Darley & Darley (No. 2)
[2018] FamCA 1086
•18 December 2018
FAMILY COURT OF AUSTRALIA
| DARLEY & DARLEY (NO. 2) | [2018] FamCA 1086 |
| FAMILY LAW – CHILDREN – With whom a child lives – where each parent seeks that the children, aged 9 and 12, live primarily with them – where it is ordered that the children live with the mother – where the parents will have equal shared parental responsibility – where orders are made for the children to spend time with the father each alternate weekend and during school holidays. FAMILY LAW – PROPERTY SETTLEMENT - Settlement in relation to marriage – just and equitable – where the parties cohabited for nearly eleven years – where a trustee for sale of the former matrimonial home has been previously appointed – where the parties are to share equally in the nett sale proceeds obtained following the sale of the former matrimonial home – where otherwise, it is ordered that each party retain the property that is in each party’s possession. |
| Family Law Act 1975 (Cth) |
| Banks v Banks (2015) FLC 93-637 Bevan v Bevan (2013) FLC 93-545 McCall v Clark (2009) FLC 93-405 Norbis v Norbis (1986) 161 CLR 513 Steinbrenner v Steinbrenner [2008] FamCAFC 193 |
| APPLICANT: | Mr Darley |
| RESPONDENT: | Ms Darley |
| INDEPENDENT CHILDREN’S LAWYER: | Norman & Kingston |
| FILE NUMBER: | BRC | 2317 | of | 2013 |
| DATE DELIVERED: | Orders made 12 December 2018; Reasons delivered 18 December 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 17, 18, 19 & 20 October 2017, 13 & 14 February 2018, 23 May 2018 |
REPRESENTATION
| APPLICANT: | In person |
| RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Pendergast |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston, Norman & Kingston |
ORDERS
IT IS ORDERED BY WAY OF FINAL ORDER THAT
All previous parenting orders are discharged.
The children, X, born on … 2006, and Y, born on … 2009, live with the mother.
The father and mother have equal shared parental responsibility for the major long term issues of the children including:
(a) the children’s education (both current and future); and
(b) the children’s religious and cultural upbringing; and
(c) the children’s health; and
(d) the children’s names; and
(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with, or live with, either parent.
The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a) they shall inform the other parent about the decision to be made;
(b) they shall consult with each other on terms that they agree;
(c) they shall make a genuine effort to come to a joint decision.
Each parent has responsibility for daily decisions about the day to day care, welfare and development of the children whilst they are in his or her care.
The children spend time with the father at all times as may be agreed by the parents in writing but, failing agreement, as follows:
(a)commencing Friday 14 December 2018: each alternate weekend, from 5.00 pm on Friday to 4.00 pm on Sunday; and
(b)during the school holiday period at the end of Terms 1, 2 and 3 each year:
(i)for the first half of the school holiday period in even numbered years: from after school on the day school finishes for the Term for seven (7) consecutive nights, with changeover to occur at 5.00pm on the day immediately after the seventh (7th) consecutive night; and
(ii)for the second half of the school holiday period in odd numbered years: from 5.00pm on the second Friday after school finishes for the Term (where the day on which school ends for the Term is the first Friday) for seven (7) consecutive nights, with changeover to occur at 5.00pm on the day immediately after the seventh (7th) consecutive night.
(c)during the school holiday period at the end of Term 4 each year:
(i)in December 2018/January 2019: for seven (7) consecutive nights in week 1, week 3 and week 5 of the school holiday period, with such time to occur as follows:
(1)in week 1: from after school on the day school finishes for the Term, being 14 December 2018 (with the father to collect the children from R School at the commencement of this time) for seven (7) consecutive nights, with changeover to occur at 10.00 am on the day immediately after the seventh (7th) consecutive night, being 21 December 2018; and
(2)in week 3: from 5.00 pm on the third Friday of the school holiday period (where the day on which school ends for the Term is the first Friday) for seven (7) consecutive nights, with changeover to occur at 5.00 pm on the day immediately after the seventh (7th) consecutive night; and
(3)in week 5: from 5.00 pm on the fifth Friday of the school holiday period (where the day on which school ends for the Term is the first Friday) for seven (7) consecutive nights, with changeover to occur at 5.00 pm on the day immediately after the seventh (7th) consecutive night.
(ii)in December 2019/January 2020: for seven (7) consecutive nights in week 2, week 4 and week 6 of the school holiday period, with such time to occur as follows:
(1)in week 2: from 5.00 pm on the second Friday after school finishes for the Term for seven (7) consecutive nights, with changeover to occur at 5.00 pm on the day immediately after the seventh (7th) consecutive night; and
(2)in week 4: from 5.00 pm on the fourth Friday of the school holiday period (where the day on which school ends for the Term is the first Friday) for seven (7) consecutive nights, with changeover to occur at 5.00 pm on the day immediately after the seventh (7th) consecutive night; and
(3)in week 6: from 5.00 pm on the sixth Friday of the school holiday period (where the day on which school ends for the Term is the first Friday) for seven (7) consecutive nights, with changeover to occur at 5.00 pm on the day immediately after the seventh (7th) consecutive night.
(iii)commencing from December 2020: for the first half of the school holiday period in even numbered years and for the second half of school holiday period in odd numbered years, with such time to occur as follows:
(1)when the time occurs during the first half of the school holiday period: from after school on the day school finishes for the Term until 5.00 pm on the fourth Friday of the school holiday period (where the day on which school ends for the Term is the first Friday); and
(2)when the time occurs during the second half of the school holiday period: from 5.00 pm on the fourth Friday of the school holiday period (where the day on which school ends for the Term is the first Friday) until 5.00 pm on the Friday before school recommences for the year.
Unless otherwise agreed between the parents in writing or otherwise specified in this Order, changeovers shall occur as follows:
(a)for weekend time during school Terms: the father shall collect the children from McDonald’s Suburb R, Suburb R City Shopping Centre at the commencement of their time with him and the mother shall collect the children from the K Town Shopping Centre at the conclusion of their time with the father; and
(b)when the children are spending time with their father during the first half of the school holidays: the father shall collect the children from school at the commencement of their time with him and the mother shall collect the children from the K Town Shopping Centre at the conclusion of their time with the father; and
(c)when the children are spending time with their father during the second half of the school holidays: the father shall collect the children from McDonald’s Suburb R, Suburb R City Shopping Centre at the commencement of their time with him and the mother shall collect the children from the K Town Shopping Centre at the conclusion of their time with the father; and
(d)for any other changeovers during school holiday time: the father shall collect the children from McDonald’s Suburb R, Suburb R City Shopping Centre at the commencement of their time with him and the mother shall collect the children from the K Town Shopping Centre at the conclusion of their time with the father.
If the father intends to spend time, as prescribed by Order 6(c)(i) above, with the children during the December 2018/January 2019 school holiday period, he must give the mother written notice of that intention (with the same to be copied to the Independent Children’s Lawyer) by 5.00pm on Thursday 13 December 2018.
