Conca and Conca
[2012] FMCAfam 232
•16 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CONCA & CONCA | [2012] FMCAfam 232 |
| FAMILY LAW – Parenting – father seeks equal shared time – criticisms of Family Report – best interests of the children – allocation of parental responsibility – whom the children live with and spend time with. FAMILY LAW – Property – assets and liabilities agreed – initial contributions – just and equitable. |
| Family Law Act 1975, ss.11A, 11B, 60B, 60CC, 61DA, 65DAC, 65DAA, 75, 79 Family Law Amendment (Shared Parental Responsibility ) Act 2006 |
| Hall & Hall (1979) FLC 90-713 Jennifer McIntosh et al, Post-Separation Parenting Arrangements and Development Outcomes for Infants and Children: Collected Reports (2010) Jennifer McIntosh and Richard Chisholm, ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research’ (2007-2008) 20 Australian Family Lawyer 1 |
| Applicant: | MR CONCA |
| Respondent: | MS CONCA |
| File Number: | HBC 851 of 2009 |
| Judgment of: | Baker FM |
| Hearing dates: | 1, 2 & 3 November and 9 December 2011 |
| Date of Last Submission: | 9 December 2011 |
| Delivered at: | Hobart |
| Delivered on: | 16 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Turnbull |
| Solicitors for the Applicant: | Levis Stace & Cooper |
| Counsel for the Respondent: | Mr McVeity |
| Solicitors for the Respondent: | Bishops |
ORDERS – CHILDREN
That [X] born [in] 2002 and [Y] born [in] 2006 (“the children”) spend time with the father as follows:
(a)Until the commencement of the school year in 2013 each alternate week from 5:00 p.m. Wednesday until 6:00 p.m. Sunday.
(b)Upon the commencement of the 2013 school year each alternate week from 5:00 p.m. Tuesday until 6:00 p.m. Sunday.
The father is restrained from making inappropriate gestures at the mother or make denigrating comments about her in the presence of the children.
ORDERS – PROPERTY
Within 28 days the father pay to the mother the sum of $518,863.00.
The mother forthwith transfer and/or relinquish in favour of the father any right, title or interest she may have in the following:
(a)Property H,
(b)Property O,
(c)Sale proceeds Property B,
(d)Vacant Lot Property H,
(e)[H] Investment Trust,
(f)Share portfolio and share portfolio in E-trade,
(g)Mr Conca Super fund
to the intent that the father shall be the sole and absolute legal and beneficial owner thereof or beneficially entitled thereto as the case may be.
The father forthwith transfer and/or relinquish in favour of the mother any right, title or interest he may have in the following:
(a)BMW motor vehicle,
(b)Any entitlement of the mother to superannuation whether by way lump sum, pension or otherwise,
to the intent that the mother shall be the sole and absolute legal and beneficial owner thereof or beneficially entitled thereto as the case may be.
The father be solely responsible for the Equity Access loan and capital gains tax liability and shall indemnify and indemnified the mother in respect of the same.
Unless otherwise specified in this order:
(i)Each party will be solely entitled to the exclusion of the other to all property in the possession of that party as at this date;
(ii)Each party will remain solely liable for their respective debts.
Each party sign all such documents and do all such things as may be required to implement the terms of this order.
IT IS NOTED that publication of this judgment under the pseudonym Conca & Conca is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC 851 of 2009
| MR CONCA |
Applicant
And
| MS CONCA |
Respondent
REASONS FOR JUDGMENT
These were parenting and property proceedings between the applicant, Mr Conca (“the father”) and the respondent, Ms Conca (“the mother”). The parties have two children (“the children”):
·[X] born [in] 2002 (“[X]”);
·[Y] born [in] 2006 (“[Y]”).
The parties reached agreement about most of the parenting issues. Consent orders were made during the hearing. Those orders provide that the parties have equal shared parental responsibility for the children, and provide that the children spend time with the father during school holidays and special days.[1] Pursuant to those orders, the children are to spend time with the father each alternate week during the Christmas and mid-term school holidays.
[1] A memorandum setting out the orders sought by consent was marked as exhibit “2”
The remaining parenting issue in dispute was what time the children should spend with the father during the school term.
In respect of the property proceedings, the father sought a 70% / 30% division of the property pool in his favour. The mother sought a 55% / 45% division of the property pool in her favour.
Background
The mother was born [in] 1970 and is 41 years old. The father was born [in] 1962 and is 50 years old.
The parties commenced a relationship in 2001. They disputed the date on which they commenced cohabitation. The father said that they started living together in February or March 2002, whereas the mother said it was in early 2001.
During cross-examination of the mother, the father tendered a Telstra mobile telephone account application.[2] That application was completed by the mother, and was dated 26 November 2002. In it, the mother stated that she had been living at the former matrimonial home, Property H, [B] (“the former matrimonial home”), for one year.
[2] Exhibit “H3”
In light of the telephone account application, and the mother’s evidence about that document, I consider that the mother was genuinely mistaken about the date on which the parties commenced cohabitation. I prefer the father’s evidence about the cohabitation date, and I consider that the parties started living together in February or March 2002.
The parties married [in] 2005 and separated on 23 August 2009.
The children live with the mother, who lives in [S] with her new partner, Mr F (“Mr F”). [S] is a town in Tasmania, roughly 200 kilometres from Hobart. The father lives in the former matrimonial home in [B], which is around 50 kilometres south of [S].
The children have lived with the mother since separation. Immediately following separation the mother and the children lived in rental accommodation in [omitted], a town nearby to [S]. The mother and the children moved into the property owned by Mr F in [S] in May 2011.
The children spend time with the father in accordance with interim orders made by consent on 25 January 2010. Those orders provide that the children spend time with the father from Wednesday afternoon until Sunday afternoon each alternate week during the school term, and for each whole alternate week during the school holidays.
The children attend [omitted] School, which is nearby to [S]. The bus trip to school from the mother’s home takes around 20 minutes. It takes around 45 minutes from the father’s home.
The father is assessed to pay child support to the mother at the rate of $792.50 per month, although he gave evidence that his salary has reduced and that this figure may alter.
The children have both experienced health difficulties in the past.
[X] was born prematurely at 26 weeks. The mother spent a number of weeks in hospital in Hobart after her birth. She went into labour with [Y] at 20 weeks and was flown by air ambulance to the [omitted] Hospital from [omitted]. She spent time during the pregnancy after that in and out of hospital.
When [Y] was one year old, he was diagnosed with cancer. He underwent surgery at the [omitted] Hospital, and one of his kidneys was removed. He underwent chemotherapy for several months. He is still required to have tests every several months. The mother stayed with [Y] at Ronald McDonald House on numerous occasions during his treatment.
The father has a background in [omitted]. At the commencement of cohabitation, he was employed as the Managing Director of [omitted], an [omitted] business founded by him.
The mother was employed as a [omitted] when the parties met. During the course of the relationship she worked on a casual basis at the [business].
During the relationship, the father was the primary income earner. Both parties agreed that the father worked very hard in his employment throughout the marriage. On average, he worked 50 to 60 hours per week, and in excess of 70 hours per week on many occasions. The mother was primarily responsible for the care of the children and for homemaking. She took the children to doctors and specialists, although the father attended appointments occasionally, when he was able to.
The mother agreed that the father was an involved parent, but she disputed the extent of his involvement with the children. The mother accepted that the father loves the children and cares about them, but he worked long hours, which limited his time with them.
Following separation, the father reduced his working hours from ten days per fortnight to eight days per fortnight, so that he could be more available for the children.
The father sold the [business] in October 2010. He then worked five days each fortnight. His employment was terminated on 30 June 2011, and he currently trades in shares. He said that he has only limited opportunities for further employment in the [omitted] industry.
