CRISP & CRISP
[2020] FamCA 7
•17 January 2020
FAMILY COURT OF AUSTRALIA
| CRISP & CRISP | [2020] FamCA 7 |
| FAMILY LAW – CHILDREN – Equal time – High conflict case – Where older children spend no time with the father – Where Orders made for the younger children’s time with the father to gradually increase to equal time – Need to protect children from further parental conflict. FAMILY LAW – PROPERTY – Small pool – Superannuation Splitting Order. |
| Family Law Act 1975 (Cth) ss 60CC, 75(2), 79 |
| Ferraro & Ferraro [1992] FamCA 64 Goode & Goode [2006] FamCA 1346 Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-145 Kannis & Kannis [2002] FamCA 1150 Weir & Weir [1992] FamCA 69 |
| APPLICANT: | Ms Crisp |
| RESPONDENT: | Mr Crisp |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | SYC | 3877 | of | 2015 |
| DATE DELIVERED: | 17 January 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 11, 12, 13, 14 November 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self-Represented Litigant |
| COUNSEL FOR THE RESPONDENT: | Mr Ford |
| SOLICITOR FOR THE RESPONDENT: | Owen Hodge Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Karagiannis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
Orders
That the parents have equal shared parental responsibility for the children W born … 2004, X born … 2006, Y born … 2008 and Z born … 2011.
That Y and Z continue to spend time with their father during the school term from after school Thursday and to the commencement of school Monday morning.
Commencing the first week of the second term of the school year in 2020 the children spend time with the father from after school Thursday to the commencement of school Friday morning in week one and from after school Thursday to the commencement of school Monday morning in week 2.
Commencing the second week of the second term in the school year 2021 the children’s time with their father to extend from after school Thursday until the commencement of school Tuesday morning in week two.
Commencing the first week of the second term in the school year 2022, the children will spend equal time with their parents as agreed and, if not agreed:
(a)Commencing in week one, with the father from after school Thursday to the commencement of school the following Thursday morning; and
(b)In week two, with the mother from the cessation of school Thursday to the commencement of school the following Thursday morning.
In relation to the 2020 long term school holiday and each even year thereafter, the children’s time with their father commences 9 am the day after the last day of school in term 4 until 5 pm 11 January 2021 and with their mother from 5pm on 11 January until the children’s time with their father resumes in accordance with Orders 3, 4 and 5 herein, or as otherwise agreed.
In relation to the 2021 long term school holiday and each odd numbered year thereafter, the children’s time with their mother commences 9 am the day after the last day of school in term 4 until 5 pm 11 January 2022 and with their father from 5pm on 11 January until the children’s time with their father resumes in accordance with Orders 4 and 5 herein or as otherwise agreed.
That the parent who has the children for the second half of the Christmas holidays is the parent that will be responsible to outfit the children for the new school year and will bear any cost associated therewith.
Property Orders
That the husband pay the wife the sum of $34,500 within 90 days of today’s date.
That in relation to the husband’s interest in his Australian Super Fund (“the Fund”):
(a)A base amount of FIFTY THOUSAND ($50,000) is allocated, as required by s 90XT(4) of the Family Law Act 1975, to the wife, Ms Crisp, out of the interest of the husband, Mr Crisp, member number: …30, in the Fund.
(b)In accordance with section 90XT(1)(a) of the Family Law Act 1975, the Trustee of the Fund (“the Trustee”):
(i)Creates an entitlement on the part of the wife to be paid into her nominated superannuation fund in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
(ii)The husband’s entitlement in the Fund (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s superannuation interest) is correspondingly reduced;
(iii)Whenever the Trustee makes a splittable payment out of the husband’s interest in the Fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 12 of this Order in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001; and
(iv)Orders effect from the operative time and the operative time is four business days after a certified copy of the sealed Orders are served on the Trustee.
That the father is to pay the sum of $4,990 to the Legal Aid Commission, and the mother $6,569, by way of costs, within 90 days of the date of these Orders.
The Order appointing the Independent Children’s Lawyer is discharged, pending any Appeal of this matter.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Crisp & Crisp has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3877 of 2015
| Ms Crisp |
Applicant
And
| Mr Crisp |
Respondent
REASONS FOR JUDGMENT
The matter of Crisp was an application concerning parenting and property which ran for four days. Mr Ford of Counsel appeared on behalf of the respondent husband, the applicant wife was self-represented, and Ms Karagiannis acted on behalf of the Independent Children’s Lawyer.
The parenting arrangements concern the children of the marriage, W, born in 2004, X, born in 2006, Y, born in 2008 and Z, born in 2011.
The parents agreed, to their credit, in relation to the parenting arrangements for W and X with their father, which is effectively that they spend time with him as they wish and that the parents have equal shared parental responsibility for all the children.
The remaining issues before the Court was the parenting arrangements for Y and Z. The father sought Y and Z live in an equal time arrangement forthwith and the mother sought a lesser period of time. There was also an issue in relation to the Christmas school holiday period.
In relation to property the issues for determination were whether there be a division of property there being now only one joint asset, a company.
To their credit and with the assistance of the Independent Children’s Lawyer, the parties resolved many of the parenting issues by consent on the first day of the hearing and upon making those Orders I was left with limited, but very important issues to determine. Suffice to say the mother being self-represented was at a significant disadvantage in this matter, and that may have a repercussion for her in relation to the property proceedings as I can only make Orders or reach a decision on the matters placed before me and on the evidence at the trial.
The evidence I read was extensive, as is always the case.
For the mother I read:
a)Affidavit and Financial Statement filed 18 October 2019 together with the bundle of documents annexed to her Affidavit to which I was taken.
The mother tendered the following exhibits:
a)Mother’s exhibit 1, emails dated 5 November 2019 and 19 November 2017, 14 August 2017 regarding changeover for the children on Christmas day 2017;
b)Mother’s exhibit 2, emails from the wife to the husband’s lawyer dated 20 September 2018;
c)Mother’s exhibit 3, email from W’s, school in relation to her significant and concerning absences;
d)Mother’s exhibit 4, email from the mother’s then lawyers, B Lawyers, dated 2 December 2016, advising the father that the mother had unilaterally changed the children’s school;
e)Mother’s exhibit 5, email concerning Y dated 24 September 2017. There was a concerning incident when Y was on holidays with his father at a beach and with another boy had stolen a phone;
f)Mother’s exhibit 6, the NAPLAN results of W, X, and Y;
g)Mother’s exhibit 7, details of resilience counselling the mother has organised for the children;
h)Mother’s exhibit 8, tab 18 of the mother’s annexure bundle being a letter from the husband’s lawyer to the wife in relation to the debacle that ensued on Christmas Day 2017;
i)Mother’s exhibit 9, tab 42 of the mother’s exhibits being a letter from the father’s lawyers to the mother dating 16 December 2015 in which they advised that their client will be unable to have the children in January as he has work in City C and potentially City D for that period of time. The reality was the husband and his partner, Ms E, had a holiday in Queensland;
j)Mother’s exhibit 10, notes of the consultation the mother and Z had with Dr F on 30 April 2018 in relation to Z’s allegation that she has vomited up her vegetables at the table at the father’s home. The parents agree Z is a fussy eater;
k)Mother’s exhibit 11, the mother’s balance sheet;
l)Mother’s exhibit 12, email from Mr G in March 2018 regarding the termination and rescission of the option agreement the wife entered into with him to purchase his property at H Street, Suburb J; and
m)Mother’s exhibit 13, series of documents the wife says she has emailed to the husband’s lawyer by way of disclosure. The mother failing to disclose financial material was a significant issue for the father at the trial.