If the father intends to spend time, as prescribed by Orders 6(b) and 6(c) above, with the children during any school holiday period other than the December 2018/January 2019 school holiday period, he must give the mother written notice of that intention in the following manner:
(a)for time during the school holidays at the end of Term 1 in any year: by 5.00 pm on the sixth Friday after school commences for Term 1; and
(b)for time during the school holidays at the end of Term 2 in any year: by 5.00 pm on the sixth Friday after school commences for Term 2; and
(c)for time during the school holidays at the end of Term 3 in any year: by 5.00 pm on the sixth Friday after school commences for Term 3; and
(d)for time during the school holidays at the end of Term 4 in any year: by 5.00 pm on the sixth Friday after school commences for Term 4.
In the event that the father does not provide notice to the mother in the manner required by pursuant to Clauses 8 and 9 of this Order:
(a)the operation of Clauses 6(b) and 6(c)[whichever is applicable] of this Order shall be suspended during the holiday period for which the father did not give notice to the mother; and
(b)in lieu of the holiday time prescribed by Clauses 6(b) and 6(c)[whichever is applicable], the children shall spend alternate weekend time with the father as provided for by Clause 6(a) of this Order.
Provided that the father gives the mother notice of his intention to spend time with the children during school holidays in the manner prescribed by Clauses 8 and 9 of this Order, the operation of Clause 6(a) of this Order shall be suspended during the school holiday periods.
Clause 6(a) of this Order shall recommence as follows:
(a) after the school holiday period at the end of Terms 1, 2 and 3 each year:
(i)if the children have spent time with the father in the first half of the holiday period: on the first weekend of school term; or
(ii)if the children have spent time with the father in the second half of the holiday period: on the second weekend of school term.
(b)after the end of the school holiday period which occurs at the end of Term 4 in 2018: on the first weekend of school term in 2019; and
(c)after the end of the school holiday period which occurs at the end of Term 4 in 2019: on the second weekend of school term in 2020; and
(d)after the end of the school holiday period which occurs at the end of Term 4 in 2020 and each year thereafter:
(i)if the children have spent time with the father in the first half of the holiday period: on the first weekend of school term; or
(ii)if the children have spent time with the father in the second half of the holiday period: on the second weekend of school term.
Unless otherwise agreed between the parents in writing, the children shall spend time with their father from 5.00 pm Christmas Eve to 12.00 pm Boxing Day in even numbered years.
Unless otherwise agreed between the parents in writing, the children shall spend time with their mother from 5.00 pm Christmas Eve to 12.00 pm Boxing Day in odd numbered years.
In the event that the children are not otherwise in their father’s care on Father’s Day, they shall spend time with him from 4.00 pm on the Saturday immediately before Father’s Day until 5.00 pm on Father’s Day, with the father to collect the children at the commencement of that time from the McDonald’s Suburb R, Suburb R City Shopping Centre and the mother to collect the children at the conclusion of that time from K Town Shopping Centre.
In the event that the children are not otherwise in their mother’s care on Mother’s Day, they shall return to her care at 4.00 pm on the Saturday immediately before Mother’s Day, with the mother to collect them from K Town Shopping Centre.
In the event that the children are not otherwise in their father’s care on each of their birthdays, both of them shall spend time with him between 3.00 pm and 7.00 pm on each of those days, with the father to collect them from school at the commencement of that time and the mother to collect them from the McDonald’s Suburb R, Suburb R City Shopping Centre at the conclusion of that time.
Each parent shall communicate with the children, when they are not in their care, by telephone or Skype or Facetime at all reasonable times and not less than each Wednesday between 6.00 pm and 6.30 pm and in order to facilitate this:
(a)the parent with whom the children are not spending time shall initiate the telephone call; and
(b)the parent in whose care the children are at that time shall make the children available to receive the telephone call and, if for any unforeseen circumstance, the children miss the telephone call from the other parent, shall arrange for the children to telephone the calling parent on the following night; and
(c)the parent in whose care the children are at that time shall ensure that the children have privacy during the communication.
In the event that either parent wishes to travel overseas with the children for a holiday, the following shall occur:
(a)the travelling parent shall provide to the other parent not less than eight (8) weeks’ notice of any proposed travel and such notice shall include details of the proposed location and the dates on which it is proposed the children depart the Commonwealth of Australia and return to the Commonwealth of Australia; and
(b)the parent wishing to travel will provide the other parent with an itemised itinerary of the proposed travel plans; and
(c)the travelling parent shall, fifteen (15) days before the proposed date of departure from the Commonwealth of Australia, provide the other parent with an itemised itinerary which shall include contact details whilst overseas, a copy of insurance policies, all accommodation and flight details and a copy of the children’s return tickets.
Unless agreed by the parents in writing, the children shall not be taken to a country which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
Both parents shall co-operate with each other regarding the children’s passports and both shall sign all documents necessary to ensure that the children have valid passports.
Each parent shall be at liberty to communicate with the children, when they are not in their care, by telephone or Skype or Facetime on each of the children’s birthdays, each parent’s birthday, Good Friday, Easter Monday and Christmas Day between 6.00 pm and 6.30 pm and in order to facilitate this:
(a)the parent with whom the children are not spending time shall initiate the telephone call; and
(b)the parent in whose care the children are at that time shall make the children available to receive the telephone call and, if for any unforeseen circumstance, the children miss the telephone call from the other parent, shall arrange for the children to telephone the calling parent on the following night; and
(c)the parent in whose care the children are at that time shall ensure that the children have privacy during the communication.
The children shall be at liberty to call either parent at all reasonable times and the parent with whom they are at the time shall assist them to make any calls they reasonably request.
Each parent shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the children.
Without first obtaining the written consent of that parent, neither parent shall enrol the children in any activity which occurs during time when, pursuant to these Orders, the children are living or spending time with the other parent.
Neither parent shall denigrate the other, their religious beliefs or their family to, or in front of or within the hearing of, the children and each shall direct third parties to refrain from denigrating either parent or their family to, or in front of, or within hearing of, the children and, failing their compliance with such a direction, shall remove the children from that environment immediately.
Save in a therapeutic setting, neither parent shall discuss the allegations made in these proceedings with the children.
During the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(b)speak of the other parent respectfully; and
(c)not insult the other parent in the presence or hearing of the children; and
(d)use their best endeavours to ensure that others do not insult the other parent in the hearing or presence of the children.
Each parent shall keep the other informed of the contact details for the children’s doctors, health care and other treatment providers and, by this Order, those practitioners are authorised to provide each parent with such information about the children as they are lawfully able to provide.
Both parents shall use their best endeavours to follow the reasonable recommendations of the children’s treating medical practitioners.
Each parent shall inform the other parent as soon as reasonably practicable of any medical emergency, significant health issue or significant illness suffered by the children and, by this Order, any treating medical practitioner is hereby authorised to provide each parent with such information about the children as they are lawfully able to provide.
Each parent keep the other informed of any school, educational facility or extra-curricular activity provider at which the children attend and, by this Order, such providers are authorised to provide each parent with such information about the children, their attendance and their progress as they are lawfully able to provide.
If there is a cost associated with the provision of any information or documents by the children’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.
Each parent shall ensure that the other is nominated as an emergency contact with any school, medical practitioner or extra-curricular service provider upon which the children attend.
