CREIGHTON & CREIGHTON

[2015] FCCA 1979

FEDERAL CIRCUIT COURT OF AUSTRALIA

CREIGHTON & CREIGHTON [2015] FCCA 1979

Catchwords:
FAMILY LAW – Property and parenting orders – adjustment of property in the wife’s favour – consideration of contribution of wife and s.75(2) of the Family Law Act 1975 (Cth) – wife’s income significantly less – children to spend more time with the wife – separation of siblings – history of care of the children had been the wife – denigration of wife’s parenting skills – consideration of children’s best interests – failure to promote parent child relationship – children live with the wife.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CC, 75(2)

Applicant: MS CREIGHTON

Respondent: MR CREIGHTON

File Number: MLC 909 of 2014

Judgment of: Judge Hartnett

Hearing dates:  30 & 31 March, 1 April 2015

Final Orders made: 1 April 2015, 31 July 2015, 14 August 2015

Reasons Delivered: 14 August 2015

REPRESENTATION

Counsel for the Applicant: Mr MacFarlane

Solicitors for the Applicant: Harwood Andrews Lawyers

Counsel for the Respondent: Mr Serra

Solicitors for the Respondent: Sarah Lia

ORDERS MADE BY CONSENT ON 1 APRIL 2015

1. The husband and wife have equal shared parental responsibility for the long term decisions regarding the care, welfare and development of the children X born (omitted) 2004 (‘X’) and Y born (omitted) 2006 (‘Y’) (‘the children’).

2. X be immediately enrolled by the wife (and as determined by the wife) in counselling and/or psychological consultations. Such consultations to occur with the wife only and for the purpose of improving their relationship. The costs of same to be borne by the husband and wife equally. The husband to only attend the consultations upon the written request, if any, of the counsellor or psychologist.

3. The parties abide by all recommendations made by Y’s treating General Practitioner and Paediatrician and place same into effect forthwith or as soon as is practicable.

4. The children do not play (hobby omitted), whether it be a match or training, on a Saturday unless by written agreement between the parties. Otherwise the children or either of them can be involved with (hobby omitted) on three occasions in each week save otherwise by written agreement.

5. Both parties are restrained by themselves, their servants and/or agents from:-

   (a)discussing these proceedings with the children; and

   (b)denigrating the other party or the other party’s family members or friends in the presence and/or hearing of the children.

ORDERS MADE ON 31 JULY 2015

Parenting

1. The children X born (omitted) 2004 and Y born (omitted) 2006 (‘the children’) live with the wife.

2. The husband spend time and communicate with the children as follows:-

   (a)during school terms:-

   (i)on alternate weekends commencing 7 August 2015 from the conclusion of school on Friday until the commencement of school on Monday; and

   (ii)each alternate Wednesday commencing 12 August 2015 from the conclusion of school until 9.00am Friday;

   (b)for one half of all school term holiday periods, excluding the Christmas Eve to Boxing Day period which is as provided for at (e) and (f) hereof, at times to be agreed and failing agreement, from 10.00am on the first Saturday of each school term holiday until 12noon on the following Saturday, and with respect to the Christmas school holiday period, for no more than three weeks in total to be spent at times of no longer duration than one week consecutively unless otherwise agreed in writing between the parties, and to effect a week about arrangement commencing with the children being with their father from 10.00am on the first day of the holiday period;

   (c)by telephone once per week at a time to be agreed and failing agreement, each Thursday between 7.00 and 7.30pm;

   (d)in 2015 and each alternate year thereafter, from 3.00pm Christmas Day until 8.00pm Boxing Day; and

   (e)in 2016 and each alternate year thereafter, from 5.00pm Christmas Eve until 3.00pm Christmas Day.

3. The children spend additional time with their respective parents as follows:-

   (a)with the wife on Mother’s Day from 5.00pm the night before until the commencement of school on Monday;

   (b)with the husband on Father’s Day from 5.00pm the night before until the commencement of school on Monday; and

   (c)with the parent they are not with, on the children’s birthdays and the birthdays of each of the parents, from 3.30pm until 7.30pm.

4. For the purposes of telephone communication pursuant to these Orders:-

   (a)each party shall provide the other party with a telephone contact number and prompt notice of any change; and

   (b)in addition, both parties shall permit the children to telephone the other parent as the children may reasonably request, or the parties agree.

5. The parties shall each provide the other with written notice and particulars of any change of residential address as soon as is reasonably practicable.

6. Changeover on school days shall take place at the children’s school unless the parties otherwise agree, and changeover on non-school days shall take place at the wife’s residence unless the parties otherwise agree.

7. The parties shall each inform the other, as soon as is reasonably practicable, of any serious illness or injury sustained by the children, or either of them, whilst in their care and further provide particulars of any treatment required or received by the children, or either of them, together with the name and address of the treatment provider and/or location at which that the children, or either of them, is/are hospitalised.

8. Each party shall make available to the other party any medication prescribed for the children, or either of them, for the other party to administer as prescribed or required.

Property

1. The husband retain, to the exclusion of the wife, the property located at Property N in the State of Victoria (‘the Property N property’) and indemnify the wife in respect of the mortgage encumbering that property.

2. The wife retain, to the exclusion of the husband, the property located at Property P in the State of Victoria (‘the Property P property’) and indemnify the husband in respect of the mortgage encumbering that property.

3. Within 90 days hereof (‘the date’), the husband pay to the wife the sum of $40,830.55 (‘the payment’).

4. The husband retain the following items of property to become his sole property:-

   (a)the motorcycle;

   (b)the trailer;

   (c)the (omitted) Ford Falcon registered in the wife’s name, with such vehicle to be transferred at the husband’s expense into his sole name; and

   (d)the jet ski.

5. The wife retain the following items of property to become her sole property:-

   (a)the (omitted) Ford Explorer registered in the husband’s name, with such vehicle to be transferred at the wife’s expense into her sole name; and

   (b)the (omitted) Caravan.

