DERBY & MORCE
[2018] FCCA 3926
•6 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DERBY & MORCE | [2018] FCCA 3926 |
| Catchwords: PROPERTY – Short marriage and very small pool – where the mother is out of the workforce as a result of caring for the child – mother to have the majority of the non-superannuation assets – small superannuation splitting order made. SPOUSAL MAINTENANCE – Where the parties separated nearly three years ago - where the mother filed an application for spousal maintenance shortly before the hearing – where as a result of incurring substantial legal costs prior to the mother making her application which he is paying off the father has no capacity to pay spousal maintenance – application dismissed. |
| Legislation: Family Law Act 1975, ss.60CC, 61DAA, 65DAA, 72, 75, 79 |
| Cases cited: Clauson & Clauson (1995) FLC 92-595 Hamilton & Coleman [2016] FCCA 901 |
| Applicant: | MR DERBY |
| Respondent: | MS MORCE |
| File Number: | NCC 1045 of 2016 |
| Judgment of: | Judge Terry |
| Hearing dates: | 31 October, 1, 2 and 21 November 2018 |
| Date of Last Submission: | 21 November 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 6 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Weightman |
| Solicitors for the Applicant: | Carroll & O’Dea Lawyers |
| Counsel for the Respondent: | Mr Levick |
| Solicitors for the Respondent: | Attwaters |
| Counsel for the Independent Childrens Lawyer: | Mr Mueller |
| Solicitors for the Independent Childrens Lawyer: | Jennifer Blundell & Associates |
ORDERS
Parenting
The mother and the father shall have equal shared parental responsibility for the child [X] born …2015 (“the child”).
The child shall live with the mother.
The father shall spend time with the child:
(a)Until 1 May 2019
(i)From 2.30pm to 5.30pm on Sunday 9 December 2018;
(ii)Commencing on 11 December 2018, from 4.00pm to 6.00pm each Thursday; and
(iii)Commencing on 23 December 2018 and each alternate Sunday thereafter from 12 noon to 3.00pm.
(b)From 1 May 2019
(i)From 4.00pm to 6.00pm each Thursday; and
(ii)Each alternate Sunday thereafter from 9.00am to 4.00pm.
(c)Upon the child turning 4 years of age (2019)
(i)From 4.00pm to 6.00pm each Thursday; and
(ii)Each alternate week from 9.00am on Saturday to 4.00pm on Sunday.
(d)Upon the child turning 5 years of age (2020)
(i)From 4.00pm to 6.00pm each Thursday; and
(ii)Each alternate week from 3.00pm or the conclusion of school on Friday until 4.00pm on Sunday.
(e)From the commencement of Term 3 in 2021
(i)From 3.00pm or the conclusion of school on Thursday until 9.00am or the commencement of school on Friday; and
(ii)Each alternate week from 3.00pm or the conclusion of school on Friday until 4.00pm on Sunday.
(f)From the commencement of Term 1 in 2022
(i)From 3.00pm or the conclusion of school on Thursday until 9.00am or the commencement of school on Friday; and
(ii)Each alternate week from 3.00pm or the conclusion of school on Friday until 9.00am or the commencement of school on Monday.
(g)Terms 1, 2 and 3 School Holidays
(i)Commencing in 2021, during the terms 1, 2 and 3 school holiday periods for a 5 night block period of time as agreed between the parties but failing agreement from 3.00pm or the conclusion of school on the last day of the school term until 4.00pm on the day five days later.
(ii)Commencing in 2022, for one half of the terms 1, 2 and 3 school holiday periods as agreed between the parties but failing agreement:
A.For the first half of the holidays during even numbered years commencing at 3.00pm or the conclusion of school on the last day of the school term until 4.00pm on the day which is the midpoint of the holiday period.
B.For the second half of the holidays during odd numbered years commencing 4.00pm on the day which is the midpoint of the holiday period until 4.00pm on the following Sunday.
(h)Christmas School Holidays
(i)In 2019/2020 and 2020/2021:
A.In accordance with the time provided for in Orders 3(d) to 3(f).
(ii)In 2021/2022 for 3 x 6 day block periods at times as agreed between the parties but failing agreement commencing at 9.00am on the first, third and fifth Saturday’s of the holiday period and concluding at 4.00pm on the following Friday.
(iii)In 2022/2023, 2023/2024 and 2024/2025 in a week about arrangement:
A.In even numbered years commencing at 4.00pm on the first Saturday of the holiday period and concluding at 4.00pm on the following Saturday.
B.In odd numbered years commencing at 4.00pm on the second Saturday of the holiday period and concluding at 4.00pm on the following Saturday.
(iv)From 2025/2026 onwards:
A.For the first half of the holiday period in even numbered years commencing at the conclusion of school on the last day of school term until 4.00pm on the day which is the midpoint of the school holiday period.
B.For the second half of the holiday period in even numbered years commencing at 4.00pm on the day which is the midpoint of the holiday period until 4.00pm on the last Saturday of the holiday period.
Notwithstanding any other Order:
(a)If the father is due to spend time with the child on the Mother’s Day weekend the father’s time shall be suspended and the father shall spend time with the child on the following weekend.
(b)If the mother is due to spend time with the child on the Father’s Day weekend the mother’s time shall be suspended and the father shall spend time with the child on that weekend in lieu of the following weekend.
(c)The parent who does not have care of the child on the child’s birthday shall spend time with the child:
(i)From 1.00pm until 5.00pm if the birthday falls on a non-school day.
(ii)From the conclusion 3.00pm or the conclusion of school until 6.00pm if the birthday falls on a school day.
(d)The child shall spend time with the father from 9.00am until 12 noon on 25 December 2018.
(e)In 2019/2020 and each alternate year thereafter the father shall spend time with the child from 3.00pm on Christmas Eve until 3.00pm on Christmas Day and the mother shall spend time with the child from 3.00pm on Christmas Day until 3.00pm on Boxing Day.