For the father I read:
a)Affidavit of June 2019, and the documents contained in his exhibit bundle to which I was taken;
b)Financial Statement of 2 October 2019; and
c)Case outline prepared by his lawyer.
The father’s exhibits:
a)Father’s exhibit 1, police reports in relation to the disgraceful incident on Christmas Day in 2017;
a)Father’s exhibit 2, emails dated 23 August 2018 from the wife to the father and the Independent Children’s Lawyer concerning parenting;
b)Father’s exhibit 3, father’s revised minute of order dealing with the long school holidays;
c)Father’s exhibit 4, school history report for W and her absences from school which is of concern;
d)Father’s exhibit 5, a change of company address document;
e)Father’s exhibit 6, a K Bank bank cheque dated 13 November 2013 given to the wife and banked by her in the sum of $216,500. Each of the parties received this sum shortly prior to separation;
f)Father’s exhibit 7, letter to the mother from the husband’s lawyers seeking further discovery dated 1 May 2019;
g)Father’s exhibit 8, further letter regarding disclosure dated 7 July 2017;
h)Father’s exhibit 9, the L Bank account balance sheet. This is a company owned by the husband, and the only asset of the parties apart from personal items and some superannuation;
i)Father’s exhibit 10 consisted of several documents produced by the wife at trial. The first was details of monies received by the wife from her late father’s estate not disclosed until the trial, in the sum of $48,000;
j)The second a purchase option agreement undated, unsigned, with two attachments produced by the mother. The first attachment is a letter dated 11 July 2017 to the Independent Children’s Lawyer and the husband’s then lawyers from the mother in which she explains a loan provided to her by her father in the sum of UK£30,000;
k)The third was an attachment consisting of a copy of the bank cheque for the 10% deposit paid to the owner of H Street by the wife to secure the option agreement which option was to be exercised by the end of 2017;
l)Father’s exhibit 11, screenshot of the mother’s LinkedIn account. The purpose of exhibiting that document escaped me;
m)Father’s exhibit 12, copy of the wife’s bank account statements ending 1660 dated 11 July 2017;
n)Father’s exhibit 13, the father’s Super Fund 1 annual statement in relation to his superannuation balance between 1 July 2013 to 30 June 2014 the period of separation;
o)Father’s exhibit 14, a bundle of certificates of the parenting courses the father has completed post separation, which is an impressive list, however, has not affected any change in his behaviour or attitude;
p)Father’s exhibit 15, tender bundle of documents the mother produced during cross-examination on 12 November 2019;
q)Father’s exhibit 16, bundle of mother’s Commonwealth Bank documents for N Pty Ltd, a company by which the wife earns her income;
r)Father’s exhibit 17, transfer document of the ultimate sale of the property the wife had an option over to a third party;
s)Father’s exhibit 18, the father’s BAS for the period 1 July 2018 to 30 September 2018 for his company called O Pty Ltd; and
t)Father’s exhibit 19, his balance sheet.
The Independent Children’s Lawyer tendered the following exhibits:
a)ICL exhibit 1, P Group certificate of the mother’s completion of courses completed being parenting after separation on 12 June 2019 and Keeping kids in Mind on 31 May 2016;
b)ICL exhibit 2, a letter from the Independent Children’s Lawyer to the mother and father dated 7 June 2019 regarding their enrolment at the Keeping in Contact Program and Anchor Program, the last hope for these parties to gain a civilised and business-like relationship with each other in the parenting of their children which has been absent to date;
c)ICL Exhibit 3, correspondence between the mother, father and Independent Children’s Lawyer when the mother, quite properly wanted to know the details of the children’s flights to and from City C on 16 April 2019, which the father steadfastly refused to provide her; and
d)ICL 4, proposed minute of order by consent.
There were three documents in relation to parenting, prepared by experts, marked as Court exhibits:
a)Court exhibit 1, the first Family Report, prepared by Dr Q and dated 28 October 2016;
b)Court exhibit 2, a Family Report prepared by Ms R, dated 14 August 2018; and
c)Court exhibit 3, the Child Inclusive Conference memorandum prepared by Ms R recently on 15 October 2019 regarding the children’s positions and views as to the current parenting arrangements.
Suffice to say, the parent’s relationship is at an extremely low ebb. They have very poor, if any, capacity to communicate. Orally, there is none. They can, at times, communicate via email. They have a negative and adverse view of each other, both as parents and as people, and their children have been caught up in this high conflict matter at least since their parents separated.
W and X are spending no time with their father. The last time W saw her father was in October 2018 despite her having lived with him for 10 to 15 weeks in that year and the last time X saw his father was early 2019.
The younger two children are spending time with their father being four nights per fortnight. He seeks an order for equal time.
The indicia that are required for an equal time order to be successful for children are missing in this matter and indeed, the parties’ relationship, behaviour and conduct, including parenting styles, is contraindicated to an equal time arrangement.
The short chronology:
a)The father is aged 47. The mother 46. They commenced co-habitation in 1998 and married in 2001.
b)W was born in 2004. X in 2006. Y in 2008 and Z in 2011.
c)Between Y and Z’s birth, the parties went bankrupt. Their jointly-owned matrimonial company, together with three items of real estate they owned was seized and they were left with effectively nothing.
d)The father declared voluntary bankruptcy in 2008 and the mother in 2009.
e)The father was discharged from his bankruptcy in 2011 and the mother in 2012.
f)In 2013, the father commenced and acquired an off-the-shelf company called O Proprietary Limited.
g)In late 2013, the parties each received $216,500 from a Mr M, following the completion of a project by the father post his discharge from bankruptcy.
h)The father applied his $216,500 as an L Bank investment loan towards the creation of the O Pty Ltd. That is noted in his balance sheet as a Division 7A loan. That continues in the company today. That company has been valued by Ms S at $473,000.
i)Although the mother disputed this value, nothing came of that at the trial.
j)There is an issue about separation. In one Affidavit, the mother said they separated late December 2013, but still under the one roof. The father says it was September 2014, still under the one roof.
k)The father moved out with the children from the former matrimonial home in March 2015.
l)The parties’ relationship and behaviour deteriorated significantly between March 2015. The matter comes before the Court on 25 June 2015 and interim orders were made by consent.
