DEEGAN & DEEGAN
[2019] FCCA 2122
•5 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEEGAN & DEEGAN | [2019] FCCA 2122 |
| Catchwords: PROPERTY – Whether it is just and equitable for the wife to retain the family home – where she claims certain items as “add-backs”. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 64B, 75, 79 |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116 |
| Applicant: | MR DEEGAN |
| Respondent: | MS DEEGAN |
| File Number: | MLC 10087 of 2017 |
| Judgment of: | Judge Small |
| Hearing dates: | 21 & 22 November 2018 |
| Date of Last Submission: | 22 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Grant |
| Solicitors for the Applicant: | Bentleys Barristers & Solicitors |
| Counsel for the Respondent: | Mr Whitchurch |
| Solicitors for the Respondent: | Julie Taylor |
ORDERS
PARENTING ORDERS
All previous parenting orders in relation to the children [X] born … 2012 (“[X]”) and [Y] born … 2014 (“[Y]”) (collectively “the children”) are hereby discharged.
The parents shall have equal shared parental responsibility for the children.
The children shall live with the mother.
The children shall spend time and communicate with the father as follows:
(a)During school terms:
(i)on each alternate weekend from the conclusion of school or kindergarten on Friday (or 3:30 p.m. if not a school day) to 5:30 p.m. on Sunday until the end of the second term of the year in which [Y] commences school;
(ii)on each alternate weekend from the conclusion of school on Friday (or 3:30 p.m. if not a school day) to the commencement of school on Monday from the beginning of the third term of the year in which [Y] commences school;
(iii)on each Wednesday from the conclusion of school or kindergarten to 7:00 p.m. until the last Wednesday of the school year in which [Y] is in Year 1;
(iv)on each alternate Wednesday from the conclusion of school to the commencement of school on Thursday from the first Wednesday of the first term in the school year in which [Y] is in Year 2;
(v)From 5:30 p.m. on the evening before Fathers’ Day to 5:30p.m. on Fathers’ Day each year should it fall on a weekend when the children would otherwise be in the mother’s care pursuant to these Orders;
(vi)By telephone, Skype, FaceTime or other electronic means between 5:30 p.m. and 6:00 p.m. on each Monday and Friday that the children are not in care of the father pursuant to these orders, with the father to make the call to a number provided by the mother, and the mother to ensure that the children have access to a fully charged and operating telephone, tablet or computer, that they are available to take the call, and that they are afforded privacy during the call;
(b)During the school term holidays by agreement between the parties in writing, and failing agreement:
(i)until the Term 3 holidays in the year in which [Y] first goes to school from the conclusion of school on the last day of term to 5:30 p.m. on the day four days later, and from 5:30 p.m. on the last Wednesday to 5:30 p.m. on the last Sunday;
(ii)from and including the Term 3 holidays in the year in which [Y] first goes to school from the conclusion of school on the last day of term to 5:30 p.m. on the second Saturday in even numbered years and from 5:30 p.m. on the second Saturday to the commencement of the next school term in odd numbered years;
(c)During the long summer holidays in 2019-2020 for 15 days and nights by agreement between the parties in writing and failing agreement:
(i)From 5:30 p.m. on the first Saturday to 2:00 p.m. on Christmas Day;
(ii)From 5:30 p.m. on 4 January 2020 to 5:30 p.m. on 9 January 2020; and
(iii)From 5:30 p.m. on 18 January 2020 to 5:30 p.m. on 23 January 2020;
(d)For half of the long summer holidays in 2020-2021 by agreement between the parties in writing and failing agreement, on a week about basis beginning with the mother having the first week;
(e)For half of the long summer holidays in 2021-2022 and each year thereafter by agreement between the parties in writing and failing agreement:
(ii)For the first half in 2021-2022 and in each alternate year thereafter; and
(iii)For the second half in 2022-2023 and in each alternate year thereafter;
and for the purposes of this order, the long summer holidays shall be deemed to begin at 5:30 p.m. on the first Saturday and to conclude at 5:30 p.m. on the last Saturday;
(f)From 2:00 p.m. on Christmas Day to 2:00 p.m. on Boxing Day in 2020 and in each alternate year thereafter and from 2:00 p.m. on Christmas Eve to 2:00 p.m. on Christmas Day in 2021 and in each alternate year thereafter;
(g)From the conclusion of school (or 5:30 p.m. if not a school day) on the day before Good Friday to 5:30 p.m. on Easter Saturday in even numbered years and from 5:30 p.m. on Easter Saturday to 5:30 p.m. on Easter Monday in odd numbered years should the children not otherwise be spending time with the father pursuant to these orders;
(h)From the conclusion of school to 7:00 p.m. on the day before each of the children’s birthdays in even numbered years and from the conclusion of school to 7:00 p.m. on each of the children’s birthdays in odd numbered years should the birthday fall on a school day, and from 2:00 p.m. to 6:00 p.m. in even numbered years and from 10:00 a.m. to 2:00 p.m. in odd numbered years should the birthday fall on a non-school day when the children are not otherwise spending time with the father pursuant to these orders;
(i)From the conclusion of school to 7:00 p.m. on the father’s birthday should it fall on a school day, and from 2:00 p.m. to 8:00 p.m. should the birthday fall on a non-school day when the children are not otherwise spending time with the father pursuant to these orders;
(j)At other times by agreement between the parties in writing.
The time the children spend with the father pursuant to paragraph 4(a) hereof shall suspend during all school holidays and shall resume after the holidays as if the holidays had not intervened.
The time the children spend with the father pursuant to paragraph 4 hereof shall suspend, if necessary, on the following occasions:
(a)From the conclusion of school to 7:00 p.m. on the day before each of the children’s birthdays in odd numbered years and from the conclusion of school to 7:00 p.m. on each of the children’s birthdays in even numbered years should the birthday fall on a school day, and from 2:00 p.m. to 6:00 p.m. in odd numbered years and from 10:00 a.m. to 2:00 p.m. in even numbered years should the birthday fall on a non-school day when the children are otherwise spending time with the father pursuant to these orders;
(b)From 2:00 p.m. on Christmas Eve to 2:00 p.m. on Christmas Day in 2020 and in each alternate year thereafter, and from 2:00 p.m. on Christmas Day to 2:00 p.m. on Boxing Day in 2021 and in each alternate year thereafter;
(c)From the conclusion of school until 7:00 p.m. on the mother’s birthday each year should it fall on a school day and from 2:00p.m. until 8:00 p.m. if it should fall on a non-school day when the children are otherwise spending time with the father pursuant to these orders;
(d)From 5:30 p.m. on the evening before Mothers’ Day to 5:30 p.m. on Mothers’ Day each year;
(e)At other times by agreement between the parties in writing.
The father shall collect the children from their school/kindergarten at the commencement of time on school days, and from the McDonalds restaurant in Town A on non-school days, and the mother shall collect the children from the McDonalds restaurant in Town A at the conclusion of time unless otherwise agreed between the parties in writing no less than 48 hours before the changeover is due to take place.
The mother shall ensure that the child’s school makes available to the father, at the father’s expense if any, all school reports, photographs, information about parent-teacher interviews, sporting or cultural events, and information about all prizes or awards won by either of the children, and the parents shall both be at liberty to attend parent-teacher interviews, at different times should they so choose, and all sporting or cultural events usually attended by parents.
The parties shall each inform the other of any serious illness or injury suffered by the children or either of them which requires hospitalisation or specialist treatment while they are in their respective care, and they shall authorise any treating medical or allied practitioners who are treating the child or children to speak to the other parent about the children’s treatment.
The parties and their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, criticising, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the children or either of them and from permitting any other person to do so;
(b)discussing these proceedings with or in the presence or hearing of the children or either of them (save to explain any changes in their living circumstances to them) and from permitting any other person to do so; and
(c)allowing the children or either of them to access, read, or have read to them, any portion of the Court’s Reasons for Judgment in this matter.
PROPERTY ORDERS
Within 90 days of the date of these orders (“the due date”) the wife shall do all such acts and things and sign all such documents as may be necessary to discharge the mortgage registered number … held over the property known as and situated at B Street, Suburb C in the state of Victoria being all that parcel of land described in Certificate of Title Volume … Folio … (“the real property”) (“the discharge of mortgage”).
Contemporaneously with the discharge of mortgage:
(a)the wife shall pay to the husband the sum of $3,845.00 (“the payment”); and
(b)the husband shall do all such acts and things and sign all such documents as may be necessary to transfer to the wife, at the expense of the wife, all his right, title and interest in the real property;
The husband shall forthwith transfer to the wife, at the expense of the wife, all his right, title and interest in the Motor Vehicle D currently in her possession.
If the wife fails to discharge the mortgage over the real property and/or fails to make the payment by the due date, the parties shall do all such acts and things and sign all such documents as may be necessary to place the real property on the market for sale (“the sale”), and the proceeds of the sale shall be distributed as follows:
(a)first to pay all costs and commissions of the sale;
(b)secondly, to discharge the mortgage over the real property;
(c)thirdly, to pay all joint debts of the parties as set out in paragraph 15 hereof; and
(d)fourthly, the remainder, if any, shall be divided so that there is an overall division of the parties’ non-superannuation assets in the proportions of 70% to the wife and 30% to the husband.
In the event that the wife discharges the mortgage and makes the payment to the husband, she shall be responsible for and forever indemnify the husband against all liability for:
(a)the $5,000 joint debt to the husband’s mother;
(b)the parties’ joint Visa credit card debt to Bank Q; and
(c)the parties’ joint home renovation loan from Bank Q.
The husband shall be liable for and forever indemnify the wife against all liability for his Westpac Mastercard credit card debt.
The husband shall retain for his own use and benefit absolutely:
(a)his tax refund for the 2015-2016 financial year;
(b)his Motor Vehicle E motor vehicle; and
(c)the monies received by him as a result of a motor vehicle insurance claim in … 2017.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders.
(b)monies standing to the credit of the parties in any joint bank account are to be divided between the parties in the proportion of 70 per cent to the Wife and 30 per cent to the Husband;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)each party forgoes any claim they may have to any inheritances or superannuation entitlements to which the other party is entitled either presently or in the future; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Deegan & Deegan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MORWELL |
MLC 10087 of 2017
| MR DEEGAN |
Applicant
And
| MS DEEGAN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and property proceedings arising from the breakdown in the marriage between Mr Deegan (“Mr Deegan” or “the husband” or “the father”) and Ms Deegan (“Ms Deegan” or “the wife” or “the mother”).