Subject to the conditions imposed by the children’s schools, this Order authorises both parents to attend school functions to which parents are ordinarily invited, including, but not limited to: carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
Each parent keep the other parent informed at all times of a contact telephone number and email address and:
(a)notify the other as to any change in those details as soon as practicable after such change; and
(b)notify the other parent at least thirty (30) days prior to relocating their residence beyond a fifty (50) kilometre radius from where they currently reside.
Each parent has liberty to provide a copy of the Order made on 12 December 2018 and the accompanying Reasons for Judgment to any school at which, and the medical practitioner/s upon whom, the children attend and to the Department of Communities, Child Safety and Disability Services.
The Independent Children’s Lawyer is discharged on 30 June 2019.
Each parent and the Independent Children’s Lawyer have liberty to apply in relation to the enforcement of the terms of this Order on the giving of 24 hours’ notice in writing.
Pursuant to s 65DA(2) and s 62B 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 and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS DIRECTED THAT
Any application filed by any party in reliance on Order 39 and by which that party seeks to enforce the terms of this Order should immediately be brought to the attention of the Associate to Justice Hogan for listing before her Honour if reasonably practicable.
AND IT IS ORDERED BY WAY OF FINAL ORDER PURSUANT TO S 79 of THE FAMILY LAW ACT 1975 (CTH) THAT
Mr Darley and Ms Darley share equally in the nett sale proceeds obtained following the sale of the property situated at B Street, C Town in the State of Queensland, being the whole of the property described as Lot … on SP … bearing Title reference … and, to give effect to this, the Trustee for Sale appointed pursuant to Order made on 25 July 2017, as amended by Order made on 12 March 2018, is hereby authorised and directed to pay those funds invested by him in accordance with Order 8(c) of the Order made on 25 July 2017 out as follows:
(a)by payment of fifty per cent (50 per cent) of the same to a bank account nominated in writing by Mr Darley; and
(b)by payment of fifty per cent (50 per cent) of the same to a bank account nominated in writing by Ms Darley.
Except as otherwise provided in this Order, Mr Darley shall retain all items of personal property and effects presently standing in his name or possession and control, with the same to include but not be limited to:
(a) household furniture; and
(b) jewellery and personal effects; and
(c) all amounts in bank accounts; and
(d) any motor vehicle in his possession or registered in his name; and
(e) all superannuation entitlements, accounts or policies in his name.
Except as otherwise provided in this Order, Ms Darley shall retain all items of personal property and effects presently standing in her name or possession and control, with the same to include but not be limited to:
(a) household furniture; and
(b) jewellery and personal effects; and
(c) all amounts in bank accounts; and
(d) any motor vehicle in her possession or registered in her name; and
(e) all superannuation entitlements, accounts or policies in her name.
Except as otherwise provided herein, the Applicant and Respondent shall remain liable for any debts in their own name as at the date of this Order and, in this respect, shall indemnify the other from any liability in relation thereto and such debts shall include, but not be limited to, any tax liability arising out of the operation of this Order.
In the event that Mr Darley or Ms Darley refuses or neglects to sign any documents, instrument or writing so as to give effect to this Order within a period of fourteen (14) days from the date of being served with a copy of this Order and the document, instrument or writing sought to be signed, then a Registrar of the Court or his or her appointee may, pursuant to s 106A of the Family Law Act 1975 (Cth) do all acts and things necessary to give validity and operation to the said document, instrument or writing so as to effect compliance with this Order.
Following compliance with the terms of Order 42, the Trustee for Sale is discharged.
AND IT IS FURTHER ORDERED THAT
Save for those aspects of the Application-Contravention filed by Ms Darley on 10 January 2018 in which it is asserted that Mr Darley contravened the order made by Judge Howard on 29 August 2016 by returning the children sunburned on 25 December 2017 and by failing to notify her of a child’s attendance at hospital on or about 8 January 2018, the Application-Contravention filed by Ms Darley on 10 January 2018 is adjourned to a date to be advised for further hearing by any Judge of the Court.
Save as is provided in Order 48, all outstanding Applications are dismissed and the matter is removed from the list of cases awaiting determination.
After the expiration of the appeal period, all subpoenaed documents shall be destroyed or returned to the persons or institutions from which they emanated and all Exhibits shall be returned to the party by whom that Exhibit was tendered.
AND IT IS FURTHER ORDERED THAT
In the event that any party seeks an order that the other party pay his or her costs:
(a)if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this order; and
(b)any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and
(c)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and
(d)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
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 Darley & Darley 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 BRISBANE |
FILE NUMBER: BRC 2317 of 2013
| Mr Darley |
Applicant
And
| Ms Darley |
Respondent
And
| The Independent Children’s Lawyer |
REASONS FOR JUDGMENT
This is the second occasion on which the parents of twelve year old X[1] and her nine year old sister, Y,[2] have participated in a trial of their parenting and property settlement proceedings.
[1] Who was born in 2006.
[2] Who was born in 2009.
Their first trial proceeded before Judge Howard in the Federal Circuit Court between 8 and 11 December 2014. On the fourth day of the trial, the parties asked his Honour to make final parenting orders by consent. He did on 12 December 2014. The orders made that day by consent (the December 2014 Orders) provided that the parents have equal shared parental responsibility for the children, the children live with the mother and spend time with the father every alternate weekend; further provision was made for the children’s time with their father to increase progressively until they were to spend seven consecutive nights in his care during the school holidays from 2016 onwards.
The mother commenced an appeal against the parenting orders on 9 January 2015. After this, His Honour determined not to conclude the hearing of the property settlement aspect of the parties’ proceedings.
The mother’s appeal was dismissed by the Full Court of this Court on 4 February 2016. On 11 April 2016, Judge Howard ordered the parties to attend a Conciliation Conference with respect to their property proceedings; his order provided that, in the event the parties were unable to reach final agreement, an Order would issue from Chambers adjourning the property settlement aspect of the proceedings.
Unfortunately, the implementation of the December 2014 Orders soon broke down; the illusory remnant of parental co-operation, which underpinned the parties’ ostensible consent to the same, evaporated.
On 29 August 2016, Judge Howard made interim parenting orders. The August 2016 order provided that the children live with their mother and spend time with the father each Saturday. It also, amongst other things, required the mother to ensure that the children took all necessary medication before spending time with their father and that the parents ensured that neither child suffered sunburn. A new Independent Children’s Lawyer was appointed.
On 13 October 2016, Judge Howard ordered “on a final basis” that the interim orders made on 29 August 2016 remain in force. Any thought that the order described as ‘final’ was really final is dispelled by the fact that His Honour transferred the proceedings to this Court and ordered that the Independent Children’s Lawyer he had appointed on 29 August 2016 organise the preparation of a Family Report.
The October 2016 Order includes the notation that the Court had concluded that the nature of the dispute between the parents was so intractable - and that the number of days required to finalise the parenting and property proceedings was such - that the Federal Circuit Court did not have the resources to deal with the matter.