m)The father moves out of the home to Suburb T in June 2015.
n)The father commenced his relationship with his current partner Ms E very shortly after separation. This has caused his children some significant concern.
o)The father commenced cohabitation with his partner, Ms E, in early 2018.
p)The parties attended family therapy with Ms U on 7 March 2016.
q)The mother unilaterally enrolled the children at a new school in Suburb BB for the 2017 school year.
r)The father took the children to City D for the school holidays in December 2016 and would not give the mother any details despite her requests to do so.
s)The mother contacted the police contact asserting the father had wrongfully retained the children.
t)These proceedings were transferred to the Family Court in June 2017.
u)An altercation occurs for the children on Christmas Day 2017 when the mother calls the police as the father will not release the children to her at 3 pm to catch a flight to City V.
v)W’s attendance at school has been very poor. It improved when she and her brothers and sisters spent 10 to 15 weeks in her father’s care in July, August and September 2018.
w)On 26 July 2018, the children came into their father’s care at the mother’s request.
x)On 24 September 2018, the mother advises the Independent Children’s Lawyer and the father’s lawyer that she will resume full-time care of the children.
y)W has not seen her father since October 2018. X has not seen his father since March 2019.
z)The Family Report prepared in August 2018 was at a time when the children were in the primary care of their father.
aa)A Child Inclusive Conference memorandum is prepared in October 2019 at a time when the children had been living with their mother since September 2018, and when neither W nor X were spending time with their father.
Evidence generally
I formed the view after hearing the evidence that although the father is devoted to his children and has a strong moral obligation regarding their upbringing his need to be involved in their upbringing is his focus and that this is a focus on his needs not necessarily the needs of the children. He has an exceedingly rights-based attitude to the imperative that he be involved in all aspects of his children’s life and that has at times been in direct conflict with what is best for his children. I saw no glimmer of understanding from the husband of the negative impact his attitude has had on his now non-existent relationship with his older children. From his perspective this is all the fault of the mother.
His comment to me that, effectively, the only way he could have proper input into his children’s life was to have a fair-sharing and equality of time is testament to his idea that equality for him is what this is all about, not what is best for the children.
Ms R’s comment in the Family Report that the father will continue these proceedings if he does not get his own way is a position I, too, have come to after hearing all the evidence. The father is very fixed on his way forward being the only way.
The parties attended family therapy with Ms U on 7 March 2016 as it was clear to the Court at that time the parties have both involved the children in these proceedings and their dispute and they have used the children for their own purposes at times and each are as responsible as the other in this.
Their eldest daughter, W, is in serious trouble at present. Her life is chaotic. She is absconding from school. She is experimenting with drugs and alcohol and is self-harming. She is not seeing her father despite having a good relationship with him in 2018 at the time of the second Family Report interview and living with him. Each parent, to their credit, accepted responsibility for the very sad state of affairs of W’s life however the father still lays blame at the mother’s feet.
The children were attending a school, W School at Suburb AA. The parents had agreed this was a school they would attend. The mother unilaterally, without advising the father that this was her intention, simply enrolled the children at a new school in Suburb BB for the 2017 school year. The father found this out when he was attending the last day of school at W School at Suburb AA when it was announced the Crisp family were leaving the school and the headmistress wished them all the best. The father was understandably dismayed at this news.
The mother has made many unilateral decisions in relation to the children’s care. I accept the mother’s evidence, she was unable to continue to pay the school fees and thus understand her reasons for wanting to remove the children from a school where she could not pay school fees. However, the way in which she went about this was an affront to the father and indicated her lack of respect for him as a parent who needed to be involved in decisions regarding his children.
The father took the children to City D for the school holidays in December 2016 and would not give the mother any details despite her requests to do so. When asked by the Independent Children’s Lawyer to advise the mother of these details to deescalate the conflict his response set out in ICL exhibit 3 was, “The Orders didn’t say I had to tell her where I was. She never told me where she took the children, so I didn’t tell her.” This is an exceedingly immature attitude to take to a proper request by the other parent who has an obligation to know, “Where are the children, when are they coming home, what are the arrangements?”
However, having said that, the mother’s conduct in having the police contact the father at the zoo, so that he then had to go back to the accommodation they were staying at, leave the children with his partner, obtain a copy of the letters and Orders to prove to the police that he was entitled to have the children at the time, further fuelled the parents’ distrust and significant dislike of each other. Both of them are equally to blame for this consequence. It is not surprising that the parties’ relationship continues to significantly deteriorate.
These proceedings were transferred to the Family Court in June 2017. A disgraceful altercation occurs for the children on Christmas Day 2017 when the mother calls the police because the father will not release the children to her at 3 pm, so that they can catch a flight to City V. All the mother needed to do was give him a call or write to him and say, “Can I have the children at 3 o’clock as I’ve got this flight at 6?” The father did not know the time of her flight or what her arrangements were in relation to the flight and, when she did contact him, he said, “What about 4 pm? The children are eating their lunch”. His response should have been, “What time is the flight?” if he was thinking about his children.
The father’s response to the mother’s poor behaviour of banging on the door, calling out to the children, having W bang on the door and call out to the children, was to turn up the music and exhort the children to eat their Christmas pudding. It is no wonder W is behaving as she does when she has been involved in this incident. The children would have been confused, terrified and upset by their parents’ behaviour.
The parents have now admitted that they had each behaved badly. The mother in not simply contacting the father and saying, “I’ve booked flights. The flights are at 6. I need to collect the children at 3 is that okay?” and the father ignoring her and W banging on the door and traumatising the children.
The attitude that each takes that the other parent that they need not know what they are doing with the children when they are in their care must cease. It is destructive and it has resulted in W acting out as she has. All the criteria, all the concerns that family consultants and the like have about children in high conflict families, self-harm, self-abuse, determining not to spend time with one parent, experimenting with drugs and alcohol, absconding from school, depression, not feeling worthy, are all exhibited in W presently, and her parents are the fault. The blame lays squarely at their feet and no one else.
W’s attendance at school has been very poor. The only occasion it has improved was when she spent the 10 to 15 weeks in her father’s care in July, August 2018.
There are further incidents with the children and the parents in February and May 2018 about picking children up from games of rugby, collecting children, spending time with their mother on Mother’s Day and her birthday. The parents chose not to agree or compromise and the children are stuck in the middle of this conflict.
The parties file multiple Contravention Applications.
There is a holiday planned for the children and their father in July 2018 to the South Pacific. Arguments ensue in July 2018. Arguments ensue about the children’s passports.
On 26 July 2018, the children came into their father’s care at the mother’s request. She proposed there be a reversal of the orders, which was that she would spend four nights a fortnight with the children and they would primarily live with their father.
The mother’s position on this at the Family Report interview in 2018, a time when the children were living with their father, was that she believed this was best for the children because it would reduce the conflict, that the father would then be in the position to make the decisions and run the show, and that this would reduce conflict for the children. The mother said she felt she had to back away.