There are two children of the marriage, namely [X] born … 2012 (“[X]”) and [Y] born … 2014 (“[Y]”) (collectively referred to as “the children”).
The children currently live with their mother and spend time with their father pursuant to Interim Court Orders.
The parties are agreed that they should equally share parental responsibility for the children, and that the children should primarily live with the mother.
The father seeks further orders which would see him spending time with the children each alternate weekend from the conclusion of school on Friday to the commencement of school Monday, from the conclusion of school on Wednesday to the commencement of school Thursday in each alternate week, on special occasions, and for half of all school holidays.
The Mother seeks further parenting orders such that the children spend time with the Father each alternate weekend from after school Friday until 5:00pm Sunday, each Wednesday from the conclusion of school until 7:00pm, in school holidays, and on special occasions.
In terms of a property settlement, the husband seeks orders for the former family home at B Street Suburb C (“the Suburb C property”) to be sold, with the nett sale proceeds (if any) to be distributed 70% to the wife and 30% to him, for him to transfer to the wife at her expense his interest in a Motor Vehicle D motor vehicle owned by him but driven by her, and for him to have access to the Suburb C property to collect his personal belongings.
The wife seeks property orders that she retain the Suburb C property and discharge the mortgage, with a clause providing that and if she is unable to refinance the mortgage, the house be sold with the balance to be retained by her, and that the husband transfer the Motor Vehicle D vehicle to her at her expense.
The issues to be decided in this case are therefore:
PARENTING
A. How much time should the children spend with their father?
PROPERTY
B. Whether it is just and equitable to alter the parties’ property interests
C. If it is just and equitable, what are the property interests of the parties and what is their value?
D. What were the parties’ contributions to the property?
E. Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
F. In light of those findings, what Orders should be made to effect a just and equitable division of property between the parties?
Background
Mr Deegan is 38 years old, having been born on … 1980. He is a tradesman by occupation, working for Employer N in the Region F.
He suffers chronic shoulder pain as a result of a work related injury for which he takes prescribed medication to manage the pain. He is otherwise in good health.
Ms Deegan is 37 years of age, having been born on … 1982. She works on a permanent part-time basis as a professional.
The parties commenced their relationship in 1995 while they were still in high school. They commenced cohabitation in or about … 2006 and were married on … 2011.
Final separation occurred on 26 February 2016 when the Husband left the Suburb C property.
The children live with the Mother in the Suburb C property and [X] attends Suburb C Primary School. [Y] attends kindergarten.
The father spends time with the children each Wednesday from 3:30pm to 7:00pm and each alternate weekend from the conclusion of school on Friday until 3:30pm Sunday.
Ms Deegan had re-partnered, but was not living with her partner at the time of trial.
Mr Deegan has re-partnered with Ms G (“Ms G”). He lives with her and her two children, O and H, both of whom are in primary school, in rented accommodation in Town P.
Procedural History
The matter commenced with Mr Deegan filing an Initiating Application, Affidavit in Support, Notice of Risk and Financial Statement on 28 September 2017.
Ms Deegan filed her Response, Affidavit, Financial Statement and Notice of Risk on 10 November 2017.
The matter first came before Judge Harland in the Duty List on 14 November 2017 where a Child Inclusive Conference was ordered for the following day.
On 15 November 2017, interim parenting orders were made by the Court for the children to live with the Mother and spend time with the Father each Sunday from 9:00am to 6:00pm and each Wednesday from 3:30pm to 7:00pm until 28 January 2018. It was further ordered that from 20 January 2018, the children would spend time with their Father each alternate weekend from 3:30pm Saturday until 3:30pm Sunday.
On 14 February 2018, the parties attended a Conciliation Conference. The matter did not resolve.
On 15 February 2018, the Father filed an Amended Initiating Application and Affidavit in Support.
On 20 February 2018, the matter was listed for an Interim Defended Hearing before Judge Harland. Comprehensive Interim orders were made by the Court providing for the parties to have equal shared parental responsibility, for the children live with the mother, and for the children to spend time with the father each Wednesday from 3:30pm to 7:00pm, and in a graduated overnight time regime on alternate weekends. Further orders were made for Easter, Mothers’ Day, Fathers’ Day, the children’s birthdays, telephone/Skype/FaceTime contact, and various information sharing orders. Procedural orders were made for the matter to be listed for Final Hearing in the Morwell Circuit commencing 17 September 2018, and for preparation of a Family Report.
The Family Report prepared by Ms J, dated 30 July 2018, was released to the parties on 31 July 2018 (“the Family Report”).
On 3 September 2018, the Mother filed an Amended Response, Affidavit and Financial Statement.
On 6 September 2018, the Father filed his Trial Affidavit, an updated sworn Financial Statement, and an Affidavit sworn by his partner, Ms G.
On 13 September 2018, both parties filed their Case Outlines.
On 17 September 2018, the matter came before me for Final Hearing at Morwell Circuit, but unfortunately it was not reached, and was adjourned for Final Hearing with priority in the Morwell Circuit commencing 19 November 2018.
On 5 November 2018, the Father filed a further Affidavit.
On 21 November 2018, the Mother filed an Amended Case Outline.
Final Hearing commenced on 21 November 2018 and the matter ran for 2 days. Both the mother and the father were represented by counsel.
Witnesses at trial included the father, the mother, the father’s partner, Ms G, school teacher Ms K (“Ms K”), and family report writer, Ms J (“Ms J”).
Following the conclusion of evidence and submissions on 22 November 2018, interim parenting orders for school holiday time were made by consent between the parties. I otherwise reserved my decision.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the transcript of the trial on 21 and 22 November 2018, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Issue A: How much time should the children spend with their father?
The father’s evidence
The evidence on which the father relies is found in his Affidavit sworn on 26 September and filed on 28 September 2017 (“the husband’s first Affidavit”), his Affidavit sworn on 14 February and filed on 15 February 2018 (“the husband’s second Affidavit”), his Affidavit sworn and filed on 6 September 2018 (“the husband’s Trial Affidavit”) and his Affidavit sworn and filed on 5 November 2018 (“the husband’s final Affidavit”), in the Affidavit of Ms G sworn and filed on 6 September 2018, and in his and Ms G’s oral evidence given at the trial.
Mr Deegan’s case in relation to the children is essentially that Ms Deegan has systematically and deliberately attempted to cut him out of the children’s lives since separation, and that she has been particularly vociferous in this regard since she discovered the existence of his relationship with Ms G in … 2017[1].
[1] Mr Deegan and Ms G both depose that their relationship began in 2015, before the parties to these proceedings separated.
In relation to the history of his relationship with [X], it is his evidence that he suffered a workplace injury two months before [X]’s birth in 2012, and that he was therefore at home recuperating and receiving WorkCover benefits for the first 14 months or so of [X]’s life.
He deposes that “(t)he extended and very intimate time that I spent with [X] while he was very young has allowed me to form an enduring emotional and parental bond with [X]”.
He deposes further that he has “serious reservations about Ms Deegan’s ability to facilitate and encourage a relationship between the children and me as a father”.
Mr Deegan says that during the relationship and marriage, the mother often went out with her friends, sometimes staying away all weekend, and that she was content to leave [X] in his sole care on those occasions.
It is his evidence that that situation continued after [Y]’s birth, and that he was used to feeding, bathing and generally caring for both children while the mother was out.
After separation however, the father says that the mother restricted his time with the children to the extent that he was only permitted to spend a few hours at a time with them, and, until Orders were made in this Court in November 2017, never overnight.
At first, says the father, the mother wanted him to attend the Suburb C property to see the children every second day, although it is his belief that she did so in order to “entice me back to the former matrimonial home and to return to the relationship”.
Mr Deegan deposes that he was not permitted to take the children to his home, and that in the few months before issuing these proceedings, his time with the children was restricted to about two-and-a-half hours on Wednesdays and three hours on Saturday or Sunday.
He says that “(t)he times were never truly fixed and have repeatedly been changed at little or no notice”.
He complains that often when he has asked to see the children, the mother says that she has other plans for them at that time, but that the children have told him that they did not in fact do anything with their mother on the occasions when he asked to see them.
Further complaints relate to the mother unilaterally enrolling [X] in sports without telling him so that he was excluded from that activity; effectively sabotaging his telephone time with [X] and [Y] by monitoring the calls and interrupting their conversation; asking her parents to look after the children when she cannot instead of asking him at first instance; and restricting his time with the children on Christmas Day and on [X]’s birthday on the first of those occasions after separation.
The father says that when the mother discovered his relationship with Ms G, and I note that her discovery was a result of the children telling her that they had met Ms G, the mother followed him to his car, abusing and swearing at him in the presence of the children. It is his evidence that she then sent abusive text messages to him.
On another occasion, upon seeing that Ms G had accompanied the father to changeover, it is the father’s evidence that “Ms Deegan then ran toward me and began abusing me in the presence of the children”, telling him not to bring Ms G with him to changeover.
It is the father’s evidence that the mother told him in [X]’s presence that “[X] has anxiety” and that [X] had told him that he had not wanted to go to kindergarten on another occasion because “I was nervous”. When Mr Deegan asked [X] whether he knew what “nervous” meant, he said that he did not.
It is the father’s belief that any anxiety [X] experiences is the result of the conflict he feels between wanting to see his father and his mother making that very difficult for him.
On one particular occasion in September 2017, the father deposes that when the mother delivered the children to him at his mother’s home, she remained present, saying goodbye to [X] “around 5 or 6 occasions” which caused [X] considerable distress. It is his evidence that the mother “repeatedly” told [X] that if he was not comfortable with his father, he should tell his father that he wanted to come home, this causing [X] further distress.
Mr Deegan deposes that he refused to engage with Ms Deegan on these occasions as he was afraid that she would “make a baseless application for an Intervention Order”.
It is his evidence that despite him being “currently up-to-date with all child support payments made to Ms Deegan”, the mother “continues to deny allowing me any substantial time with the children”.
In his second Affidavit, sworn in response to the mother’s first Affidavit, Mr Deegan denies that he currently uses illicit substances as alleged by Ms Deegan, saying that “my employment involves high risk work at Employer N. Random drug testing is undertaken by my employer and I am not using any substances”. He concedes that the parties occasionally used drugs together during their relationship.
It is his evidence that any drugs he had been using during the period claimed by Ms Deegan had been prescribed by his doctors “following my shoulder reconstruction surgery”.
He is adamant that the mother’s allegations of him showing a lack of interest in the children are completely untrue.