6. In the event the whole of the payment has not been made by the date then the Property N property be forthwith sold altogether out of Court (‘the sale’) and upon completion of the sale, the proceeds of sale be applied:-

   (a)firstly to pay all costs, commissions and expenses of the sale;

   (b)secondly to discharge the mortgage and any other encumbrance affecting the Property N property;

   (c)thirdly so much of the payment as is then outstanding, together with interest thereon at the rate prescribed by the Family Law Rules 2004 (Cth) adjusted monthly from the date to the wife; and

   (d)fourthly the balance to the husband.

7. BY CONSENT The wife make available for collection by the husband within 14 days the chattels and items of personal property listed in Annexure “A” hereof.

8. The parties otherwise retain those items of property in their current possession, including superannuation.

ORDERS MADE ON 14 AUGUST 2015

1. Commencing the Christmas school holiday period 2016/2017 the children X born (omitted) 2004 and Y born (omitted) 2006 (‘the children’) spend time and communicate with their father for no more than three weeks in total to be spent at times of a two week block and a one week block such that they remain living with their mother for at least one two week block in such holidays together with the balance of the Christmas/January school holidays. Commencing the 2017/2018 Christmas school holiday period and thereafter, each Christmas school holiday period the children spend time and communicate with their father for one half of such holidays being a continuous period or otherwise as agreed between the parties. Failing agreement the children are to spend time with their father for the first half in 2017/2018 and each alternate year thereafter and for the second half in 2018/2019 and each alternate year thereafter save that in the second half they are to be returned to the mother’s care at least 48 hours before school recommences.

2. In respect of all school holiday periods provided for in these Orders and those of 31 July 2015, the parties are to be in substantial attendance themselves, unless otherwise agreed in writing between them.

3. In respect of the Christmas school holiday periods provided for in these Orders of 14 August 2015, the parties are at liberty to telephone the children three times each week at all reasonable hours. 

IT IS NOTED that publication of this judgment under the pseudonym Creighton & Creighton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 909 of 2014

MS CREIGHTON

Applicant

And

MR CREIGHTON

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court required orders to be made by the Court as to both an adjustment of property between the parties and a determination as to the live with arrangements for the parties two children:-

   a)X born (omitted) 2004 (‘X’) and now aged 10 years; and

   b)Y born (omitted) 2006 (‘Y’) and now aged nine years.

History

1. The Applicant wife was born on (omitted) 1969 and is now aged 46 years. The Respondent husband was born on (omitted) 1972 and is now aged 43 years. The parties commenced their cohabitation in (omitted) 2002 and married on (omitted) 2003. Their separation in (omitted) 2014 was after a period of cohabitation of almost 12 years. At the commencement of their cohabitation the wife had a child from a previous relationship. She is Ms J born on (omitted) 1994 (‘Ms J’) and now aged 21 years. She lived with the parties and was financially supported by them and by her biological father, from 2002 until 2010. At that time, Ms J left the parties’ home and resided firstly with her maternal grandmother and then independently. Ms J historically often assisted each of the parties with the care of the children the subject of this application. At trial the husband acknowledged that he had not seen Ms J for many years yet his evidence was that he “did not think highly of her”. He suggested the children needed to be supervised whilst in her care. The Court found no proper basis for this and accepted the wife’s evidence that Ms J has a good and warm relationship with her half-sisters, in particular in the absence of the husband.

2. The husband is employed by (employer omitted) as a (occupation omitted) and is in receipt of income of approximately $56,000 per annum. The wife is employed as a (occupation omitted) on a casual basis with income receipt of approximately $14,000 per annum.

3. At separation, the husband left the former matrimonial home. He also removed X from the former matrimonial home thereby separating her from her mother and sister. The wife was concerned. She contacted the Department of Human Services and the police seeking the return of X. The wife then instituted these proceedings promptly seeking a resumption of the status quo where the parties’ two children resided with each other and further seeking that they so reside with her. However, following the preparation of a s.11F of the Family Law Act 1975 (Cth) (‘the Act’) report prepared by family consultant, Mr E, on 13 February 2014, the wife adopted its recommendations and consented to orders supported by the father which continued the separation of the siblings. Those Orders made on 26 February 2014 had not been disturbed pending a final determination in this matter. They were relevantly as follows:-

   “ THE COURT ORDERS BY CONSENT :

   1. That the father and mother share equal parental responsibility for the children of the marriage, X born (omitted) 2004 and Y born (omitted) 2006.

   UNTIL FURTHER ORDER:

   2. That Y live with the Mother

   3. That Y spend time and communicate with the Father as follows

   a) On each alternate weekend from Friday at the conclusion of school until the following Monday at the start of school, commencing 7 March 2014.

   b) On each Tuesday from the conclusion of school until 7.30pm.

   c) During school term holidays for one week at times agreed, but failing agreement for the first week, with her time with her father to coincide with the time that X spends with the father.

   d) By telephone at all reasonable times as requested by the child.

   e) As otherwise agreed in writing

   4. That X live with the husband.

   5. That X spend time with a communicate with her mother as follows:

   a) On each alternate weekend from Friday at the conclusion of school until the following Monday at the start of school, commencing 28 February 2014.

   b) On each Wednesday from the conclusion of school until 7.30pm.

   c) During school term holidays for one week at times agreed, but failing agreement for the second week, with her time with her mother to coincide with the time that Y spends with the mother.

   d) By telephone at all reasonable times as requested by the child

   e) As otherwise agreed in writing.

   6. Each child shall spend additional time with their respective parents as follows:

   i. With the Mother on Mother’s Day from 5.00pm the night before until the start of school on Monday.

   ii. With the Father on Father’s Day from 5.00pm the night before until the start of school on Monday.

   iii. With the parent they do not live with, on their respective birthday, from 3.30pm until 7.30pm.

   7. Each of the father and mother attend and complete a post separation parenting program run by either ‘Our Kids Parenting Orders Program’ in (omitted) , or the ‘(omitted) Children After Separation Program’ in (omitted).