Mr Crisp’s opinion at the interview was that this was not best for the children, and that equal time was best for the children, a position he has always considered to be the best for the children.
The children lived with their father for 10 to 15 weeks. W’s attendance at school definitely improved during this period.
On 24 September 2018, the mother advises the Independent Children’s Lawyer and the father’s lawyer that she will resume full-time care of the children and she does and, again, the living arrangements are reversed. The children spend four nights a fortnight with their father, otherwise, primarily live with their mother. W has not seen her father since October 2018. X has not seen his father since March 2019.
Ms R’s evidence
Ms R prepared both the Family Report and Child Inclusive Conference memorandum.
The Child Inclusive Conference memorandum prepared in October 2019 was at a time when the children had been living with their mother since September 2018, and when neither W nor X were spending time with their father. The Family Report prepared in August 2018 was at a time when the children were in the primary care of their father. What is most concerning is that in August 2018 W was not only living with her father, but had a good relationship with him. X was not only living with his father, but had a good relationship with him. All the children reported they missed their mother and wanted to spend more time with her in 2018 and to his credit, the father agreed.
Since coming back into their mother’s care, the relationship of W and X with their father has simply broken down. This is consistent with what Ms R says is the behaviour of children who live with a high conflict family situation, they will ultimately vote with their feet, pick one parent over the other as a self-protective measure to remove themselves from the conflict. It is an imperative that the orders that are made now, as best as is possible, to ensure that this sad and destructive outcome does not happen for Y and Z.
Ms R’s oral evidence was very helpful. She had read the parties’ Affidavits, read the Consent Orders the parties had entered into, to their credit, and she was not surprised that the parties’ relationship was still very poor and they still had the same problems.
Ms R, together with the Independent Children’s Lawyer and myself, was surprised that despite the parents having attended between them some six courses, their behaviour and attitude to each other had not changed. Ms R said she would have expected some behavioural change in the parents. Ms R opined that the children were confident to talk to her and that this is a deeply entrenched conflict between the parents.
Ms R said that the cycle of psychological damage to the children was that the children were the object of the conflict, and that this is the case is clear. The parents have used the children in their war against each other which is both sad for the children and an inexcusable way to parent your children when you have been to as many courses as these people have, and when fundamentally you are good people who love your children.
Ms R said choosing to live with one parent over another is a self-defence mechanism. You get yourself out of the war, and this is what X and W have done. Z, being clingy, as described by her mother, may also be an indication she is not coping with the conflict. W wagging school, experimenting with illegal drugs, alcohol and self-harming, are all long-term effects of living with high parental conflict.
Ms R confirmed for equal time to work, the parents must communicate well, be respectful of each other, respectful of their relationship with the other parent, have similar parenting styles, similar values and attitudes, and that this is the antithesis of the relationship this family has. All the children have been impacted by the conflict between their parents, the older children, particularly W, more so because she is the older child. There are strong contra-indicators for equal time parenting arrangements being successful for this family. At paragraph 118 of the Family Report:
If the parents are unable to comprehend the meaning of a cooperative co-parenting relationship then an equal time arrangement would never be successful for this family.
However, at paragraph 120 the Family Report, Ms R perfectly highlighted the conundrum for the Court:
As noted previously, there are risks to the children living in an equal time arrangement, because the parents possess no capacity to effectively co-parent. However, the family consultant considers an order for equal time would likely reduce the chance of future court applications, which seem extremely important given the children have returned to court three times, and they have been exposed to an extraordinarily high degree of psychological damaging parental conflict.
Paragraph 119:
That said, the family consultant is concerned that there will be subsequent court applications should Mr Crisp not get what he wants. It is suggested that the children, W and X in particular, would view returning to this court as an unforgivable circumstance of their parents’ relationship breakdown, particularly if the parents continue to (inappropriately) speak to the children about their proposals.
I formed the view that at this time in 2018 Ms Crisp had acquiesced to an equal time arrangement, not because she thought it was best, but because she believed it would reduce conflict, and at that time this was her primary concern, and she was correct to be concerned about reducing conflict, and she still is.
Ms R said she noted a change, particularly in Y. He was much more guarded in the 15 October 2019 Child Inclusive Conference than the Family Report. This, Ms R said, is an example of a child in a high conflict situation. Ms R said I could not rely upon Y’s wishes. He said he wanted an equal time arrangement because he would have been confused by the changes in residence, his parents’ ongoing conflict, and it would be dangerous for me to rely upon his wishes, as to the time he should spend with each of his parents.
Ms R was also clear that she believed Z would be able to cope with a block period of time in her father’s care. The mother’s proposal at the outset was that the children spend five nights a fortnight with their father, between two weeks, being each Thursday after school to the commencement of school the following day, and on one Thursday, time extend to Monday. She could see that in the future, when Z was around high school age, that this block time might be extended to a larger block of time, but at this stage, could not see that this was best for Z in particular.
In relation to the long school holidays, the mother was firm she wanted the children to spend time together at Christmas, and that this was most important now that W and X were not spending time with their father, and believed that three weeks away from her, for Z in particular, was too long a period. The father sought an equal time arrangement, and was effectively content to have as much time with his children as he could, and I accept that has always been his position.
Ms R opined block time may be better than having one night in one week and then a block time in the next week. However, she was concerned that that such an arrangement may not meet Z’s needs. If, however, her father and mother supported the time, a five night block for example, then Z would be able to deal with that.
Equal time, Ms R said, is possibly when Z was approaching high school and that was as best she could do. She agreed with my assessment that the mother did not agree equal time was best in 2018, rather had acquiesced to it to reduce conflict.
It was posited to Ms R that conflict would be reduced and the father would support the children living with their mother if he got his way, an equal time order. That this fact when weighing up the positives and negatives for equal time or some other block time may well be the balance for the Court when assessing all the competing factors in coming to an order that is in the children’s best interests.
Ms R agreed with this proposition. Additionally, she confirmed that the words “authoritative style” were her words and not the children or the mother’s words, and I accept this.
The mother’s evidence
The police were called to the father’s home and/or mother’s home on Christmas Day in 2015, 2016, and 2017. They were not called in 2018. Reprehensible as it is that the police are involved in altercations between otherwise law-abiding citizens, it is a positive that they were not called in 2018.
The mother’s behaviour in December 2017 concerning her understanding of when the children were to be returned to her care was unacceptable and I accept she now regrets her conduct on that occasion.
It was clear as it could be that it had been agreed between the parents with the assistance of the then Independent Children’s Lawyer that the children would be returned to their mother on Christmas Day at 5 pm by her collecting them from his home.
In full knowledge of this clear agreement set out in correspondence to the parties from the Independent Children’s Lawyer, the mother booked tickets for a holiday for herself and the children departing Christmas Day. The mother said she was only able to obtain tickets for departure at 6 pm and therefore needed to collect the children from their father at 3 pm. This was a decision the mother made and the father is at no fault in this.