Since at least then – if not well before – these two parents have been unable to reach agreement about many, many issues: for example, whilst they ostensibly agreed to the sale of the former matrimonial home in and around April 2017 (as recorded by a notation made by Registrar Coutts in April 2017, which notation also recorded that the terms of the sale were in issue: it being pertinent to also note that correspondence between the parties reveals that the issue of the sale of the house was discussed as far back as mid 2015[3]), subsequent proceedings relating to the sale of that property make it clear that this agreement was but a thin veneer, camouflaging their disagreement about the minutiae of various aspects of the sale.
[3] See affidavit of the mother filed 19 May 2017 at [21] – [25].
Such has been their inability to resolve matters in contention between them that, ultimately, on 25 July 2017, Justice Forrest appointed a Trustee for Sale to undertake the sale of that property, the parties’ most valuable asset.
That the prospect of losing control of the sale process for their most valuable asset was insufficient to motivate these parents to yield sufficiently to each other as to make the same unnecessary (particularly remembering that the sale of the property had, ostensibly, been earlier agreed) illuminates the pervasiveness of their inability to compromise with each other – even where compromise is likely to have been to the financial benefit of each of them. Each holds the other almost entirely responsible for the various impasses which have seen them return to this Court over and over again. Each seems willing to adopt an aspirational, rather than mandatory, approach to the interpretation of those terms of Orders which have required them to act in a particular way: on occasions, both parties have simply failed to comply with various Orders and directions.
It is against this background that I turn to consider, on the evidence before me, the competing parenting applications and the competing proposals for property adjustment orders advanced by each party. In doing so I also record that, despite numerous Orders and Directions being made on various occasions in what proved to be a vain attempt to have the parties provide relevant and recent evidence to assist in the determination of the various issues between them, both parties have chosen to abide some aspects of the same and to ignore some aspects of the same. I have little doubt that, generally speaking, each of them followed those aspects of the Orders and Directions that they thought would assist their respective cases and, on occasion, simply chose not to follow other aspects of the same. The consequence is that I am left simply to do the best that I can on the evidence that I have.
Introductory Overview
The mother was born in 1972 and is currently 45 years of age. She and the children live in Brisbane at an address unknown to the father. On the evidence before me, she remains supported by the receipt of government provided benefits although, during her oral evidence, she said that she had been offered a casual job during school hours at a place local to where she lives in Suburb R, but had not then started the same.
The father was born in 1973 and is currently 45 years of age. He lives in rented accommodation at K Town. He works in a business located in K Town. He usually works Monday to Friday between 4.00 am and 2.00 pm.
The children’s parents were first in a relationship between 1991 and 1996. Whilst the father denies that they remained in touch at all after this date, the mother asserts that they remained in touch infrequently by telephone, email, letters and occasional visits. Resolution of this dispute (being but one of so many) is unnecessary to the determination of those parenting orders which are in the children’s best interests and those property adjustment orders which are just and equitable.
More relevantly, the parties later recommenced their relationship. It is of no surprise that they disagree about when this occurred: the mother says this happened in December 2001 when she relocated from the UK to live in EE Town, Queensland with the father[4], whereas he says that they started to live together in about 2003.[5]
[4] Affidavit of the mother filed 16 October 2017 at [21].
[5] Affidavit of the father filed 27 March 2013 at [6].
My concerns about the evidence given by both parents at various times during the proceedings make this impasse somewhat difficult to resolve: both parents at times approached the giving of evidence with their own benefit more in mind than an objective recitation of the facts; each was, in my view, willing to obfuscate on occasions, albeit that they approached this task differently too. However, given that the father also asserted, in his Case Summary (filed 16 October 2017), that the parties commenced cohabitation in December 2001, I intend to proceed on the basis that it is more likely than not that the parents commenced cohabitation at the end of 2001.
The parents married in 2004.[6] They separated in September 2012: resolution of their disagreement about the date (on the mother’s account it was on 17 September 2012 and on the father’s account it was on about 2 September 2012[7]) is unnecessary because it makes no difference to the ultimate resolution of those orders which are in the children’s best interests and those orders which are just and equitable. It is sufficient to record that it appears that their cohabitation was, therefore, of a duration of nearly eleven years.
[6] Affidavit of the mother filed 16 October 2017 at [25].
[7] Affidavit of the father filed 27 March 2013 at [8].
At the time of their parents’ separation, X had just turned six years and Y had just turned three years of age. Both children remained living with their mother in the former matrimonial home.
A history of operative parenting Orders
Following the commencement of proceedings in March 2013, Judge Howard first made interim parenting orders on 3 June 2013. At that time, X was nearly seven years of age and Y was nearly four years of age. The June 2013 Order provided that the children live with their mother and spend time with the father every Saturday, supervised by Ms DD and/or Mr DD at their residence.
On 10 December 2013, further interim orders were made by Judge Howard. The December 2013 Orders provided that the parents have equal shared parental responsibility for the children; that the children live with the mother and spend unsupervised time with their father each Saturday: changeover was to occur inside the K Town Police Station or, if it was closed, outside it.
On 14 February 2014, the changeover location was moved to K Town Shopping Centre, where it has continued to be to date, for at least one of the transitions the children make between their parents’ care.
Judge Howard made further interim Orders on 16 June 2014. The June 2014 Orders provided that the parents have equal shared parental responsibility for the children; that the children live with the mother and spend time with the father from 4.00 pm Friday to 4.00 pm Sunday each alternate weekend and for one half of the 2014 June/July and September/October school holiday period.
At that time, the matter was listed for final hearing for not more than six days, commencing on 8 December 2014. As noted earlier, the parties’ first trial proceeded between 8 and 11 December 2014.
On 12 December 2014, Judge Howard made final parenting orders by consent. At that time, X was eight years of age and Y was five years of age. The December 2014 Order provided that the parents have equal shared parental responsibility for the children; that the children live with their mother and spend time with their father from 3.00 pm Friday to 3.00 pm Sunday every alternate weekend; further orders also provided that the children’s time with their father increase over time until it reached the point where they would spend seven consecutive nights with him during the school holidays from 2016 onwards. X would turn ten toward the end of 2016, whilst Y would turn seven toward the middle of that year.
On 16 February 2015, Judge Howard ordered that both children retain the surname “Darley”. He also restrained the mother from referring to the children by any other surname.
On 9 and 12 January 2015 and 16 March 2015, the mother filed Notices of Appeal in respect of the December 2014 Orders. On 13 May 2015, Judge Howard adjourned the matter to await the finalisation of the mother’s appeal against the December 2014 consent Orders.
On 4 February 2016, the Full Court dismissed the mother’s appeal.
On 29 August 2016, Judge Howard made further interim parenting orders. These included that the children live with the mother and spend time with their father from 9.30 am to 5.00 pm each Saturday; changeovers were to take place at the K Town Shopping Centre; the mother was to ensure that the children took all necessary medication before spending time with their father; both parents were ordered to ensure that neither child suffered sunburn.
Whilst the latter Order was, presumably, intended to deal with the concerns the mother had about the way the father managed - or, from her perspective, mismanaged - the children’s exposure to the sun, it in fact provided further fertile ground for additional dispute between these parents. A by-product of that dispute has seen the children photographed by both parents before they transition into the other’s care; they have also been taken to the Emergency Department of a public hospital on Christmas Day 2017 for what was, in my view, a clear attempt by the mother to gather evidence. It is clear that the manner in which the mother, in particular, has approached the existence of this prohibitive order is likely to have resulted in the children being exposed to emotional harm as a consequence of being embroiled in the parental disputes which have surrounded it. There could be little doubt that the children are both fully aware of the antipathy between their parents.