(f)In 2020/2021 and each alternate year thereafter the mother shall spend time with the child from 3.00pm on Christmas Eve until 3.00pm on Christmas Day and the father shall spend time with the child from 3.00pm on Christmas Day until 3.00pm on Boxing Day
The father’s time with the child in accordance with Order 3(a) to (f) is suspended as follows:
(a)From 1 to 8 May 2019;
(b)From 2021 during school holiday periods and in its place the father shall spend time with the child in accordance with Orders 3(g) and (h).
Changeover of the child shall take place as follows:
(a)Until the child starts Kindergarten:
(i)Unless otherwise agreed the mother shall deliver the child to the father at the paternal grandparents’ residence at the commencement of the time and the father shall return the child to the front gate of the maternal grandmother’s residence at the conclusion of the time.
(ii)Upon the child commencing Kindergarten all changeovers that occur on a school day shall occur by way of the father collecting and returning the child to the school.
The child shall have telephone communication with the father (including Facetime and/or Skype) as agreed between the parents and failing agreement each Tuesday at or about 5.30pm with the father to place the call to the mother’s telephone number, and the mother to make the child available to receive the call NOTING THAT this Order has been made on the basis that the father acknowledges at present the child may be difficult to engage on the telephone/Facetime/Skype call and he will terminate the call immediately if it becomes apparent that the child is not engaged in the call.
Each parent shall behave respectfully to the other during the telephone call and shall not attempt to raise any parenting issues with the child NOTING THAT the telephone communication is solely so that the father can communicate with his daughter.
The parents shall keep each other informed of their residential address and contact telephone number and must advise the other of any change to those details no later than seven (7) days after such change has occurred.
The parents are restrained from denigrating the other, or their extended family, or any of them in the presence or hearing of the child and shall not allow any third party to denigrate the other or their extended family or any of them in the presence or hearing of the child.
The mother and the father shall ensure that any third parties do not do the following:
(a)Physically discipline the child.
(b)Smoke in the car or in the vicinity of the child.
Both parties shall do all acts and sign all documents necessary to authorise the child’s day care and then school to forward directly to both parents all school reports and any written material pertaining to the child’s academic and extra-curricular activities.
Both parents are permitted to attend the child’s extra-curricular performances and sporting events and other activities that parents would normally be invited to attend including but not limited to parent/teacher interviews, sports carnivals, plays, swimming carnivals and midweek or weekend sports.
Each parent shall inform the other parent as soon as reasonably practicable in the event of the child while in their being involved in an accident or medical emergency requiring attendance at hospital or being diagnosed with a serious illness.
Within 14 days of a written request from one parent, both parents shall do all acts and sign all documents necessary to obtain an Australian passport for the child.
The parents shall be equally responsible for the application fee and any other costs necessary to obtain the passport.
The parents may travel overseas with the child as agreed but failing agreement, during any period of time the child is in their care.
The parent proposing travel overseas with the child must:
(a)Provide to the other parent at least 2 months’ notice in writing of the overseas travel plans;
(b)Provide to the other parent a copy of the travel itinerary and contact details for the child;
(c)Do all things and sign all documents necessary to obtain travel insurance;
(d)Notify the other parent upon their arrival at the destination; and
(e)Notify the other parent upon their return to Australia.
The mother must provide the child’s passport to the father within 7 days of being notified of the intended travel.
The father must deliver the child’s passport to the mother upon his return and the mother must then safely store the passport.
The Independent Children’s Lawyer’s application for costs is dismissed.
Property
Within 7 days of today’s date the parties shall do all things and sign all documents to authorise Carroll & O’Dea Lawyers to distribute the money held in their trust account on behalf of the parties in the following manner;
(a)$70,000.00 to the mother; and
(b)the balance to the father.
Pursuant to section 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of MR DERBY’S interest in Super Fund A (of which Super Fund A Pty Limited ABN … I a trustee (“the trustee”)), the trustee shall pay to MS MORCE the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $14,500.00 and there shall be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these Orders.
Order 23 has effect from the operative time which is 4 business days after a sealed copy of these Orders have been served upon the trustee.
Each of the parties is otherwise declared the owner to the exclusion of the other party of all assets and superannuation held in their name, in their possession or under their control.
In the event that either party refuses or neglects or is unable to execute any instrument or document being an instrument or document the execution of which is provided for in these orders or is necessary to put into effect the provisions of these orders then at the request of the other party a Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute any such instrument or document in the name of the party refusing or neglecting or being unable to so execute the instrument or document.
Spousal Maintenance
The mother’s application for spousal maintenance is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Derby & Morce is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1045 of 2016
| MR DERBY |
Applicant
And
| MS MORCE |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter involves applications for property, parenting and spousal maintenance orders.
The parties were in a relationship/marriage which spanned about three-and-a-half years and they have one child, [X], who is aged 3 years and 2 months.
[X] lives with the mother and she seeks an order that the child continue to live with her and spend time with the father. She proposes quite a slow progression of that time, starting with some further supervised visits at Relationships Australia and then moving to two-hour and then three-hour visits unsupervised. I am not going to go into complete detail about her proposal now but it is for quite a slow progression, and she wants an order that the initial unsupervised time occur at the home of the father’s parents.
The mother seeks an order for sole parental responsibility.
The father also seeks an order for sole parental responsibility and he seeks an order that the child live with him and for the first six months spend extremely limited supervised time with the mother. He proposes that when [X] is about three‑and‑a-half or so time increase. If I haven’t misread his orders it then jumps to four days and five nights a fortnight.
I struggle to see how that proposal is child‑focused in terms of time but I will discuss that later in the judgment.
It was the father’s case that unless there was a change of residence the child would never have a relationship with him, one of her two parents.
At the commencement of the hearing, the father handed up alternative orders which he said the Court should consider making if it did not go with his proposal for the child to live with him. They included a proposal for equal shared parental responsibility and that the child live with the mother and spend time with the father. The father’s counsel did not refer to this alternative proposal during submissions and the reason I mention it is because the Independent Children’s Lawyer seems to have adopted it as a template for her proposal.
The Independent Children’s Lawyer proposed that the parties have equal shared parental responsibility and that the child live with the mother and spend time with the father of increasing duration starting immediately with two and three hours on several occasions each week and with overnights to commence in February 2019.