I accept he did not know what the mother’s plan was or what she had done by way of booking air tickets for herself and the children until the mother texted him on Christmas Day requesting to collect the children at 3 pm. The mother was the cause of what transpired in front of her children.
The father’s reaction to the mother and W banging on the door calling out for the children was to turn up the music and ask the children to finish their dessert. This is conduct of someone who has nerves of steel and is focused on the dispute and not what is best for the children. The father’s reaction to the mother’s very poor decision was very poor and this event is as clear a demonstration as there will ever be of the parents’ needs to maintain their control over their children and exert their will over the other as one could find. The children paid the price for their parents’ poor behaviour and choices on this occasion.
I will do my utmost by way of order to ensure this does not ever happen again to the children. The mother’s concerns of the children not being together on Christmas Day and therefore there should continue to be a changeover on Christmas Day fell on deaf ears having regard to her conduct in 2017 and the fact that W and X are welcome, with open arms, to their father’s home on Christmas Eve/Day, should they want to avail themselves of that time, thus ensuring the children would all be together at either parent’s home on Christmas Day. The mother is best placed to ensure this is achieved by encouraging her older children to attend their father’s home on Christmas Eve/Day. Accordingly, I will make the orders the Independent Children’s Lawyer and father seek that there be a block of time Christmas Day or no New Year’s Day and provide as best I can no wriggle room in the Orders I intend to make to minimise any further trauma being inflicted on the children in the future.
The mother rang the police in 2016 again in relation to Christmas Day, saying that the children were illegally in Victoria, and the appalling events at a Zoo ensued. The father may have been able to avert this by telling the mother where he was, but of course, the father’s needs come before the children’s needs, and the mother pursued the matter. Again, this was unnecessary conduct by the mother and poor choices by the father. I accept the father had to prove he was not in breach of any order, and he was not, which evidence is clear at page 88 of the father’s tender bundle.
The mother said she was almost having a nervous breakdown in July 2018, when the children went to their father’s care and that W was acting out and causing difficulty in the household. I accept the mother was in an absolute state at the time of the report, and Ms R confirmed the mother almost did not attend. Fortunately, she did. The mother was primarily parenting four children, W was being particularly difficult and rather than there being a supportive, cooperative parenting arrangement between she and her former husband, they were engaged in a war, at times.
The mother agreed, as did the father, that they have drawn their children into the dispute and have used them as weapons. It is clear that at the father’s home, there are rules. At the mother’s home, maybe not as many rules. At the father’s home there are more people. Ms E and her three children live with the father and herself at times and when all the children were living with or visiting their father there can be seven children in the household. It is hardly surprising that there was more structure and order in the father’s home than the mother’s home with nine people consisting of seven children being present at any one time.
Any parent in those circumstances would need rules and regulations, and for each person in the home to know what their tasks are to make it work. There is nothing wrong with children having to deal with different rules and different ways of doing things. It is part of the process of becoming resilient. It shows them the world is a different place and that family means many different things. These differences, however, must be supported by the other parent if the child is to benefit from and manage the differences. The mother could not support these differences and does not. Similarly, the father does not support the mother’s more relaxed style of parenting, which the children enjoy, and so the children are conflicted.
The children have reported to all consultants they have seen that they wanted more time with their father and that was clear. The children wanted to spend time with their mother and their father, and this was not able to be effected by the parents in a harmonious, respectful, manner, and we now have the spectre of X and W not spending any time with their father. The mother would not concede that the children spending increasing periods of time in their father’s care would give them some resilience, and she was concerned about how W and X would feel if the younger two were spending time with their father. My focus must be on Y and Z who are the only children that I can, by order, ensure spend time with their father. The mother will need to manage W’s and Y’s adverse reactions, if any, to any Orders I make.
The mother had a particular view about the last day of term, and this has caused significant arguments for the parties in the past. Fortunately, the Consent Orders have resolved that area of conflict by choosing the commencement of the children’s holiday time with their parent as a specific day after school ceases.
I will not make an Order restraining the mother from moving the children’s place of residence, since it has never been an indication she would do so and in the absence of consent I only make Orders when there is evidence to support same being made. The children are settled at their school, the mother wants them all to go to CC High School and she will remain in the area to ensure they attend that high school which is progressing well for the children save for W’s particular difficulties.
Although I do not accept the submission by the father that the mother’s approach to the litigation is to shock the father, it is clear the mother did not tell the father she had moved the children’s school, and I accept this came as a complete shock to him. This conduct did nothing but further damage the parties’ already fractured relationship. The mother apologised to him in the witness box and in final submissions, and on instructions Mr Ford stated that the father wanted it put on the record that the mother had conducted herself with intelligence and W throughout the proceedings and I agree with his assessment. This, I suspect, is the first time in many years that either party have been courteous and polite to each other and acknowledged each other’s strengths rather than focusing on their weaknesses.
I accept that when the children came into the father’s care, the father was most concerned that W’s relationship with her mother had appeared to be broken. He immediately obtained counselling for her, and endeavoured to repair W’s relationship with her mother, and this counselling appears to be the catalyst for their relationship being repaired. I accept the father’s submission that he has always wanted the children to have a good relationship with their mother. It has been his campaign to have equal time with children that has caused significant conflict between them.
It would have been beneficial if W could have returned to this counsellor when her relationship with her father broke down in the following year. However, I accept the evidence that W was of the view that this counsellor, Ms EE, had broken W’s trust by telling the father some things that she had said. I accept this occurred. The father’s case was that he had an open and honest relationship with the children. This is incorrect from their perspective. A reading of his Affidavit and from cross examination it is clear he questions the children and pushes them to reveal what he wants them to reveal. The father would do well to back off.
This approach, perhaps from the best of motives, has rebounded badly for W. I accept the father was happy the children were living with him yet was also concerned that they were not spending enough time with their mother and that W needed counselling and he wanted to assist the children to deal with such a monumental change to the care arrangements. To his absolute credit he took positive steps to ensure that their relationship with their mother was maintained, continued and repaired, and is apparent to me that he will take such steps in the future if it be required. Additionally, the evidence is clear whilst she lived with her father, W’s attendance and performance at school improved significantly.
The mother had very little to say in relation to the steps she would take to help her older children reconcile with their father. Both parents are hoping that the Keeping in Contact program and Anchor program that the parents and children are enrolled in, will assist in this regard. It will if the parents support them being in the other parent’s company, make concessions to each other, respect each other’s important roles as parents of their children, be kind to each other and acknowledge and accept their role in this tragedy for their family.
I am concerned that in contrast to the father the mother rarely makes the children do anything in respect of their father they tell her they do not want to do. No doubt this how she feels about him and her feelings may be justified, however, the mother’s needs are separate and different to her children’s needs. As an example of this the mother sought I make orders that at 12 years of age, Y and Z could make up their own mind about spending time with their father.
I will do no such thing given what has happened with W and X’s relationship with their father. Unusually in this matter I do not need a crystal ball to see what the future would bring for Y and Z if I made such an Order. It would be as it is for X and W.