He further denies allegations of family violence made by Ms Deegan saying that he has “on no occasions been abusive, smashed items nor accused Ms Deegan of having affairs nor called her offensive names”.
In addition, he adamantly denies having entertained friends and used drugs and alcohol while caring for the children on an occasion when the mother was away overnight.
He further denies the mother’s allegation that the parties’ sexual relationship continued until about September or October 2016, saying that their physical relationship ended when he left the family home in February of that year.
It is the father’s evidence that once interim orders were made in November 2017, his time with the children has been “extremely positive”.
He deposes that the children “relate extremely well” with Ms G and her children O and H, stating that “the home environment is happy and harmonious”.
Nevertheless, Mr Deegan complains that the mother speaks badly of Ms G to the children, and that he had not been told when [Y] was beginning kindergarten so that he missed her first day.
The father’s Trial Affidavit essentially repeats his previous evidence about his relationship with the children, and the children’s relationship with Ms G and her children.
He sets out further complaints about the behaviour of the mother, saying that she has (falsely) told [X] that his father has been in jail, that she has referred to Ms G as “dumb” and “stupid”, that she has told [Y] that she should sleep with [X] so that she is safe at her father’s home because “she is not safe at dad’s”, and that she has told the children they should not play with Ms G’s children.
Mr Deegan is further critical of Ms Deegan, saying that she attends changeover when he picks [X] up from school and [Y] from kindergarten, which, he says, confuses and unsettles the children. He says further that often on such occasions Ms Deegan’s parents are also present and that he finds the presence of Ms Deegan’s father in particular “intimidating”.
It is the father’s evidence that he is in “regular contact” with [X]’s class teacher and [Y]’s kindergarten, and that he receives information about how the children are progressing directly from those institutions. He says that the mother “will not share information related to the children with me”.
The father makes further complaint about the mother enrolling [X] in multiple extracurricular activities, particularly that she has enrolled him to play sports on Saturday morning and sports on Sunday morning, which, he says, impinges on his time with the children each fortnight. It is the father’s belief that [X] finds the extent of his extracurricular activities overwhelming, and that “such heavy involvement is not in his best interests”. He says that he will support the children engaging in extracurricular activities but is concerned that they not be overextended and that the activities be age-appropriate.
Mr Deegan says that the mother is unwilling to speak to him about these issues, and that their conversations consist only of “Ms Deegan dictating to me that I will have to take [X] to both activities. There is no real opportunity afforded to me to have input into these proposals”.
Pursuant to orders made by Judge Harland on 20 February 2018, the children were to commence full weekend time from 3:30 p.m. on Friday to 3:30 p.m. on Sunday on the Friday after Anzac Day in 2018. It is the father’s evidence that the mother simply did not send [X] to school on that day and that she made inadequate excuses for his absence. “Consequently”, deposes the father, “I did not have [X] for my first scheduled, court ordered and long-awaited, weekend time. This was very upsetting to me”.
Further complaints made by the father in this affidavit include that the mother had telephoned the children while intoxicated on 21 July 2018, that any clothing he provides to the children so they do not have to travel home in the clothes they arrive in – in [X]’s case his school uniform – is not returned to him, that [X] told him on one occasion that his mother had said that she would “really miss him” while he was with his father and that “you just have to start getting upset and cry until dad has to bring you home”, and that [X] hears his mother speaking to her friends on the phone about the time [X] spends with his father, [X] telling his father that such conversations “hurt my head”.
In his last affidavit, which was made essentially in response to the mother’s Trial Affidavit, the father states the following in relation to his child support obligations:
3. […] I say that my record in relation to the payment of Child Support is not deficient as implied. Immediately upon separation taking place the Respondent had full access to my income as banked by my employer for a period of six months. After that period my pay was paid into an account in my sole name and I paid her $1000 per week for a short period before commencing to make payments in accordance with advice given to me by the Child Support Agency.
4. I say further that when I was out of work over the summer period next occurring I continued to pay the Respondent the sum of $200 per week notwithstanding that the Child Support calculation required me to pay $52 per week. I continued throughout this period to pay for the cost of service to the motor vehicle in the Respondent’s possession.
Mr Deegan again denies the mother’s allegation that he has behaved abusively towards her, saying that they do not speak at changeover and that communications occur via the MyMob application. He says he has done nothing to make the mother feel “intimidated, unsafe or threatened”. He further denies denigrating the mother in the children’s presence, or that he and Ms G have fought, argued or otherwise engaged in family violence while the children are staying with them.
He deposes that the children are often reluctant to leave his care at the conclusion of the time he spends with them, and that they tell him that their mother “debriefs them extensively about their activities during their time with me and becomes upset should they exhibit excitement about the outings that they have enjoyed”.
Mr Deegan complains that he was only able to spend time with [Y] on her birthday (… 2018) in accordance with the orders of 20 February 2018 after his solicitor wrote an urgent message to the mother’s solicitor setting out the provision of those orders. Until then, says the father, the mother had said that while he could telephone [Y] on her birthday, she would not be providing [Y] for time with him as there were no orders for her to do so.
At trial, the father was cross-examined by counsel for the mother.
Mr Deegan confirmed that his proposal was that the children spend time with him from Friday to Monday on each alternate weekend, for an overnight each week, and for half school holidays.
He was aware that the current arrangement, where the children are returned to their mother on Sunday evening after their weekends with him, and spend time with him from after school to 7:00 p.m. on Wednesdays, was the regime sought by the mother and recommended in both the s11F memorandum and the Family Report.
When asked directly whether he believed that [X] suffered from anxiety, the father replied that he did not think that was the case, and that [X] was “past that”. He said that [X] had not been to his psychologist since February 2018, and that [X] was “a perfect little boy at my home”.
He was taken to paragraph 5 of the Family Report, where [X] was reported to have said that there were too many people at Mr Deegan’s home, that he can’t sleep and wakes at 6:20 a.m., that sometimes he slams the door because he is too tired, and that he preferred that the current arrangements continue, and that he not spend time overnight with his father when he has to go to school the next day.
Mr Deegan stated that he had read that paragraph and seriously thought about it. It was his evidence that he does not believe that [X] genuinely has those views or those feelings about spending time with him at his home.
He accepted that [X] had struggled a little when the current regime was first instituted, but that he had progressed and was “fine”. He could not say whether [X] was tired and withdrawn when he returned to his mother after weekend time with his father, as alleged by Ms Deegan, and in relation to her allegation that [Y] was “clingy” when she returned, Mr Deegan said that [Y] was simply a “naturally cuddly” child.
He was then asked several questions about what practical arrangements would need to be in place for him to take [X] to school and [Y] to kindergarten if orders were made that the weekend time he spends with them were to be extended to Monday morning and an overnight during the school week. He was asked particularly to consider those arrangements in circumstances where Ms G’s two children attend school in Town P and [X] and [Y] attend school and kindergarten in Suburb C.
Mr Deegan said that he would take [X] and [Y] to school and kindergarten, while Ms G would take her two children to school. It was his evidence that he has a rostered day off each alternate Monday, and that he was therefore able to accommodate the children’s needs in that regard.
He said that he wished to be involved in the children’s school lives, and that he was prepared for the children’s time with him to progress gradually over several school holiday periods. He was adamant, however, that he wished to extend his weekend time with the children to Monday morning in the immediate term.
He was then taken to the incidents in April 2018 which resulted in Intervention Order proceedings between him and the mother, and between him and the maternal grandfather.
The catalyst for the incidents which led to those Intervention Order applications was a dispute about the meaning of the orders of 20 February 2018.
The mother had interpreted those orders as meaning that the children would begin to spend two nights on each alternate weekend with the father on the next relevant weekend after 26 April 2018, whereas the father had interpreted them as meaning that his weekend time would extend to two nights from Friday 27 April 2018.
Despite there having been some correspondence about that issue between the parties’ solicitors in the month or so before that weekend, the issue was not resolved, and Mr Deegan attended at [X]’s school to pick him up on the afternoon of 27 April 2018.
It was Mr Deegan’s evidence that [X] was not present at school, and he agreed that the paternal grandfather had sent “threatening” texts to the mother, and had then attended at the paternal grandparents’ business premises, making demands of them in relation to [X] and [Y] spending time with the father, and denigrating the mother. Mr Deegan denied that the paternal grandfather had done those things at his direction.
Nevertheless, those incidents, which do not reflect positively on either party, led to the Intervention Order applications.
Mr Deegan then gave evidence about his concerns in relation to the mother attending at [X]’s school with [Y] for changeover and remaining until [X] came out of class, when she would speak and whisper to [X] for several minutes before allowing him and [Y] to leave with their father.
When asked why that behaviour was a problem, Mr Deegan stated that the mother did not need to be there when [X] came out of class as it was his time, and that her cuddling and speaking to [X] confused him and made changeover difficult. He said it would be his preference either for him to pick [Y] up at kindergarten before collecting [X] from school, or for Ms Deegan to transfer [Y] to his care at the school boundary after which she should then leave.
He did not concede that the mother had cause for concern about changeover because she did not know whether it would be the father or his partner collecting the children, saying that “it doesn’t matter” that the mother did not have that information.
Mr Deegan said that [X] had told him that the mother becomes upset if he and [Y] tell her they have had a good time when with their father, but conceded that he could not say with any certainty that that was the case.
The father was then taken to the mother’s affidavit of 3 September 2018 at paragraph 185, which describes [X] as having “had regressed slightly” at about the same time as he began spending two weekend nights per fortnight with his father, and says that [X]’s teacher had noticed a change in his behaviour after those weekends, and had suggested that [X] see the school counsellor.
It was Mr Deegan’s evidence that he knew nothing about [X] seeing a psychologist or there having been any trouble with his behaviour at school, until he read that evidence in Ms Deegan’s affidavit of 3 September 2018. He confirmed his evidence, in his final Affidavit, that he has been in contact with [X]’s teacher, and he has never heard any complaint from her about [X]’s behaviour.
Mr Deegan was then questioned about his living arrangements.
He confirmed that he and Ms G live in a rented four-bedroomed house, and said that there was no particular set up in relation to where the children slept. He said sometimes [X] sleeps in the same room as [Y], and sometimes in the same room as H. Sometimes, he said, everyone sleeps in the lounge room after watching a movie, and that time was considered to be special in the family.
He denied that all four children have slept together in the same bedroom saying that none of the bedrooms was big enough for that arrangement. He said that the children always had appropriate bedding.
It was his evidence that both [X] and [Y] “get on great” with O and H, and that O and H were present on perhaps three of every four weekends that [X] and [Y] spend with Mr Deegan.