The parenting application
Proposals of the parties
The father proposed that the children spend time with him on a graduated progression from the current arrangement to an equal shared care arrangement by the commencement of the summer school holidays in 2013. He believes that, because of his personal qualities, it is in the best interests of the children that they spend longer periods of time with him than they currently do. The father sought that the children live with the parties as follows:
a)Until the commencement of the school year in 2013 each alternate week:
i)With the father from 5.00pm Wednesday until 6.00pm Sunday:
ii)With the mother at all other times.
b)That upon the commencement of the 2013 school year and until the commencement of the third school term in 2013 each alternate week:
i)With the father from 5.00pm Tuesday until 6.00pm Sunday;
ii)With the mother at all other times.
c)Upon the commencement of the third school term in 2013 each alternate week:
i)With the father from 5.00pm Monday until 6.00pm Sunday;
ii)With the mother at all other times.
d)Upon the commencement of the summer school holiday period in 2013 the children live with the each party for an equal period of time on a week and week about basis with handover occurring at 6.00pm Sundays.
The mother sought that the current arrangements continue, namely that the children live with the mother and spend time with the father from Wednesday to Sunday each alternate week.
Issues
The central issue in the parenting application was whether the current school term arrangements should continue, or whether the children’s time with the father should progressively increase over the next two years until the children spend time with the father on an equal shared care basis.
Evidence
The father relied on relied on the following documents:
·His affidavit filed 28 April 2011.
·His Financial Statement filed 28 April 2011.
·Affidavit of Dr H (“Dr H”) filed October 2011.
The husband and Dr H were cross-examined.
The mother relied on the following documents:
·Her affidavit filed 22 July 2011.
·Her Financial Statement filed 22 July 2011.
The mother was cross-examined.
The Family Report
A key aspect of this dispute was the issue of how much weight I should attach to the recommendations of a Family Report dated 19 August 2010 prepared by the Family Consultant Ms D (“Ms D”).
By way of an Application in a Case filed 29 September 2011, the father sought leave to release the Family Report to Dr H (“Dr H”), a clinical psychologist.
On 12 October 2011 I made orders granting leave to the father to release the Family Report to Dr H, and Dr H filed an affidavit on behalf of the father on 24 October 2011. Dr H annexed to her affidavit a report of her interview with the father and a critique of the Family Report.
Both Ms D and Dr H were extensively cross-examined.
At the hearing of this matter, two academic articles were tendered by consent:
·Jennifer McIntosh et al, Post-Separation Parenting Arrangements and Development Outcomes for Infants and Children: Collected Reports (2010).[3]
·Jennifer McIntosh and Richard Chisholm, ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research’ (2007-2008) 20 Australian Family Lawyer 1 (“Shared Care and Children’s Best Interests in Conflicted Separation”).[4]
[3] Exhibit “H1”
[4] Exhibit “4”
The latter article is an analysis of data taken from studies involving conflicted parents in dispute over care and contact. The authors conclude that neither the general conditions for children’s healthy emotional development nor that data contradict the core principle underpinning the Family Law Amendment (Shared Parental Responsibility ) Act 2006; namely, that most children will benefit from having both parents actively and co-operatively involved in their lives after separation. The authors also express concern about children in shared care arrangements characterised by ongoing high conflict between the parents.[5]
[5] Ibid at 9/exhibit “4”
The analysis of McIntosh and Chisholm[6] suggested that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high level conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
[6] Ibid/exhibit “4”
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
The child experiences a parent to be poorly available to them.[7]
The authors pointed out that whether a factor should be treated as a contra-indication or caution will be determined by severity, chronicity and the capacity for change.[8]
[7] Ibid at 9 / exhibit “4”
[8] Ibid at 11 / exhibit “4”
At the time of the Family Report, the children were spending time with the father in accordance with the orders made 25 January 2010. Ms D interviewed the father, the mother and the children. She observed the children with the mother and she observed them with the father.
Ms D identified the following issues as being in dispute:
The children’s needs and attachments.
The parents’ ability to form a workable parental alliance.
Whether equal shared time or some other time arrangement is in the children’s best interests for the foreseeable future.
In her evaluation of the family Ms D noted that the father was seeking that the children spend time with him on an equal shared care basis, and set out the following factors which she said indicated why an equal shared care arrangement was not in the best interests of the children. Those factors were as follows:
The young ages of the children.
[Y]’s cancer, which has increased his need for emotional security.
The animosity and conflict between the parents and difficulties in communicating.
The distance between the two homes.
The close relationships the children experience with their maternal extended family.
During cross-examination, Ms D agreed that this list of factors was not intended to be exhaustive. She said that she looked at a range of things to build a consistent pattern.
Ms D said that at the time she did her assessment she had concerns that the parties were not able to co-operate to the degree required in order to make an equal shared care arrangement work. She said that she was not sure to what extent they had moved on since that assessment.
Ms D wrote the following about equal shared care arrangements:
There is not a lot of research on equal shared time arrangements however the little that there is points to the psychological stresses for young children when they are constantly transiting between two home bases adjusting to different routines. There are practical problems for children when their parents are not able to easily communicate and when the two homes are not located near one another. Inevitably children leave possessions behind that they require at school and so on and there problems are magnified when there is an equal shared time arrangement. However of more significance are the psychological problems for children when one parent is particularly stressed and unhappy about substantial or equal time arrangements and where the parents are in high conflict.[9]
[9] Paragraph 36 of the Family Report
In the conclusion of her report, Ms D made the following recommendations:
41. It is recommended that until the commencement of the school year in 2011, the current arrangements continue.
42. It is recommended that in 2011 and 2012 [X] and [Y]’s time with their father is reduced to after school Friday to return to school Monday with the father driving the children to school if [Y] has kindergarten on a Monday…
43. It is recommended that for 2013 after [Y] has completed his first full time year at school in 2012 that the children’s time with their father return to this year’s arrangement of 5 pm Wednesday to 6 pm Sunday (or Thursday to Monday) each alternate week.
44. It is recommended that school holidays are shared equally and that order be made regarding which parent will have which week/s so that there is no difficulty.
45. It is recommended that, if the parents are unable to agree on extracurricular activities for the children and to mutually support their attendance at such, that the mother decide on such activities and the father ensure that the children attend when in his care.
46. It is recommended that both parties seek further professional assistance regarding management of their future parenting relationship.
…
Following the release of the Family Report, and notwithstanding the recommendations of Ms D, during 2011 the children continued to spend time with father in accordance with the orders made 25 January 2010.
Counsel for the father informed her about the current arrangements for the children. He also informed Ms D about the orders sought by the father; namely, that the children spend time with him on a graduated progression from the current arrangement to an equal shared care arrangement by the commencement of the summer holidays in 2013.
Ms D said that, assuming the same factors she identified in the Family Report were still present, namely the lack of parental alliance and their inability to communicate and co-operate, the greater the number of days the children spend in the father’s household increases the potential difficulties for them in terms of relationships with peers and extra-curricular activities. Ms D said that, unless circumstances have changed and those factors were no longer present, an increase in the time the children spend with the father would not be in their best interests.
During cross-examination, Ms D agreed that the father was a good parent, and that he was capable of providing quality parenting for the children. However, she said that the co-parenting relationship was also important. She said that the co-parenting relationship impacts on the children’s future happiness, their esteem and their academic performance. Ms D did not agree that there was a good parental alliance between the parties. She pointed to the acrimony between the parties and their difficulties with communication.
Ms D said that both the father and the mother contributed towards their acrimonious relationship; however, she said that the mother’s behaviour was more intensely acrimonious. Ms D observed emotional hostility from the mother towards the father. She did not observe that same hostility from the father towards the mother, but based on what had been reported to her, she had been of the view that it was also present.