It was proposed that in May 2019 the time move to two overnights, when the child was 4 ½ it move to three overnights and when the child was 5 ½ the time be from Wednesday to Monday each alternate week.
The Independent Children’s Lawyer’s orders see that last change coinciding with [X] starting of school, which is something a family consultant normally does not recommend. Starting school is a big change for a child and it is usually recommended that another big change not occur at the same time. However that is an issue I can consider later on.
The property pool is very modest indeed. It consists of non-superannuation assets worth about $84,000.00 and superannuation, with the father having a little more than the mother.
The focus of the parties was on what should happen to an amount of $93,000.00 which is the proceeds of sale of the former matrimonial home. The mother’s proposal was that she receive $70,000.00 of that and the father the balance and that she also receive a superannuation splitting order.
There was a little bit of a disjunct between what was in the mother’s case outline document about the superannuation splitting order and the orders she sought. One of her proposals was that the superannuation should be split so that she and the father ended up with the same amount. One of them would give her more superannuation but I will deal with that issue later on.
The father proposed that the sale proceeds be divided 60/40 in his favour. This was on the basis that [X] would be living with him so the s.75(2) factors would favour him.
Very late in the case the mother introduced a claim for spousal maintenance.
In her amended application she sought indefinite spousal maintenance in the sum of $500.00 per week. That did not fit very well with the information in her affidavit to the effect that she intended to return to work once [X] commenced school and her counsel conceded during submissions that the order being sought should appropriately be that the father pay the mother $500.00 per week spousal maintenance until [X] commenced school.
That was opposed by the father. He said he simply didn’t have the capacity to pay.
The evidence
The evidence in the father’s case was given by the father and he filed affidavits by the paternal grandfather, Mr D; the paternal grandmother, Ms E; and the paternal aunt, Ms F.
The father was cross-examined. The remaining witnesses were not required.
An omission from the father’s case was an affidavit by his girlfriend Ms G. He has been seeing her for about 12 months. He proposes that she be a significant part of the care arrangements for [X] and yet she wasn’t called to give evidence. That is a little bit of a concern when the father is pressing for residence. On the flip-side, the mother did not suggest that Ms G had any disqualifying factors such as a criminal record or children that had been taken by the Department.
In the mother’s case, the mother and the maternal grandfather and grandmother provided affidavits and were cross-examined.
A family report was prepared in March 2017 by Ms H who was then a Regulation 7 family consultant.
The report writer recommended that the matter not be finalised at that time and that an order be made for time with the father to commence and after that happened a further report be obtained.
No further report has been obtained. Time with the father commenced after the report was released but it was the slow process of supervised time and the parties preferred the matter to be listed for trial rather than for another report to be ordered.
The matter was listed for trial in October and I have heard the evidence and I now have to hand down a decision.
I was going to note at this point that I did not have evidence that procedural fairness had been given to the trustee of the father’s superannuation fund but that has now been dealt with.
Background
The mother is 39 and the father 33. They commenced a relationship in …2012 when they were 33 and 27, commenced cohabitation in …2014 and married on …2014.
They have one child, [X], who was born on …2015. Neither party has any other children.
The parties had a separation very shortly after [X]’s birth and their relationship was more off for the next four months. Their final separation occurred on about 19 January 2016 when [X] was four months old.
The mother is a tradesperson by occupation. The father works as a professional at Employer. Neither party had much by way of assets when the relationship commenced. They saved up some money, or obtained some money from somewhere, and in …2014 they purchased Property C, using $43,000.00 that they had between them. The property was purchased in joint names and it was at that time that they moved in together.
The mother fell pregnant in …2014 but whether problems between the parties commenced prior to that or immediately after, their relationship from around that time appears to have been pretty miserable.
There were a lot of fights and arguments. The parties each make allegations which I am going to have to deal with about verbal abuse and physical abuse. The mother sometimes left the home for lengthy periods and in fact she did that just before she went into labour.
The relationship ended in January 2016 and from that point on, and prior to that it had been happening largely anyway, the mother and [X] lived with the mother’s parents and the father stayed in the former matrimonial home.
Very shortly after separation the father was charged with stalk intimidate and an ADVO was taken out after the mother made a complaint to the police. The father pleaded not guilty and was acquitted after a hearing on 23 September 2017.
Following the final separation, the father did not spend time with [X]. The mother did not offer for him to do so and in April 2016 he filed an application seeking parenting and property orders.
There were difficulties with service and at one stage I indicated that if the mother did not attend court on the next occasion, I would issue a warrant for her arrest. She ultimately attended in August 2016 and she filed a response, affidavit in support and Notice of Risk.
The mother made some very serious allegations in her affidavit including an allegation that the father had threatened to kill her and allegations about his treatment of [X], including that he deliberately attempted to harm her. In those circumstances I elected, as I often do, to go straight to a family report. No interim orders were made.
The family report was released in March 2017 and on 6 April 2017 an order was made for the father to commence spending time with [X] at …Children’s Contact Centre. [X] was then about 18 months old and did not know the father and it was entirely appropriate that an order was made for supervised time.
There was then a difficulty though in getting the mother to undergo the intake procedure and I had to relist the matter on 29 May 2017 to ensure that this occurred. Once the mother took part in the intake procedure the parties went onto a waiting list and in September 2017 time commenced for one hour a week with the maternal grandfather present.
On 11 April 2018 the time became two hours once a fortnight, again with the maternal grandfather present.
In October 2018 when the trial commenced, the father was still spending supervised time with the child.
In relation to the property matter, the only other thing to mention by way of background is that prior to the commencement of the trial the former matrimonial home was sold and nett proceeds of $93,000.00 are held in the father’s solicitors’ trust account.
[X]’s best interests
Any orders I make about [X] must be orders determined by treating her best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine [X]’s best interests.
There are primary and additional considerations. I often start with the additional considerations and I am going to do that in this case. I am however, going to dispose of some of them fairly rapidly rather than just go through them seriatim because some of them are not relevant or helpful.
[X] is three and is too young to have a view about parenting arrangements.
There is no issue in this case with payment of child support. The father is assessed to pay about $200.00 a week and does pay it.