He could not say whether Ms Deegan encouraged the relationships among the four children. He said that when the four children are together they are not shy, although there might initially be some minor shyness when they first meet each other. Once together, says Mr Deegan, the four children are “fine”.
He agreed with Counsel that Ms Deegan is “a good mother”, but he was concerned because he did not know what she was telling the children when he was not there.
When asked about his child support payments, Mr Deegan denied that he was in arrears, saying that the assessed payments were taken from his wages before he received them, and that all payments were up to date.
The father presents as a polite, fit and somewhat affable man. I found his evidence persuasive, although there was some deficiency in his insight in relation to the children’s developmental needs. He clearly loves both children dearly, and wants only what is best for them. He is very frustrated by what he perceives to be the mother’s attempts to sabotage his relationship with [X] and [Y].
Ms G, in her Affidavit, supports Mr Deegan's Application in general. She does not mention the mother save to say that the children did not visit their father at his home in the early days of her and Mr Deegan’s cohabitation “as the Respondent herein (“Ms Deegan”) would not allow them to attend at our property”.
She confirms that the relationship between her and Mr Deegan began in … 2015, and that they had been living together, with her children O and H (born … 2011 and … 2013 respectively), since December 2016.
It is her evidence that O and H spend regular and frequent time with their father.
She deposes that she first met [X] and [Y] in January 2017 and that they met O and H in May of that year. The children did not begin coming to her and Mr Deegan’s home in Town P until June 2017.
Ms G says that the children experienced no problems in integrating into the new family’s life and that all four children “relate extremely well” with each other.
It is her evidence that she has “bonded very well with both [X] and [Y]”, and that she is available to collect them from school to spend time with their father if his work commitments preclude him from doing so. She says that “(t)he children are comfortable with this arrangement when it occurs and are always pleased to see me”.
At trial, Ms G was questioned about the family report interviews and confirmed that Ms J’s evidence was correct in relation to her participation.
The only other questions asked were in relation to what she and Mr Deegan told the children in relation to the time they spend with their father.
Ms G said that she and Mr Deegan have talked to the children about spending some more time with them, but it was her evidence that they would not pursue that unless the children wanted it. She denied telling the children that they will be spending extra time with their father, but she asserted that the children have expressed a wish to do so.
The mother’s evidence
The mother’s evidence is found in her Affidavit affirmed and filed on 10 November 2017 (“the mother’s first Affidavit”), in her Trial Affidavit affirmed and filed on 3 September 2018 (“the mother’s Trial Affidavit”) and in her oral evidence given at trial.
In her first Affidavit, the mother sets out her allegations about the father’s drug use, deposing that while the parties used some illicit drugs, such as cocaine and marijuana, together, she had not used any illicit drugs since the parties moved into the Suburb C property in 2006.
It is her evidence that the father continued to use drugs, and in particular cocaine, after which he would show “signs of anxiety and depression. He was frequently angry and controlling”. Ms Deegan says that when in that state, the father would accuse her of infidelity, and call her belittling and humiliating names. She describes these attacks as “irrational, degrading and frightening”.
On one occasion, in about 2007, Ms Deegan alleges that the father smashed her laptop while in a “paranoid type state” after using cocaine. She deposes to being “in significant fear” of him at that time.
The mother deposes that the father sought assistance “for his drug and anger issues” from a psychologist after the death of a friend from an overdose in 2008.
After suffering his workplace injury in … 2012, Ms Deegan says the father “relied heavily on sleep medication. He used Valium and Stilnox”. It is her belief that he used those prescription drugs in order to “bring him down” after using cocaine, although she says that while he was taking pain medication after his workplace accident, his cocaine use “had subsided slightly”.
Ms L acknowledges that while the father was at home after his accident, “he was very good with [X]”, and that he was “emotionally available and present for us”. She describes this period as “the best period of our marriage”.
However, after he returned to work when [X] was about 14 months old, she alleges that the father began to go out again without her after work, and that on Friday and Saturday nights, he would not come home until very late at night or the early hours of the next morning. It is the mother’s evidence that Mr Deegan “would generally sleep all day on Sundays, being hung over and/or under the influence of drugs. This was the case for at least the last two years of our marriage”.
The mother deposes that while the father usually used drugs while he was out with friends, on occasion she would see him using cocaine at home.
It is her evidence that in about … 2015, after [Y]’s birth, Mr Deegan became more withdrawn and distant, causing her to believe that he was again using drugs regularly. She notes that it was at about this time that Mr Deegan began his relationship with Ms G.
The mother then deposes as follows:
59. Mr Deegan’s anger when he was using cocaine, and/or coming down, if he was disturbed was explosive. He would yell obscenities at me, and occasionally smash items. He was always accusing me of having affairs, even though this was not true, and accusing me of being a slut and similar.
Ms Deegan describes the incidents leading to separation in February 2016 as follows:
64. On a night I cannot recall, just before separation in February 2016, we had friends over for a barbecue. The children went to bed and we were having social drinks.
65. Mr Deegan and one of his male friends went out to the shed. Mr Deegan had cocaine in the shed and I saw him take a line. He then had a number of lines of cocaine.
66. [X] woke up and I then went inside to lie down with [X].
67. Mr Deegan came into the house paranoid. He was accusing me, doing something on my phone. He “snapped”. He was yelling at me and abusing me. I told him he was being ridiculous.
68. I remember Mr Deegan grabbing me and pushing my face and accusing me of being unfaithful and calling me a slut. I was frightened.
Ms Deegan describes asking the father to leave the family home on 26 February 2016 as she had “had enough of his drug and alcohol abuse and his abuse of myself”. She then deposes that “I told Mr Deegan to leave our house because I did not want our children to be part of the toxic environment he had created. At this stage Mr Deegan was drinking heavily, not working and continuing to excessively use cocaine”.
Ms Deegan says that when she was packing the father’s clothes, after he had left the Suburb C property, she found “approximately 12 empty bags that had contained cocaine through his wardrobe, some of which still had remnants of cocaine in them”, and “several empty boxes of Stilnox”.
The mother says that in the aftermath of separation she sought counselling as she was struggling emotionally, and attended 10 sessions with a counsellor provided by her employer.
It is her evidence that Mr Deegan made little effort to spend time with the children, preferring to spend his weekends with his friends, and that there were times when he did not see the children for a full week.
Ms Deegan then describes the weekend in July 2016 when she went away for the weekend, leaving the children in their father’s care overnight at the Suburb C property.
It is her evidence that on her return, the father “looked drained, he had clearly had no sleep and was not himself. He had clearly been using drugs and/or alcohol”. She deposes that [X] subsequently told her that he was sad because his father’s friends had been there while his mother was away.
That had been the only night when the children had been left alone with their father, and after that, Ms Deegan had not felt comfortable leaving them in his care unless his mother was also present.
After the parties agreed that the father would spend two periods of time per week with the children in about November 2016, the mother complains that he was often late to pick the children up, and that he never asked to spend additional time with the children despite often being unemployed and therefore available.
Ms Deegan then sets out the contents of a letter dated 11 August 2017, sent from her solicitor to the father’s solicitor offering a parenting plan whereby the children would spend time with their father each Wednesday from 4:00 p.m. until 7:00 p.m., on alternating Saturdays and Sundays between 10:00 a.m. and 5:30 p.m., and on [Y]’s birthday, … 2017, from 4:00 p.m. until 5:30 p.m.
It is the mother’s evidence that no response was received to that letter, and that the father had then changed his lawyers.
The mother then sets out the history of what she says is [X]’s diagnosed anxiety condition, which has manifested only since the parties’ separation.
[X]’s kindergarten prepared a report in mid-2017 which provided strategies to help [X], and suggested that he see a paediatric psychologist. As a result of that report, the mother took [X] to her general practitioner and obtained a referral to a child psychologist whose first appointment with [X] was in September 2017.
It is the mother’s evidence that [X] has become distressed when it is time to spend time with his father, that he has been reluctant to leave her, and that he has run away into the house when his father has arrived. Nevertheless, she expresses the belief that [X] enjoys his time with his father once he has left her.
Ms Deegan complains that the father takes no interest in [X]’s extracurricular activities, and that he never offered to attend [X]’s kindergarten as a parent helper.
She deposes that she does not support an extension of time to overnight “given my concerns about Mr Deegan’s drug use, his unaddressed anger issues, and most significantly, [X]’s anxiety issues”.
The mother then responds to allegations contained in the father’s first Affidavit, denying his perspective, and insisting that until he had issued these proceedings he had not sought extra time with the children.
She specifically denies that she regularly went out with her friends during the relationship and marriage, saying that she had left the children in his care only two or three times in that period, or that she has “consistently refused him access” since separation.
She deposes that in the six months after separation, “he was repeatedly promising to reconcile, and we had intermittent sexual relations until October 2016”.
It is the mother’s evidence that she had known about the father’s relationship with Ms G since shortly after [Y]’s birth but that she had assumed that Mr Deegan would discuss with her the issues of telling the children about that relationship and introducing them to Ms G. Ms Deegan says that it was the fact that it was [X] who had told her the children had met Ms G, without the issue ever being discussed between his parents, that had so distressed her on 11 January 2017 when she had “had words with Mr Deegan” when he returned the children to her.
She concedes that she had been upset when the father brought Ms G to changeover on 19 August 2017, but denies yelling at him or being at all abusive, saying that she had “politely asked him not to bring her to my home”.
Ms Deegan specifically denies deliberately remaining at the changeover point when the father picks [X] up from school and telling him he should cry so that his father would bring him home. It is her evidence that [X] often asked her “What if I want to come home early?” and that she had told him “to just tell his dad and he will bring you home”. It must be said that I see little difference between her evidence and the father’s on that point.
Ms Deegan also denies that child support issues have in any way “impacted on parenting arrangements”, although she then states that “Mr Deegan has continually been late with child support”, that she had been forced to ask the Department of Health & Human Services (Child Support) (“the Child Support Agency”) to collect the monies Mr Deegan pays for the children’s support, and that he was currently $1,173.46 in arrears.
In her Trial Affidavit, Ms Deegan again sets out the history of the parties’ relationship and its aftermath in similar terms to her first Affidavit.
In addition, she deposes that the children are “tired and drained” after their time with the father on Wednesday afternoons, and that it is often Ms G who collects them on those days as the father is at work. Ms Deegan says that the father should collect the children on Wednesdays and that he should spend that time with them at his mother’s home, which is much closer to the children’s home than is the father’s.