During cross-examination, Ms D agreed that a shared care arrangement was possible even in a situation where there is an acrimonious parental relationship. She agreed that there are features in this family which support the notion of the parties being able to sustain a shared care arrangement.
Ms D referred in her report to a drawing done by [X] for the mother, which she said indicated that [X] wants her mother to be happy. She was criticised for not referring to a drawing done by [X] for the father. She could not recall that the father gave her such a drawing.
Ms D did not change her recommendations after extensive cross-examination by Counsel for the father.
Report of Dr H
The report of Dr H is annexed to her affidavit filed 24 October 2011.[10] Dr H deposed that she met with the father on one occasion on 6 July 2011 and spoke with him on the telephone on 20 October 2011. She further deposed that:
In my opinion [the father] does not suffer from any psychological disorder or difficulty or present any concerning personality traits that would prevent him from spending regular and quality time with his children [X]; aged 8 and [Y]; aged 5.
[10] Annexure “A”
Dr H’s report takes the form of a letter addressed to the Court. That letter opens as follows:
I have prepared this report at the request of [the father’s] legal counsel. In making this report I have interviewed and assessed [the father] and read available documents. In addition, I read the Family Report prepared in August, 2009, by Ms D.
In being asked to prepare this report, I was asked to address the following:
1. Conduct an evaluation of [the father] to determine if there were any psychological factors that would have interfered with his capacity to have his children live with him in an equal shared care arrangement.
2. Provide a critique of the Family Report prepared by
Ms D.
She was asked which documents she had been provided with, prior to preparing her report. She said that she had not been provided with any affidavits or documents relating to this matter, apart from the Family Report.
Two emails from the solicitors for the father to Dr H were tendered by the mother. In the email dated 8 June 2011,[11] Dr H was asked to assess the father and, if appropriate, provide a critique of the Family Report. The email dated 12 October 2011[12] attached the Practice Direction: Guidelines for Expert Witnesses in Proceedings in the Federal Court Australia. These emails were the extent of the written instructions to Dr H.
[11] Exhibit “W1”
[12] Exhibit “W2”
Dr H agreed that she had not been asked to determine whether the father displayed any psychological risk factors which would have interfered with his capacity to care for his children under an equal shared care arrangement. She agreed that she had been asked only to psychologically assess the father.
As there was no issue about the psychological health of the father, those aspects of the report which deal with psychological risk factors were therefore not relevant.
Dr H’s critique of the Family Report was lengthy. In making each of her criticisms of the Family Report, Dr H made reference to research and psychological literature.
She agreed with Ms D that there is relatively limited information about the effects of shared care arrangements on children; however, she disagreed with Ms D about what the available literature says.
Dr H said “Most of the literature supports the notion that shared care is strongly advantageous to the child, slightly advantageous to the child, or is without disadvantage to the child.” Dr H referred to an article by McIntosh and by Chisholm.[13] She summarised this article as arguing that shared care arrangements are problematic in cases of high conflict. She then referred to other literature which presented a different theme. She further said that in contrast to the views expressed by McIntosh and Ms D, although the shared care arrangements are more common in case of low parental conflict, the presence of conflict does not diminish the advantages to children of shared care. She continued:
Clearly the best option is for a child to have an enduring, good quality relationship with both parents. This means that fathers should play a significant role in care giving…the advantage to the children in situations involving shared care is that they have the benefit of the care and nurturance of two parents…it must be understood that for a parent to contribute in a meaningful way to the responsibilities for child management and socialisation, it is necessary that day-to-day involvement in the child’s life occurs. Despite Ms D’s suggestions to the contrary in her report, it has been recognised that spending time with a parent every other weekend is not optimal for facilitating an active on-going involvement of the non-custodial father in the children’s lives. Without that type of involvement the non-residential parent faces the risk of being forced to the periphery of the child’s life and, as already covered, this has the potential to have detrimental consequences for the child…[14]
[13] Jennifer McIntosh and Richard Chisholm, ‘Cautionary notes on the shared care of children in conflicted parental separation’ (2008) 14 Journal of Family Studies 37
[14] Page 21
Later in that section, she also wrote:
Despite the emphasis on parents in high conflict, it is the case that over half of divorcing parents are cooperative and another fifth of divorcing parents could be considered to fall in a mid-range between cooperation and conflict… Also, it is a mistake to focus solely on the level of conflict during the separation and divorce process as an indicator of the extent to which conflict is going to influence subsequent parenting roles. In most cases, parenting conflicts will not persist and resolution of legal proceedings most commonly triggers the commencement of resolution of open conflict.
Dr H made the following criticisms of Ms D’s assessment.
·She criticised Ms D’s concern about the distance between the parent’s homes and with their school. She wrote, “It would appear that the distances travelled are not dissimilar from other distances travelled by other country-dwelling children to attend school.”
·She criticised Ms D’s assessment that [Y] may be emotionally needy as a consequence of his medical history. She was critical of Ms D’s statement, “[Y]’s cancer has increased his need for emotional security,” as it implied that it was the mother who can meet [Y]’s needs. Dr H said that the literature does not support the notion that only the mother can provide nurture and support for a child. A father is capable of fulfilling that role.
·She criticised Ms D’s assessment of the significance of the children’s relationships with their maternal family.
·She criticised Ms D’s assessment of [X]’s views. She wrote:
Ms D reported that [X] had indicated a preference to spend the majority of her time with her mother. It seems from the flow of Ms D’s report that this was taken into account when she formed her opinions. This raises concern…At the time of the interview…[X] was 7 years of age. She did not have the cognitive sophistication that would be needed for a child to determine what is in their best interests…
In respect of [X]’s account of domestic violence, she wrote:
It seems that the accounts provided by [X] had been accepted without evaluation of the potential influences on [X].
In the section about family violence, Dr H used the hypothesis building tools referred to earlier in her report in order to assess family violence between the parties. She wrote:
…I would have to consider the consistency of the account provided by both parties. In [the father’s] case, I interviewed him on two occasions some months apart about specific events and his account was the same for both. I cannot comment on the consistency of the accounts provided by [the mother].
I would then have to consider other information that may be related to the allegations of violence. This would include collateral evidence that was available…
The final section of the critique headed “The use of bear cards,” read as follows:
I noted in Ms D’s report the following: “Her [[X]’s] choice of Bear Cards indicated that she feels okay about going to her father’s but is happier to be with her mother. As regards [Y], [X] clearly sees him as happier to be with his mother than with his father. [etc]”. I feel I must comment.
Bear Cards consist of 48 cards that demonstrate a range of emotions. They are marketed as a tool to encourage conversations with children about feelings. In this way, Bear Cards are a communication tool only. Therefore, Bear Cards cannot “indicate” anything. They are not an assessment instrument, the do not have psychometric properties, and any opinion formed about the meaning of the selection of individual cards cannot be considered to be valid or reliable. I do support their use as a communication tool only although I do not use them myself.
I shall address the criticisms by Dr H of Ms D’s Report.
Ms D relied on the studies of McIntosh and Chisholm. Dr H did not appear to disagree to any significant extent with Ms D’s reliance on McIntosh and Chisholm about shared care arrangements. Dr H accepted that for a shared care arrangement to be successful, it is preferable that it is supported by the parents. She went on to say that it is well established that parental conflict is undesirable in terms of a child’s psychological functioning.
Dr H accepted that characteristics of persistent conflict may be present in this family, although she said that co-operative parenting can still develop.
Counsel for the father agreed that Dr H did not disagree with the research of Dr McIntosh. He submitted that the research which she referred to indicated that just because there is conflict, that does not mean that there cannot be a successful shared care arrangement. He submitted that she was putting the research in full context when she wrote:
When conflict is not resolved in a reasonable period of time then the child is directly exposed to the expression of conflict and the child is the subject of the conflict…it worthy to note that [the father] reported a reduction in hostility in more recent times and certainly compared with the situation pre-separation.