   8. The Father and Mother participate in a round table mediation process and use their best endeavours to resolve their differences concerning the children’s parenting arrangements.

   9. Liberty to apply.

   10. Adjourn all extant proceedings to 20 August 2014 at 9.45am.

   11. That pursuant to Section 65DA (2) and Section 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders 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.

   12. Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

   13. That the children remain attending (omitted) Primary School subject to a written agreement of the parents or Order or the Court to the contrary.”

4. Subsequently and on 20 August 2014, it was necessary for the Court to order that, until further order, the children continue with their then extracurricular sporting events, save that neither child was to participate in (hobby omitted) on Saturdays. This order was made on the wife’s application and opposed by the husband. The husband was “horrified” by the making of the order. 

5. The wife filed her Initiating Application on 12 February 2014 which she amended by Amended Initiating Application filed on 4 September 2014. That later application, in essence, included for the Court’s determination the issue of property adjustment as between the parties.

6. The wife relied upon her evidence as contained in affidavits sworn by her on 5 February 2014, 19 August 2014, 2 September 2014, 6 February 2015 and 10 March 2015. Limited paragraphs in those affidavits were struck out by the Court as being inadmissible, and as agreed by Counsel. In addition, the wife relied upon a Financial Statement sworn on 2 September 2014. The wife was cross-examined by the husband’s Counsel.

7. The husband relied upon his Response filed on 6 March 2014 which he amended by further Response filed on 16 December 2014, and his evidence as contained in affidavits sworn by him on 10 February 2014, 17 August 2014, 13 February 2014 and 21 November 2014. In respect of these affidavits, some extensive paragraphs were struck out by the Court as indicated in the documents on the court file. For the most part, the objection to the admissibility of that evidence was agreed between Counsel. In addition, the husband relied upon a Financial Statement sworn by him on 27 November 2014. The husband was cross-examined by the wife’s Counsel.

8. Before the Court was also the Family Report dated 27 February 2015 prepared by family consultant, Mr E. Mr E was cross-examined by each of the parties in the proceedings. There was also introduced into evidence an Affidavit sworn on 27 January 2015 by Dr R, a consultant psychiatrist.  Dr R prepared a Report for the Court consequent upon a psychiatric assessment of the parties as carried out by him. He was not required for cross-examination by the parties and his evidence was unchallenged.

9. The orders sought at the conclusion of the trial by the wife were as follows:-

   “2. That the children live with the mother.

   3. That the father spend time with the children as follows:-

   3.1 Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday;

   3.2 from the conclusion of school on Wednesday until 7.00pm on that day;

   3.3 for one half of all school holidays periods at times to be agreed and in default of agreement then for the first half of all such holiday periods.

   3.4 by telephone once per week at a time to be agreed and failing agreement then each Thursday between 7-7.30pm

   4. That the time the children spend with the parties in paragraphs 3 hereof shall be suspended during all the school term holidays and summer school holidays, and recommence in the same cycle as provided for in these Orders as if uninterrupted by the said school holiday periods.

   [5 and 6 were orders made by the Court, by consent, on 1 April 2015.]

   7. At Christmas,

   7.1. in 2015 and each alternate year thereafter, the children shall spend time with the mother from 7:00pm Christmas Eve until 3.00pm Christmas Day and the children shall spend time with the father from 3.00pm Christmas Day until 10.00am Boxing Day;

   7.2. in 2016 and each alternate year thereafter, the children shall spend time with the father from 7:00pm Christmas Eve until 3.00pm Christmas Day and the children shall spend time with the mother from 3.00pm Christmas Day until 10.00am Boxing Day;

   8. That for the purposes of telephone communication pursuant to these orders:

   8.1. each party shall provide the other party with a telephone contact number and prompt notice of any change;

   8.2. both parties shall permit the children to telephone the other parent as the children may reasonably request or the parties agree.

   9. That the parties shall each provide the other with written notice and particulars of any change of residential address as soon as is reasonably practicable.

   10. That:

   10.1. changeovers on school days shall take place at the children’s school unless the parties otherwise agree; and

   10.2. changeovers on non-school days shall take place at the mother’s residence unless the parties otherwise agree.

   11. That the parties shall each inform the other as soon as is reasonably practicable of any serious illness or injury sustained by the child or children whilst in their care and further provide particulars of any treatment required or received by the child or children together with the name and address of the treatment provider and/or location at which that child or children is/are hospitalised.

   12. That each party shall make available to the other party any medication prescribed for the child or children for the other party to administer as prescribed or required.

   [13, 14 and 15 were orders made by the Court, by consent, on 1 April 2015.]

   PROPERTY

   1. That within 60 days (“the date”) the husband pay to the wife the sum of $50,000 (“the payment”)

   2. That the wife retain to the exclusion of the husband, the property located at Property P (and indemnify the husband in respect of the mortgage encumbering that property.

   3. That the husband retain to the exclusion of the wife, the property located at Property N (“the Property N property”) and indemnify the wife in respect of the mortgage encumbering that property.

   4. The husband retain the following:

   4.1. His motorcycle.

   4.2. Trailer.

   4.3. (omitted) Ford Falcon registered in the wife’s name and that vehicle be transferred into his sole name.

   4.4 Jet ski.

   5. The wife retain the following:

   5.1. (omitted) Ford Explorer registered in the husband’s name and that vehicle be transferred into her sole name.

   5.2. The (omitted) Caravan.

   6. That in the event the whole of the payment had not been made by the date then the Property N property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale;

   6.1 first to pay all costs, commissions and expenses of the sale;

   6.2 secondly to discharge the mortgage and any other encumbrance affecting the Property N property;

   6.3 thirdly so much of the payment as is then outstanding together with interest thereon at the rate prescribed by the Family Law Rules adjusted monthly from the date to the Wife

   6.4 fourthly the balance to the Husband.

   7. The parties otherwise retain the items in their current possession, including superannuation.

   8. The wife make available for collection by the husband within 14 days the chattels and items of personal property listed in annexure “A” hereof.”