There is no practical difficulty and expense in the child spending time with a parent. The parents live about half an hour’s driving distance apart.
Making findings about the parents’ attitude to the duties and responsibilities of parenthood as a separate issue (because some of the issues that might come under that heading, I will discuss in parenting capacity) is not going to help me particularly either.
The first consideration which is relevant is the nature of the relationship of the child with each of her parents.
The mother is [X]’s primary carer and she is also her primary attachment figure.
The family report writer observed the mother with the child and said that in her view the child was very securely attached to her mother. She said as follows:
[X] was observed to appropriately use the mother as a safe base when exposed to this writer, a stranger to her but was able to smile at this writer from a distance with the mother and grandparents present in the room. This suggests [X] has a healthy and stable primary psychological attachment to the mother, her primary attachment figure. In making orders for [X], it is important to note she will continue to be in the psychological attachment phase of development until she reaches about three years of age and as she has had little contact with the father since her birth and no contact for over a year, any time away from the mother will need to be frequent for short periods rather than less frequent for long periods, until [X] can develop a strong secondary attachment with the father, if she is not at risk in his care.[1]
[1] Paragraph 73 of the Family Report.
The family report writer also referred to the child’s relationship with the mother and her grandparents and said as follows:
[X] was observed to have a close and dependent relationship with the mother and the maternal grandparents. This writer decided not to conduct an observation session for [X] with the father, as both this writer and the father are strangers to [X] and the mother would not agree to remain in the observation room, at a distance from the father and [X], to enable [X] to comfortably spend time with the father. Despite this writer informing the mother that this writer would remain in the room at all times, the mother stated she would only be present if the maternal grandfather was also allowed to be present but this writer did not feel it was appropriate for three adults to be surveilling the father, while he interacted with [X]. When the father was advised by telephone of this writer's reasons for not holding an observation session for [X] with him, the father said he understood and would not want [X] distressed in any way.[2]
[2] Paragraph 75 of the Family Report.
There was no observation of the father and the child at the family report interviews. It would not have helped if there had been. I have had other cases where a parent has not spent time with a child and then there is a forced introduction at the family report interviews which has been very miserable. It doesn’t necessarily mean anything for the future but it also doesn’t help me in terms of what I have to determine.
The more important evidence is in the Relationships Australia notes. It is clear from those notes that the father is developing a relationship with the child.
The paternal grandfather was dismissive of the father’s efforts in his affidavit. The notes from Relationships Australia are not. They suggest that the father is making a considerable effort and is bonding with the child. Lots of activities are described.
In the witness box the mother said that [X] was excited to go and was happy on the way home, so there is a developing bond. It is the bond of a child with an adult playmate at the moment but it provides a basis for the child to develop a relationship with her father.
The next relevant matter is the extent to which each parent has taken or failed to take the opportunity to spend time with the child, communicate with the child or to make decisions about a child.
The father has gone to considerable lengths to form a bond with his daughter. He has been very patient. He has never once in these proceedings shown any aggression or impatience. The process has been a long, drawn-out one. He has been persistent. He has occasionally missed a visit but on the basis of the evidence that does not reflect negatively on him.
I am satisfied that the father has a genuine commitment to forming a bond with his daughter.
The process may seem drawn out but there is a letter in the tender bundle from Relationships Australia dated 17 February 2018. It is critical of the mother for not agreeing to a change to the current arrangements but Ms J from Relationships Australia goes on to say:
So although I would say [[X]] has made a lot of progress, we still have a way to go, until she is ready to have a two-hour visit without her grandfather present.
There is recognition in that note that [X] is young and that she is forming a bond with her father but that these things take time.
I must consider the likely effect of any change in the child’s circumstances.
This sits right in the middle of the additional considerations but is often one of the critically important issues in a case and is something which is very difficult to make findings about until findings are made about all the s. 60CC (3) matters and the s. 60CC (2) matters.
The family report writer considered this issue from the perspective of [X] being separated from her mother and from the perspective of her not having a relationship with her father and said as follows:
The impact of the father's proposal that [X] live with him, will be that [X] will suffer a significant disruption to her psychological attachment to the mother. Such a disruption can cause low self-esteem throughout life, can cause mental health issues such as depression, anxiety and self-harming and can result in substance abuse. The disrupted attachment can also cause attachment problems in the next generation. If however the court finds that by continuing to live with the mother, [X] will not have a relationship with the father or extended paternal family members, [X]’s attachment concerns may need to be weighed carefully against not having a relationship with the father or his family.[3]
The impact of the mother’s proposal that she have sole discretion as to whether [X] spends time with the father or not, given the mother's and the maternal grandparents' stated views and attitudes toward the father, suggests that [X] will not have a relationship with the father or his family in future. There is always a potential negative impact on children, who do not have a relationship with their other parent. As they mature through childhood, they can feel they are to blame for the parent's absence from their lives or believe that half of them is "bad" just like their absent parent. These issues can cause significantly negative impacts on their self-esteem, as they develop into adolescence and adulthood. This damage to their self- esteem can lead to mental health issues such as anxiety, depression and self-harming and often they will use substances to self-medicate their psychological pain. In later life, there is a risk that women in particular, will remain in unhealthy/violent relationships, just so that their own children can have the father figure that they did not have. These potential impacts however need to be carefully balanced against any unacceptable risk a parent poses to a child.[4]
[3] Paragraph 85 of the Family Report.
[4] Paragraph 87 of the Family Report.
However, before I can make any further findings about the likely effect of a change in [X]’s circumstances, I will have to make some further findings about the s.60CC(2) and (3) matters.
The next relevant consideration is the capacity of each of the parents to provide for the needs of the child, including her emotional and intellectual needs.
The father works full-time for Employer. He currently works from about 7.30am to 3.30pm although from his answers in cross-examination about his income it appears that he sometimes does overtime.
The father said that he could change his hours so that he started later if he needed to. He is also required to be on call, but he said he could stop that if he needed to. He said that he would take four or five weeks off if the child came to live with him. I have no reason to disbelieve that evidence.