In respect of the Bear Cards, Ms D explained that she uses these as a tool in her assessments. She said they are widely used, including by
Dr McIntosh. She conceded that she should not have used the word “indicate” in her report. She said that the choice of cards was consistent with the observations she made about the children being closer to the mother. What [X] was putting forward was consistent with Ms D’s observation in the playroom. Ms D said her clinical experience over many years resulted in her a belief of the usefulness of the cards.
I accept the criticism by Dr H that Bear Cards cannot “indicate” anything as they are not a psychometric test. However, I accept
Ms D’s evidence that they are a useful tool in her assessments. I accept Ms D’s evidence that she used the cards as a communication tool and has not drawn conclusions from the cards that were inconsistent with her observations of [X].
Dr H criticised Ms D for not going through the process of hypothesis building and testing in order to formulate an opinion about whether or not family violence had occurred and to indentify the likely perpetrator. However, with respect to Dr H, it is not the role of a family consultant to formulate an opinion about disputed factual matters. It is the role of the Court make determinations of fact, after the evidence has been heard and tested.
Ms D reported to the Court the parties’ accounts of violence as they were related to her. She was not reporting on the truth of what either party said about the incidents.
Similarly, Dr H criticised Ms D for accepting [X]’s accounts of the family violence without evaluating any potential influences on [X]. Again, Ms D reported to the Court what was related to her by [X]. She did not present any conclusions based on what [X] said.
Dr H criticised Ms D for focusing solely on the level of conflict during the separation and divorce process as an indication of the extent to which conflict is going to influence the parenting roles.
Ms D said that even if the parental conflict has reduced, that may be as a result of a reduction in opportunities to communicate. If that is the reason, that in itself impacts on co-parenting. If the conflict has reduced because the parents are not communicating about important things, it is still a concern. She said that if it was established that conflict continued to take place at change-over this would lead her to the view that acrimony still exists and would reinforce her recommendations.
In respect of the criticism of Ms D’s concern about the distance between the parties’ homes, Ms D said that the issue about the distance between the residences of the parties was in terms of friendships, extra-curricular activities and consistency in routine. While the children have been travelling the distance for one year and will adjust to the distance of travel, the issue to consider was whether it is optimal for them to do this travelling.
Dr H was critical of Ms D’s statement, “[Y]’s cancer has increased his need for emotional security,” as it implied that it is his mother who can meet [Y]’s needs.
With respect to Dr H, Ms D did not imply that it is only the mother who can provide nurturance and support for a child. She did not say that the father is not capable of fulfilling that role. Rather Ms D said that [Y]’s medical history, which has involved the mother being with him during difficult experiences and being absent from his father, meant that it is likely to be more difficult for [Y] to cope away from his mother and she from him.
Ms D said that a stronger bond between [Y] and the mother was forged when he was in hospital when they spent time together. She observed this bond. She was of the view that [Y] had a stronger bond with the mother than with the father. Ms D said that the children’s primary attachment is to the mother. She said that has subsequently transferred to a second attachment to the father. She agreed that the father can provide a quality response to the children.
Ms D conceded that she could not draw a direct link between [Y]’s cancer and his increased need for emotional security. She conceded that she should have used the word “likely” before the words, “increased need for emotional security.” She said that she formed her opinion on the basis of her experience of working at the [omitted] Children’s Hospital and of seeing a number of families where young children had cancer, and the impact on the children and the parenting relationships.
I accept Ms D’s evidence that, because of [Y]’s childhood experiences, he is likely to find it more difficult to cope with being away from his mother and she from him.
In respect of the criticism of her assessment of [X]’s views, Ms D said “this assessment indicated that she preferred to be with her mother.”[15] With respect to Dr H, Ms D did not suggest that [X] was able to determine what is in her best interests.
[15] Para.39
Dr H criticised Ms D’s view that an equal shared care arrangement would not be in the children’s best interests because of the strength of the relationships the children have with their extended maternal family.
Ms D explained her view that when the children spend time with the mother and her family, there is a warmth and support of one another in terms of the children. The father is a lot more isolated from his extended family and the supports and enriching relationships that could be provided for the children. She said that the mother’s family are part of the package with the mother, and the children would be missing out on a number of things that may be more to their advantage than when with the father.
Ms D made concessions about wording in her report, however she did not accept the criticisms of Dr H. She did not change her recommendations as a result of what she was told. Although, she indicated that, if the conflict between the parties had diminished, it was possible that her views and recommendations could change.
Submissions of the parties regarding the Family Report and the report of Dr H
Counsel for the father submitted that the Family Report was flawed and the Court should not follow the recommendations of Ms D. He referred to the fact that neither the mother nor the father had agreed with
Ms D’s opinion that the children’s time with the father should reduce, and that his time with the children has remained the same following the report.
Counsel for the father submitted that the parties have moved on significantly since the report was prepared. For example, the mother hopes to be able to deal with the father better in the future. He argued that the report is deficient because the information and the evaluation of the family and its dynamics are out of date. Counsel submitted that the best information came from the testimony of the parties themselves.
Counsel for the father submitted that Ms D’s assessment of [X] was directly based on the use of Bear Cards, and that her assessment of [Y] was based partially on her use of Bear Cards with [X], and partially on her observations of [Y] with the mother.[16] He submitted that her assessments on this issue were flawed because they were based on speculation, and on an assessment tool which has never been tested. He submitted that this flawed methodology had “infected” her recommendations.
[16] See paragraph 30 of the Family Report
Counsel for the father also submitted that Ms D’s conclusions about [Y]’s emotional needs in relation to his medical history were based on speculation rather than any evidence. He said that there was no evidence that [Y] displays any emotional insecurity in the father’s care.
Counsel for the father submitted that the factors listed by Ms D, in respect of her recommendation that there should not be a shared care arrangement, can be disregarded. He submitted that these factors were either matters that had not been properly assessed, or that the Court does not need to take them into account. He further submitted that, because many of the factors referred to in the McIntosh research were not features in this family, the recommendation against a shared care arrangement had no basis. He submitted that as the conflict and acrimony between the parties was not ongoing, and the only relevant feature was that the children were under ten years old.
Counsel for the mother submitted that, in providing alternative literature and disagreeing with the position of McIntosh and Chisholm, the report of Dr H had nothing to say of relevance or applicability to this family. He said that her comments about family violence, namely, that she would require further evidence to make an assessment, were indicative of the report’s lack of relevance.
Relevant law regarding Family Reports
Section 11B of the Family Law Act 1975 (“the Act”) defines “family consultant”, and s.11A sets out the functions of family consultants. That section reads as follows:
The functions of family consultants are to provide services in relation to proceedings under this Act, including:
(a) assisting and advising people involved in the proceedings; and
(b) assisting and advising courts, and giving evidence, in relation to the proceedings; and
(c) helping people involved in the proceedings to resolve disputes that are the subject of the proceedings; and
(d) reporting to the court under sections 55A and 62G; and
(e) advising the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to the proceedings.
In Hall & Hall[17] the Full Court of the Family Court of Australia made some general and helpful observations about the weight a Family Report should be given
[17] (1979) FLC 90-713
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC ¶90-098 at p. 75,447; Harris and Harris (1977) FLC ¶90-276; (1977) 29 F.L.R. 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
…
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation. We draw attention to an article by Mrs. A. Marshall, Director of Court Counselling Sydney Registry -- ''Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia''. The article appears in the March 1977 edition of Australian Social Work, vol. 30 No. 1, p. 9 and at p. 11 appears the passage:
Family Law reg. 117 provides for the cross-examination of a counsellor in relation to the Report. It is seen as an advantage by counsellors that they can in this way be held accountable for the Report.
