level of [the father’s] vigilance, which was observed during the Family Report interviews, exemplifies it in him. Indeed [the father’s] vigilance, combined with the immersive nature of his engagement with the children, probably accounts for the children not having suffered any injuries whilst spending time with him at his home.
The Family Consultant observed:
[The parents] have some significant similarities in their parenting styles but also some important differences which benefit and potentially enrich the children’s lives and their development. [The mother] brings the necessary organization and structure into the children’s lives, in addition to an appreciation of each of them as individuals who have quite different needs from one another, which has the effect of providing them with a sense of predictability and stability. [The father] brings a patient, engrossed focus on the children and their activities when he is with them and a genuine curiosity about who they are as individuals, which facilitates the development of their creative capacities and benefits their emerging sense of themselves. These two styles in combination contribute to [B] and [C] being confident, secure and creative children.
The children have not seen members of the mother’s family since 2009, when C was only months old. There is no suggestion that they have a significant relationship with either the maternal grandparents or the mother’s brother, or indeed their cousins in Country F.
The children’s relationship with their paternal grandmother does not appear to be significant. However, the children have established relationships with friends in the vicinity of the father’s home and with a particular friend of the father whom they call “Uncle”. Similarly, the mother gives evidence of significant relationships between the children and friends of hers, including B’s godmother.
The mother complains that the father has failed to take the necessary steps to enable him to spend overnight time with the children. At least since July 2012, it must have been clear to the father that the children could spend overnight time with him, provided that the home in which he lives was brought up to a standard which would be appropriate for their accommodation. The father has failed to do the necessary work to enable the children to have overnight time.
In cross-examination the father said that he could not see the point of doing work on the home when he did not know whether or not he would be able to keep it. In addition, it does not seem to be disputed that the father does not have the finances which would be required to do significant work on the home.
The father has been renovating the house since before the relationship between the parents commenced. It was his failure to bring the property up to a standard which the mother deemed acceptable for the children that, ultimately, led to the separation. The mother travelled with the children to Country F to allow the father to work uninterrupted on the renovations. When she returned, it was his failure to achieve any significant progress with the work that caused her to end the relationship.
The mother gave evidence that in the early stages of their separation the father asked if he could spend time with B alone on Wednesdays. The mother suggested that the father spend time with B and that he could take her to a program for children with special needs that went for about two hours. She suggested that it would be beneficial for B if her father could take her to the program. Her unchallenged evidence is that the father refused. The mother, again unchallenged, gave evidence that the father was inconsistent with the time that he would spend with the children and sometimes would telephone to say that he was not sure if he was coming. However, the mother’s evidence was that since about July 2012 the father has been rigorous in his attendance and reliable in collecting and returning the children. The father told The Family Consultant that the present arrangements for the time the children spend with him are “almost the limit of what is possible”, although ultimately he would like to have the children for weekends. He would like to spend more time with B, perhaps picking her up from school and spending a couple of hours with her on a weekday.
The mother would welcome some respite and, through her counsel, she readily agreed that the father should have extra days with the children during school holidays. The father is anxious to have as much time with the children as he can and I have no doubt that he will spend time with them whenever he can. However, I am not confident that he will be sufficiently organised to avail himself of overnight time. The father gave evidence that C does not like to spend time in other homes and that, for C, the importance of overnight time is that it be spent in the father’s home. Whether the father will decide that he and the children will spend time at the home of his friends remains to be seen.
In terms of the parents’ ability to communicate about arrangements for the children, each regards the other as being difficult. Each party also regards the other as having a commitment to their own views. On the basis of my observations of the parties in cross-examination, each is probably correct.
However, the totality of the text messages put into evidence by the mother demonstrates a respectful and appropriate communication between them. Each parent appropriately provides the other with information about the children and is able to make arrangements for day to day care using texts.