As already noted, on 13 October 2016, Judge Howard ordered, on a “final basis”, that the August 2016 interim orders remain in force. Consequently, these were the operative orders at the time the mother unilaterally changed the children’s living arrangements, in around November/December 2016, by relocating them from living in the former matrimonial home in C Town to Suburb R. That is, she did so despite the existence of an order for equal shared parental responsibility.[8]
[8] Whilst the August 2016 Order did not deal with the issue of parental responsibility, Order 1 of the Order made on 12 December 2014 provided that the parents have equal shared parental responsibility and this had not been discharged.
On 9 May 2017, the matter was listed for final hearing for four days commencing on 17 October 2017. On 20 October 2017 – the fourth day of trial – it was adjourned part heard to recommence on 13 February 2018, for a further two days.
On 14 February 2018, interim orders were made to provide that the children spend time with their father at all times agreed between the parents in writing, and, failing agreement, from after school Friday (with the father to collect the children from school at the commencement of time) until 3.00 pm on Sunday (with changeover to occur at K Town Shopping Centre). The February 2018 Order specified that the children’s time with their father occur on the weekends of 23 February, 9 March and 23 March 2018.
The February 2018 Order did not specifically provide for the children to spend time with their father during the end of Term 1 school holiday period; perhaps predictably, the parties were unable to reach agreement about whether the children should spend any time at all with their father: the father sought time, whilst the mother’s position was that, as the February 2018 Order did not specifically provide for any time during those school holidays, she would not facilitate the same.
This impasse resulted in the matter returning to Court again and, on 3 April 2018, further interim orders were made for the children to spend time with their father during the Easter 2018 school holiday period: they were to spend seven consecutive nights with him, provided that he provided written confirmation from his employer confirming that he had leave during this period to the Independent Children’s Lawyer and the mother. The April 2018 Order also provided that, in the event he had leave from work, the children would spend a number of consecutive nights with their father during the June/July 2018 holiday period.
On 3 April 2018, the father advised the mother and the Independent Children’s Lawyer that, due to the short notice, he was unable to secure the time away from his employment and, therefore, could not spend time with the children during the following week.
The April 2018 orders also provided that the children spend time with the father from Friday after school until 3.00 pm Sunday each alternate weekend. This time was to be suspended during the June/July 2018 holiday period if he father was able to spend a number of consecutive nights with the children; otherwise, their time together would occur on the alternative weekends.
On 21 September 2018, further interim orders were made to provide that the children spend time with their father for five consecutive nights during the September 2018 school holiday period.
Parenting proposals
The father
The father proposed that the children live primarily with him and spend time with their mother each alternate weekend (from 4.00 pm Friday until 4.00 pm Sunday) and during four weeks of the school holiday periods in each year (for two weeks of the Christmas school holidays and for two other weeks of school holidays). He proposed that the parents have equal shared parental responsibility for the children and that the mother be restrained from taking the children to counsellors without first obtaining his consent. He also proposed that each parent provide the other with eight weeks’ notice of prescribed things; that he be prohibited from smoking around the children and that the parents follow the recommendations of the children’s medical practitioners, which recommendations were to be relayed in a communication book. The father also sought that orders be made in fairly standard terms prohibiting the parents from denigrating the other, their religion or their family to or in the children’s presence; that neither parent discuss adult matters, including parenting arrangements and the court dispute, with or in the presence of the children and that both parents be restrained from using corporal punishment to discipline the children.
The father’s case that the children’s best interests will be met by an order for them to live primarily with him rests very heavily on the contention that, absent such a change, they will not be afforded the opportunity to have a meaningful relationship with both of their parents; he is concerned, given what he advances is the mother’s failure to support the children to have a relationship with him or spend time with him, that, if the children do not live primarily with him, they will not actually get to spend time with him on a regular and consistent basis into the future. He advances that he is the parent better able to support the children in having a meaningful relationship with both parents.
Despite advancing that he was the parent better able to deal with the children’s day-to-day needs, it was apparent from the father’s evidence during his cross-examination that he had made no inquiries about the local school’s ability to accommodate the children if they moved to live with him; he had not investigated whether the children could attend before and, perhaps, after school care if they lived with him and had not really, in my view, turned his mind to the practicalities of having them live with him whilst he continued his work as a tradesman which occupation requires him to be absent from the home between no later than 4.00 am and 2.00 pm on weekdays.
The mother
The mother proposed that the children continue to live primarily with her and that she be accorded sole parental responsibility for major long term decisions relating to them.
Her proposals for the children’s time with their father oscillated. According to formal documents, at one stage her proposal was that the children spend supervised time with their father at a Contact Centre for two hours every three months (that is, four times per year); she also proposed, at one stage, that the children spend time with him from 10.00 am to 4.00 pm each alternate Saturday (with changeover at the commencement of time to occur at McDonald’s Suburb R and changeover at the conclusion of time to occur at K Town Shopping Centre); however, she later proposed that all changeovers occur at Suburb R; she also later proposed[9] that the children should spend one night each fortnight with their father (from Friday after school until 5.00 pm Saturday each alternate weekend, with the father to collect the children at the start of their time with him and changeover at the end of their time with him to take place at a larger shopping centre than the K Town Shopping Centre, for example, S Town Shopping Centre). She also proposed then that the children should spend four consecutive nights in their father’s care during school holiday periods, including those at the end of Term 4 each year.
[9]Affidavit of the mother filed 20 October 2017.
However, the mother then reverted[10] to her earlier proposal that the children spend time (if unsupervised) with their father during the daytime only: from 10.00 am until 4.00 pm each alternate Saturday, with the father to collect the children from McDonalds Suburb R at the commencement of time and the mother to collect the children from K Town Shopping Centre at the conclusion of time. She also proposed that the children’s time with their father (if not supervised) occur during the daytime only on one Saturday each month, with changeovers to occur via U Group, V Town and that none of this time occur during school holiday periods, on her birthday or on Mother’s Day.
[10] During her submission made on 14 February 2018.
The mother’s proposal for the children’s time with their father was also attended – at least at some stage - by the proviso that, if there are “special occasions” that the children wish to attend, they do so and that, on the giving of two weeks’ notice, their time with their father be suspended to enable this to occur.
Like the father, she proposed that the parents not denigrate the other, their religion or family to or in the presence of the children and that each follow the recommendations of the children’s medical practitioners – however, she widened the scope of this to include paediatricians, immunologists, general practitioners and occupational therapists. She sought that the father be restrained from involving the children in all things associated with his religion and that he be ordered to allow the children to follow their religious beliefs. She also sought that the father “not sunburn the children”, that he be prohibited from using corporal punishment and that he pay half of the children’s schooling and educational expenses.
The mother also sought to retain the children’s passports and that they be permitted to travel internationally without their father’s written consent, provided that she give him one month’s notice of her intention to remove the children from Australia for holiday travel.