1. The orders sought at the conclusion of the trial by the husband were as follows:-

   “Parenting

   1. That all previous parenting orders be discharged.

   2. That the parties have equal shared parental responsibility for the children of the marriage:

   X (sic) X born (omitted) 2004 and

   Y born (omitted) 2006.

   3. That the children live with the father.

   4. That the children spend time and communicate with the mother as follows:-

   (a) Every second weekend from after school Friday until the commencement of school Monday.

   (b) Each Tuesday from after school until 7.00pm.

   (c) For one half of all school holidays.

   (d) As otherwise agreed between the parties.

   5. That the parties attend the “Parenting Orders Program.”

   6. That the mother be and his hereby restrained from physically disciplining the children or either of them when they are in her care.

   7. That during all time with periods the mother facilitate the children’s attendance at their extra-curricular activities and ensure that her home environment is neat and clean.

   Property

   8. That the husband retain the Property N property and indemnify the wife in relation to the mortgage thereon.

   9. That the wife retain the Property P property and indemnify the husband in relation to the mortgage thereon.

   [10 and 11the husband no longer sought]

   12. That the wife retain the contents of the former matrimonial [home] and the caravan.

   13. That the husband retain the Jetski and motorbike.

   14. That the wife make a payment to the husband of $75,000.

   15. That the husband’s personal belonging and chattels be collected by him from the former matrimonial home within 7 days.

   16. That the parties each otherwise retain the assets and financial resources in their respective possession.”

   At the conclusion of the hearing on 1 April 2015, the parties agreed to some final parenting orders being made by consent. Those Orders were as follows:-

   “THE COURT ORDERS, BY CONSENT, THAT:

   1. The husband and wife have equal shared parental responsibility for the long term decisions regarding the care, welfare and development of the children X born (omitted) 2004 (‘X’) and Y born (omitted) 2006 (‘Y’) (‘the children’).

   2. X be immediately enrolled by the wife (and as determined by the wife) in counselling and/or psychological consultations. Such consultations to occur with the wife only and for the purpose of improving their relationship. The costs of same to be borne by the husband and wife equally. The husband to only attend the consultations upon the written request, if any, of the counsellor or psychologist.

   3. The parties abide by all recommendations made by Y’s treating General Practitioner and Paediatrician and place same into effect forthwith or as soon as is practicable.

   4. The children do not play (hobby omitted), whether it be a match or training, on a Saturday unless by written agreement between the parties. Otherwise the children or either of them can be involved with (hobby omitted) on three occasions in each week save otherwise by written agreement.

   5. Both parties are restrained by themselves, their servants and/or agents from:-

   (a) discussing these proceedings with the children; and

   (b) denigrating the other party or the other party’s family members or friends in the presence and/or hearing of the children.”

   AND THE COURT NOTES THAT:

   Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.”

2. Whilst these reasons shall not canvass the matters which ultimately resulted in the above consent orders in any detail, the Court notes these orders were sought by the wife and opposed by the husband until it became apparent to the husband they would be made by the Court on the evidence before it.

3. The parties sought, in their respective orders sought, a distribution between them of their chattels and personal property. Ultimately that was agreed, and the ‘Annexure A’ to the Orders made contains those items of chattel and personal property to be delivered to the husband by the wife, pursuant to a consent order to that effect.

4. In respect of the parties’ competing property applications, the Court made orders which accorded more with those sought by the wife than those sought by the husband. The Court found the husband’s seeking of a payment to him on the facts of this case, to be considerably outside any reasonably anticipated exercise of the Court’s discretion, regardless of where the children resided. In respect of the parenting orders made, these accorded more with the wife’s application in that the children will live with their mother, but spend substantial and significant time with their father.

5. Statements of fact in these Reasons are findings of fact on the balance of probabilities.

The Agreed Pool of Assets

Assets

Value

Property at Property P

(in wife’s name)

$390,000 (valued by PRP)

Equity $316,124.03

Property at Property N

(in husband’s name)

$260,000 (valued by PRP)

Equity $173,309

Husband’s (omitted) Ford Falcon

(in wife’s name)

$1,875 (agreed)

Wife’s (omitted) Ford Explorer

(in husband’s name)

$4,250 (agreed)

Husband’s motorcycle

(unregistered)

$1,000 (agreed)

Jetski

(in husband’s name)

$2,050 (agreed)

(omitted) Caravan

(in wife’s name)

$10,000 (agreed)

Trailer

$250 (agreed)

Total assets

$669,425

Liabilities

Value

Home loan encumbering the Property P property

(in wife’s name)

$73,875.97

(as at 26 March 2015)

Home loan encumbering the Property N property

(in husband’s name)

$86,691 (agreed)

Credit card of wife

$8,300 (agreed)

Total liabilities

$168,866.97

Superannuation

Wife's (omitted) Superannuation

$62,275.14

(at 31 December 2014)

Husband's (omitted) Superannuation

$103,859

(as at 4 April 2014)

Total superannuation

$166,134.14

1. The net asset pool in total was in the sum of $666,692.17. The net asset pool, excluding the parties’ respective superannuation entitlements, was $500,558.03. The parties did not seek a splitting order in respect of their superannuation entitlements. The wife nevertheless sought the parties’ respective entitlements be taken into account. Such entitlements favoured the husband, in excess of the sum of $41,583.86 – the word “excess” inclusion, referring to the date to which the monetary figure was provided by the husband, being some many months prior to that of the wife. This was the only evidence put before the Court by the parties.

2. The husband had in his possession the Property N property; the Ford Falcon; the motorcycle; the jetski and his trailer. He wished to retain that property, having during the course of the trial conceded that each of the parties would retain those motor vehicles with their respective values, in their respective possession. He thus had in value approximately 35.7 per cent of the net asset pool, excluding superannuation entitlements. He had assets to the value of $178,484.