The father gave evidence about the people who could assist him to care for the child when he returned to work. They were his girlfriend, Ms G, his mother who works 35 hours a week at a business and his sister who works casually at a business and otherwise stays home looking after children. He also said that he would enrol [X] in pre-school two or three days a week.
It is positive that the father has identified people who could care for [X] when he returned to work and he is not to be criticised for his desire to return to work. One of the things that concerned me about the father’s case though was that there was no mention at all in his affidavit of the fact that the child was likely to experience considerable distress if there was a change of residence and that causes me to be concerned about his capacity for empathy.
In March 2017 the father told the family report writer that he was seeking a change of residence. That was not his initial application but in March 2017 he told the family report writer that was what he was seeking and why and the family report writer said as follows in her report:
Following discussions regarding [X]’s young age and her currently being in a psychological attachment phase, and as to date there have not been any parenting orders made which might assess whether the mother is willing to comply with [X] rekindling her relationship with the father, the father accepted that a further interim order for supervised time may be more in [X]’s best interests.[5]
[5] Family Report paragraph
Nevertheless, since then the father has gone back to the proposal of the child living with him and I am concerned about his complete absence of any engagement with the fact that it would cause enormous distress for the child.
At trial, the father persisted in seeking residence even though time had commenced, albeit with some problems. He did not mention the issue of the child’s distress in his affidavit and his final application as outlined by his counsel during submissions was that the child should live with him and spend some very limited two‑hour periods of supervised time with the mother.
No explanation was advanced for why the mother’s time with the child needed to be supervised. In his affidavit the father said that he planned to also arrange for the mother to visit the child three times a week with him and his parents present.
That whole arrangement would be incredibly distressing for the child and I was concerned that the father did not show any capacity to put himself in the child’s shoes and imagine what it would be like for her if that occurred.
Sometimes the Court is forced to do that kind of thing for safety reasons. However it is an enormous, sometimes traumatic change for a child and if people can engage with that and see it, it gives the Court confidence that they are likely to be able to help the child to adapt.
If there is no sign of that insight it is a concern.
My other concern about the father too, probably slightly out of context but I just want to mention it here, is this.
It is the father’s case that the mother has been relentlessly obstructive of him spending time with the child and there is an element of truth in that.
The mother alleged however that the father had made some threats about taking the child and the father did not mention in his affidavit that this had in fact occurred and there was no sign that he recognised the impact that that might have had on the mother.
It was put to him in cross-examination that in November 2015 he posted this on Facebook:
Hah, hah, hah, hah, hah, hah, hah, and I’ll be laughing all the way to the courts to fuck you over so you’ll have nothing and no daughter.
That fits with what the mother alleged about the father threatening to take the child.
I will give some reasons later for why I find that both parents were verbally abusive to each other during the relationship but it is regrettable that the father did not mention posting the Facebook message and showed no insight into the impact it might have had on the mother when she left the relationship in terms of being willing to allow the child to spend time with him.
The father does not have any mental health issues that are apparent to the Court and he has no drug and alcohol issues. There is no allegation that he is any sort of a danger to a child but the evidence about his lack of empathy is a concern. It doesn’t mean that the father will not see the child regularly but it is a concern.
Even in the light of the mother changing her position at trial to offer some regular unsupervised time, which might not have been what he wanted but even in the light of that, the father did not change his residence application. He persisted with it right to the end of the hearing and it almost feeds into someone wanting father’s rights rather than being focused on child’s rights.
That does not mean that the father will not be seeing the child. He ought to have the opportunity to show what he can do as a parent and to have a relationship with his child. My concern about his lack of empathy does not mean that should not be attempted. But if that carries over into his day-to-day parenting of the child, and I cannot know how that is going to play out one way or the other, it might impact adversely on the child and it might mean the matter comes back to Court or that litigation becomes entrenched.
I do not have concerns about the father’s parenting capacity other than that question mark over the lack of empathy. The mother was concerned about his reaction at the contact centre when the child injured herself but she relied on what her father told her about that and I am not satisfied that it indicates any lack of parenting capacity by the father.
Absent the issue of encouraging and promoting a relationship between the child and the father, the mother is a very capable parent. [X] is happy and healthy. The mother was not challenged about the detailed evidence in paragraphs 18 to 32 of her affidavit about the things she and [X] did and how their life was organised.
The mother is living with the maternal grandparents. She has appropriate accommodation. [X] has her own room. Absent the issue of her capacity to promote that relationship, she cannot be criticised as a parent. She has no drug and alcohol issues, no mental health issues and no parenting capacity issues absent that one.
I have been critical of the father in relation to empathy but I am also concerned about whether the mother has the capacity to focus on the child as an individual, to see the child as an individual who needs a relationship with both parents, to put aside as best she can her feelings about the father and to ensure that the child is given an opportunity to have a relationship with both of her parents and not just one.
The mother is yet to demonstrate that she has that capacity and if she cannot demonstrate it, the matter could rapidly come back to Court.
The fact that the mother lives with the maternal grandparents may not be helpful in terms of whether her attitude can shift. The maternal grandparents are very supportive of the mother and share her views about the father.
However, the maternal grandfather is here in Court today. He is listening to these reasons so I hope he can assist his daughter in ensuring any orders I make are complied with, because one of the sad things that this Court often sees are people who end up with a stack of files this high and are still litigating five, six, seven or eight years after they first come to Court.
I must consider the child’s maturity, sex and background.
The child is healthy with no issues save that she is not speaking much. She has just turned three and she only says a few words.
The father is concerned about that and is comparing his daughter with a niece and I can understand why he is concerned. There could be an issue and it needs investigating.
The family report writer pointed out though that children start speaking at a range of ages and this child is the only child in a household. People are no doubt anticipating her needs and meeting them without her even needing to speak, and that can mean that children just don’t bother, and the child is not going to day care at the moment or anything which might encourage that talking.
The father’s niece has an older sibling and a step-sibling so she is in a very different situation. If she doesn’t speak she is probably going to get ignored.
The issue needs to be investigated but I cannot conclude that the child is not speaking because of neglect or that she necessarily has a problem.
The issue of family violence became a huge issue in the matter and I will go through it in a little bit of detail but also try to summarise it as much as I can.