The mother also sought that the father be restrained from: committing domestic violence; discussing these proceedings in the presence or hearing of the children; communicating with the children by any means except in accordance with Orders; contacting her directly or indirectly, except as specifically mentioned in the Orders; assaulting, molesting, harassing, interfering, stalking or intimidating her and the children or entering any place at which she may work or live or be within 500 metres of her; attending upon any school or educational facility or at any appointments attended by the children, except as specifically mentioned in Orders.
In the event that it was ordered that the children live with their father, the mother sought that they spend time with her on alternate weekends and for half of the school holidays. She also sought that the children spend all of her birthday with her.
The Independent Children’s Lawyer
The Independent Children’s Lawyer proposed that the Court would be persuaded that it is in the children’s best interests that they live with their father and that he be accorded sole parental responsibility for major long term decisions relating to them. It was advanced that the children spend no time with their mother for twenty-eight days after the final parenting order was made and that, thereafter, they spend time with her each alternate weekend, from after school Friday until before school Monday during school terms and for half of each school holiday period.
The Independent Children’s Lawyer supported the making of orders restraining the parents from photographing the children for the purposes of establishing their state or condition at, shortly prior to, or after any changeover and that both be restrained from commencing, or re-listing, proceedings for parenting orders within two years from the date of the Order.
In the event that it was determined that it is in the children’s best interests to remain living primarily with their mother, the Independent Children’s Lawyer submitted that, provided that the father remain living in the area in which he currently lives, the children should spend time with him each alternate weekend and for half of each school holiday period.
Family Reports
Ms T’s Family Reports: 25 November 2013 and 6 May 2014
Ms T has previously provided two reports: the first followed interviews she conducted in mid-October 2013; the second was prepared following the Independent Children’s Lawyer providing her with subpoenaed material; it did not involve further direct engagement with either the parents or the children.
The mother took significant issue with Ms T’s reports: she did not accept the recommendations or the process or that Ms T was qualified to undertake the process or express the opinions that she did. She contended that Ms T ignored the issue of the family violence she raised and, thus, demonstrated that she was biased and her report unreliable.
Given the passage of time after Ms T’s involvement in this matter, the current Independent Children’s Lawyer attempted to ensure that the Court was provided with an updated family report.
Such attempt was thwarted by the mother’s deliberate decision not to participate in the process. As was pointed out to her during the hearing, this has consequences: one of these is that the Court does not have the benefit of any evidence about the children’s current wishes. Again, I am left to do the best that I can with the evidence that I have.
In doing so, I am not prepared to discount the possibility that a further matter which likely influenced the mother’s decision not to participate in the family report process and not to facilitate the children participating in the same was that she was concerned that the children’s reports to Mr H about their time with their father, and Mr H’s observations of the children’s reactions with their father, might, in fact, be harmful to her case and/or support the father’s case.
The attempts to engage Mr H: June 2017
Having been advised of the upcoming interviews which had been arranged with Mr H, the mother wrote to him on 27 June 2017 to obtain his qualifications and details of his expertise to prepare the report. Her account of this, in essence, is that he failed to respond to her query and, consequently, she was justified in determining not to attend and not to make the children available to participate in the interview process.
What I accept happened though, differs from the manner in which the mother seeks to portray events.
I accept that the mother wrote to Mr H on 27 June 2017 with an extensive list of queries (about things like: his qualifications, knowledge and understanding of, and in relation to, family violence; his training, knowledge and experience working with children with disabilities, including Autism Spectrum Disorder; his belief in Parental Alienation Syndrome or Parental Alienation; if he held any mental health qualifications). I also accept that this query – which contained not a single piece of information by which Mr H could have gleaned that it was from the mother – also asked him about the costs associated with the preparation of a report: that is, the request purported to be from a prospective client inquiring about the report process, rather than as being from a parent in respect of whose matter Mr H had already been engaged to prepare a report.
Given the complete absence of any identifying detail whatsoever, it is unsurprising that Mr H’s response – sent on 27 June 2017 – was: “I have no idea who you are or why you are asking these questions. Would you care to elucidate?”
I accept that the mother continued with her subterfuge when she replied to Mr H by email on 4 July 2017 to tell him that: “I require someone qualified in certain areas to do an assessment for me, so I wish to know your qualifications prior to engaging your services.”[11]
[11] Affidavit of the mother filed 21 September 2017 at Annexure “MM1”.
I accept that Mr H replied to this email that day to advise that he had postgraduate qualifications in social work and had been involved in the production of family reports for over 23 years (which involved him in working directly for the Court from 1994 until 2002; managing a small team of social scientists at Legal Aid Queensland from 2002 to 2015; and working in private practice since 2015). He also advised the mother (albeit that he did not appreciate that he was doing so) that it was not possible to do his work without having a comprehensive theoretical understanding of the issues which affect families. He also advised that the majority of his practice involved direct referrals from the Court or from solicitors working as Independent Children’s Lawyers on behalf of Legal Aid Queensland.[12]
[12] Affidavit of the mother filed 21 September 2017 at Annexure “MM1”.
The mother contended that, in this reply, Mr H failed to address the matters that she had raised in her email and failed to outline his expertise.
Whilst the father attended on Mr H for his scheduled interview on 11 September 2017, the mother and the children did not attend as anticipated.
I accept Mr H’s evidence to the effect that the mother advised the Independent Children’s Lawyer of her non-participation early on that day. I accept that he (Mr H) provided an alternative time at which he could interview the mother and the children. I also accept that the mother did not agree to that proposal either. She subsequently wrote to the Independent Children’s Lawyer on 12 September 2017 to advise that she would not be attending the family report interviews arranged for 18 September 2017: she also took issue with Mr H’s qualifications in the ways that she particularised in her correspondence and asked that she be provided with a copy of his curriculum vitae and a list of all courses and training he had undertaken.[13]
[13] Affidavit of the mother filed 21 September 2017 at [12].
The matter was then relisted. The Order made on 22 September 2017 provided for the mother and the children to attend an appointment with Mr H at 2.00pm on 2 October 2017.
I accept that, on 29 September 2017, the mother forwarded certain documents to Mr H by email. I accept that part of this communication included her request that he “Kindly advise what safety plans have been put in place for the Family Report Interviews”. It should not be forgotten that, as at this date, the operative Order (that made in August 2016) required the children to spend time with their father each Saturday between 9.00am and 5.00pm, with changeovers to occur at the K Town Shopping Centre: that is, both parents were attending at that shopping centre at the same time to transition the children between them.
Given this context, I accept Mr H’s evidence to the effect that he had intended to discuss the mother’s safety needs with her directly when she arrived at the appointment.
I also accept that, at 1.22 pm on 2 October 2017 (that is, about 38 minutes before the scheduled interview was to occur), the mother emailed Mr H to tell him that, as she had not received a response back about a safety plan for the interviews, she and the children would not be attending interviews that day.
I think it much more likely than not that the mother had firmly resolved that neither she nor the children would participate in any further family report interviews: she had been unhappy with Ms T’s report and its criticisms of her behaviour and I think it much more likely than not that she simply decided that she was not going to participate in the production of any form of assessment that might not support her position as the children’s primary carer.