The mother criticises the father for his persistence in recent times in trying to persuade her to allow C to stay with him overnight. He gave evidence that it is C who has initiated the request to stay at his father’s home. The mother accepts this to be so. She complains that the father persists with his request even though he knows she will refuse. She criticises the father for making the requests in C’s hearing. He says that he has only responded to C’s asking him why Daddy did not want him to stay overnight. He genuinely does not understand the basis of her refusal, that is, that the house is unsafe and unsuitable for C to stay overnight. I do not criticise either parent for the manner in which they have behaved in relation to the issue of overnight time at the father’s house. Each has acted entirely consistently with his or her personality and strongly held views.
In terms of financial support for the children, there is no doubt that the mother has provided almost entirely for them but it is not suggested that the father has had any capacity to pay any more for the children than what he currently pays.
It is with the likely effect of changes in the children’s circumstances, which the Court is required to consider pursuant to s 60CC(3)(d) of the Family Law Act 1975 (Cth) (“the Act”), that this case is primarily concerned.
The Family Consultant clearly articulates in her report the benefits for the children of moving to Country F. She says:
The benefits of the children relocating with their mother to [Country F] have been clearly articulated by [the mother]. In moving near to where her family lives, [the mother] has the prospect of getting more support in caring for the children and, if her hope for [B] and [C] to be woven into the fabric of the maternal extended family were to be realised, then there may well be more support available for the children in their adult years after their parents die. (The latter would, of course, depend on what decisions the younger members of the maternal extended family might make about their own lives.)
The detriments to the children in the relocation are also enunciated in the Family Report in the following way:
On the other side of the picture, however, is the disruption to the children’s lives in Australia, as has been articulated by [the father], and the losses associated with such a move, which include loss of friends, paternal family members and, if [the father] does not also relocate, their usual relationship with their father. There is also the difference in language, not only in the short-term but also in relation to whether or not [B] risks losing a common language with her father. (This is an area about which an expert in the field of Down syndrome might be of assistance to the Court.) Furthermore, [the father’s] capacity to emotionally deal with his children relocating to another country would need to be considered. It is not clear how he would react to the disruption to his relationships with the children or whether he could meaningfully (for both him and the children) adapt how he relates to the children in order to sustain the connection between them during the lengthy periods between visits. There may well be a risk that, unless he also relocates, he will feel too overwhelmed by the distance and practicalities and disengage.
The benefits of the children remaining in Australia were also set out in the Family Report as follows:
If [the mother] were to continue living with the children either where she lives now or nearby, the disruption to their friendships, relationships with paternal family and familiar routines would be avoided altogether. If she were to relocate to one of the areas in New South Wales that she has proposed, whilst there would be significant changes involved for [B] and [C], which would need to be carefully managed, the level of disruption to their lives, self evidently, would be less wide-ranging, which would mean that they would have less to cope with, and their relationships with both of their parents would remain uninterrupted. The other side of the picture is that, unless [the father] also steps up to the plate and sorts out his house/accommodation in order to take up more of the burden of parenting (and [the mother], for her part, shows willingness to share that burden with him), [the mother] may well be left in a situation of having limited support from him without having access to the support that might be there from her family. Whilst [the mother] presents as being a resilient woman who has considerable internal resources, raising two young children, one of whom has special needs, is demanding in itself but to do so without the type of support that a willing family can offer can be very challenging for even the most resilient of parents.
In the event that the children and their mother live in Country F, the practical difficulty of the father spending time with them is self-evident. The mother’s proposal is that at least for the next two years the father would travel to Country F for six weeks in each year. Whether she will be able to afford the cost of that travel is uncertain. Whether or not he would physically and emotionally be capable of doing that is problematic. I accept the evidence of the Family Consultant that it is not clear how the father would react to the removal of the children from Australia, or whether he could meaningfully adapt his relationship with them to sustain the connection which currently exists during the lengthy periods between visits. Those concerns are exacerbated by C’s young age and B’s difficulties.
I accept the evidence of the Family Consultant that there would be a risk, unless the father also relocates, that he will feel overwhelmed by the distance and the practicalities and disengage with the children. Although the father gave evidence that he would consider moving to England that did not seem to be a considered position. The father doesn’t know whether or not he would be permitted to reside in England and there is no evidence at all that the father would be permitted to reside in Country F. Whether the father could cope with the practical difficulties of travelling from England to the South of Country F, to the small town where the mother proposes to live in Region I, is completely untested. It is not a matter to which he appears to have given any consideration at all.