The father alleged that the mother smashed a mobile phone, tore up wedding photos, physically assaulted him after she became pregnant and threw a punch at him while she had [X] in her arms on 1 October. He also alleged that she attempted to harm herself while she was pregnant and that she punched herself in the stomach and ran onto the road and did the same the following day.
Those allegations were denied by the mother.
The mother made numerous allegations about the father. She alleged that he had stalked her in terms of the way he made use of phones and mobile phones and tracking devices. She gave detailed evidence about his behaviour in the home. She alleged he made her stay in her bedroom, left steak knives around the house and grabbed her by the arm and wrestled her keys and bag from her when she said she was leaving, forcing her to the ground. She alleged that he threatened her with his fists while she was breastfeeding, although I will come in a moment to what she told the police about that at that time because it is a credit issue. She alleged that he threatened to kill her if she left and took [X].
Both parents alleged that the other parent was verbally abusive in the most horrible, vile terms during the relationship. The father alleged that he was called vile names and was belittled because of living in Suburb D. The mother alleged that she was called a slut, whore and psycho slut. She alleged she was called a fucking bad mother and was told her teeth were going to be knocked down her throat.
In more detail the mother said as follows:
Virtually every day on which Mr Derby and I lived together he verbally abused me, Apart from the things which I have already recited in this affidavit, Mr Derby said to me things like “You’re so fucking dumb, you’re just a dumb tradesperson” and “Get out of my fucking house, I pay all the bills! You’re just a low income earner!” and he called me “stupid slut” or “stupid whore” and said things like “What do you fucking do all day?” and “You’re so fucking lazy”.[6]
Other abusive things which Mr Derby said to me at various stage and more than once included:
[6] Paragraph 100 of the mother’s affidavit.
a)“I’m not eating your cooking, it tastes like shit”, and
b) “You should have an abortion. If you bring a child into the world it’s just gonna be like you, you should just go kill yourself”, and
c) “You should get an abortion if it will be like you”, and
d) “Get out of my fucking house. Get in your car and kill yourself and your baby. Go to your parents where you fucking belong”, and
e) “You’re just a dumb tradesperson who earns nothing”, and
f) “You spent four years training for nothing”, and
g) “You and the baby are nothing to me. You’re worthless”, and
h) “Do you think this is your fucking house do you? Just because here’s so many fucking photos of you up?”, and
i) “I hope when you give birth it’s the worst pain you’ve ever been in”, and
j) “I hope you and the baby die during birth”, and
k) You’re worthless, I hope you die, I’d be better off without you”, and
l) “You’re a fucking psycho slut”.[7]
At various times Mr Derby said to me “If you leave, I will kill you and the baby” and “Once you finish breast feeding, there will be no need for you any more” and “If you leave, by the time I finish with you, you will have no family, friends or daughter”.[8]
[7] Paragraph 101 of the mother’s affidavit.
[8] Paragraph 103 of the mother’s affidavit.
I have a lot of allegations; some allegations of physical abuse made by each parent and allegations of verbal abuse and I have to decide what findings I can make about behaviour during what was obviously a very miserable time for the parents.
There is clear evidence that the mother is willing to lie to achieve her ends. In October 2015 she wanted the police to get there in a hurry and she rang them and said the father had punched her in the head while she was breastfeeding. She admitted to the police as soon as they arrived that she lied.
The family report writer referred in her report to the mother telling lies about the availability of photos on a mobile phone because she didn’t want to make any photos available to the father.
There is a serious credit issue with the mother and it means that I cannot lightly find that the allegations that she makes about the father are true. Knowing that she is willing to tell lies to achieve an end I cannot rule out the possibility that she is telling lies to try and advance her case in this Court.
However some of the father’s evidence was questionable. He made some general admissions in the witness box about verbal abuse although he denied some of the mother’s specific allegations of verbal abuse and threats. He denied saying that the mother was expendable once she had finished breastfeeding [X]. He denied calling the mother a slut and a whore.
I do not accept the father’s denials for these reasons.
One is that the father is clearly someone who very readily engages in some very nasty verbal abuse. He tendered a recording he made of a conversation he had with the mother. When people are making a recording they are usually on their best behaviour so they are not shown up in the recording, yet in that recording the father calls the mother a conniving fucking liar and in response to her suggestion that she might go and have an abortion he says:
At the end of the day, what’s anyone else going to do to change your fucking mind. Don’t bother. Be a fucking adult and go and do it then.
I then have the admissions he made in the witness box about some of his verbal abuse of the mother. I have quoted the one where he said he was going to fuck the mother over so she would get nothing and have no daughter. There are some other quotes which I will include in the settled reasons that the father admitted were in the Facebook posts such as:
So enjoy Centrelink all you want.
This is followed by a series of smiley faces.
Another one begins:
You are kidding yourself, Ms Morce. You’re the most narrow-minded, self-centred, selfish person I’ve ever met. You think the sun shines out of your arse.
I also have evidence from the maternal grandparents that they came to the house one day and while they were standing outside they heard the father calling the mother a slut and a whore and the maternal grandmother said she heard the word “mole”.
I have no reason to disbelieve their evidence. It is true that they are in the mother’s camp. They are willing to apologise for her if she is caught out; that was evident when they were questioned about the photographs on the phone by the family report writer. But they did not beat up a case against the father in relation to abuse. They did not allege they had seen a whole raft of abuse. They just gave this one specific uncomplicated story about going to the house and hearing these words spoken by the father.
It is not inconsistent with the way the father has spoken on numerous other occasions in texts and Facebook posts and I accept the maternal grandparent’s evidence about what they heard.
The mother was not a reliable witness but I am not satisfied that the father was frank about the extent of his verbal abuse during the marriage so I have two somewhat unreliable witnesses.
I cannot make findings in the light of all of that, that there was physical violence, either perpetrated by the mother or perpetrated by the father. It would be unsafe for me to do so. One or other of them could be falsely denying something or falsely making up a story. However I am satisfied in all of the evidence that there has been considerable verbal abuse flung back and forth by both parties.
Examples of abuse flung by the mother include:
I buy a perfume wasn’t your birthday and pj wasn’t your birthday. I buy your clothes all the time wasn’t your birthday. Fucking liars.