As a result of the mother’s decision, neither she nor the children were afforded the opportunity to be interviewed by Mr H. Her decision prevented Mr H from being in a position to make any recommendations about future parenting arrangements, other than those which could be made based on the fact of the mother’s decision not to participate in the process: it also meant that the mother eliminated the risk that she might have to confront, in her case, opinions of a nature similar to those voiced by Ms T, which had been critical of her and her approach to parenting.
Having, in my view, deliberately engineered the circumstances which she thought would support her determination not to participate in the interviews for an updated family report, the mother then sought to criticise Mr H’s report as erroneous and incorrect[14]; her complaints included that the affidavits and supporting documents provided to him were not listed and that the father had provided him with erroneous information. Of course, had she participated in the process, the mother would have been afforded the opportunity – as she was by Ms T – to recount to Mr H her account of events and incidents and to voice her criticisms and complaints about the father as a person and a parent.
[14] Affidavit of the mother filed 16 October 2017 at [526].
Further, given her reactions to Mr H’s answers to her cross-examination of him, she would have afforded someone whom I regard as having lengthy experience in considering the various issues associated with family violence, in all of its guises, the opportunity to proffer opinions to assist the Court in its deliberations.
Her evidence was that Mr Darley withdrew $200.00 per week under the guise of petrol expenses; she said she did not know what he spent this money on. She said he admitted to her that he had smoked for about two years behind her back; she said that, as he is dishonest, it was likely that he smoked behind her back for four years. Mr Darley denied drawing money under the guise of petrol expenses.
Given that the notional adding-back of property no longer in existence is an exception rather than the rule,[72] I am not persuaded that it is just and equitable in the circumstances of this case to notionally add-back the funds sought by Ms Darley. Even if this conclusion is wrong, I am not persuaded on the evidence that Ms Darley has discharged the evidentiary onus of establishing the quantum she seeks be added-back.
[72] M v M [1998] FamCA 42; Cerini v Cerini [1998] FamCA 143, [46]; Omacini v Omacini (2005) FLC 93-218, [39]; Kouper v Kouper (No 3) [2009] FamCA 1080, [107].
Notional adding-back of funds removed by Ms Darley at separation
Mr Darley sought that funds removed by Ms Darley in the lead up to and/or at separation (being $20,334.92 from the parties’ joint Westpac account) be notionally added back to the value of the property of the parties. Again, given that this is the exception rather than the rule and given that nothing in the Act or the case law requires that parties “go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements” and that each party is entitled to continue to provide for their own reasonable support,[73] I decline to do so, but will take this matter into account in determining those orders which are just and equitable in all the circumstances of this case.
[73]M v M [1998] FamCA 42 at [211].
Notional adding-back of sale proceeds alleged to have been received by Mr Darley
Ms Darley also sought that the sum of $41,600.00 be notionally added-back into the value of the property of the parties, being what she alleged were the sale proceeds Mr Darley received from the sale of two motor vehicles and a jet-ski.
Mr Darley said, and I accept, that he in essence sold the jet-ski to repay his employer those funds he had borrowed from him in order to pay the bond for the premises into which he moved after separation. I accept his evidence about the extent to which he was constrained in accessing funds following separation.
In a manner consistent with that I have determined to apply in dealing with those other matters in respect of which a notional adding-back of funds no longer in existence has been sought, I decline to notionally add-back funds relating to these items.
The s 79(4) considerations
In considering the relevant matters mandated by s 79 of the Act, it must be remembered that: “community of ownership arising from marriage has no place in the common law”[74]; and there is no presumption of equality of contribution between parties to a marriage, irrespective of the length of their union;[75] and the exercise of the discretion conferred must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity.[76]
[74] Stanford v Stanford (2012) 247 CLR 108, [39] citing Hepworth v Hepworth (1963) 110 CLR 309, 317 per Windeyer J.
[75] In the Marriage of Mallet (1984) 156 CLR 605.
[76] Bevan v Bevan (2013) FLC 93-545, [73].
The parties’ contributions
I accept that Mr Darley purchased a property at LL Street, EE Town in 1998 for approximately $134,000.00 and that this was registered in his sole name. I note that Mr Darley’s position is that, when the parties recommenced their relationship, he owed about $114,000.00 on the loan obtained to buy the EE Town property. Whilst he said that he also had about $50,000.00 in a Commonwealth Bank account, I am sceptical about this assertion in the absence of any documentary corroboration of the same: after all, there is no explanation provided for the reason which underpinned the apparent decision to keep such a significant amount of money separate and not using it to reduce the borrowings (and, therefore, the interest payable on the same) secured over the property. I accept that he had negligible superannuation interests.
Whilst Mr Darley’s view is that he and Ms Darley had approximately the same by way of financial resources at the start of their cohabitation, I am not persuaded that this is the case. I accept that it is more likely than not that Ms Darley made a greater financial contribution at the commencement of the cohabitation. I think it more likely than not that Ms Darley’s initial financial contribution was about $107,000.00, representing the total of funds she had saved whilst living and working overseas and funds she had in an ANZ bank account in Australia.
I accept that the combination of Mr Darley’s earlier acquisition of the EE Town property and the application of Ms Darley’s funds to the same was to the parties’ joint financial benefit. I accept that they also used the redraw facility secured over the property to withdraw funds to meet living expenses, acquire cars and go on holidays. I accept that, when the parties sold the EE Town property in 2008, it was sold for about $340,000.00. I accept that they used the funds they received from this sale to acquire vacant land at C Town (for about $155,000.00) and applied the balance toward the construction of a house on the same (at a cost of about $350,000.00). I also accept that they borrowed about $250,000.00 from Westpac bank in order to fund the balance of the costs of building the former matrimonial home and a shed at a cost of about a further $35,400.00.
Whilst Ms Darley asserted that Mr Darley’s parents stayed with them for various periods of time and thereby depleted their funds, I am not persuaded on the evidence before me that I can appropriately quantify the same.
I accept that, during the parties’ cohabitation, Mr Darley, who was paid in cash, would put his money on the bench and Ms Darley would go and bank his salary into the parties’ joint account and pay the bills. I accept that each of Mr Darley and Ms Darley had a key card linked to the joint account. I also accept as more likely than not that it was Ms Darley who managed the family’s finances and on occasion called Mr Darley to account about his expenditure as revealed to her when she checked bank statements using the computer.
I accept that Ms Darley received an inheritance of $121,157.21 following her father’s death in June 2009. I also accept that she retained these funds in a bank account which was in her name only. I think it more likely than not that some of these funds were used – at least by Ms Darley – during the cohabitation and I also accept that the balance of the same (in an amount of about $109,000.00) remained held by her when the parties separated in September 2012.
Whilst I accept that Ms Darley was responsible for paying the mortgage repayments, insurances, rates and various maintenance costs associated with the former matrimonial home in the period between the September 2012 separation and when she unilaterally arranged for tenants to move into the property in November 2016 (and that the same amounted to about $56,555.30 or about $11,311.06 per year or about $217.00 per week), she and the children were living in the home whilst Mr Darley was renting accommodation at a cost of about $330.00 per week.