In relation to the effect of international relocation upon the relationship between the father and children, the Family Consultant said that relocation:
… absent [the father] also relocating, could not help but change the ways in the which [the father] would be able to be involved in the children’s lives. Given [C’s] age and [B’s] condition, the limitations on the frequency at which the children would be able to spend time with their father in the event of international relocation, unless [the father] were to also relocate, would also be likely to lead to a change in the nature of the children’s relationships with their father, which would represent an important loss for [B], [C] and their father.
In her oral evidence, the Family Consultant was asked by me to comment on how the children, given their intellectual and emotional capacity, would perceive the separation from the father in the event that they relocated to Country F. The Family Consultant gave the following evidence:
How would they perceive it? In part the answer to that - I mean, I can talk about [C]. I think it would be difficult for me to talk to about [B] because I'm not really - Down Syndrome is not something that I - is an area of expertise for me and how she might understand this. I imagine she would experience the loss. It may actually be more difficult for her to understand. I'm not sure at what level she is functioning emotionally, and she may - it's more difficult with younger children, for example, to explain a loss of this sort in a way that is not abandonment. So they tend to - younger children tend to experience it - whatever it's about tend to experience it as abandonment by the parent. Now, [C] does not have the same difficulties, but he's only four years old. He could have it explained to him. He's very clever. He's a smart child. So he could have it explained to him, but there would be still - he's still only four years old, but he may well still feel, "Why can't daddy come too?" because there isn't that sort of sophistication that might be able to appreciate that parents are in different positions or whatever. But it would also depend on how both parents dealt with it with him. How they explained it to him. Whether they helped him to feel secure that his relationship with daddy was - and [B] also, I guess, that their relationships with daddy are not going to end. That they're going to see daddy and they're going to talk to him. And this isn't about daddy not wanting to be with them or - you know, there's all sorts of ways of explaining it. What - what one can't avoid is the feeling of loss. I mean, that's just there. There's no way of avoiding it. Children lose regular - who are accustomed - I mean, with - with these children they're accustomed to the frequency. The regularity, the frequency. They - they miss the parent and that's part of the burden that they carry with relocation. There's two burdens. Travel, although in this case there's - there's the proposal that dad may actually travel over there, which would probably be most appropriate at this point. And the other burden is the impact on the frequency with which they get to see the other parent.
In considering the effect of changes for the children, the Family Consultant said in the Family Report:
The other important consideration in this matter is what the implications for [B] might be of the significant changes involved in relocation to another country, which include that of the different languages spoken in each country. In relation to the issue of language, there is also the issue of what would happen to [B’s] language development in the event of relocation and what her capacity might be for bi-lingual language development (which would be important for her continuing relationship with her father).
The Family Consultant indicated that those questions were outside her area of expertise but her concerns are relevant, noting that there is no suggestion that either of the children speaks Country F. There is no evidence about the effect upon B of being immersed in a Country F speaking school environment. Nor is there evidence of the effect on either of the children of the combination of removal from the father and familiar surroundings, and emersion in a culture which speaks a language which they do not understand.
Each of the parents is well suited to provide for the intellectual and emotional needs of the children. There is no doubt that the mother is more able than the father to provide for their physical needs but his contribution to their emotional needs and to their intellectual curiosity should not be discounted. It is that input from the father which would be missing if the children were not living in sufficient proximity to him to enable them to see him regularly.
I have no doubt that the mother would do all she could to help the children maintain their relationship with their father if they lived in Country F. However, I have grave doubts that she would be able to succeed, having regard to his and B’s difficulties.
I accept that remaining in Australia imposes a heavy burden on the mother but, as the Family Consultant states, she is resilient and strong.
In the balancing exercise required to determine what orders would be in the best interests of these children, I place the greatest weight on the children being able to maintain their current relationship with their father.