3. The Orders made by the Court adjusted the net asset pool, excluding superannuation entitlements as to approximately 72.5 per cent to the wife. The reasons for that adjustment in the wife’s favour were matters of contribution and s.75(2) of the Act. The Court found both considerations to favour the wife. The Court also considered the superior superannuation entitlements of the husband and his ability to, into the future, certainly in the short to medium term, accrue greater benefits then the wife on their disparate incomes. This was a matter, pursuant to s.75(2) of the Act, requiring a further small adjustment in the wife’s favour. Such adjustment resulted in a necessary payment of monies from the husband to the wife, given his then asset holding.

Contributions

1. The wife set out in her Affidavit sworn on 2 September 2014 and again in her Affidavit sworn on 10 March 2015, her contributions at the commencement of cohabitation. The husband responded to that only to the extent as set out in paragraphs 6 to 8 of his Affidavit sworn on 13 December 2014. The parties agreed that at commencement of cohabitation the husband had a motor vehicle valued at approximately $15,000; some superannuation and nominal equity in the Property N property. The husband estimated his equity to be $10,000. They also agreed the wife had a motor vehicle valued at approximately $10,000; some superannuation and equity in the former matrimonial home that considerably exceeded the equity the husband had in the Property N property. The wife deposed to her equity in the former matrimonial home to being approximately $40,000. The husband at trial did not admit this - a matter he had failed to raise in his affidavit evidence. There he did not challenge the wife’s evidence. The Court found the wife purchased the real property being the former matrimonial home for the sum of $180,000 with a 10 per cent deposit. She was subsequently gifted $25,000 from her grandfather. Her equity was approximately $40,000 as claimed by her prior to cohabitation with the husband.

2. The wife’s evidence was also from as early as 2 September 2014, that her grandfather had provided her with further funds in the total sum of $156,200. Whist not challenged by the husband in his responding affidavit material, at trial the husband did not admit this contribution and claimed he required proof of such amount. The Court is satisfied on the evidence of the wife including the evidence tendered by her of her grandfather’s Mr D’s, cheque butts as contained in exhibit “C1”, that this amount was in fact made available to and used by the parties. This was a significant contribution. It occurred in payments made between May 2002 and June 2005. These monies were provided early in the relationship and applied to the reduction of the former matrimonial home mortgage. Such contribution, together with that at commencement of cohabitation in a 12 year relationship, required a reasonable adjustment in the wife’s favour.

3. By 9 June 2005, the wife’s grandfather’s gift to the wife of various sums of money had resulted in the parties having almost discharged the mortgage secured over the former matrimonial home. At trial however, that mortgage was $76,000 approximately. The increase in the mortgage from its near eradication, was as a result of the parties’ desire to purchase the Ford Explorer, the caravan, two jet skis and the motorcycle. In addition, the credit card debt of the wife which was applied to family expenditure was paid. The husband’s evidence, that he did not know about and later, knew about only some of the wife’s receipt of funds from her grandfather in the early years of the parties’ cohabitation and its subsequent application to the reduction of the mortgage, is implausible. I prefer the evidence of the wife that he did know of the funds; saw the cheques or was told of them by her; and that he confirmed with the wife, and indeed observed, that she was applying such funds to the mortgage repayment.

4. Further, during the marriage, both parties received small termination packages, the husband receiving two. Such funds were applied by them to the assets of the marriage and welfare of the family. The husband also received a life insurance payment of $8,000 in 2007 which was a sole contribution of his, and applied by him to the provision of some ‘decking’ at the former matrimonial home.

5. Otherwise, both the husband and wife worked in full-time and then part-time (the wife) gainful employment during their cohabitation, with the wife taking some time out of the workforce to care for the parties children. They both made contributions to the running of the household and welfare of their family.  The husband attempted to raise a financial wastage claim against the wife in her unsuccessful endeavours on two occasions to bring more income into the household. That she was not successful was unfortunate, but not evidence supportive of deliberate excessive financial wastage on the part of the wife, required to be taken into account against her.

Section 75(2) matters

1. Pursuant to the Orders made by the Court, the parties’ young children shall spend more of their time in the care of the wife. The wife’s income is significantly less than that of the husband and her earning capacity and income security is also less. She has been out of the full-time work force for some years whilst being occupied in the care of the children. She will be constrained by her care of them, to some extent, into the future. The total asset pool is relatively modest. The wife will inherit some money from her grandmother in the future in the sum of approximately $20,500 which will add to her ability to support the children in the 12 months following receipt of such funds. This is a financial resource available to her which will do little more than supplement her income for a time to make reasonable provision for the children. A reasonable adjustment in the wife’s favour in respect of the matters as set out in s.75(2) of the Act, including the superannuation differential, is warranted.

Parenting Orders

1. Following the parties final separation on 2 January 2014, when the husband left the former matrimonial home taking X with him, the husband attempted to reconcile with the wife by attending (with X) at the former matrimonial home on 20 January 2014. He informed the wife he was moving back in. The wife indicated that she wanted a complete separation as between the parties with no further reconciliations. The husband then took X with him to his parents’ home in (omitted), where they remained for some time before also living in a cabin at a lodge and then the home in which the husband now resides. The husband further enrolled X in before and after school care, rather than leave her in the care of her mother and in the company of her sister. He had no protective concerns about leaving Y in the ongoing care of her mother, despite his evidence in these proceedings which included that the home was a fire hazard, its state was ‘filthy’ and the environment detrimental to the children’s welfare. He returned to work in that school holiday period, leaving X in the care of his parents. None of this was in the child’s best interests, but he paid scant regard to that. In March 2014 he caused to be filed a Notice of Child Abuse alleging the state of the home which he had not seen since January 2014 and in which Y resided, was an ongoing and significant threat to the physical health of X. He also alleged physical assault and verbal abuse of X by the wife. Despite this, his evidence was that if X had expressed a wish to be returned to her mother’s care at that time and indeed up to trial, he would have allowed that to occur.