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied. In the case of Harris (supra) Fogarty J. said at FLC p. 76,474; F.L.R. p. 289:
It is in my view inimical to the proper workings of the Court and in particular to the proper carrying out of the functions of a welfare officer that it might be thought by practitioners or litigants that welfare officers or their reports occupy some special or privileged position before the Court unchallenged or unchallengeable but yet perhaps decisive of the issue. Custodial proceedings still basically fall to be determined by the Court in accordance with the traditional system of determining cases. Where a welfare report is delivered which contains either factual matters or matters of opinion which a party desires to challenge but is not permitted to do so that party may be pardoned for feeling that justice has not been seen to be done.
Similarly, in M. and M. (1978) FLC ¶90-429 at p. 77,182; (1978) 30 F.L.R. (Notes) at p. 562, Marshall S.J., in adopting the views of Fogarty J. set out above, stated:
If the contents of such a report are not open to challenge by cross-examination the Court would leave itself open to the criticism of conducting a trial 'by report' rather than on the whole of the evidence.
This Court is in full agreement with the views set out above.[18]
[18] Ibid at 78-819 and following
The decision in Hall & Hall[19] was considered by the Full Court of the Family Court of Australia in Friscioni & Friscioni[20]. At 97 and following, their Honours confirmed that, despite the age of that judgment, it remains on point. This was confirmed by the Full Court in the case of Hannigan & Sorraw[21].
[19] Op Cit
[20] [2010] FamCFC 108
[21] [2010] FamCAFC 257
In Friscioni[22], the Full Court held that the trial judge in that matter had not made an error in deciding not to accept the Family Consultant’s opinion and her resultant recommendations. The opinion of the Family Consultant was informed by her observations of the parties and the child, her interviews with the parties and certain documents set out in the preamble to her report. Her opinion was founded in part on her assumption of particular facts. In some instances her opinion was expressed to be an analysis of the evidence. The Full Court said that it was implicit in both the general nature of that which she was required to do and explicit in her report that she was not able to determine disputed issues of fact between the parties. The trial judge had before him extensive evidence both in affidavit and oral form and had the undoubted advantage of seeing the witnesses give evidence. He further had information that post-dated the report. Quoting the trial judge, the Full Court said:
Of course the family report process gives reporters a perspective not available to a judge, including the opportunity to speak directly to the child and observe the child interacting with parents and others who are significant to the child’s life, and their assessments are based on the body of learning related to their professional qualifications and experience. But they do not have the advantage of hearing the evidence tested or of observing those involved in a different setting. Nor, usually, is it apparent that they have arrived at the outcome they recommend by taking the path imposed by the Act through the suite of provisions about best interest considerations, parental responsibility and time. Some of the components which underlie the best interest considerations fit well with their expertise and invariably their evidence about that is very important, but the outcome is for the court and while recommendations about it may be helpful in some cases, not the least with settlement discussions, plainly that does not prevail over the court’s responsibility to evaluate all of the evidence, including that given by the reporter, via the structure imposed by the Act and to come to an independent decision about what is best for the child in all the circumstances.[23]
[22] Op Cit
[23]Op Cit at 10
I refer to the decision of the Full Court of the Family Court of Australia in Malak & Mairie[24]. At 180 at following, their Honours Finn, O’Ryan and Stevenson JJ considered the status of family consultants as expert witnesses. I refer in particular to paragraph 187 and following:
[24] [2010] FamCAFC 170
187. We observe that in the revised explanatory memoranda to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 it was said at paragraph 177:
Section 11A specifies a number of the functions to be performed by family consultants, which include:
assisting and advising people involved in the proceedings (eg. grandparents) by, for example, providing expert advice on the effect on children of different ages of separation from a grandparent who has been a major caregiver to the child. (emphasis added)
assisting and advising courts, and giving evidence in relation to the proceedings. For example, a family consultant may assist the court by providing expert evidence on an issue raised in the case, such as how a child’s age may affect his or her perception of a parental separation. (emphasis added)
There are other functions to be performed by family consultants which, for the purposes of these reasons, we need not repeat.
188. In Friscioni and Friscioni [2010] FamCAFC 108 (17 June 2010) the Full Court (per Thackray, O’Ryan and Ryan JJ) said at [96]:
Although the Family Consultant was an expert appointed by the Court to prepare a family report she was not in a privileged position and was required to give her evidence in the ordinary way. As Gibbs CJ observed in Re JRL; ex parte CJL (1986) 161 CLR 342 at 348: “In the performance of this function the court counsellor becomes a potential witness - a court appointed witness who is perhaps in some respects analogous to an expert witness - but is not part of the court”: See also BBT and JMT (1980) FLC 90-809 per Wood J.
A family consultant’s opinion evidence may be the subject of cross-examination. Such cross-examination may go to a family consultant’s qualifications or his or her opinions and how those opinions were reached.[25]
[25] See: Harris (1977) FLC 90-276; Hall (1979) FLC 90-713 and M v M (1978) FLC 90-429
Conclusions regarding the Family Report and the evidence of Ms D
As indicated by the above cases, Family Reports provide evidence and recommendations to the Court. The Family Report contained Ms D’s evidence of her observations of the children with the parents and their relationships and attachments. Her recommendations were based on her assessment of the family at that time, which involved high conflict and acrimony between the parents.
Dr H did not interview the mother or the children. She did not make recommendations. The evidence of Dr H centred on her criticisms of the Family Report. I have discussed and assessed those criticisms.
Ms D was not challenged on the basis of her experience or qualifications. I note that Ms D is an experienced family consultant, having worked with the Court for a period of eight years. Her job involves interviewing children regularly. Prior to this employment she was the Team Leader, Social Work at the [omitted] Hospital for several years, where she had experience speaking with children. Also she had worked at the child and adolescent mental health unit, [omitted] House for over a decade, where she gained experience in interviewing children.
I note Counsel’s submissions and find that Ms D’s evidence of her observations of the children with the parents and their relationships and attachments was helpful. The Report was limited to the extent that it was prepared over 12 months ago. Any conclusion I reach will be on the basis of all the evidence, including what has occurred over the last 12 months.
The best interests of the child
Section 60CC(2)(a)
Section 60CC(2)(a) provides that when considering the best interests of a child, the Court is required to consider, “the benefit to the child of having a meaningful relationship with both of the child’s parents”. This consideration is informed s.60B(1)(a) of the Act, which provides that the best interests of a child are to be 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
The term “meaningful” is not defined in the legislation but it has been the subject of a number of judgments. In Mazorski v Albright[26], Brown J considered the dictionary definitions of “meaningful” and then went on to say:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[27]
[26] (2007) 37 Fam LR 518
[27] Ibid at 526-527
In McCall & Clark[28], the Full Court of the Family Court accepted this description and said that the preferred approach to this consideration is to consider the prospective benefit to the child of having a meaningful relationship with his parents.
[28] (2009) FLC 93-405
Both parents are committed parents and love the children.
I consider that there is a benefit for the children in having a meaningful relationship with both parents.
Section 60CC(2)(b)
Section 60CC(2)(b) provides that when determining the best interests of a child, the Court is required to consider, “the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse neglect or family violence.”
The need to protect a child from the risk of harm must be balanced against the consideration that it is in the child’s best interests to have a meaningful relationship with both parents and in light of the relevant s.60CC(3) considerations.
The children have witnessed conflict and family violence between the parents. They need to be protected from exposure to further conflict and inappropriate behaviour.
Section 60CC(3)(a)
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The mother said that both children have complained to her at times and told her that they do not want to go to see the father. The father said that he had not experienced any reluctance for the children to be in his care and they are happy to see him on changeover.
During cross-examination, Ms D said that the children talked about “missing mum when at dad’s home” and she did not receive that same information about “the situation in relation to the children missing their dad when they were living with their mum.” She said [Y] was indicating unhappiness about going to his father’s home and there was no unhappiness about returning to his mother’s home.