If the mother and the children continue to live in Australia, the mother wishes to take the children to Country F each alternate summer holiday for the whole period. The father does not oppose that application but asks that the children spend the summer of 2013/14 in Australia. He argues that C is too young to understand that he will not be leaving permanently and will be distressed at being separated from his father. The mother has not been to Country F or seen her family since 2009 and, despite the father’s concerns, it is appropriate that she do so in the next holiday period. Both of the parents will need to explain the arrangements carefully to C.
The mother seeks an order that she have sole parental responsibility for the children, whether in Australia or in Country F. In the past the mother has consulted the father in relation to major decisions for the children. There is no doubt that she has taken a leading role in managing B and the father has not questioned the appropriateness of her decisions. I do not accept that the difficulties in communication upon which the mother relies are such that it is impossible for them to discuss and agree on decisions in relation to their children.
It is presumed that the children’s best interests are served by their parents having equal shared parental responsibility and I do not consider that the presumption has been rebutted in this case.
It is not appropriate, for the reasons I have expressed, for the parents to have an equal sharing of time with the children or for the father to have substantial and significant time, as defined in s 65DAA of the Act.
PROPERTY SETTLEMENT
There is very little factual dispute between the parties in relation to the financial issues.
The father owned the Suburb E property for some nine years before the parties commenced cohabitation and it was owned by him at the commencement of cohabitation free of mortgage. The father had been slowly working on improvements to the property over many years and it still remains largely unrenovated. Before the mother moved into the property she organised for minor renovations to be undertaken to make it more habitable. Specifically, the mother paid to have a sink installed in the kitchen, to have running water piped into the kitchen and for the outdoor toilet to be replaced. The total cost of those renovations was $863.50.
Throughout the whole of the cohabitation and until the present time, the father has been in receipt of government benefits and is currently receiving a New Start allowance.
At the time the parties commenced cohabitation the mother was not working due to the impending birth of B. She received a lump sum maternity payment of $12,018.44 and she used that income to support herself and B and to contribute to the support of the father during the time that she was unable to work. Given that the payment was in relation to the child of both of the parties, I do not accept that the contribution of that sum is a contribution to be ascribed solely to the mother.
In June 2007, the mother’s parents gave her a total of $24,908.78. Bank statements annexed to the mother’s affidavit indicate that some, but not all, of that amount was used for day to day expenses.
B was born with Down Syndrome. The mother returned to work when B was nine months old. B was placed in child care until the parties separated in November 2009. From the time of her return to work, the mother was the primary income earner in the family. It is her unchallenged evidence that all of her income was used to support the family.
During the course of the relationship the mother paid $2,794 for computer software for the father’s use and about $3,800 for computer hardware. She purchased a television set for $1,879 and paid for the bathroom, located in the backyard, to be renovated, replacing the bathtub and mending leaking pipes at a cost of about $4,000. In addition, she paid for minor repairs to be undertaken to the Suburb E property at a total cost of approximately $1,000.
The mother’s evidence, in relation to amounts which were spent by her on the Suburb E property, was unchallenged. Rather the father’s challenge is that it would not be just and equitable for the mother to receive a property settlement which altered, in any way, the interests of the parties in the property which they currently own.
The substance of the challenge by the father becomes clear upon reading his Financial Questionnaire. The argument is articulated at paragraph 6 of the Financial Questionnaire and is set in full below (errors as in original):
At the commencement of cohabitation in June 2007 I had assets of approximately $695,000. At that point I had owned my property in [Suburb E] for 9 years. The house had no mortgage and was fully furnished. At the commencement of our cohabitation I was attempting to sell an animated television show and had reached the stage that pending approval of demonstration animation sequence and delivery of scripts that my show would be commissioned. This was at the time of the birth of our daughter [B] and [the mother] was in an emotional state where she needed constant practical and emotional help and support. In providing this support I was unable to find the time to produce animation causing me to miss series of production deadlines which lead to the network to decline commissioning my series.