Ms Deegan also deposes that she wishes to change the changeover point, when changeover does not occur at the children’s school, from the McDonalds restaurant in Town A (which is approximately half way between the parties’ homes) to the Town M Service Station (which is “a 4 minute drive” from the Suburb C property).
The mother complains that the father and Ms G have been denigrating her and her parents to the children, as they tell her that their father has called her and her parents names such as “stupid”, “dumb” and “idiot”. She deposes that her response has been to tell the children that “they were not nice words and we do not call people names”.
Ms Deegan further deposes that the children have told her that their father and Ms G fight and call each other names, that they do not sleep well at their father’s home, and that Mr Deegan “regularly” does not answer the telephone when she calls to speak to the children pursuant to Court orders, or, when he does answer, he does not allow her to have “any lengthy conversation” with the children and that he “continually hangs up or cuts me off when I am saying goodbye to the children”.
I cannot help but note the detailed similarities between the parties’ respective accounts of their telephone contact with the children.
Similarly, Ms Deegan states that she feels intimidated by the father and Ms G when changeover occurs at the McDonalds restaurant in Town A. She says that “Mr Deegan will continually stand over me and reluctantly hand the children over”, and that she brings her parents with her because she feels “unsafe and threatened”, this despite there being Intervention Orders between the parties and between the father and the maternal grandfather. There is a marked similarity between the mother’s and father’s accounts of changeover, but each blames the other for the distress and discomfort they feel.
Ms Deegan deposes that [X] had asked her if he could play sports after watching the local sports team in training, and that his games fall on Saturdays with training on Tuesday evenings. It is her evidence that [X] plays fortnightly on Saturdays as his father refuses to take him when [X] is spending time with him. She says that the father should “facilitate [X]’s attendance at competitive sporting activities that he wants to engage in”. I note that the mother makes no mention of having discussed [X]’s participation in weekend sport with [X]’s father before enrolling him.
In relation to [X]’s anxiety, the mother deposes to [X] having improved with counselling and then having “regressed slightly” after the current regime of two nights a fortnight with his father commenced in Term 2, 2018.
She deposes that [X]’s teacher, Ms K, has told her that she has noticed that [X] “appears fidgety and on edge” after weekends with his father and that he sometimes misbehaves in class on that Monday. Ms Deegan deposes that “this is in contrast to the Monday when he has been in my care for the weekend when she says he is a lot more settled”. I will come to the evidence of Ms K shortly.
Ms Deegan complains that the father does not spend any “one-on-one time” with the children since they have been spending time pursuant to Court orders, and says that if her suggestion for Wednesday time to be spent at the paternal grandmother’s home were followed, that would allow for the children to have such time with their father.
Such a suggestion might appear somewhat disingenuous. Time at the paternal grandmother’s home (presumably without the presence of Ms G or her children) would not be “one-on-one time” if the paternal grandmother were present.
Ms Deegan also deposes that the children, and especially [X], return to her “tired, emotional and quiet” after weekends with their father. She says that after reading the Family Report, she believes that “([X]’s) life is very busy at his dad’s, and when he comes home he needs some quiet time”. The mother says that [Y] is more “clingy” than usual when she returns after time with her father.
Nevertheless, the mother says that she believes that “the children enjoy time spent with their father, but also look forward to coming home”. She concedes that both children “appear settled with the current routine”, although they sometimes express a wish not to go to their father.
On Friday 27 April 2018, after some apparent confusion about the exact meaning of the orders made on 20 February 2018, there was a series of unsavoury incidents involving the parties, Ms G and the paternal and maternal grandfathers which led to Victoria Police applying for an Intervention Order against the father, and the father and Ms G seeking Intervention Orders against the mother and the maternal grandfather. The mother and father obtained Interim Intervention Orders and both matters resulted in final Intervention Orders made “by consent without admissions”.
At trial, the mother underwent cross-examination by Counsel for the father, and I note that her evidence was given after that of Ms K.
When asked about her Affidavit evidence that Ms K had told her that [X] was showing signs of distress and unacceptable behaviour on the Mondays after he had spent time with Mr Deegan, and having heard Ms K’s evidence on that point, Ms Deegan simply stated that “at the time that I did my affidavit, I believed that Ms K did differentiate the difference in [X]’s behaviour week by week” and that she had not been aware that Ms K did not know which weekends [X] was spending with the father.
She said that she and Ms K had had discussions about [X]’s behaviour and that she had assumed Ms K knew when [X] had spent the weekend with his father.
I did not find the mother’s evidence on that issue wholly satisfactory.
Ms Deegan was then taken to the dispute about the meaning of paragraph 14(b) of the Orders of 20 February 2018 which provided for the children to spend time with the husband “commencing Friday 26 April 2018, from the end of the school day at 3:30 p.m. until 3:30 p.m. Sunday 28 April 2018, and each alternate weekend thereafter”.
It was the mother’s evidence that she had noticed in March 2018 that the dates set out in paragraph 14(b) of the orders did not fall on a weekend when the father would have had the children in his care pursuant to paragraph 14(a) of the Orders. In other words, had both paragraphs 14(a) and 14(b) been implemented, the father would have had the children on two consecutive weekends.
The mother said that she had then instructed her solicitors to send a letter to the father solicitor pointing out that anomaly and seeking a response. No response was received, and the mother conceded that she had not instructed her solicitors to send a further letter.
When it was put to her that it would have been reasonable for the father to expect to have the children on the weekend following Anzac Day 2018, Ms Deegan said: “I would have assumed that Mr Deegan would have known it was the following weekend being that he had the kids the weekend before”. She conceded, however, that there was nothing in the Orders which prevented the father from having the children in his care on consecutive weekends.
Nevertheless, she had “believed that Mr Deegan didn’t realise that it wasn’t his weekend. It was my weekend with the children”.
Ms Deegan said that she had applied for an Intervention Order against Mr Deegan as a result of both that dispute, and an incident which had occurred on the same weekend when Mr Deegan had attended [X]'s sports session and again asked to have the children. She confirmed her Affidavit evidence that she believed that Mr Deegan had applied for an Intervention Order against her “for a tit for tat basis”.
She was forced to concede that her Affidavit evidence that Mr Deegan had not obtained an Interim Intervention Order against her, evidence which she had just confirmed at trial, was in fact untrue when a copy of the Interim Intervention Order against her was produced and entered into evidence.
When it was put to her that her evidence about Ms K’s discussion with her, and the evidence about the Interim Intervention Order obtained against her, were “just two of a number of instances where you’re attempting to mislead this court as to the truth of the matters in these proceedings, isn’t it?”, Ms Deegan replied “I don’t believe so, no”.
Ms Deegan conceded that her interpretation of orders which provided for Mr Deegan to spend time with the children on [Y]’s birthday, … 2018, had been incorrect, and she conceded further that she should not have told Mr Deegan by text message that he would not be spending time with the children on [Y]’s birthday because there was no order providing for such time. It was her evidence that she had realised her mistake after checking the relevant Orders on the morning of [Y]’s birthday when she received a letter from Mr Deegan’s solicitors, and that she had then sent a text message to Mr Deegan confirming that the children would spend time with him on that day.
She denied that that incident was “part of an ongoing problem right since the time of separation in this case” that “you’ve made it very difficult for him to see the children”.
It was then put to Ms Deegan that her allegations about the husband’s drug use were “a completely fake argument”. She denied that, saying that “I believe that Mr Deegan is a drug addict – or was”.
She conceded that both drug screens provided by Mr Deegan on request by her solicitor had been negative for illicit substances, saying that there had been no more requests not “because they kept coming negative and it was strengthening his case”, but because she was “following my legal barristers and solicitors advice”.
Nevertheless, it was her evidence that she believed that Mr Deegan continued to have a problem with cocaine use. She said it had not been mentioned to Mr Deegan during his cross-examination because he “denies it every single time”. She acknowledged that it might have been possible to obtain a hair follicle sample from Mr Deegan to test for long-term drug use, but had no explanation for why such a test had not been requested.
Ms Deegan denied, when asked, that she had deposed to a continuing sexual relationship with Mr Deegan after separation in order to “try and break him up from his current partner”. She was aware that Mr Deegan denied the continuation of that relationship after separation, but she confirmed her Affidavit evidence that he had been telling her at the time that he would be coming back to the family and that he was “trying to sort himself out”.
It was her evidence that she had not understood that he and Ms G were still in a relationship at that time, which appears to contradict her Affidavit evidence that she had known about that relationship almost since its inception.
She was then taken to paragraph 111 of the father’s first Affidavit, which describes the occasion in January 2017 when the children told the mother that they had met Ms G for the first time. While she conceded that she had been very upset on that day, Ms Deegan denied that she had yelled obscenities at Mr Deegan, and in any case, she said, the children had not been “in the vicinity” at the time. She conceded that she had sent a nasty text message to Mr Deegan because “I was very upset that he had done this behind my back and allowed our then four-year-old to advise me of this”.
In relation to the alleged incident on 19 August 2017, when Mr Deegan says he took Ms G with him to changeover and the mother abused him in the presence of the children, her body shaking with rage, Ms Deegan simply said that that allegation was a fabrication.
She further denied, several times, that she made changeover difficult for the children, but stated that she would continue to attend [X]’s school on Friday afternoons because she likes to attend the school assembly at 2:45p.m. on Fridays. She said that she needed to be present to transfer [Y] to Mr Deegan’s care in any case, and simply could not see any reason why she should not continue to be there after the transfer has taken place, despite having heard Ms J’s evidence that it was not helpful for her to do so. Ms Deegan specifically denied whispering to [X] at changeover or telling him that he should just tell his father if he wanted to come home.
Ms Deegan vehemently denied that she did not want Ms G “anywhere near your children”, saying: “That’s not true at all. I support Mr Deegan and Ms G’s relationship and do so with the children”.
Again, I found that evidence to be somewhat disingenuous.
Ms Deegan conceded that on a weekend in September 2017 when she had told Mr Deegan he could not pick up children before 2:00 p.m. because “we have stuff on”, she had in fact been spending the weekend in the city while the children stayed with their maternal grandparents. When questioned why, Ms Deegan said: “They were in my care and I don’t believe I have to tell Mr Deegan the ins and outs of where the children are and who they’re with. They were with the – my parents. There were no orders in place”.
She was then asked questions about [X] being referred to a counsellor for an appointment on 18 September 2017, and the following exchange took place:
Counsel: Did you go on that day or not?
Ms Deegan: I believe I would have went that day, yes.
Counsel: Right. And did you tell my client about it?
Ms Deegan: I emailed him the documents and he received them.