Fucking don’t want you at doctors
Enjoy your week off you selfish piece of shit
Oh 7 weeks to do Mr Derby things...
I don’t trust where or whoever you with. I wish I never wasted my time getting marry and my nana money. What a waste on her soul
Selfish fuck only cares about Mr Derby. Can’t wait to tell [X] what piece of shit you are
Lose my number.[9]
[9] See Exhibit “H”.
It cuts both ways but there was some really nasty verbal abuse between these parties during their relationship. It is either repeated derogatory taunts or even a threat and intimidation by the father in relation to the “hah, hah, hah” quote on Facebook when he threatened the mother with having no child. When that was read out to the family report writer she immediately said, “that’s family violence”.
Both parties perpetrated family violence in this relationship in the form of verbal abuse and that will have implications which I will discuss that a bit later on.
I must consider whether there are any family violence orders.
A family violence order was in place for a fairly short period of time after the father was charged on 1 February 2016 but it was discharged when he was found not guilty.
I must consider whether it is preferable to make the order which is least likely to lead to further proceedings.
I cannot identify that order in this case.
If I make an order for a change of residence, [X] may not settle and the situation may become quite dire. That could bring the matter back to Court.
If I make an order for time the mother might breach it. That might bring the matter back to Court as well.
There are unknowns in this matter: whether the mother is going to change and how the father is going to be as a parent. I cannot be sure which orders will be least likely to lead to further proceedings.
I must consider any other relevant matter.
A relevant matter that the mother needs to bear in mind is that at the moment [X] is embedded in her family. She has a relationship with her maternal grandparents. [X] has though an extended paternal family who she needs to know and who should be part of her life and only if she has time with the father will she be able to have those relationships with the paternal family.
The first primary consideration is the benefit to the child of having a meaningful relationship with both of her parents.
It was the father’s case that unless I changed the child’s residence, she would not have a meaningful relationship with him in the future in other words a relationship which was significant, valuable and important to the child.[10]
[10] Mazorski & Albright (2008) 37FamLR 518
He pointed out that the mother was resistant to coming to Court in the first instance and had to be threatened with a warrant.
She did not engage with the contact service when she was ordered to do so and the matter had to come back to Court.
She was difficult about changing the time in early 2018 when the contact centre recommended it. She had been as difficult as she possibly could throughout the process and it was his case that the Court should give up on trying to get the mother to promote a relationship between him and the child and change the child’s residence.
He said that he had heard the child call the maternal grandfather Dad which was further illustration that the mother was intent on not promoting the child having a relationship with him.
That last one, as I pointed out during submissions, is a difficult one because the mother no doubt calls her father Dad and the child might well just be copying that. That is an issue which could resolve once the father is spending regular time with the child. However, there is abundant evidence that the mother has not been willing to promote the relationship.
The father did make a threatening and intimidating post before separation which did not help but this was a situation where each party flung this kind of abuse and threat at the other during the relationship. It might to a small degree explain what the mother did post‑separation but it does not justify the mother failing to accept that her daughter needed to have a relationship with her father who is a perfectly upstanding member of the community.
However what I have to decide is whether the situation is so dire that the only way to solve it is to change the child’s residence, because sometimes when people are faced with the realities they have a change of heart or they change their behaviour, and then the child can have a better outcome than if her residence is changed, and I will have to decide whether I think there is any possibility of that in this case.
The second primary consideration is the need to protect the child from physical or psychological harm, from being subjected to or exposed to neglect, abuse or family violence.
Pursuant to s. 60CC (2A) this trumps the first primary consideration and that was why when the allegations were made at the beginning, I was reluctant to order that time commence.
The mother ran a bit of a contradictory case at trial. She did not resile from claims about what the father had allegedly done to [X] when she was a baby, holding her up and dropping her toward the tiles and catching her at the last minute and threatening to kill her. However she also did not submit that from this point on the child would be at any risk of harm in the father’s unsupervised care.
I certainly cannot find that she would be because the mother was not a witness of credit. She is someone who will tell stories to achieve her end. I do not accept that there is any evidence the child has been harmed or threatened with harm by the father in the past or that she would be would be at risk of harm of abuse in his unsupervised care.
Both parents perpetrated some family violence in the form of vile verbal abuse and threats during the relationship but there is no evidence that is happening with the mother at the moment in the maternal grandmother’s parents’ home and no evidence that the father has a propensity to do that sort of thing in domestic relationships. I cannot find on the state of the evidence that the child is likely to be exposed to abuse, neglect or family violence in the care of either parent in the future.
Parental Responsibility
Both parents sought an order for sole parental responsibility. The presumption in s. 61DA does not apply because there has been family violence. I can nevertheless make an order for equal shared parental responsibility and I intend to make one and the Independent Children’s Lawyer supported that.
I do not know how it is going to go. The parents had a pretty awful relationship when they were trying to live under one roof. They were verbally abusive to each other. It is not going to be easy for them to cooperate and try and make joint decisions about major long-term issues for [X], even when shared parental responsibility only requires them to cooperate about big issues such as choice of school, choice of a day care centre or whether the child should have a particular medical intervention such as the insertion of grommets.
Small decisions such as whether the child has her toenails painted or gets her hair cut are day-to-day decisions and they will not have to cooperate on those.
The parents are not going to find it easy to share parental responsibility for [X] but it is important that I make an order that they do so and that they make every attempt to make it work for their daughter.
They are basically reasonable adults. They are both functioning well in the community. They have no mental health or drug and alcohol issues. They ought to be attempting to reach agreement about their daughter.
In circumstances where the mother had to be dragged kicking and screaming to understanding that the father was going to be spending time with the child, it would be undesirable to give her sole parental responsibility. It would create a power imbalance that could have a very poor outcome, and I cannot give the father sole parental responsibility unless I make an order that the child live with him and for reasons I am about to explain, I am not going to make that order.
The order I am going to make is that the parties have equal shared parental responsibility.
Conclusion
I am now going to explain what I am going to do and why taking into account all the findings I have made about the s. 60CC (2) and (3) matters.