It is not for 12-year-old children to make such a monumental decision. These are matters parents make decisions about and in their absence to agree the Court makes these decisions. The mother argued that as X and W had made this decision, it was only fair that Y and Z should do so.
The law is clear, Y and Z have a right to a relationship with their father, as do W and X. It is hoped that, by Y and Z continuing their relationship with their father, and time with their father increasing, their father making some positive changes in his attitude to their mother, that W and X will see what they are missing out and seek to resume some form of a relationship with their father. That is the only way forward. To do otherwise would be to ensure Z and Y had no relationship with their father, into the future.
It was of a concern to the Court that unlike the father who immediately arranged counselling for W when the children came to live with him, the mother did not take them to counselling when she resumed her primary care of them. I expect the mother thought the children should click back into what had been their normal regime.
The father showed some insight on the need of the children to have counselling. I accept the mother has not been proactive at all in this area although she has taken the children to resilience courses and is clearly of the view, which I agree with, that reduction of conflict for the children is paramount to their best interests.
There was an issue about the father having put money aside for the children, from the commencement of their birth. W found out about this, and tried to obtain that money from the bank and was with her mother at the time. The bank would not let her have the money. They alerted the father, who took the money out of the account, and now W believes the father stole her money. W should have been told by her mother it was not her money, unless her father gave it to her. However, that was yet another thing for W to cling onto as a negative about the father and the mother permitted her to do so.
The Father’s evidence
The father in cross-examination said he hoped both parents could make a change. I could see no indication the father will change. His attitude that to be fair, just and equitable, there must be an equal time arrangement for the children persisted. His attitude that because the mother did not tell him where she took the children, he need not tell her where he took the children even when the Independent Children’s Lawyer asked him to tell the mother to reduce the conflict in relation to the City C trip was concerning.
His attitude to turning up the music on Christmas Day when the mother and W were banging on the door, do not indicate any change despite the four courses he has done: Circle of Security; Parenting After Separation; Adolescents courses at school; a Counselling Course; and three courses of Keeping in Contact.
It is clear that the parents were having the children text to the other parent things they needed. That is the parents’ responsibility, not the children’s. The father says he is trying to organise with the mother, counselling for he, W and X, but he has not had a positive response. It is hoped the counselling the parties are attending, Keeping in Contact with Circle of Security, will deal with this issue. The father said he is willing to be engaged at any level with W, but the only time he is asked to be engaged is if she runs away and goes missing. However, the Independent Children's Lawyer was able to broker W ringing her father, the third day of the trial, and they had a pleasant conversation and it went well.
The father wants to co-parent. That is an impossibility. Parallel parenting is the only possibility and this was confirmed by Ms R. The home the father lives in with his partner is crowded when seven children are there as the father confirmed, however, there will only be, at best, five children in the home now, as X and W are not seeing their father. Therefore, the concerns the children have raised may not be as concerning, now, as they were when all children were visiting their father. It is a five bedroom home with two bathrooms, and there is sufficient accommodation for X and Z if they spend a substantial or equal time in their father’s care.
The father completely and utterly missed in the first report from Ms Q that the children wanted one-on-one time with him, not sharing it with Ms E or her children. It was a missed opportunity by the father, and he could not see it. It has been a constant theme for the children, throughout all the Family Reports. They believe the father prefers Ms E’s children over them, that they have to do things with Ms E’s children, such as go to sport, that Ms E’s children do not have to do with them. That there is a preference. Although, this may be a characteristic of blended families, the father should have taken this on board, and dealt with it making sure he spent quality, one-on-one time with his children. He did not, and he missed the opportunity.
He has clearly told the children he wants equal time with them. His argument, that all he said was more time, is simply not accepted by me. All the children say the father has told them this. The children had confidential counselling in October 2017, and after they had that counselling, the father asked the children questions. He said he did not know what confidential meant. The father’s position is that he has an open relationship with his children, when he does not. What he actually has is a confrontational, authoritative relationship where he demands to know what they have done and said. This has resulted in both W and X not wanting to spend time with him. He must take this on board.
It was a significant breach of trust by the father with Ms E being present and questioning the children. I do not accept that all he asked them was, “Just tell me what you want to talk about. How did it go?” I do not accept that at all. This was most unfortunate behaviour by the father because the children did not benefit from what they should have benefitted from.
The husband said, “It’s best for the children to have their mother and I equally in their life.” Equal for him means equal time. He made a poor decision in December 2016 not to have his children, but go on a holiday with Ms E and not tell the mother the truth. When asked did he have an understanding why W was not spending time with him, he said, “It’s because she is a selfish teenager who will take the path of least resistance and that means living with her mother.” That is only a partial explanation and he has missed his role in this and sought to lay blame at the mother and W’s feet when he shares equal responsibility for this sad outcome.
The father would not take on board the mother’s legitimate concerns that when he, Ms E, and all their children went camping, that he allowed a friend of his, a stranger to the mother and the children, to sleep in the Annexe where his female children were sleeping. The father could not understand that this was a legitimate concern of the mother’s, and his argument, “She doesn’t tell me. I know what I'm doing” fell on deaf ears.
Unless the father starts to take on board the legitimate concerns the mother raises, there will be trouble in the future, and the children will vote with their feet. The father’s persistence and belligerent attitude in not telling the mother about holidays he has with children such as the City C holiday, “You didn’t tell me where you took the children. I wasn’t going to tell you.” did him no credit at all.
The father was telephoned by W on Christmas Day 2017 and did not answer the phone although he knew it was W calling. His reasons were he did not think W wanted to speak to him, but speak to the children and cause trouble. How would he know? He did not bother to answer his daughter’s call. This was a slap in the face for W.
The father made W apologise to Ms E’s children when she returned to his care in August 2018, because she had made accusations about them. That was a very poor decision by the father, and showed, from W’s point of view, he is preferring Ms E’s children over his own.
Having regard, as I must, to the best interests of the children and given that the parents have agreed that they have equal shared parental responsibility I have formed the view that the competing balances are this.
Y and Z, benefit from their relationship with both their parents. The concern I have is that Y and Z’s relationship with their father may follow the same pathway as W and X’s if the father and mother do not change their behaviour.
I cannot rely upon the children’s wishes. Ms R said it would be dangerous to do so. Although both parents take their attitude to their responsibilities of parenthood seriously and can provide for their children’s social, psychological, emotional and educational needs, their attitude to each other and their way of dealing with each other and using the children in that war with each other, indicates a significant lack of being able to place the needs of the children over their own, and both parents have behaved in this fashion.
The balance for me is crafting orders that provide for Y and Z to continue their all-important relationship with their father, but minimise the conflict that has occurred, to date, in the children spending time with their father, and that all children have experienced with the consequence being W and X have voted with their feet to get out of the war and voted to stay with their mother.