During the 2 years of our cohabitation from June 2007 to August 2009 [the mother] lived rent free in my house. [The mother] also conducted a business from my house rent free. When [the mother] moved into my house she threw out my living room furniture and television. [The mother] also broke my washing machine then bought a replacement which she took with her when she left me. I paid the water and electricity, my mother paid council rates on my behalf. [The mother] bought me a computer in lieu of contributing to these expenses and paying me for the work I did for her business. [The mother] did pay to register a business name on my behalf but registered the wrong company name and the money was wasted. [The mother] changed my birth certificate adding 2 fictional aliases.
In 2007/2008, my income was from unemployment benefits. [The mother] received all other government payments including parenting, carer allowance, baby bonus, economic stimulus package and family tax benefit payments. I was eligible for some of these payments but was [the mother] claimed them before I was aware they existed. Many of these payments were means tested and [the mother] received them on a reduced rate; reducing our income as a couple by thousands of dollars every year. [The mother] spent a substantial amount of this money on luxury items.
[The mother] wanted a series of changes made to my house, including moving a sink from the laundry to the kitchen, removing an historic bath out from the bathroom and moving a separate toilet into the bathroom. I argued that these changes were unnecessary and that I did not have the time and money to make these changes. As a compromise we agreed to a deal where [the mother] would pay for the costs of tradesmen and materials and I would do all the labouring work.
I was responsible for looking after the children while [the mother] did the cooking, cleaning, clothes washing and shopping. I also looked after the children while [the mother] conducted her business, attended work conferences and spoke to her parents via telephone and skype. I washed all my own clothes. Household duties such as cleaning and vacuuming were shared. Taking the children to and from child care was shared.
[The mother’s] father rewired my house. I provided assistance by digging holes and making cavities in walls. [The mother’s] father declined my offer of assistance in wiring the house.
In 2007, [the mother] asked me if she could produce a website using my [work] to use in her portfolio, to help her promote her business. [The mother] was in a hurry and used draft text and early [works] in her website which made it unsuitable for me to use. [The mother] never believed my work would achieve commercial success and argued with me on a daily basis that I should give up what I was doing and get a job. [The mother] argued with me in front of a client [named …] that caused me to lose a $7,500 job. I supported [the mother] in her business by mentoring her, setting up her computer, applications and fonts, providing IT support and helping her in meetings with clients. [The mother] used my artwork and photography extensively in her work without payment or credit. The name of [the mother’s] business “pixel trash” was my name.
In 2008 I commenced a Neis course through the government. At this time [the mother] and [B] were sick and [the mother] told me she was unable to cope. [The mother] asked me to leave classes and come home to look after her and [B]. My resulting absences caused me to fail the course on the grounds of non attendance. After my separation from [the mother] I reattempted the neis course and successfully completed it.
In his oral evidence the father expanded upon his argument. He argued that the modifications that were made to the house at the mother’s request, and indeed paid for by her, were poorly thought out and badly planned. He said that the alterations which the mother commissioned were of a temporary nature and it was his preference to make permanent renovations rather than temporary ones.
In relation to the money spent on the outside bathroom, the father wanted to build a bathroom inside the house rather than, as he put it, wasting money on building a temporary bathroom. The father expressed the view that the mother had made no contribution to the Suburb E property. It was, he said, a matter of perception. The work that she paid for, such as redoing the plumbing to the kitchen with plastic pipes, will need to be taken out, causing him to have to dig up the backyard in order to change the pipes. The toilet she bought had a cheap cistern which is now broken and will have to be replaced. He argued that the contributions made by the mother were not lasting or useful. He did not challenge the contribution of the maternal grandfather in rewiring the house.
I interpret the father’s argument, although it was not specifically enunciated in those terms, to be an argument based upon the judgment of the High Court in Stanford & Stanford (2012) FLC 93-518 (“Stanford”), that it would not be just and equitable to make any adjustment to the existing legal and equitable ownership of the property of the parties.
In order to properly consider that argument, it is necessary to set out the property of each of the parties, noting that they have no jointly owned assets and that there is no dispute between them as to the nature of the property.