I accept that Ms Darley unilaterally decided to rent the former matrimonial home out and that she did not give Mr Darley any notice of her intention to do so and that she did not provide him with the opportunity to seek to collect any of his belongings which then remained in the shed; I also accept that she received all of the rent and applied it as she thought fit after she placed tenants in the property. I accept that some of the rental monies were likely applied to meet the mortgage expenses and that she applied the balance to paying living expenses. I accept that Mr Darley received none of the rental monies.
I consider that both Mr Darley and Ms Darley contributed to the overall operation of the household, albeit in different ways. I accept that Mr Darley cooked the family’s evening meal on all days save for Sunday. I accept that Mr Darley cared for the children for periods of time before and after they attended day-care on those days when Ms Darley worked. I accept that he did the mowing and outside yard work and also vacuumed the house on occasions. I accept that he applied his income for the support of the family. I also accept that, when she was engaged in paid employment outside the home, Ms Darley applied her income to the support of the family. I accept that, when she wasn’t engaged in paid employment outside the home, she was financially supported by Mr Darley. I accept that Ms Darley was a homemaker between August 2007 and the end of 2007; I accept that she returned to employment on a part-time basis (three days per week) from May 2008 to August 2009. I accept that she took twelve months maternity leave from August 2009 and that, after she returned to paid employment in about August 2010, was made redundant in May 2013.
I accept that Mr Darley has paid child support as assessed. I also accept that he has not made any particular additional financial contribution to the support of the children, save for meeting their costs when they have spent time with him.
Noting that, in assessing the contributions made by the parties, the Court embarks upon a process involving the exercise of a broad discretion in respect of which reasonable minds may differ and that, whilst this process is neither an accounting or mathematical exercise,[77] it does involve a movement from “a qualitative evaluation of contributions to a quantitative reflection of such evaluation” (that is, a “leap” from words to figures),[78] I consider that, when the contribution of Ms Darley’s inheritance is excluded, Mr Darley and Ms Darley made equal contributions, albeit in different ways, during their cohabitation.
[77] See: Norbis v Norbis (1986) 161 CLR 513 at 522; Brandt v Brandt (1997) FLC 92-758.
[78]Steinbrenner v Steinbrenner [2008] FamCAFC 193 at [234] per Coleman J.
However, I consider that Ms Darley’s contributions in the period since separation have exceeded those made by Mr Darley. I accept that she has made greater contribution to the care of the children since then, although I also note that this has, on occasion, been as a result of her attitude toward him caring for the children. Even with that, though, it is clear that Ms Darley has provided the majority of the children’s care since September 2012.
None of the orders proposed by either party will have any effect on the earning capacity of either party.
Discussion of relevant s 75(2) matters
As noted earlier, Ms Darley is 45 years old. As at October 2017, she received Centrelink payments of about $20,000.00 per year. As noted earlier, she had received a job offer but was yet to start paid employment. Whilst Ms Darley said that she had previously suffered a work place injury (in November 2010) which resulted in her being assessed as having a 4 per cent permanent impairment and that she has some degenerative changes in her spine and also suffers from asthma which is managed with medication, such impairments have seemingly not prevented her from obtaining the paid employment to which I have referred. I also note that Ms Darley has previously worked as a legal secretary, although she had not worked in that field for nearly eight years; before she received a lump sum redundancy payment of $18,657.53 on 31 May 2013; she worked for the Department of Attorney-General and Justice as an administration officer.
Given that Ms Darley has the funds at bank which represent the monies she inherited, her financial position is significantly relatively superior to that of Mr Darley.
Mr Darley is also 45 years of age; he works as a tradesman and is currently in full-time employment: he earns approximately $747.00 each week.[79] I accept that his average weekly expenses are about $642.00[80], included in which was, at one stage, a payment of child support in the amount of $60.00 per week.[81] I also accept though that during his cross-examination he said that his child support amount of $43.00 per week had been calculated using a taxable income amount of $36,722.00. The contents of a Child Support Assessment for the period from 8 May 2018 until 30 November 2018 predicted that Mr Darley was liable to pay $191.00 per month to Ms Darley by way of child support. I also note that Mr Darley accepted that, other than meeting the costs associated with the children’s time with him, he does not make any additional financial contribution to their support.
[79] Financial Statement of Mr Darley filed 9 October 2017.
[80] Financial Statement of Mr Darley filed 9 October 2017.
[81] Financial Statement of Mr Darley filed 9 October 2017.
I consider it much more likely than not that each of Mr Darley and Ms Darley are healthy enough to engage in paid employment. Whilst Ms Darley will continue to be primarily responsible for the children’s day-to-day care, the time that they will spend with their father in accordance with the final parenting order will ensure that he is required to share more in this burden than has previously been the case; given the increase in their time with him, he will also be required to financially support the children to a greater extent during their time with him.
Justice and equity of the proposed orders
Having regard to the parties’ respective contributions during their cohabitation and after their September 2012 separation and taking into account the relevant “future needs” considerations, I am satisfied that, in all the circumstances of this case, the orders which are just and equitable are orders which result in:
a)Ms Darley to retain the entirety of the funds she inherited, the property currently in her possession (including that which I accept she removed in the lead up to and at or around the September 2012 separation and those chattels which she retained at that time and which were under her control then and until she ceased to live in the former matrimonial home in about November 2016), her entitlements to superannuation; and
b)Mr Darley to retain the property currently in his possession (including whatever proceeds he received from the sale of motor vehicles and whatever chattels he has in his possession) and his entitlement to superannuation (noting that it is more likely than not that there has been an increase in the value of the same in the more than six years since he and Ms Darley separated and that such increase is likely to have occurred, at least in part, as a consequence of his continued engagement in paid employment); and
c)each of Ms Darley and Mr Darley receiving half of the nett sale proceeds obtained from the sale of the former matrimonial property.
I decline to make an order that would see Mr Darley being responsible for meeting the costs of the Trustee for Sale as I consider that the conduct of both of the parties resulted in the need for such appointment. I also decline to make an order that Mr Darley reimburse Ms Darley for half of the expenses she met whilst she and the children lived in the former matrimonial home after the September 2012 separation because I am not satisfied in all the circumstances that it is just and equitable to make such an order: in this respect, I place particular weight on my conclusion that it is more likely than not that Mr Darley’s rental costs exceeded the costs Ms Darley met whilst living in that property and that she received the entirety of the rental income from it after she unilaterally rented it out in about November 2016.
Whilst not the subject of a specific order, I note that Mr Darley has previously been ordered on 26 May 2017 to deliver the original DVD recording of X’s christening and a DVD on which his and Ms Darley’s wedding has been recorded and certain photographs of both occasions to Ms Darley. Nothing in the Order I make absolves him of that responsibility and he should attend to that issue as a matter of urgency.
Potential Applications for costs
Given that Mr Darley sought an order that Ms Darley pay his costs of and incidental to the proceedings on an indemnity basis and that the Independent Children’s Lawyer foreshadowed an application seeking an order for costs against each of Mr Darley and Ms Darley, the orders made will afford to the parties the opportunity to seek an order for costs and to be heard via the provision of written submission about the same, following which any such application will be determined in chambers.
I certify that the preceding three hundred and twenty-five (325) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 18 December 2018.
Associate:
Date: 18 December 2018
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