The mother is clear she believes Z will not be able to cope with five nights away from her each 14 days, and wants the children to see the father each week.
The mother’s time arrangement that the children spend every Thursday night with their father extending has some practical sense. It is correct that Ms E’s children are not with the father and Ms E each Thursday, Friday and Saturday as they are with their father. This will mean every Thursday the children will have their father’s total, undivided attention, something they have craved since separation.
Secondly, there is much sense in there being a block period of time with the father and that changeover occurs at school so that the children do not have to face the spectre of their parents arguing about these issues in their presence as they have done in the past.
Although this Court would never make an order only on the basis that because a parent persists with what they want and will maintain court proceedings until they achieve their end the order is thus made, I must consider in making an order the orders that are least likely to result in further proceedings.
Looking at that factor in this matter, the consequences of making the order the father seeks and/or moving towards the order he seeks, namely equal time in some two to three years, has the following positive benefits for the children as I see it:
a)The first is the father will know now that the children will, ultimately, be living with him in an equal time arrangement. Thus, the proper concern that he will continue to pursue this matter and continue the conflict with the mother is abated; and
b)Secondly, as was evident when W and the other children came into his care in 2018 as he knows the children are going to be, ultimately, in an equal time arrangement, he will be more able to support their relationship with their mother, as he did in 2018 because the children are living in an arrangement he believes is appropriate and in their best interest.
However, this is but one factor I must consider to arrive at the time with arrangement that is in the children’s best interests.
On the other hand there are a multitude of negatives militating against an equal time order being made. These are poor and conflicted parental communication, lack of respect by each parent of the other as a parent of the children and as a person generally, high conflict, different rules in the parents different households, different household priorities and standards, different attitudes to what is best for the children, and for Y and Z, knowing their elder siblings spend no time in their father’s home.
The Law
In any parenting application the starting point is the decision of Goode & Goode[1] and the relevant sections of the Family Law Act 1975 (Cth) (“the Act”).
[1]Goode & Goode [2006] FamCA 1346.
My first task is to determine whether it should rebut the presumption of equal shared parental responsibility. I formed the view it is appropriate that this responsibility be shared.
Having a so found I must then consider whether it is an order in the children’s best interest to spend equal time or significant and substantial time with their parents.
In order to determine which order is in the children’s best interest I must now turn to the factors under section 60CC of the Act and apply those factors to the evidence
The primary considerations under section 60CC(2) of the Act are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations set out in 60CC(3) of the Act are:
(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;
(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);
(c) the extent to which each of the child’s parents 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;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(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;
(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;
(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;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Y and Z benefit from a meaningful relationship with each of their parents.
The children have been subjected to poor behaviour by their parents arguing in front of them, the incident on Christmas Day in December 2017 and other behaviours which have been found and at times accepted by the parties in this case. Each parent has behaved inappropriately in front of the children and towards the other parent, at times.
The wishes of Y and Z are to spend time with their father and they have been consistent in that they want to spend more time with their father than is the current arrangement four nights a fortnight.
I find the children’s closest emotional attachment has been their mother. The mother was their primary carer and the father recognised this when the children came into his care in 2018 for 12 to 15 weeks and was concerned that the children were not spending sufficient time with their mother. However, they have a strong relationship with their father and a desire to spend more time with him.
Neither parent has a capacity to promote a positive attitude in the children towards the other parent and they each have their reasons for this and each have acted in this matter.
The parents have a highly conflicted mistrustful relationship and the two older children have, in order to protect themselves from that relationship, determined to spend no time with their father, a significant sadness for them and him.
Although each parent independently has capacity to provide for the children’s emotional and psychological needs they have not prioritised the children’s needs in their nasty dispute and need to be in control.
I am concerned, as Ms R opined, that if the father does not get the orders he wishes he will pursue litigation and this will be a further trauma for the children. The mother was correct in her assessment that this was the case in 2018.
The mother posited that at age 12 the children could determine whether they would spend time with their father. I accept she believed they were of an age where they had the capacity and maturity to make such a decision and therefore would have the capacity to be away from her for lengthy periods of time such as seven nights a fortnight.
This then leads me to the view that by the commencement of the school year 2022, when Z will turn 11, that she and Y will benefit from living in an equal time parenting arrangement with their parents.
Prior to 2022 the time the children currently spend with their father will be increased at the commencement of the second term of school in 2020 and 2021 by an additional one night per fortnight. This results in the children in spending five nights a fortnight with their father commencing the second term in 2020 and six nights a fortnight with their father in the second term commencing 2021.
The equal time order for the children will commence at the commencement of the second school term in 2022.
This slow but important increase in time will allow the children to adjust to living in both parents household, will permit the parents to see how the children adjust and it is hoped, persuade both W and X to spend some time with their father at his home.
It also allows Z to mature and age and provides for her a slow increase in time away from her mother and with her father. It is not the father’s capacity to care for Z that is it issue here, it is Z’s capacity to be away from her primary carer for a lengthy period of time. This was noted to be of concern by all the children and the father at the Family Report in 2018 a time when the children were living with their father and spending only four nights a fortnight with their mother.
In relation to school holidays, the parents have agreed on equal time in midterm holiday and I have made those Consent Orders.
As to Christmas. Despite the mother’s argument that the children should all be together at Christmas and therefore needed to share that day with their parents each year I have formed an entirely different view. I will not permit there to be a changeover at Christmas time given the poor behaviour of each parent in 2017.
Secondly, the children are able to be together each Christmas. By splitting the holiday period, alternating it each year and not making a special arrangement for Christmas Day they will be together with their mother in one year and have the opportunity to be together at their father’s home in the alternative year. It is entirely up to the mother to have W and X attend at their father’s home for Christmas with their younger siblings were I am confident they will be welcomed with open arms. Thus, it is within the mother’s power to ensure what she says is important for the children that they are together at Christmas time.
To do otherwise and rely upon the parents to behave appropriately is a risk that is not acceptable in circumstances where in 2015, 2016 and 2017 incidents requiring the police to attend occurred on Christmas Day and it is only in 2018 no such incident occurred.
I will ensure by my Orders that the parent who has the children for the second half of the Christmas holidays is the parent that will be responsible to outfit the children for the new school year as they will be the parent who takes the children to school and has them in their care until time with the other parent commences.
This obligation to outfit the children for school will be shared by the parents equally as their children will living with them between the first and second half of the long school holidays each year.
I formed the view these are Orders that are in the children’s best interests having regard to the Act, the evidence and the Court’s obligation to by order minimise further litigation and conflict for these children.
The Independent Children’s Lawyer made an application for costs.
These parties have had two Family Reports prepared, two Child Inclusive Conferences and an Independent Children's Lawyer. They have had a huge slice of public funding to assist them to resolve this matter and has resulted in substantial agreement in relation to what has been previously vexed parenting matters including the mother’s unusual view of when school holidays were to commence.