At the commencement of the trial, a Balance Sheet was tendered in the mother’s case. It does not purport to be a joint Balance Sheet but there appears to be little dispute in relation to it. The Balance Sheet is set out below:
Owned Description Wife/
de facto partner’s valueHusband/de facto partner’s value ASSETS 1 H Property situated at D Street, Suburb E $738,750 2 W Savings in M Bank Account -$858 3 W Savings in NAB Bank Account (Account Closed) $0 4 H Savings in CBA Bank Account $400 5 H Savings in CBA Bank Account -$360 6 H Mr Lemm trading as N Pty Ltd $10,000 7 W 1997 motor vehicle $500 8 H 1985 Scooter $200 9 H Household Contents $2,000 Total $750,632 ADDBACKS 10 11 Total LIABILITIES 12 W Credit Card $5,887 13 W David Jones Credit Card $4,516 14 15 Total $10,403 SUPERANNUATION Member Name of Fund Type of Interest Wife/
de facto partner’s valueHusband/de facto partner’s value 16 W First State Superannuation Accumulation $50,296
FINANCIAL RESOURCES Ownership Description Wife/
De facto partner’s valueHusband/de facto partner’s value 17 W Redundancy $71,500 0 18 0 0 Total $71,500 $ 0.00
Some comment is needed in relation to the value of a number of items.
1 – Property at D Street, Suburb E
Neither of the parties was able to afford to instruct a single expert valuer to value the property. By way of compromise, it was agreed on 13 February 2013 that each of the parties would appoint two real estate agents to prepare a written market appraisal showing the current market value of the Suburb E property. It was the parties’ intention that the value of the property for the purpose of the proceedings would be the average of the four appraisals.
The mother obtained an appraisal from a real estate agent estimating a market value “in the vicinity of $700 – 725,000” and a second appraisal stating “if the property was vacant for the duration of the campaign we estimate a realistic price for D Street to achieve at auction would be $750,000 – 780,000.” On the basis of those appraisals, the mother puts forward a value of $738,750. That amount is achieved by taking the mid point of each appraisal and averaging the mid points. The difficulty with that approach is that the second appraisal is based upon the property being vacant by which, based upon the terms of the document, the agent means empty. The property is far from empty and is, in fact, so cluttered that the mother expressed concerns to the Family Consultant about the possibility of the father having a “hoarding” problem. In relation to the state of the house, it is the mother’s case that the house is so cluttered and unsafe that the children cannot spend overnight time with the father.
The father gives no estimate of the value of the property in his Financial Statement relied upon at the hearing but, in his Financial Questionnaire completed in April 2013, he estimates the market value of the property to be $690,000. Based on his admission against interest and the more conservative estimate of the mother’s first real estate agent, it would, in my view, be safe to regard the value of the property as being $700,000, for the purpose of these proceedings.
6 – Mr Lemm trading as N Pty Ltd
The value of $10,000 which is attributed to the business by the mother is taken from the father’s Financial Statement. That is his estimate of the value. In circumstances where the father earns no income from the business and has, according to the evidence, no work in progress, his evidence, although unchallenged, must be rejected. I am unable to find that the business would have any value.
17 – The mother’s redundancy payment
Bank statements tendered show that the mother received $66,761 on 14 August 2013 and a further payment of $7,016 on 28 August 2013. The evidence does not establish the purpose of each payment. Some of the amounts may be for holiday pay and salary. I am unable to say. I accept that in August the mother received from her former employer a total of $73,777.
SECTION 90SM(3)
Although in Stanford the High Court was dealing with section 79(2) of the Act , the decision in Stanford and the consideration of it by the Full Court in Bevan and Bevan [2013] FamCAFC 116, must both apply equally to the identical provision of section 90SM(3).
It is clear that an order adjusting property rights cannot be made unless there is first a finding that it is just and equitable to alter the interests of the parties in the property which each of them owns.
In the period the parties lived together, the mother made a direct financial contribution to the conservation, if not improvement, of the Suburb E property. Her father made a contribution in completely rewiring the property.