2. Prior to separation the more recent history of care of the children had been that the wife was engaged in home duties, whilst the husband was engaged in providing the primary financial support for the family. The wife was also employed but in a casual job with flexible hours of work so as to be available to care for the children. The wife provided throughout the children’s primary physical and emotional care, including for a period shortly after Y’s birth, when the parties separated for six weeks, with the wife remaining in the home caring for the children. The husband, despite his now very vocal criticism of the wife’s provision of care to the parties’ children, supported that arrangement. The husband worked hard for the family outside the home. His working hours during the week commenced at 8am and concluded at that time at 6pm, in addition to travel time each Monday to Friday, with some additional weekend work. I note here that the weekday working week has now been varied by the husband to conclude either at 3pm, 5:30pm or 6pm. The wife observed the children and their emotional and physical development and participated in same to a greater extent than the husband. She initiated and supported the children’s extracurricular sporting activities, which the husband also supported. Following separation the husband became controlling in respect to sporting matters, seeking to himself be always present regardless of whether such activity occurred in the wife’s time with the children, as occurred with the children’s swimming lessons and regardless of the wife’s views as to his intrusion on her limited time with the children. He simply ignored her. He also sought to have the children constantly engaged in physical activity, in particular (hobby omitted), rather than have them “sitting around the wife’s home doing nothing” as he described it. This description was not a factually correct one but the husband nevertheless promoted it. When the Court ordered a cessation of Saturday (hobby omitted), the husband informed X that her mother and the Judge had stopped her participating in a sport she loved. This was intended to and did, cause disharmony between X and her mother. His comments were despite the ongoing nature of the girls’ (hobby omitted) participation, which became three times a week instead of four, with additional regional tournaments participated in. The wife during cohabitation and after, supported and encouraged the children’s relationship with their father and desired to present a united parental front contrary to the husband’s desire. He advised X on occasion that she did not have to do what her mother reasonably requested of her and in so doing interfered with the mother’s role as a parent and jeopardized X’s welfare. The wife supported the girls developing relationship with each other. Her relationship with the girls was generally loving and affectionate until shortly before the separation as was the husband’s with them. Thereafter amongst other things, manipulative behaviours of the husband impacted adversely upon the mother’s relationship with X. Her relationship with Y was not impacted. The husband’s evidence was that he was very critical of the wife in respect of her parenting. He acted upon this including creating a sense of unease for the children about their mother.  

3. During the relationship and whilst the husband was content to leave the children in the wife’s care, he denigrated the wife’s parenting skills to her. The wife responded positively and enrolled in and completed a Parenting Course with (omitted) Community Support. She requested the husband attend the course with her, but he failed to do so. The wife was open to exploring better ways to parent the children. She was mindful of her health issues including depression and obtained medical advice and necessary prescription medication. She received, in relation to this, little support from the husband. He complained about household matters, but did little to assist. He also involved the children in their parental disputes. The husband, from X’s commencement of school in 2011, asked the children who they would wish to live with if the parties separated. He did this on a number of occasions and after the children were in bed. Sometimes he woke them up. This behaviour was extremely distressing to the children and clearly did not promote their best interests. The husband initially denied, before admitting such behaviour. In this and generally, he was not as credible a witness as the wife.

4. The husband gave as his reason for separating the sisters, as he did upon separation, that it followed him asking the children who wanted to come with him, with X responding that she wished to do so. This evidence was given by him in affidavit form. At trial he gave differing evidence, saying X initiated the discussion, when upon hearing of her father’s intended departure she said, “Well, I have to come.” He replied “Well, if you want to come, sweetheart, then you come.” The Court accepts the earlier affidavit evidence of the husband as the more truthful account of what occurred. That account is supported by the wife’s evidence. In a particularly lacking in insight action, the husband took X away from the home and from her mother and sister. X was a child of only nine years. I accept the wife’s evidence that X ‘was in two minds’ at the time and not ‘adamant’ as to her departure as stated by the husband. The husband then severely limited X’s time with her mother in the following six weeks, to be almost no time, before taking her to attend upon Mr E for preparation of the s.11F Report. At that time X expressed a strong wish to live with her father.

Evidence of Mr E

1. Following his preparation of a ‘Child Inclusive Conference Memorandum to Court’ of February 2014, Family Consultant Mr E prepared a Family Report dated 27 February 2015. In the earlier report X was aged nine years and Y seven years. Both girls were described as articulate. X expressed a wish to live primarily with her father. Y expressed a wish to live with each of her parents on a week about basis. She wanted her parents to reconcile. She did not want to leave her mother. She wanted to be ‘fair’. X’s issues with her mother, of a significantly untidy house because of the mother’s accumulation of catalogues, her perception that she was treated unfairly during sibling disputes and her mother smacking her, which did not raise with Mr E any significant concerns about X’s physical and/or emotional safety, were not issues for Y, save Y wanted a reduction in the catalogues stored in the house. As to the smacking, it remained of no concern to Mr E in his subsequent report nor does it to the Court. Both parties in fact smacked the children on odd occasions and both now adopt other forms of discipline. At the time of the Family Report the girls had been separated for some time. Mr E recommended that not continue. He recommended the children live primarily with their father. Relevantly, he noted in his Family Report that:-

   a)X expressed a clear and consistent preference to reside primarily with her father and spend regular overnight time with the mother. Mr E considered X articulate and that her father provided a better emotional connection and support for her than her mother. He did not consider the expression of this wish to be influenced by the father.

   b)Y indicated a desire to live with her mother and father on an alternative weekly basis. She was happy in the presence of both.

   c)Mr Creighton experienced difficulty identifying positives about Ms Creighton’s personal and/or parental functioning.