The father said, “the period of time they think they want to spend with each I believe is influenced by their mother. I accept though that in time they will decide this for themselves.” I consider that this statement indicated that the father was aware that the children want to spend more time with the mother, although he believed that their wishes were influenced by the mother.
I take into account the views of the children and although they are young, there was no evidence to persuade me that their views had been influenced by the mother.
Section 60CC(3)(b)
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The mother has been the primary carer of the children since their births. She said that the children are very close to her. She was the person who primarily looked after them and cared for them. The father accepted that the children are young and have a close relationship with the mother and that she has been the children’s main carer.
The father has a close relationship with the children. Since separation he has reduced his employment hours to spend time with them.
Ms D observed that the children have a close and loving relationship with their maternal Aunt [first name omitted]. They have a good relationship with the mother’s new partner and his daughters, who are aged seven and nine.
Ms D’s evidence was that the children’s primary attachment is to the mother and that has been subsequently transferred to the father as the second attachment. Whilst she accepted that the father can provide a quality response to the children, she was of the view that there is a closer bond with the mother.
I place weight upon the opinion of Ms D in respect to the relationships of the children with each parent. I do not accept the submission made by Counsel for the father that the use of the Bear Cards “infected” her opinion.
Section 60CC(3)(c)
the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother has a willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father. Notwithstanding the recommendations of Ms D, she agreed to continue the father’s alternate weekly time with the children and not to reduce that time in 2011 and 2012. She indicated a willingness to consider a change to the father’s time with the children in 2013, if she considered that was in the best interests of the children. The mother said that when the children tell her that they do not want to see or speak to the father she tells them that they have to and that their father would love to see them and spend time with them.
I consider that it is of concern that the father has made inappropriate gestures to the mother in the presence of the children at changeover. I discuss this further in these Reasons. Nevertheless, I consider that the father has a willingness and ability to facilitate and encourage a close and continuing relationship between the children and the mother.
Section 60CC(3)(d)
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders sought by the father will result in a change to the children’s circumstances. He proposed that their time with him increase over time from four days to seven days per fortnight. This will mean that the children will be required to travel further to school on the days they live with the father.
Ms D’s evidence was that given the history of primary care by the mother, [Y]’s young age, and his medical history with his mother being with him, it is likely to be more difficult for him to cope away from his mother and she from him. Whilst [Y] has coped with this time during school holidays, this does not mean that this time is in his best interests during the school terms.
The father has expressed his awareness about the young ages of the children. He acknowledged that they will need to adapt to the proposed changes to their living arrangements. That is why he has proposed a gradual increase in their time with him.
The mother said that both children come home a bit tired after spending time with the father. She noticed that [X] became tired from the extra bus travelling. [X] has mentioned to her that she felt tired.
Section 60CC(3)(e)
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;
This was not an issue.
Section 60CC(3)(f)
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Both parents have the capacity to provide for the needs of the children. However, I consider that the father has shown a lack of insight into their emotional needs by making inappropriate comments to [Y] about the mother and by his recent behaviour at changeover. I discuss this further in these Reasons.
Both the children have had medical needs in the past. The mother has always ensured the children were taken to appointments. [Y] required many trips to Hobart for specialist appointments and check- ups.
Section 60CC(3)(g)
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;
Both children are young. [Y] is required to have regular medical check-ups.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Whilst both parents take their responsibilities to parenting seriously, I consider that the father has not been responsible by making inappropriate gestures at the mother in the presence of the children at changeover. I discuss this below.
Section 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
During the marriage there have been incidents of family violence between the parties, with both behaving badly in the presence of the children. Both parents admitted to shouting and swearing at each other in the presence of the children.
The father blamed the mother for incidents of abuse and violence. He referred to swearing and foul-mouthed comments. He said that he felt the incidents of abuse and violence in the home were instigated by the mother. He said that the mother has a bad temper and that she often behaved in a manner to try and incite a reaction from him.
The father conceded that he had pushed the mother in the pantry door incident. He conceded that on a few occasions he did not handle situations responsibly and maturely. He did not consider himself to be a violent person and worked very hard at maintaining a cool demeanour. On one occasion, when he was driving in New South Wales, he said that she argued with him and hit him. This almost caused him to lose control of the vehicle on a gravel road.
The mother denied that she instigated situations of violence and abuse. She said that the father applied physical force to her on a number of occasions. On one occasion, he pushed her in the pantry door incident and, on another occasion, rubbed salad rolls in her face.
In respect of the gravel road incident, the mother said the father punched her in the face three or four times. However, during cross-examination, she said that the father punched her on her cheek with the back of his hand, three or four times. She said that she received a small, red mark. She did not tell anyone or obtain any medical assistance.
The father said that the parties were arguing in the car. The mother hit him. He tried to stop her by putting his hand up. He slowed the car down and told her to get out of the car. The father agreed that both parties acted inappropriately.
I consider that the mother exaggerated this incident. I consider that it is improbable that the father punched her in the face three or four times, when she only received a small red mark on her face. However, I consider that it is probable that the father made contact with the mother’s face with the back of his hand. I consider that both parties behaved badly during this incident in the presence of the children.
The mother gave evidence about the recent incidents of the father making a gesture of “wiping his backside” at changeover on three or four occasions. The children were present when he did this. She said that [Y] has done the same thing on a number of occasions. On the children’s return from time with the father, [Y] made the same gesture. She told him not to do that and [Y] laughed. He said “Dad does it”. In early August, [Y] made the gesture again. The mother asked him not to do it and he laughed.
The father denied that in August 2011 at a changeover, he gestured by “wiping his backside” and denied that he has done that on three or four occasions since the mother swore her affidavit. He said, “the children wiggle their bottoms when they listen to music… I don’t know where this has come from.”
The mother gave evidence that the father also made a gesture of cutting his throat with his finger and then pointing at the mother. This occurred at changeover with the children present. The father denied that on 31 August 2011, he moved his finger across his throat.
The mother said that after [Y] had spent time with the father in October he told her, “Dad said he is going to fucking kill you”. [Y] was upset because the father said he was not going to give the mother any of his money. She said she distracted [Y] to get his mind off this. The father denied that he said this.
I accept the mother’s evidence about [Y] telling her this. I consider that it is probable that the father said this to [Y] and caused him to be upset.
The mother’s evidence about the father’s gestures of “wiping his backside” and “slitting his throat” and then pointing at her is of concern. I accept the mother’s evidence that the father has made these gestures. [Y] has mimicked the behaviour. When confronted by the mother he has laughed and justified it on the basis of the father doing this. I do not accept the father’s explanation that the children “wiggle their bottoms when they dance to music.”
The mother continued to attend changeover after these incidents. She did not apply for a family violence order. She has complained about the behaviour, but did not indicate that she is fearful for her safety as a result. I consider that that this behaviour is inappropriate and the children should be protected from exposure to it.
A police family violence order was made against the father on 7 May 2010. A family violence order was made against the mother by consent on 25 June 2010.
Section 60CC(3)(l)
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Parenting orders are never final. It is preferable to make orders which are least likely to lead to further proceedings and the orders I intend to make should achieve that.
Sections 60CC(4) and (4A)
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
These sections overlap to some extent with s.60CC(3)(c) and (i). I have considered the extent to which the parents have fulfilled or failed to fulfil their parental responsibilities. I have considered the circumstances that have existed since separation.
Parental responsibility
The parties seek parenting orders pursuant to Pt VII of the Act. By virtue of s.61DA(1) I am required to apply a presumption that it is in the best interests of the children for the mother and the father to have equal shared parental responsibility for them.
Pursuant to s.61DA(2) of the Act, the presumption contained in s.61DA(1) does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or,
(b) family violence.
There is evidence to persuade me that there are reasonable grounds to believe that family violence has occurred. The statutory presumption in s.61DA does not apply.