In addition to those contributions, the mother contributed her income and monies given to her by her parents to the welfare and support of the family. She made a significant contribution, in the period the parties were together, to homemaking and parenting of the children, in addition to earning income.
It is also clear that, even though the father says he did not want the work done, he agreed with the mother that it should be done and allowed her to spend money on the work. That work may not have improved the value of the property but it improved its amenity.
In those circumstances, it would be unjust and inequitable for there to be no adjustment to recognise that contribution.
CONTRIBUTIONS
In January of 2007 the mother paid for the installation of a sink and replacement of a toilet at a cost of $863.50. In approximately June of 2007 she received a lump sum maternity payment of $12,018 and a lump sum from her parents of $24,908. She does not assert, and I do not assume, that the whole of the funds provided by her parents and her maternity payment was applied to the expenses of the family. In the bank statements annexed to her affidavit, for example, there was a withdrawal on 25 June 2007 in the sum of $9,998.67 which is unexplained and which I cannot assume was applied for the purpose of the family. As has already been discussed, I do not accept the contribution of the maternity payment as being solely a contribution by the mother.
In addition, in the period that the parties lived together, the mother earned $46,000 in income.
It was from those sources, that is the lump sums and her income, that the money used to purchase computer software and hardware, purchase a television and pay for repairs and renovations, were taken. Thus it is appropriate to recognise her contribution in bringing in the money. To recognise, in addition, her contribution in spending the money would be double counting.
Throughout the period, the father also received income from Commonwealth government benefits.
In attempting to give proper recognition to the mother’s contributions, I must also take into account the fact that she did not pay rent and was therefore housed, herself, during this period.
The mother brought into the household during the period of cohabitation approximately $71,000 (excluding the maternity payment), most but not all of this being used for the purposes of the family.
There is no evidence that the father made any contribution to the accumulation of the mother’s superannuation interest, which currently stands at $50,296. Similarly, there is no evidence that the father made any contribution to the accumulation to the mother’s redundancy payment of $73,777.
The overwhelming contribution to the overall pool of assets was that of the unencumbered Suburb E property, made by the father.
After the parties separated in November 2009, the mother was the primary carer for the children and, in addition to their physical care, she provided for almost all of their financial needs, the father paying a minimal amount of child support.
Initially after the parties separated, the father spent time with the children every Sunday from 10 am until 4 pm until about August 2012. Thereafter, the parties reached an agreement that the father would care for C every Thursday and for both of the children every Sunday. The mother agreed that he had been diligent in caring for them and had not missed a visit.
The father has not had overnight time with the children. Accordingly, the mother has been overwhelmingly responsible for parenting since separation, a period in excess of 3.5 years. Because B has primarily lived with her mother, it is the mother who has primarily dealt with B’s behavioural issues, such as obsessive compulsiveness, extreme stubbornness and her significant speech delay which causes frustration to B. It is also the mother who has ensured that B attends medical treatment and therapy sessions. B is not yet toilet trained.
Because there is no cogent evidence of the value of the Suburb E property, I do not propose to express my determination of the value of the mother’s contributions in percentage terms, but rather to find that payment to her in the sum of $100,000 would be an appropriate adjustment to recognise her contributions.
In coming to that conclusion, I have given particular weight to the mother’s post-separation parenting contributions.
SECTION 90SF(3) FACTORS
The mother is a graphic designer. She stopped working just before B’s birth and was able to do some work on her own account before going back to employment when B was nine months old. After C’s birth, until August 2013, she worked for a government department.
The mother is not currently employed, having accepted voluntary redundancy in August 2013. It is a term of her redundancy package that she cannot apply for government benefits for 49 weeks from the date she receives the payment. She estimates that she will be entitled to receive benefits in June 2014. In the meantime, she will have the redundancy package of $71,500 to support herself and the children.
The mother may also find employment, using her skills. She was able to support herself and, later, the children, by employment between 1998 and 2013.
She has an entitlement to superannuation but she is 40 years of age and will not have access to that entitlement for many years.