   d)“Mr Creighton displayed insight into his own parenting, as well as the children’s emotional ‘world’ and functioning. He believes he brings “balance” to their parenting experience, which is in contrast to what he considers to be Ms Creighton’s more “outrageous” and “unorganised” approach.  Whilst he believes he is a “fair” parent, Mr Creighton acknowledged aspects of his parenting that could improve. For example, he is aware that X perceives he “spoils” Y, and that this is an issue he needs to address. He explained that he often feels the need to compensate for what he believes are deficiencies in Y’s experiences when the latter is with her mother. He identified appropriate strategies for how he attempts to address these matters.”[1]

   e)“When observed with either their mother or father, the girls did not display any behaviour suggesting they were apprehensive about being in the presence of either parent. In particular, X displayed emotional warmth towards her mother and initiated physical contact with her. Both parents also interacted positively with each of the girls. When X and Y were observed jointly with both parents, neither girl displayed any anxiety or hesitation in interacting with either their mother or father. Mr Creighton and Ms Creighton were also appropriate in how they related to each other in the presence of the girls.”[2]

   f)“The writer believes however, that if the Court is of the view that the primary consideration and goal in this matter is the need to ensure the children are residing together, such an arrangement would be more viable with Mr Creighton than it would be with Ms Creighton. The writer would not support the option (as proposed by Ms Creighton) of both children primarily living with their mother. Such a view is based primarily upon such factors as; X’s opposition to such a proposal, the positive relationships that both children have with their father as opposed to the scenario with their mother, and the apparent greater concerns (when compared to Mr Creighton) associated with Ms Creighton’s ability to provide the children with an appropriate level of care.”[3]

   [1] Family Report prepared by Mr E dated 27 February 2015 at [37].

   [2] Ibid at [58].

   [3] Ibid at [75].

2. Under cross-examination Mr E did not countenance a move away from his recommendations. The facts surrounding the separation and the incident hereafter discussed of 2 August 2014, were matters he considered perhaps unwise but not fatal to the husband’s application. They were incidents however the Court finds, in a number of such incidents, which went to the husband attempting to influence the children and align, especially X, with him in a way not promoting her best interests.

3. It is clear on the evidence that the wife had a problem in the hoarding of (omitted) which she had within the home and on the property generally and which formed part of her employment. This created “mess” in the environment which was difficult for the children and husband. The husband was highly critical of this. Such criticism was voiced in front of the children. It was continued in front of Mr E and continued at trial. The husband, in his affidavit evidence, complained about a lack of routine in the household, claiming the wife was responsible. He said relevantly “bedtime was a shambles…Meals were usually takeaway. The only routine was that I try to impose…” The wife’s response to this was to say that a routine did exist for the girls, but that it was disrupted by their father on his return from work. When she cooked a meal for example, he would not eat it and asked the girls if they would like take-away. He would then leave rubbish around the house. He would allow X to stay up post her bedtime to watch television despite the wife’s direction to X to go to bed. The Court accepts this evidence of the wife. In his evidence at trial the husband claimed variously and inconsistently, the wife would not cook; the wife was a good cook – in response to a question asked of him by Counsel as to whether there was anything at all positive that he could say about the wife; and further that the wife neglected to provide healthy meals for the children. The untidiness he himself created in the home, was denied or ignored by him.

4. The expressions of X’s views were very much to the fore in the evidence in these proceedings. Essentially the husband desired the Court to give significant weight to the expression of X’s wish that she wanted to live with her father and for that factor to overwhelm all others as set out in s.60CC of the Act. X remains a young child whose views are taken into account by the Court but it is a question on the totality of the evidence as to what weight to give that expression of those views. Mr E would give significant weight to such expression. He concludes they are genuine and more so that X’s relationship with her mother is fundamentally fractured. The Court does not accept either of those conclusions. In addition, X’s views, even if genuine, are but one part of the picture and one of the many requisite considerations under the Act. The Court gives her views little weight. In some ways the expression of Y’s views are more mature. They are certainly less tainted. The husband put no emphasis on them.

5. The wife’s evidence was that her relationship with X since separation had been made more problematic by the actions of the husband. The Court finds that to be so. The husband kept X away from her mother for a period of time and denigrated her mother in the presence of the child. He refused to encourage the relationship in the way the wife encouraged Y’s relationship with her father. He denied attempts by the wife to rectify the growing problem in the form of the wife and X having some professional input to their relationship. He allowed the child to play one parent off against the other. He failed to acknowledge the girls stress at their ongoing separation. The wife sought counselling for Y for the anxiety she suffered and counselling for herself and X to resolve X’s post separation issues with her mother. The husband refused both until the conclusion of the trial.

6. The episode of 2 August 2014 again indicated lack of insight on the husband’s part and an attempt by him to manipulate the situation and the wife’s relationship with X. On 2 August 2014, X texted her cousin C on her father’s side “Help, I want to go home.” X at the time was in her mother’s care. This message was then conveyed to the father. He spoke firstly to his brother, a (occupation omitted) at (employer omitted) who advised him to call the police for a welfare check. If this was indeed the response, it was an out of proportion one. The police, who were telephoned by the father, suggested quite appropriately that the father not escalate matters and perhaps ring X. The father did not do so. He instead spoke with his brother again. He then suggested C ring his wife on her home phone and mobile phone. The wife did not answer. The father then rang 000 and again requested a welfare check. The police attended at the wife’s home to discover her absent from the home. She was in fact out with the children at (omitted). The police then rang the mother’s mobile and left a message for her. The police advised the father to also ring the mother’s mobile himself. For the first time in two hours, the husband did what he should have done as a first port of call, namely telephoned the wife. She did not answer immediately. He then text the wife to tell her, relevantly, he was concerned about X’s welfare and had called the police. The wife responded within a short time and after she saw the message.

7. Throughout all of the above, the husband acted without a proper attitude to the responsibilities of parenthood which he shared with the wife and without regard to the emotional needs of his children. He wanted the police to attend at the wife’s home and have them in the presence of his children conduct a welfare check as to X. He did not think of the adverse impact upon the children of such a situation, save that it could potentially place the wife in a poor light in front of her children. He and his family, according to the husband’s evidence, showed no common sense and engaged in a deliberate escalation of something they thought might benefit the husband in litigation. The wife complained of the intrusiveness of the husband’s family in their lives. Whether that occurred or not is not something I make a finding with respect to, but in this instance and on the husband’s evidence, his family became inappropriately involved. That C, the paternal grandmother and husband’s brother left (omitted) to ‘race’ to (omitted) an hour before the husband attempted to contact the wife on this occasion, was the creation of a drama that was completely unnecessary and detrimental to the wife and children.   