Counsel: Yes. And did you invite him to go along?
Ms Deegan: He was able to come along if he wanted to come along.
Counsel: His instructions to me are that you didn’t say, look, you know, if you could go along that would be great?
Ms Deegan: Well, I shouldn’t have to hold his hand to make a decision to come.
Again, I found that evidence rather disingenuous in the context of the father’s allegations that he was not kept informed about such important issues as [X] attending upon a psychologist.
When she was asked why the children should not spend overnight time with their father on Sunday nights as well as Friday and Saturday, Ms Deegan said simply that they were too young. When asked to expand on that answer, she replied:
[Y] is not even in kinder yet, and [X], at the moment, is in prep. On a Sunday afternoon when they come home from their dad’s house they’ve had a great time; however, [X]’s emotions are like a rollercoaster. They are up; they are down; he is happy; he is sad; he is tired; they’re both tired. [Y] comes across as being very reserved. I’m not saying that the children act out when they’re in my care and have been in my care for a few days but their emotions are heightened and it’s different.
Ms Deegan confirmed that it was she who organised the children’s extracurricular activities, saying [X] had been learning swimming since he was six months old, and that he had asked to play sports at the beginning of the year. It was her evidence that she had “advised Mr Deegan starting this year that he’s doing sports”. She conceded that she had not consulted him or given him say about the children’s activities, saying: “I don’t ask but – because it’s during my time”. She said further: “when it’s during my time and [X] wants to play sports, I don’t see that there is a reason why should have to advise Mr Deegan and get his permission.” She denied there was any problem with her attitude to such matters.
Ms Deegan was not prepared to accept that the children might be tired because she had engaged them in what Ms J said were “excessive” activities. She reiterated that they were tired when they arrived home after a weekend at their father’s saying that they “should be allowed to stay in their own home” on nights before going to school. When it was pointed out to her that she was the only person saying that the children are tired, and that there was no evidence from the school to say that [X]’s learning capacity was impaired on Monday mornings after spending the weekend with his father, Ms Deegan referred to evidence given by Ms J, saying that the family report had noted “that there is a risk of [X]’s anxiety and learning and well-being which can then fall on to [Y]”.
When pressed on the issue of why the children ought not to spend Friday to Monday with their father and an overnight during the week, Ms Deegan said:
Because I believe that would be a disruption to their weekly routine of school and kindergarten.
[…]
I believe that it would not be appropriate at the kids’ age to do that. I feel like, in a couple of years’ time when they’re both at school and they’re both a lot more settled, I believe that that is an option.
[…]
That’s how I feel and that’s how I perceive my own children.
[…]
I believe that [Y] should have at least started school and revisit it within the first six months of [Y] going to school.
Further, in relation to long summer holiday time, it was Ms Deegan’s evidence that she believed that the children “shouldn’t have to be away from home for more than seven days” at their current ages.
When pressed on that issue, she was most reluctant to concede that the children might manage longer than that as they grow older, and the following exchange took place between Ms Deegan and Counsel for the father:
Counsel: So at the end of 2019 why wouldn’t ([X]) be capable of dealing with 10 or 14 days?
Ms Deegan: Potentially he might be, but I believe at the moment, doing week on week off over the…
Counsel: Well, this bans him. This proposal says no.
Ms Deegan: I feel like in time, as the children get older, situations and circumstances can change. And, hopefully, if that was the case and we do decide to do two weeks full we would be able to come to an agreement to do that.
Counsel: Well, it’s not looking good, is it, because we had – we were here on circuit in September and we couldn’t come to any agreement, and we’re here now running a trial two or three days, and you’re saying, look, it will be okay. We will be able to come to some agreement. You’re not serious about that, are you?
Ms Deegan: No, I’m not.
In re-examination, Ms Deegan was asked about changeovers in the future, and it was her evidence, again in rather reluctant tone, that she would accept a situation where Mr Deegan collected [Y] from kindergarten on Wednesdays and then collected [X] from school, rather than her collecting [Y] and bringing her to [X]’s school for changeover of both children.
It was Ms Deegan’s evidence that “the pickups aren’t going to be an issue once [Y] goes to school. I’m not going to be there.”
Nevertheless, she then added: “I deliver [Y] now. I take [X]’s bag. I say a quick goodbye and he leaves. I don’t think there’s any harm in me saying goodbye to my son on a Friday night before he goes away for the weekend”.
She clarified, under questioning from her counsel and from the bench, that she proposed that the children spend time with their father during the long summer holidays on a week about basis until the end of the 2019-2020 holidays, but then she said: “But obviously, circumstances change, things change. The children – they might be planning a holiday or something like that. It can differ, but at the moment I think a week on week off, putting that in place for the first couple of years is fair on the children”.
Overall, I found the mother a slightly unsatisfactory witness. That is not to say that she was dishonest, but that her manner was somewhat defensive and self-serving for much of her evidence on this issue, and she appeared to be unable to consider matters from any viewpoint but her own. There is no doubt whatsoever that she loves her two children dearly, and that she, like their father, wants only what is best for them. However, she clearly sees herself as the dominant partner in the co-parenting relationship, and has not involved Mr Deegan in important aspects of the children’s development without being forced to do so by court order.
The circumstances of the breakdown of her marriage must have been distressing and traumatic for her. It is perfectly normal for the partner who is left in such circumstances to experience anger, hurt, disappointment, grief and anguish.
However, it is very important for separated parents to understand that while their partnership as a couple has been severed, they will be their children’s parents for the rest of their lives, and for their sakes they need to find ways to cooperate as parents.
The schoolteacher’s evidence
Ms K was [X]’s school teacher at Suburb C Primary School in 2018. The lawyers for the father issued a subpoena to her to give evidence at the trial.
In her evidence-in-chief Ms K was taken to paragraph 188 of the mother’s Trial Affidavit (“paragraph 188”), which is where the mother sets out comments Ms K was said to have made about [X]’s behaviour after weekends with his father.
Ms K was clear in her evidence that she did not recall saying that she had noticed that [X] appeared “fidgety and on edge” on the Mondays after weekends with his father, or that he misbehaved on those days. She was clear that she did not know which weekends [X] spent with his father.
Under cross-examination by counsel for the mother, she confirmed that Ms Deegan was involved in [X]’s school life and that she volunteered regularly in the classroom.
In relation to the contents of paragraph 188, it was her evidence that she did not recall discussing the matter with Ms Deegan. However, she did say that at the beginning of the year there had been some change in [X]’s behaviour on Mondays, but “it would be regular behaviour every weekend – every Monday”.
In re-examination, Ms K confirmed that [X]’s anxiety had continued to improve since she had written a report to that effect in mid-2018.
I found Ms K to be a forthright and convincing, if a little reluctant witness, and I accept her evidence in its entirety.
The expert evidence
Ms J's Family Report, dated 30 July 2018, was released to the parties on 31 July 2018.
In that Report, Ms J describes Mr Deegan as “a poor historian, providing a confusing historical account”, that being a limitation of the Report.
Ms J sets out the history of the parties’ relationship and its aftermath in the terms set out in their Affidavits, before setting out each party’s proposal for resolution in this matter.
She says that the father’s proposals at interview “alternated”, although she says that ultimately, if his proposal for an equal shared care, week about arrangement was not accepted, he was proposing that the children spend time with him each Tuesday overnight and each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday.
Ms Deegan was proposing a continuation of the current arrangement, whereby the children spend each alternate weekend from after school or 3:30 p.m. on Friday to 3:30 p.m. on Sunday, plus additional time on special days. She proposed reducing the Wednesday time to fortnightly at that time.
Ms J records Ms Deegan’s allegations of a long history of family violence and drug and alcohol abuse on the part of Mr Deegan, and notes the existence of the mutual Intervention Orders.
Ms J records the mother as conceding that all Mr Deegan’s random drug screens had been clean of illicit substances, although “she (Ms Deegan) was sceptical” about those results. Ms J notes that child protection authorities have never been involved with this family.
The parties are described thus:
12. Mr Deegan presented as a confident and friendly man who engaged well at interview. He impressed as a loving parent to the children and spoke of them in fond and familiar terms. Mr Deegan was eager to be more involved in their care and upbringing. Mr Deegan was respectful about the mother, but criticised her lack of support for his relationship with the children.
13. Ms Deegan presented as an engaging and self-assured woman. She impressed as a proud and loving parent to the children and she was knowledgeable about their character and developmental needs. Ms Deegan recognised that the children have formed close and appropriate relationships with the father and his partner, Ms G, and her children. She was supportive of time with them, conditional upon Mr Deegan remaining drug free.
Mr Deegan sought time with the children which would allow him to be involved in their school lives, which is why he sought that his time extend to Monday mornings, and he also wanted to reduce the midweek time to fortnightly, but to replace Wednesdays with an overnight on alternate Tuesdays.
Mr Deegan believed that the children would manage such a change well, as they were comfortable in the care of him and Ms G. He was “confident the children would enjoy more time with him and his partner and her children at their home”.
Ms Deegan saw [Y] as “too young” and [X] as “too anxious” to spend extended time away from her, and expressed doubts as to whether Mr Deegan would manage getting the children to school. She was also concerned that an overnight during the school week “would be disruptive to the children’s (sic) and impact on their routine and learning”. She was “confident that the current arrangement, with a reduction to alternate Wednesdays, promoted stability, predictability and routine for the children and was in their best interests”.
Ms J also interviewed Ms G, who told her that Mr Deegan was “fantastic with my kids… and his kids…the best…very loving and affectionate…very supportive”. Ms G described “effective communication and conflict resolution strategies” and was “adamant that Mr Deegan does not engage in drug or alcohol abuse in their home. She said that she would not tolerate such behaviour nor would she expose her own children or the subject children to such conduct”.
When Ms J interviewed [X], he was “confident that he and [Y] were well loved by both of their parents and he expressed love for his mother and his father”. She says [X] is aware of the conflict between his parents and he told her that the conflict caused “hurt in my heart… and worries in my head”.
[X] expressed some difficulty at living in two homes, saying that while things were “easy with Mum”, “there are too many people” at his father’s home. He says he gets “too tired…with all the people” and sometimes misbehaves. He told Ms J that the current two nights with his father were enough and that he did not want any more, or to “sleep over for school”. Ms J says [X] appeared to hold those views genuinely and without having been influenced by either parent.
In Tait & Dinsmore [2007] FamCA 1383, Cronin J said, at paragraph 170:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
There is ample evidence, in affidavits sworn by the parties and Ms G, in the Family Report, and in oral evidence given at trial, that [X] and [Y] both have a meaningful relationship with their mother, their father, and Ms G in most of the terms set out by Brown J and Cronin J.