The parents consented to an order that they have equal shared parental responsibility for the children. Such an order requires consultation by the parents in relation to any relevant major long-term issue and requires genuine efforts to come to a joint decision.[29]
[29] Section 65DAC
The parties have indicated an expectation and hope to communicate about the children. They have already demonstrated that they can communicate. In September 2011 the parties were able to agree on holiday time. The mother said that she does not feel comfortable talking to the father, but she telephoned him to talk to him about eye drops for one of the children and they discussed dentist appointments for the children. She accepted that the tension between the parties has reduced significantly over the past year.
The mother agreed that she hopes that the parties’ ability to communicate will improve with time. She agreed that they have similar values and aspirations for the children. She said that she could discuss the children’s sport and she was hopeful that they would agree. She was hopeful that the parties’ relationship will improve with the resolution of parenting and property matters.
The parents have demonstrated a capacity to communicate with each other. They both believe that when these proceedings are finished that they will be able to move on with their lives and focus on their responsibilities. They are both committed and loving parents. I considered that it was in the children’s best interests to have made the order.
Live with and spend time with
As an order for equal shared parental responsibility was made, I am required to apply the provisions of s.65DAA of the Act, as explained by the High Court in the decision of MRR v GR[30]. I am required to consider whether it would be in the children’s best interests to spend equal time with the parents, and whether it would be reasonably practicable for them to do so.
[30] (2010) 240 CLR 461
In considering the children’s best interests, I have regard to the fact that the mother has been the primary carer for both children since their births and has continued to be their primary carer since separation. She is a responsible and loving mother. She was the parent who stayed with [Y] during his hospital stays. I place weight upon Ms D’s evidence that [Y] has a closer bond to the mother than the father. In respect of [X], I place weight on Ms D’s assessment that she has a closer relationship with her mother. The children told Ms D that they miss the mother when they are with the father. [Y] indicated unhappiness about going to the father’s home. This evidence was consistent with the mother’s evidence that the children have complained and told her that they do not want to go to see the father. The father said that he has not seen that unhappiness on changeover or when the children are with him. That does not mean that they do not complain to the mother and do not miss the mother when they are with him.
The father acknowledged the young ages of the children and that they should spend more time living with the mother until the end of 2013.
The father sought an equal time arrangement from the commencement of the summer school holidays in 2013. I consider that it is not in the children’s best interests to spend equal time with each parent from the end of 2013. I consider that due to their young ages that it is in their best interests to have a home base and spend more time with their primary carer by primarily living with the mother.
There is a geographic distance between the residences of the parents. The issues referred to by Ms D, in respect of friendships, extra-curricular activities and consistency of routine could arise. However, the parents are hopeful the parental alliance will improve, to limit the difficulties. I consider that equal time is reasonably practicable.
The father sought that the time should increase from the current arrangement by one night at the commencement of the school year in 2013, by two nights at the commencement of term three in 2013.
I consider that it is in the children’s best interests to spend substantial and significant time with the father. This will enable the children to spend time with the father, which includes school holiday time, time during the week, weekend time and time on special occasions. This will enable the father to be involved in the children’s daily routine and events of significance. The parties have agreed that the children should continue to live with the mother and spend time with the father each alternate week from 5.00pm Wednesday until 6.00pm Sunday during 2012. The children have coped with the travel during 2011.
There is still acrimony between the parents demonstrated by the father’s behaviour at changeover. However, I do not consider that the acrimony is presently to the extent of such “severity and chronicity,” as referred to by Jennifer McIntosh and Richard Chisholm,[31] so as to exclude a shared care arrangement.
[31] Op Cit / exhibit “4”
I consider that it is in the best interests of the children that they spend time with the father each alternate Tuesday 5:00 p.m. until Sunday 6:00 p.m. from the commencement of the first school term in 2013. [Y] will have completed his first full-time school year by then. Although the children will still be young, [Y] will be six and [X] will be ten, they should be able to cope away from the mother for an extra night. I do not consider that it is in their best interests to spend longer periods away from the mother than this. This time will enable the children to have a meaningful relationship with each parent. It will enable the father to be actively and consistently engaged in the children’s lives. This time is reasonably practicable.
Property Application
Proposals
The parties did not dispute to any great extent issues in respect of the property application, apart from the percentage division.
The father proposed that the pool be divided 80% in his favour in respect of contributions, reduced by 10% in respect of s.75(2) factors, resulting in a 70/30% division in his favour.
The mother proposed that the pool be divided 55% to the mother and 45% to the father. Further, in her Case Outline, it was asserted that the father should receive 60% for contributions, reduced to either 55% or an equal division, depending on whether the s.75(2) factors amount to 5% or 10%, because of the living arrangements for the children. In his final address, Counsel for the mother submitted that there should be a 15% credit in favour of the mother for s.75(2) factors, resulting in the division of 55/45% in favour of the mother.
The parties agreed the value of the asset and superannuation pool. That agreement was set out in a balance sheet, which was tendered by consent.[32] Counsel for both parties in their closing addresses indicated that the agreed approach was to adopt a one pool approach with the assets and superannuation amounting to a total of $1,540,045.00. I consider that given the length of the relationship with two children, this approach was appropriate.
[32] Exhibit “3”
Since separation, the investment property at Property B has been sold, and the proceeds of sale of $325,414.00 were deposited into a joint Westpac account.
The father sold the [business] shares for the sum of $187,500.00, which was used to reduce the equity loan liability.
It was agreed that each party will retain his or her own superannuation entitlement and that there will be a cash adjustment paid by the father to the mother.
Relevant Law
Section 79(2) of the Family Law Act 1975 requires that any order made by the Court must be just and equitable. Section 79(4) provides the matters which are to be taken into account when considering what order should be made.
Section 79(4) involves a four step exercise, namely:
(i) The identification of the property of the parties, their assets and financial resources.
(ii) The evaluation of the contributions.
(iii) The evaluation of the matters referred to in s.75(2).
(iv) A determination as to whether the result is just and equitable by considering the real impact in money terms of the orders.[33]
[33] Hickey & Hickey (2003) FLC 93-141 and Ferraro & Ferraro (1993) FLC 92-335
Assets and liabilities
During the hearing of this matter, the parties handed up a schedule of agreed assets. That schedule was marked as exhibit “3”. The following list of agreed assets is derived from that exhibit.
The parties did not lead any evidence about the asset known as the [H] Investment Trust. The wife asserted that its value was unknown. The husband asserted that its value was negligible. I have not been asked to make a finding in relation to the value of this asset. I intend to treat it as having no value.
Schedule of agreed assets
Assets
Property H $685,000.00
Property O $140,000.00
Westpac Cash Managed Account
(Sale proceeds of Property B) $341,830.00
Vacant Lot, Property H $150,000.00
Father’s Share Portfolio $145,400.00
Mother’s BMW (W) $32,000.00
Share Portfolio in ETRADE $232,893.00
Subtotal $1,727,123.00
Superannuation assets
Mr Conca Super Fund $145,078.00
[omitted] $18,954.00
Subtotal $164,032.00
Liabilities
Capital Gains Tax $141,000.00
Equity Access Loan $210,110.00
Subtotal $351,110.00
Net Total $1,540,045.00
Contributions
It was agreed that the father owned assets including Property H, a car, superannuation shares and savings at the commencement of cohabitation. He also had a loan. He asserted that the net assets were of an approximate value of $1,327,717.00. There was no expert evidence of the values of the net assets at the date of cohabitation. The mother agreed that the father had the assets and loan, but she did not know their values.
The mother owned a motor vehicle, which was encumbered by a loan of around $7,000.00. She also owned a [omitted] painting and had superannuation.