Dr R’s evidence

1. Dr R’s psychiatric assessment of the parties was before the Court in evidence. The father alleged mental health issues in respect of the wife that he claimed impacted on her ability to care for the children. Both parties declined to cross-examine Dr R and his evidence was unchallenged. He documented the history as provided to him at interview by each of the parties and as set out in the parties’ affidavit evidence. It is a very detailed history of much assistance to the Court. In his psychiatric assessment of both parties, Dr R said, as to the wife:-

   “Ms Creighton acknowledges experiencing psychiatric problems in 2000 in the context of workplace stress. She became anxious with symptoms of agoraphobia and depression. She developed postnatal depression after X was born and this continued until Y was about three years old.  In this context she let herself and the house go to some extent but denied having thoughts of harming or killing herself.

   She has been taking antidepressant medication, prescribed by her general practitioner, since 2000.  Ms Creighton states that she has been feeling better than she has for the last 11 years since separating from Mr Creighton and hopes to stop taking antidepressants in the near future.

   Ms Creighton grew up in fairly straitened circumstances on a (omitted) farm outside (omitted). Her father was sometimes violent towards her mother but not towards the children although he could be mentally abusive. He recently died aged 68 years.

   Ms Creighton presented as a 45 year old woman who was euthymic with some restriction of her range of affect at interview. She remains angry with her former husband and parents-in-law. Despite her past history of anxiety and depression she showed no evidence of depression or anxiety at interview.

   In summary, Ms Creighton has a past history suggestive of Generalised Anxiety Disorder and Postnatal Depression, the latter following the birth of X. She continued to suffer from depression for some years after Y was born and this coincided with the time that she neglected herself and the household to some extent. The Postnatal Depression Ms Creighton suffered after X was born may account for some of the difficulties in her relationship with X and X’s apparent wish to spend more time with her father.

   It is important to emphasise that in preparing this report I have not spoken to X or Y or observed them with either of their parents.”

   And, as to the husband:-

   “Mr Creighton was reluctant to acknowledge that he may have suffered from any psychiatric or mental health problems. He did admit to feeling a bit flat in 2006 when he was experiencing a lot of pressure at home and at work. This was around the time that Y was born, when Mr Creighton left home for about six weeks. It is also the time when Ms Creighton said that Mr Creighton was diagnosed with depression. The symptoms Mr Creighton described suggest that he was suffering from mild depression and was successfully treated for this by his general practitioner.

   Mr Creighton seemed determined to emphasise the ‘normality’ of his family of origin and his childhood. He did not complete his training as a (omitted), after failing a subject twice in his final year. After leaving university he worked in (employers omitted) in NSW before returning to Victoria. He did not have any significant relationships prior to meeting Ms Creighton in 2002.

   Mr Creighton presented as an obese 42 year old man who was euthymic, and somewhat defensive, at interview. He tended to blame most of their marital difficulties on Ms Creighton’s problems, in particular her hoarding and failure to manage the tasks of running a household.

   Based on the available history and his presentation at interview there is no evidence that Mr Creighton is suffering from a psychiatric condition that is likely to affect his ability to parent his children.

   In conclusion, it may be worth reminding both Mr and Ms Creighton of the considerable body of evidence of the detrimental effects on children of ongoing conflict between separated parents and the benefit to the children if parents can agree to parent in a cooperative and amicable fashion.”

2. The wife admitted her past mental health difficulties to Dr R. Her separation has seen an improvement in her functioning and enjoyment in the development of close friendships and an ability to spend greater time with her mother and daughter Ms J

3. X wrote a letter during the course of proceedings to the husband’s Solicitor. Whist the husband claimed to have no involvement, its contents were clearly aligned with the husband’s position. The Court does not accept the husband’s evidence about this matter. It prefers the view expressed by Dr R that the letter was in a child’s writing but that its contents reflected the husband’s views, raising questions about its authenticity. In the same vein, was a video of the catalogues in the wife’s home, taken by X. If not directly asked by her father, he denies same, to take such an action, X acted to support her father as she perceived it from what either he or his family had told her. The father involving her and producing the video, was not child focused behaviour.

Conclusion

1. The Court considered, as it was required to do under the Act, whether the best interests of the children were promoted by them spending equal time with each of their parents. Certainly given the close geographical proximity of each of the party’s homes, it was reasonably practicable for them to do so. The wife responded in the affirmative to a consideration of this proposal during the trial though she was perhaps apprehensive. In all of her evidence and actions she was focused on the children’s welfare to a far greater extent than the husband. The husband rejected such proposal. He wanted to control the children, even when with the mother. The Court concluded, given the husband’s refusal, and the parties’ evidenced lack of ability to communicate in respect of their children’s physical and emotional needs, that an equal time spent with arrangement was not in the children’s best interests. A reinstatement of their earlier primary care with their mother, coupled with significant periods of time with their father promoted their best interests more so. The Court remains concerned with the attitude of the husband to the wife and with his ongoing denigration of her in an attempt to alter the children’s loyalties. The girls are talented, happy children who love each of their parents and are loved in return. They will only be harmed by ongoing parenting discord. They should not have been separated in the manner they were when the husband left the home. Thereafter, X was drawn into the parental dispute by her father. The Court has no confidence he would facilitate an ongoing relationship between the children and their mother unless limited in nature and strictly on his terms. The Court has every confidence the wife will facilitate such a relationship and the children will thereby have a meaningful relationship with each parent.

2. Finally, the Court makes Orders this day to extend the Christmas/January school holiday period, to allow into the future for the children to spend longer periods of time with each parent as they themselves get older. The wife sought such orders and it will promote the children’s best interests in the future, but not at the end of this year. They need to adapt to their again changed residency arrangements and they remain of a young age. Of course the children should be primarily in the care of one or another parent and not other third parties, unless agreed between the parents during these holiday periods.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 14 August 2015