The evidence before the Court, especially that of Ms J, is that the only real risk to these children is from the continued conflict between their parents, and it appears to the Court that the major opportunity for that conflict to erupt is at changeover.
In relation to the second of the primary considerations in s60CC(2), I must therefore make orders which protect the children as far as is possible from that conflict.
I note that in crafting those orders, I need to give more weight to the need to protect [X] and [Y] from harm than to the benefit to them of their meaningful relationships with their parents[2].
[2] See S60CC(2A)
S60CC then sets out the remaining 14 considerations in subsection (3) under the heading “Additional Considerations”.
(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
[X] is reported to have told Ms J that he was happy with the current arrangements, that he did not want to spend more than two nights with his father on each alternate weekend and that he did not wish to spend an overnight with Mr Deegan during the school week.
[X] is now seven, and while I note and take account of his views, the views of such a young child cannot be determinative, and nor can they carry as much weight as those of, say, a 12 or 16-year-old.
[Y] was too young to appreciate the issues facing Ms J in the writing of the Family Report, and her views, other than the fact that she “loves everyone”, are unknown.
(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)
Again, it is clear from the evidence before the Court that both these children have strong and loving relationship with each of their parents and with each other, and a positive and appropriate relationship with Ms G and her children. They are also reported to have good relationships with their grandparents.
(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
Both parties agree that it has been Ms Deegan who has made the major decisions about the children’s lives since separation.
However, Mr Deegan says that that is the result of Ms Deegan deliberately excluding him from such decisions, while Ms Deegan says that Mr Deegan has not been interested in participating in the decision-making process.
What is clear from the evidence is that Mr Deegan is currently very interested in being as much involved in the children’s lives as is possible.
His desire to be so involved, and to spend extended time and communicate with the children is evidenced by the very existence of these proceedings, and by his persistence in pursuing Court Orders that he do so.
Ms Deegan is the children’s primary caregiver and, as such, she has taken every opportunity to make decisions about the children and to spend time and communicate with them.
Her evidence at trial leads me to believe that she does not fully understand the significance of the children’s father’s role in their lives, and, on balance, I find that she has been at best overprotective of the children, and at worst, she has, consciously or unconsciously, behaved in such a way as to exclude the Father from major decisions in relation to the children’s care and welfare.
(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;
Mr Deegan pays child support pursuant to a Child Support Assessment, although Ms Deegan says he is somewhat in arrears. Mr Deegan otherwise supports the children from her income and Centrelink payments.
(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
Neither party seeks orders which would separate these children from any of the significant people in their lives.
(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.
The parties live in Town P and Suburb C respectively, there being a distance of some 27 kilometres and 20 minutes apart by car. Both parents have access to a car.
There is therefore little practical difficulty or expense in the children spending time with their father.
(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
There is no evidence to suggest that either of these parents is unable to provide for the material needs of these children. They are well housed, well fed and appropriately clothed, and they attend school/kindergarten regularly.
The only risk to their emotional needs appears to be from the conflict that persists between their parents.
[X] is said to be an anxious child, and the continuing conflict cannot be assisting him to feel emotionally safe. The conflict will become more apparent to [Y] as she develops, and there is little doubt that unless the parties can ameliorate the expression of their dislike for each other, they will do emotional damage, or further emotional damage, to both children.
(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
[X] and [Y] are still young, and are dependent on the adults in their lives to provide for their needs. The Court is not aware of any cultural or other issues that are relevant to them.
(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
This is not a relevant factor in this case.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both of these parents clearly love their children dearly, and both have demonstrated a caring and committed sense of responsibility to [X] and [Y], albeit that each has some criticism of the other in that regard.
The Court, too, has some concerns about the behaviour of both parents when they conduct changeover. If parents are behaving in an aggressive, abusive, or violent manner in front of their children, it indicates a lack of parental responsibility and a lack of insight into the impact that behaviour has on children.
(j) any family violence involving the child or a member of the child’s family
Both parties allege that the other has committed acts of family violence against them. While both deny having been abusive of the other, I find, on balance, that it is likely that there have been times when both parties have spoken or behaved in ways that do not promote their children’s best interests.
Mr Deegan is a strong-looking well-built man whose behaviour has, I find on balance, at times been intimidating for Ms Deegan, whether or not he intended it to be.
Ms Deegan is a woman who is not afraid to speak her mind and again, on balance, I find that she has engaged in verbal abuse of the father, and, at times, Ms G.
All of that behaviour falls within the definition of family violence under s4AB of the Act.
(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
Each party has a current Family Violence Intervention Order against the other and/or a member of the other’s family resulting from a particularly conflictual changeover that occurred in 2018.
As far as the Court is aware, all Intervention Orders were ultimately made by consent without any admissions being made.
(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;
[X] and [Y] have been the subject of these proceedings since September 2017.
It is always preferable to make orders that are least likely to result in further proceedings, as the children need this process to end so that they and their mother and father can relax in the knowledge that there are clear orders that regulate their relationships with both parents.
The orders I make are intended to be final orders, although it is impossible to make Orders when children are in kindergarten and primary school that might last until they reach the age of 18 and leave the jurisdiction of the Court.
I note that once final parenting orders are made, the parties would have to produce evidence that there has been a significant change in circumstances that makes it in the children’s best interests to vary those orders before the Court would entertain any application to do so.
I also note that before a parenting Application can be filed with the Court, parties must attend Family Dispute Resolution and attempt to come to agreement about their children’s future living arrangements.
(m) any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the Court thinks is relevant in this case.
Decision: Issue A
On the basis of all the evidence before the Court: that of the mother, the father, Ms G, Ms K, and particularly the detailed and thoughtful expert evidence of Ms J, I find that it is in the best interests of [X] and [Y] to spend time with their father in a regime that will ensure that their current close relationship with him is given room to solidify and develop according to their particular developmental needs.
That means that there should be a graduated extension of that time over the next few years so that by the time [Y] is well settled in school, the children will be spending full weekends with their father from Friday to Monday during school terms, as well as half school holidays and special occasions.
With the evidence of Ms J in mind, I have crafted a regime that will extend that time slowly to account for both [X]’s anxiety and [Y]’s youth.
Issue B: Whether it is just and equitable to alter the property interests of the parties
This question arises from the operation of s.79(2) of the Act, which states that a Court may only make orders adjusting the property interests of married parties if it is just and equitable to do so.
In Stanford v Stanford[3] the High Court of Australia stated, at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.
[3] Stanford v Stanford (2012) FLC 93-518.
In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia said that the circumstances described in that passage of the Stanford judgment “encapsulate the vast majority of cases”[4] .
[4] Bevan & Bevan [2013] FamCAFC 116 paragraph 70.
Decision: Issue B
In this case, the parties were married and acquired property which, because of their separation, can no longer be jointly enjoyed. There is nothing in the circumstances of the present case which would remove it from the category of “the vast majority of cases” coming before this Court, and therefore I find that it is just and equitable to alter the parties’ property interests.
Issue C: If it is just and equitable, what are the property interests of the parties and what is their value?
Items in dispute
The wife claims that certain items of property should be included in the parties’ asset pool for distribution in these proceedings.
First, she says that monies in the sum of $15,722 received by the husband as the result of an insurance claim in July 2017 ought to be included.
In her Trial Affidavit, Ms Deegan says that those monies were the result of a car accident involving a vehicle which the husband retained at separation (paragraph 35). The vehicle was assessed by the insurer as “a total loss” valued at $63,500, with the sum of $46,223.13 being paid to the husband’s “financier”, leaving a payout to the husband after costs and fees of $15,722.67 (Exhibit D2 to the wife’s Trial Affidavit), and the amount of $15,722.67 was deposited to the husband’s account on 4 August 2017 (Exhibit D3 to the wife’s Trial Affidavit).
The husband does not deny those facts in general, but said in evidence at trial that the car which was “written off” was one he had bought “probably eight months post-separation” and which had been “fully financed”. It was his evidence that the car had been written off at a value of $65,000, and that after the finance company had received their due, he had received $15,722.
That evidence is in contradiction to the wife’s Affidavit evidence that the car for which the insurance payout was made was one the husband had retained at separation.
At trial, in a further narrative about that car, the wife gave evidence that the husband had partially paid for the car that was written off with $5,000 of joint monies taken from the parties’ mortgage redraw account, and I note that she annexes to her first Affidavit a copy of the mortgage redraw account showing transfers totalling at least $4,440 to the husband’s bank account in August 2016.
As no other corroborating evidence appears to have been put before the Court in relation to any of those three different explanations for the purchase of the written off car, I can only find that the sum of $5000 of the insurance monies received by the husband at in July 2016 was comprised of joint monies.
It was the husband’s evidence at trial that he had not invested those monies in a new car and that he had spent them. I will therefore consider those monies as funds to which the husband has had sole access when considering what orders to make that are just and equitable in all the circumstances of this case.
The wife also claims that the husband’s tax refund for the 2015-2016 year, in the sum of $11,770, ought to be included in the asset pool.
The parties separated in February 2016, some eight months into the 2015-2016 financial year. It can therefore be said that, as the tax refund covered the whole financial year, eight months’ worth, or two-thirds of that refund, is referrable to the period of the marriage and is therefore a joint asset to be divided between the parties.
I therefore find that the sum of $7,847 of the husband’s tax refund for the 2015-2016 financial year, being two-thirds of $11,770, ought to be included in the asset pool.
Thirdly, the wife claims the sum of $7,330, which was received by the husband as a redundancy payment in January 2017, as part of the assets of the marriage.
The husband makes no mention of that payment in his Affidavit material, but acknowledged at trial that he received it as a result of the Employer N closure, saying that he had retained and spent those monies.
There appears to be no evidence before the Court as to the period for which that payment was made. As there is no evidence about whether the payment was based on how long the husband had worked at the Employer N, as it was received almost a year after separation, and as there is no means of discovering whether part of the payment might have been attributable to the marriage period, it is impossible to make a finding that the whole or part of the payment was referrable to work performed during the marriage, and I cannot include it in the parties’ assets for division. It will, however, be considered as a post-separation financial resource in the hands of the husband.
Further, the wife claims the sum of $29,000, won by the husband from gambling activities in January 2017, as a marital asset, although at trial, she appeared to resile from that position somewhat.
The husband’s evidence in relation to that sum is that he denies the wife’s allegation of regular gambling, but deposes that he is “involved in a Punter’s Club” at his workplace. He denies having used joint funds to gamble.