At the commencement of cohabitation the father worked full-time as Managing Director of [omitted], earning around $60,000.00 per annum. The mother worked at [omitted], earning around $17,600.00 per annum.
The father purchased two blocks of land at [C]. He borrowed the sum of $81,208.00 in September 2002 to enable the purchase. A house was built on one of the vacant blocks between May and December 2004. The father assisted his brother and father who were employed to build the home.
There was evidence that the father made the last payment of the mother’s car loan of $1,183.18 on 3 September 2004. He paid four of her car loan instalments and he paid her credit card instalments, car insurance and other expenses.[34]
[34] Exhibit “H4”
The mother did some part-time work throughout the marriage, but was primarily responsible for the care of the children. She also worked on a casual basis for the [omitted] business. Her wages varied from nil up to $6,000.00 per annum.
The father maintained the buildings, machinery and lawns. He planted and looked after a vegetable garden with the children.
The parties employed a manager for the investment property for approximately 12 months. After that time the mother managed it for around seven months.After separation the father managed it until it was sold.
The mother was primarily responsible for housework, cooking and cleaning. She was responsible for taking the children to doctors and specialists. She helped with gardening, pruning and clearing scrub to sow lawn.
After [Y] turned one year old, he was diagnosed with cancer and had surgery at the [omitted] Hospital. The mother stayed at Ronald McDonald House on numerous occasions with [Y]. The father sometimes visited [Y].
The father assisted in caring for the children when he was not at work. He has been an involved parent. He conceded that the mother was always more directly involved with the children’s every day routine.
At weekends he spent time with the children in the vegetable garden and reading, playing, and teaching them new skills.
Both parents attended parent-teacher interviews when [X] was attending [B] Primary School. The father took time off work and went to athletics carnivals and Christmas stage performances. He also sat with [Y] at school in playgroup.
After separation the father remained living in the matrimonial home and the mother was required to rent until her partner purchased a property at [S].
The mother has continued to be the primary carer of the children. The father pays her child support of $198.00 per week. Her partner has assisted her by providing a home in which she and the children live.
Conclusion as to Contributions
The father has made significant initial contributions in this matter. How assets brought into marriage by the parties are to be treated was considered in the decision of the Full Court of the Family Court in Pierce & Pierce[35]. The Full Court said:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home…[36]
[35] (1999) FLC 92-844
[36] Ibid at 85,881
In Williams & Williams[37] the Full Court stated:
We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus, where the pool of assets available for distribution between the parties consists of say an investment portfolio of a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so, it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.[38]
[37] [2007] FamCA 313
[38] Ibid at 26
The Full Court referred to the decision of MH & MZ[39]. In that case, the Full Court allowed an appeal where a pool of assets worth $1.12 million had been assessed for contribution purposes as 75% in favour of the husband and 25% in favour of the wife. The Full Court stated:
Such an assessment ought adequately recognise that much of the parties’ wealth can be attributed to the capital growth in the assets introduced by the husband at the commencement of the marriage but at the same time bring into consideration the myriad of other contributions each made in the course of their relationship.[40]
[39] (2005) FLC 93-226
[40] Ibid at 79,730
The weight to be attributed to initial contributions and other contributions is not required to be a mathematical or a counting exercise. In Clives & Clives[41], the Full Court said:
We accept that the task to be undertaken by a trial judge in assessing weight to be attached to initial contributions, and other contributions, is not always an easy one and not discharged by a strict accounting exercise…[42]
[41] (2008) FLC 93-385
[42] Ibid at 82,936
It is not necessary to provide precise mathematical evidence of valuations of the parties’ contributions, especially where they are indirect or non-financial.
The initial contributions must be considered in the context of a cohabitation period of over seven years and over two years post-separation, and the parties’ subsequent contributions.
In respect of the father’s initial contribution of the property at Property H, I attach significant weight to it. It enabled the parties to have a home throughout the marriage and it is the major asset of the parties. I attach weight to the other initial contributions of the father of his car, superannuation, shares, and savings. At cohabitation the mother owned a painting which is not in the pool. She had some equity in her car, and some superannuation. I do not place weight upon these contributions, as they were of minimal value.
I have had regard to the other contributions made by each party during the marriage and post- separation.
The two blocks of land at [C] were purchased soon after co-habitation with the assistance of a mortgage loan, which was re-paid during the relationship.
The father was the main financial contributor during the relationship. He assisted with the care of the children when he was not at work.
The mother was the primary carer of the children. She was the parent who stayed with [Y] during his hospitalisations. The mother was the homemaker during the relationship. She earned some income during the relationship.
Both parties have made non-financial contributions. The father has assisted his father and brother to build the investment property at [C]. He has made improvements around the matrimonial home. The wife has assisted with improvements around the home.
Since separation the father has had the benefit of living in the home. The mother lived in rental accommodation until recently.
The mother has contributed by being the main carer for the children since separation.
I find that having regard to all the contributions of the parties that the father has made a greater contribution. I assess the contributions as 75% in favour of the father and 25% in favour of the mother.
Relevant section 75(2) matters
The father is 50 years old. The mother is 41 years old. Both parties are in good health.
Since his employment was terminated, the father has traded shares and made a profit of $20,000.00 over a four month period. He will try to obtain some part-time work and also trade shares.
The mother does not have any formal qualifications. She has worked as a [omitted] on a part-time basis. She does not currently work and earn an income.
The father has a superior earning capacity. He is not currently employed, but is share trading and is earning an income. He has been successful in business in the past. Given this and given that he is a hard worker, I consider that it is probable that he will achieve further success.
The father lives alone in the former matrimonial home. He does not need to re-house himself.
The mother lives with her new partner, Mr F. He works full-time as a [omitted] and earns an income of $1,100.00 per week. He pays the mortgage instalments, general expenses and legal fees for the benefit of the mother. He paid $100,000.00 towards the purchase of the home at [S]. The mother and Mr F obtained a mortgage from the Commonwealth Bank in the sum of $141,500.00 to assist with the purchase. It is the mother’s intention to use funds, which she receives from the property settlement, to contribute to the property.
The effect of the findings as to contributions is that the father will receive assets and superannuation to a value of $1,155,034.00 and the mother will receive assets and superannuation to a value of $385,011.00. There is a large disparity of property and superannuation between the parties.
The father pays child support to the mother of $198.00 per week.
The father should be able to increase his superannuation entitlement more substantially than the mother.
Having regard to these circumstances, I find that there should be an adjustment of the mother’s contribution based entitlement by a further 12% in her favour.
As a result of my findings the father shall receive 63% of the pool, which amounts to a value of $970,228.00. The mother will receive 37% of the pool, which amounts to a value of $569,817.00.
Is this a just and equitable outcome?
To make an order under s.79 of the Act the Court must be satisfied that in all the circumstances it is just and equitable to do so. I must stand back and look at the overall result to ensure it is just and equitable.
Each party will retain assets as follows:
Assets to be retained by father
Assets and superannuation
Property H $685,000.00
Property O $140,000.00
Sale proceeds Property B $341,830.00
Vacant Lot Property H $150,000.00
Share portfolio $145,400.00
Share portfolio in e-trade $232,893.00
Mr Conca super fund $145,078.00
[H] Investment Trust Nil
Subtotal $1,840,201.00
Liabilities
Capital gains tax $141,000.00
Equity access loan $210,110.00
Cash payment to mother $518,863.00
Subtotal $869,973.00
Net Total $970,228.00
The father has cash funds to assist him to pay the mother. He may need to obtain some finance.
Assets to be retained by mother
Assets and superannuation
BMW $32,000.00
Superannuation $18,954.00
Cash payment from father $518,863.00
Total $569,817.00
In my view, this is a just and equitable outcome for the parties.
I certify that the preceding two hundred and sixteen (216) paragraphs are a true copy of the reasons for judgment of Baker FM
Date: 15 March 2012
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