In all these circumstances it is proper that I exercise my power in section 117(2) of the Act to make a costs order. The parties have the capacity to pay the costs orders sought, which is a sum of some $6,000 each and the husband has made a contribution earlier to his costs.
It was the conduct of the parties which necessitated the Independent Children’s Lawyer being appointed and it is proper they pay some of the costs associated with such appointment.
Property
The mother’s lack of disclosure in relation to property issues is of concern. Only at trial did the father get a copy of any option agreement the mother signed or entered into post separation. When these documents were produced there were at least two, if not three, which came into evidence at different times.
Only at trial did the husband receive a copy of the rescission of the option agreement, her bank accounts, the copy of the cheque that she received just prior to separation, details of repayment of the deposit upon rescission of the option agreement, details in relation to her business, N Pty Ltd. The disclosure given by the mother was far from complete.
The mother said this was because she did not realise she needed to make the disclosure, and she thought she had done it by sending documents to the father’s solicitor’s drop box at various times. This is part of the difficulty when litigants must run matters on their own. They do not understand the consequences of failing to comply with extremely important rules of this Court, as to full and frank disclosure.
However, I reject any submission that the mother still has available to her the $216,000 that each received just prior to separation in 2013, together with the refund from the rescission of the option agreement of $167,000, and money from her father’s estate of some $57,000. That submission was a flight of fancy for if the mother still had such funds available to her she would have purchased a property by now. This was a theme throughout her oral evidence her regret at not having been able to exercise the option she entered into and purchase a property for herself and the children.
The money that she used to secure the option agreement and which was refunded to her upon its rescission was part of the $216,000 she received just prior to separation. I accept she has now expended these funds and her father’s inheritance.
I accept the mother has nothing today, other than what she discloses in her Financial Statement, the limited income she earns, and the father has but a company and the income he earns from that endeavour. Neither party own real estate. They have some superannuation. There are no shares or other assets in their name. They have very little, by way of assets.
The wife has four bank accounts with the Commonwealth Bank, and failed to produce them all. The wife does not lodge tax returns or prepare a profit and loss for income tax purposes and lodges a personal tax return because her company does not earn sufficient income to be required to do otherwise.
In the wife’s Financial Statement says she earns net per week, including child support, some $2,000 and of that, she pays $860 a week in rent. She has $1,140 to support herself and four children. This is a very modest standard of living.
The wife says her business is going reasonably well. That she has obtained four new clients recently, and is doing work for her brother. I am certain the wife will continue to work and it is hoped her business will expand for there is no one else who can support her and she must support herself.
Assets O Pty Ltd $473,000 Motorbike $16,440 Motor vehicle $12,000 Caravan $18,000 Funds in Bank (husband) $5,123 Funds in Bank (wife) $1,100 Motor vehicle $11,000 Household contents (wife) $15,000 Household contents (husband) $10,000 Total $561,663 Addbacks Money received by Mr M $216,500 Liabilities Division 7A Load payable to company $242,000 CBA Mastercard Credit Card (husband) $10,000 Motorbike loan $38,769 Mastercard (wife) $11,802 Unpaid Tax Liability (wife) $8,639 Centrelink Debt (wife) $5,693 Total $316,903 Superannuation Super Fund 2 (wife) $88,385 Super Fund 2 (husband) $271,052 Total $359,437 Total Asset Pool $604,197
This is not a matter where there are liquid assets. This is not a matter where parties own real estate and decisions such as Kannis[2] and others, Weir & Weir[3], do not really assist me. The mother’s non-disclosure has not led me to the view that she is hiding assets, nor has not led me to the view that she has had more than she has sworn she has and I accept her oral evidence.
[2]Kannis & Kannis [2002] FamCA 1150.
[3]Weir & Weir [1992] FamCA 69.
The question then is, is she entitled to a percentage of the only asset left the husband’s company.
Consistent with decisions such as Hickey & Attorney-General for the Commonwealth of Australia[4] and Ferraro & Ferraro[5], there is a four stage approach the Court must engage in to determine the parties’ contribution based entitlement to their property under section 79 of the Act.
[4]Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-145.
[5]Ferraro & Ferraro [1992] FamCA 64.
The first stage is to identify the value, nature and species of the pool of assets for division.
The second stage is to ascribe to each party their contribution based entitlement to the property expressed as a percentage having regard to their direct financial and non-financial contributions, indirect financial and non-financial contributions and the role of parent and homemaker.
It is also important to determine whether one party has made a superior contribution post separation to the assets of the parties or to either of them or the family.
Finally, the Court determines whether there ought to be an adjustment to either party’s contribution based entitlement for their past contributions having regard to the their future needs, often referred to as the 75(2) factors.
I will deal with the superannuation assets and liquid assets separately. The parties have many years before they can access their superannuation whereas the value in the company can be accessed. The husband says the wife is entitled to some $50,000 of his superannuation being an equality of what he had at separation. That is an appropriate approach and the wife did not cavil with this order per se. This will then give the wife some $140,000 in super and bring his superannuation down to some $220,000.
I will not include any of the parties’ bank accounts, household contents or cars in their possession as property for division given the length of time since separation.
This results in the only liquid asset being the husband’s company which was created during the marriage from funds received for work carried out during the marriage by the husband of which the wife received an equal share.
However, importantly the company began to be run as a profit making venture by the husband in 2015, a time well past the marriage and around the time they physically separated.
The mother argued that the valuation of the husband’s company by Ms S was flawed in that $239,000 described as a Division 7A loan in the accounts related to his legal fees, the value of the company had been reduced due to this loan and that this was unfair to her.
I accept the expert evidence supported by the father that the Division 7A loan is the seed start-up money that the father put towards the company and not money paid for his legal fees.
I find the matrimonial pool for division to be the value of the husband’s company at $473,000 less the Division 7A loan of $242,000, a figure of $230,000.
The wife has made a contribution to the value of that company being her primary care of the children post and pre separation, and her contribution as a parent and homemaker during the marriage and by carrying out those tasks, assisted the husband creating a value in the company of $230,000.
However, the wife also obtained a similar amount of money as the husband just prior to separation and she has used that money as she determined, together with her inheritance, as the husband has used his money as he has determined. The husband has always paid child support, has always been willing to spend time with the children, in fact, wanted more time with the children.
I asses her contribution to the value of this company at 5%.
Going to the future, the wife still has needs which she is unable to fully meet given she remains for the next 12 months the primary carer of all the children and sole parent for 2 of the children into the future and this must affect her capacity to maximise her income.
However, by an equal division of the matrimonial funds in 2013 the wife’s needs given her then care of 4 young children were not met having regard to section 75(2) of the Act and this is relevant factor for me to take account of under section 75(2)(o) of the Act.
I have formed the view that the wife’s needs into the future pursuant to the factors under section 75(2) of the Act I have identified result in a 10% adjustment to her being a total adjustment of 15% sum of $34,500 together with a splittable superannuation payment of $50,000 and I will so order.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 17 January 2020.
Associate:
Date: 17 January 2020
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