The father has been on a government benefit since at least 2007. He works in the creative arts and, when the parties commenced their relationship, was working on a project which he hoped would be a commercial success. He was unable to complete the project in accordance with the deadlines imposed by his possible customer, partly because his computer hard drive overheated and the back up contingencies he had put in place were insufficient. He has attended two New Enterprise Incentive Scheme (“NEIS”) training programs. He did not successfully complete the first course because, he said, the mother persisted in telephoning him and asking him to leave the sessions and come home. He completed the second course and established a business training new users in digital technology use. The business initially did quite well but was overtaken by the retailers of the equipment offering free training.
The father gave evidence, which I accept, that he did not handle the business well because of his anxiety. It was not in dispute that the father suffers from anxiety, panic attacks and depression. He has been attending counselling with a psychologist who provided a report indicating that the father suffers from DSM IV Generalised Anxiety. The psychologist said that the father is currently overwhelmed with his situation and, in May 2012, was unfit for work in any capacity.
The father says that he suffers from post traumatic stress disorder after he was robbed at knife point in 2010 and that he began suffering from anxiety after that incident which has worsened significantly since he has faced the prospect of losing his children.
The father has been unable to deal effectively with the stress of the current proceedings. He has been unable to open correspondence, fearing the letters related to the proceedings. He said, and I accept, that when he attempted to prepare documents for the proceedings he suffered panic attacks. He has suffered from insomnia and been debilitated by malnutrition.
The proceedings had to be adjourned when it became apparent that, although the father had received affidavit material from the mother, he had not read it.
There is no evidence that the father has any capacity for paid employment or that he is likely to earn any income in the foreseeable future.
The mother rents accommodation for herself and the children. The father lives in the Suburb E property which is unencumbered. As a result of the orders which will be made he will probably be required to sell the Suburb E property. There is no evidence that he could satisfy the orders in any other way. In that event, he will also have to rent premises suitable for himself and the children which may have the effect that he will be able to have the children overnight and for weekend and holiday periods, thus lessening the parenting burden on the mother.
The mother has a greater likelihood to be able to earn income in the future but, as a corollary, the father is unlikely to make a contribution to the financial support of the children beyond the token amount he currently pays. Unless he finds alternate accommodation more suitable for the children, he is unlikely in the near future to play a significantly greater role in the care of the children. This would leave the mother with the majority care of the children and no immediate prospect of assistance from the father by way of overnight or extended care of the children and the provision of some respite for her.
The mother will have the significant care of the two children, aged six and four. That care is made more difficult by B’s suffering from Down Syndrome. There is no evidence of the likely progress of B’s development but I note that she is not yet toilet trained. She attends school but it is the mother who will otherwise attend to her needs.
It is to be hoped, but cannot be assumed, that the father will acquire accommodation that allows him to play a greater role in the physical care of the children.
The mother’s ongoing care of the children in those circumstances requires an adjustment in her favour. Again, I do not calculate that entitlement by reference to percentages but will make an adjustment of $50,000 to the mother.
conclusion – financial matters
The mother will receive $150,000 and retain her redundancy package of $73,777 and her superannuation entitlements of $50,296 (a total of $274,073 although her superannuation will not be available to her). From that sum, she will pay her debts and be able to support herself until she can either earn an income or find employment.
The father will retain the balance of the value of the Suburb E property being approximately $550,000 less any costs of sale.
In the circumstances of these parties, that award meets the balance of the father’s greater contribution, and his lack of earning capacity against the mother’s responsibilities for the ongoing care of the children.
The mother, in a Minute of Orders tendered in the course of submissions, proposes a detailed and complex regime for the enforcement of financial orders. Ordinarily it would be appropriate to make orders of the kind which the mother proposes. However, in the unusual circumstances of this matter, it is difficult to predict what steps might need to be taken in the event that it is necessary to enforce these orders, and it would be more appropriate to leave enforcement to an application which can be tailored to steps which are appropriate at the relevant time.
I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 15 November 2013.
Associate:
Date: 15 November 2013
Key Legal Topics
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Family Law
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Property Law
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Consent
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Procedural Fairness
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