It would appear that he makes no mention of winning $29,000 in his filed Affidavit material, although he did acknowledge that he had done so under cross-examination at trial. He further acknowledged that he had not used any of those monies to reduce the joint debts of the parties. It was his evidence that he had used those monies for an overseas holiday and to buy new furniture. Mr Deegan said that there was none of that money left.
When a party to a marriage invests in gambling after separation and is fortunate enough to win, that is considered a windfall – a lucky circumstance – and unless the wife can prove that Mr Deegan used joint monies to obtain that windfall, it is not to be considered as a joint asset.[5] I can find no such evidence and will therefore not include the $29,000 in the asset pool. It may nevertheless be considered as a financial resource in the hands of the husband when calculating a settlement that is just and equitable in all the circumstances.
[5] Zyk v Zyk [1995] FamCA 135
The wife also appears to claim that the Incolink payments the husband received while not working during the marriage, ought also to be included in the asset pool.
Incolink payments are made to workers in the construction industry as compensatory income while they are not working. They are not assets for division, although their application is a matter to be considered under s79(4) of the Act.
The husband says that because all Incolink payments he received were income, he declared them each year in his tax return, and that he has disclosed all his relevant tax returns to the wife in the discovery process.
In those circumstances, where that evidence is not refuted by the wife, the Incolink payments are not considered part of the asset pool.
The parties’ property interests at the time of trial
The property interests of the parties at the time of trial may therefore be set out thus:
Assets
Owner
Value
21 B Street, Suburb C (“the Suburb C property”)
Joint
$325,000
Bank Q Account no. …
Wife
$500
Westpac Account no. …
Husband
$1,500
Motor Vehicle D …
Husband
$18,000
Two-thirds of the tax refund cheque received after 30 June 2016
Husband
$7,847
Insurance monies received by the husband
Husband
$5,000
Motor Vehicle E
Husband
$500
Total non-superannuation Assets
$358,347
Liabilities
Bank Q VISA Credit Card
Joint
$1,750
Bank Q Home Renovation Loan
Joint
$5,100
Mortgage on the Suburb C property
Joint
$295,273
Westpac Mastercard
Husband
$6,000
Debt to the husband’s mother
Joint
$5,000
Total Liabilities
$313,123
Net Assets
$45,224
Superannuation
Super Fund O
Wife
$131,694
Super Fund P
Husband
$79,394
Super Fund Q
Husband
$47,892
Issue D: What were the parties’ contributions to the property?
This question is mandated by s79(4) of the Act, which states:
s.79(4)
In considering what order (if any) should be made under this section in property settlement , the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Initial contributions
In her Trial Affidavit, the Wife states that neither she nor the Husband had any significant assets at the commencement of their relationship and that the entirety of their assets were accumulated either during the relationship or since separation.
That evidence is not contradicted by the husband.
Therefore, I find that the parties’ initial contributions to the property of their marriage were equal.
Contributions during the marriage
It is agreed between the parties that they purchased the Suburb C property in … 2004 for $120,000 plus stamp duty of $2,860.
In order to complete the purchase, they borrowed “heavily” from Bank Q, obtaining a loan which was secured by a mortgage over the property.
They paid a deposit of $10,000 which was borrowed from the husband’s mother. The wife claims that the parties have since repaid the husband’s mother in full, and that if there is any balance remaining on that loan, it has been “forgiven”.
The husband claims in his first Affidavit and in his Trial Affidavit that the parties have repaid the sum of $5,000 and that there remains $5,000 to be paid.
However, in his third Affidavit, the husband states that “the sum of $10,000 was borrowed from my mother Ms R and that this amount has not been repaid and the full amount borrowed remains a debt to my mother”.
There is no evidence from the husband’s mother before the Court at all.
In those circumstances, I consider, on the balance of probabilities, that the parties jointly have a $5000 debt remaining to her.
The parties renovated the Suburb C property several times before and during their period of de facto relationship and marriage. I note that while the property was purchased in 2004, the parties did not live in it until 2006.
Renovations were undertaken in 2004, 2007, 2009 and 2012, and each renovation was paid for by using the parties’ accumulated savings, borrowing by way of personal loan, or by extending the mortgage loan over the property, so that by the time of trial, the parties owed the sum of $295,273 on their mortgage loan, and $5,100 on their personal loan.
Much of the actual renovation work was undertaken by the parties and their respective fathers, although the parties are in dispute about exactly how much of the non-financial contributions to the renovations should be attributed to each of them. There is no evidence before the court from either party’s father in relation to their contributions to the parties’ property.
Both parties either worked and brought income to the relationship (some of which was in the form of Incolink or Workcover payments as a result of the husband’s injury and retrenchments), or remained at home and took care of the children and the household.
When all the contributions, direct and indirect, financial and non-financial, are considered, I find that the husband made slightly greater contributions to the parties’ property during their de facto relationship and marriage.
Post-separation contributions
The picture of the parties’ financial contributions after they separated is a very different picture.
The wife has made all payments to the mortgage and to the personal loan, with the husband contributing little if anything to those liabilities. Of course, she has also had the direct benefit of those payments in that she is living in the Suburb C property.
I note that the husband has made child support payments as assessed and that he has looked after the children when they are in his care, all of which is counted as a post-separation contribution to the welfare of the family.
The wife’s post-separation contributions also include the majority care of the parties’ two young children.
I assess the wife’s post-separation contributions to be significantly greater than those of the husband.
Decision: Issue D
When I consider all the overall contributions made by the parties, whether they be direct or indirect, financial or non-financial, I find that the wife has made contributions to the parties’ property in the proportion of 52.5% and the husband’s contributions have been in the proportion of 47.5%.
Issue E: Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
Section 75(2) of the Act sets out the factors the Court must take into consideration when making orders for the maintenance of a party to a marriage.
The inclusion of this exercise in property proceedings is required by s.79(4)(e).
Section 75(2) of the Act states that the court must consider the following matters when deciding whether to further alter property interests of parties [6]:
[6] I have omitted sub-sections which do not apply to these parties
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
In this case, the parties are each in their late thirties and, apart from the husband’s persistent pain from his workplace injury, both are in good health. I note that the husband’s injury does not prohibit him from working full time, albeit as a casual worker.
The husband has significantly greater earning capacity than the wife, deposing that he can earn between $100,000 and $200,000 per year as a tradesman. The wife is engaged in home duties and has a part-time position earning about $38,000 per year.
The wife has the majority care of the two children of the marriage, who are now aged almost seven, and four-and-a-half. She wishes to continue to be their primary parent.
Mr Deegan has repartnered and has an obligation to provide for his de facto partner, Ms G, although he has no legal obligation to support her children.
Ms Deegan has no obligation to support any third party.
The wife lives in the Suburb C property with the children and is responsible for all the outgoings of that property, including the mortgage repayments, loan repayments, rates, utilities and other expenses.
The husband lives in rented accommodation with Ms G and her two children and is responsible for the rental payments and outgoings on that property.
There is little equity in the Suburb C property, and it is uncertain whether Ms Deegan would be able to discharge the current mortgage encumbering it. If not, that would mean that she would have to move to less secure accommodation with the children, much the same as Mr Deegan has had to do since separation. Even if she is able to retain the Suburb C property, she will have a very significant loan to service in addition to her obligations to the children.
The parties were in a de facto relationship and marriage for some ten years, a medium term period of cohabitation, and it is likely that the wife’s earning capacity has been affected by that duration and the need for her to care for the children.
As previously stated, the husband pays child support as assessed by the Child Support Agency.
The husband has received several significant sums of money since separation totalling more than $55,000, some of which has been considered when I have determined the pool of assets to be divided between the parties, and the remainder of which I consider as post-separation payments of which he has had the sole benefit under s.75(2)(o). He used none of those cash payments to contribute to the joint debts of the marriage. If he had done so, the parties’ financial position, and the outcome of these proceedings, might have been very different.
The wife deposes that she has had to seek a hardship payment of $8,000 from her superannuation fund in order to fund her post-separation obligations and I also take that matter into account under s.75(2)(o).
I also note under s.75(2)(o) that the children have lived at the Suburb C property for their whole lives and that, while they now visit their father at his home, the Suburb C property has been the only permanent home they have known.
Decision: Issue E
When I consider all the factors set out in s.75(2) of the Act, I find that it is appropriate to make a further adjustment to the wife of 17.5%.
Issue F: In light of those findings, what Orders should be made to effect a just and equitable division of property between the parties?
The result of the above decisions is that overall, the wife should receive 70% of net assets of the parties, and the husband 30%.
It was Ms Deegan’s evidence at trial that she had previously received verbal approval to borrow $300,000 so that she could refinance the mortgage loan attached to the Suburb C, and that she was confident of being approved again once these proceedings have been completed. There was no documentary corroboration of that claim available at trial, but Ms Deegan was to provide corroborative evidence to the husband’s solicitors as soon as she could retrieve it.
I will therefore craft orders which give Ms Deegan the opportunity to retain the Suburb C property by discharging the mortgage currently encumbering it. If she is unable to do so within 90 days of orders being made, the property will have to be sold in order to effect a property settlement that is just and equitable in all the circumstances.
The parties will also retain their current motor vehicles, which will entail Mr Deegan transferring the Motor Vehicle D to the wife.
The joint debts of the parties apart from the mortgage will be apportioned so that they are either paid and discharged, or one party becomes liable for them. Otherwise, there will be a settlement such that overall, the wife receives 70% of the non-superannuation property of the parties, and the husband 30%.
In dollar terms on the figures provided at trial, that would see Ms Deegan paying Mr Deegan the sum of $3,845 to account for the difference in each party’s property after the settlement ordered.
However, if Ms Deegan is unable to refinance the mortgage and/or the payment to Mr Deegan, and the Suburb C property is sold as a result, then the amount each party receives from the sale of the property will be such that, overall, the wife receives 70% of the total net assets and the husband 30%. The actual amount each receives will depend on the sale price of the property in those circumstances.
I do not propose to make an order for a superannuation split, as there is little difference in the parties’ current entitlements, and given the husband’s greater earning capacity, his superannuation entitlements are likely to increase at a significantly greater rate than those of the wife so that they “catch up” to hers in a relatively short time.
Conclusion
It is to be hoped that these parties will be able to get on with their respective lives without rancour now that their property is settled and their parenting arrangements are set out clearly for them.
[X] and [Y] deserve no less.
I certify that the preceding three hundred and ninety two (392) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 5 August 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Costs
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