I will worry in a moment about how I wrestle this into the straight jacket of s. 65DAA but I do not think that I will go there just at the moment because the big issue between the parents is where the child should live in the immediate future.
[X] turned three very recently. She is primarily attached to her mother. To date she has only spent time with the father at a contact centre. She plays nicely with him but given the restrictions she has a very limited relationship with him.
It would be a huge change for [X] if I made an order that she live with the father.
To a point, I can understand why the father pressed his application for a change of residence. I can understand how frustrated he must be about the mother’s constant thwarting of any increase in his time but I do note, because this ultimately was not objected to, that the mother did offer him some unsupervised time a few months before the trial. I am not saying he should have accepted it in terms of accepting the amount that was offered or the slow progression but his insistence right to the end of the trial that there should be a radical change of the child’s living arrangements does cause me to be concerned about his parenting capacity and his capacity for empathy.
[X] is strongly attached to her mother. There are no safety issues which require a change of residence. She is being very well parented by the mother, absent the grave difficulty she seems to labour under in accepting that the child has two parents. I am concerned about the father pressing that application so hard but I have already discussed that and I am not going to go into that again.
It would not be in [X]’s best interests to impose the very dramatic, drastic and distressing change of a change of residence on her until an opportunity is given for the mother to show that she can comply with a Court order about unsupervised time. The mother may prove unreliable about that but it is too early to give up on the prospect of it working.
I was referred in submissions to a decision I handed down in a matter a couple of years ago.[11] It involved two little girls who were three and four and I changed their residence to their father because of this very issue, or partly; there were other issues in that case including issues of the mother’s medical treatment of the children.
[11] Hamilton & Coleman [2016] FCCA 901
However it was a very different case. At the time I changed their residence, those little girls had a very good relationship with their father, in fact I may even have mentioned in the decision that it was open to question whether they did not have a better relationship with him than with their mother. They had spent extensive time with him and I made the decision to change residence but that is not this case.
I am not going to give up on the mother showing that she can get with the program and accept that the child has two equal but different parents. I am going to make an order that the child live with the mother. If that works, if the mother can support the orders that I make, that is the child’s best hope in life for having a good relationship with both of her parents in the future, because if I change her residence and cause her psychological distress the long-term outcome might be that she has a good relationship with no one.
The very difficult question then becomes what orders I make about the father’s time.
The mother’s proposal is just too limited and too slow but the Independent Children’s Lawyer’s proposal, which was basically based on the father’s alternative proposal, is too much.
The Independent Children’s Lawyer proposed that commencing immediately, [X] spend time with the father each Tuesday, Thursday and Saturday from 4.00pm to 6.00pm and each alternate Sunday from 12.00pm until 3.00pm. That is seven visits a fortnight. The child is only three years old. The parents live about half an hour’s driving distance apart so added to that time for the child is half an hour’s travel on either side.
It also requires a very large number of change-overs in a situation where the parents have not been able to demonstrate that they are able to be respectful each other and that they are not easily going to descend into a whole lot of choice language and verbal abuse if they feel frustrated or upset.
All sorts of frustrations and upsets can occur. Cars can break down, there can be a traffic accident and people can get sick. It is just too much time too soon and that may result in the object of the child having a good relationship with her father not being achieved.
I intend to order one mid-week visit for the two hours, unsupervised, straight away. I am not going to have any continuation of the supervised time at Contact Centre and I am not going to make an order that the father spend that time at his parents’ home. There is nothing in the evidence which would support the need for that.
I am going to start with one mid-week visit and one visit on either the alternate Saturday or the Sunday. The father is a keen sportsman. He might like to indicate which would suit him best and I will come to that at the end of delivering these reasons.
I intend to order that time on the weekday be from 4.00pm to 6.00pm and again it can either be the Tuesday or the Thursday. The father can choose or the mother can choose, depending on what activities the child has and I will hear from them about that. It will be one afternoon from 4.00pm to 6.00pm and one Saturday or Sunday from 12.00pm to 3.00pm until 1 May 2019.
That will get the child used to having the unsupervised time without requiring a sudden and massive adjustment to her routine. It is more likely to work than a massive amount of time first up.
I am going to proceed much more slowly than the father and the Independent Children’s Lawyer wanted after that. I intend to order that the mid-week visit, whatever day we pick on, continue for some years. However from 1 May 2019, the time will be the mid-week visit and then the full day on Saturday or Sunday from 9.00am to 4.00pm.
Upon the child turning four in September 2019, the time will be the same mid-week visit and each alternate weekend from 9.00am on Saturday until 4.00pm on Sunday.
That will continue until the child’s fifth birthday in …2010. From then it will be the same mid-week visit and the time will be from Friday to Sunday.
[X] should be commencing kindergarten in 2021, so it is better for a change for her arrangements to occur at the time of her birthday so that she does not have a change at the same time as she commences kindergarten.
Once she has done 6 months of kindergarten, I am proposing to order that the mid-week time become Tuesday overnight to Wednesday with a pick-up and drop-off at school. The father will be able to start having some involvement or more involvement with the school. He can go in and see the drawings on the wall and the other children can see [X] with her dad. The teacher can know who he is.
The father might have to make some arrangements with his work to be able to do the pick-up but that should be achievable.
The father and the Independent Children’s Lawyer proposed that at some point it be from Wednesday to Monday. I am not going to go that far. I am going to order that from the time the child commences Year 1, it will be Friday to Monday but I am not going to go to Wednesday to Monday.
Part of the reason for that is that I am concerned about some lack of information in this case, and it is nobody’s fault, it is just the way the case has played itself out and the difficulties of seeing into the future. The family report writer recommended that an updated report be prepared after time had commenced. That didn’t happen and that is completely understandable. It would not have actually helped at this stage. But what I have a situation where I am going to be starting the time with the father. There is no obvious reason why it shouldn’t go well but the father is untried as a parent so I cannot be absolutely certain about how that will go or how [X] will adapt to it.
I am not prepared with that absence of information to leap into a Wednesday to Monday, which means that the child goes to school on Wednesday morning and then doesn’t see her mother again until Monday afternoon. For some children, depending on their emotional state and their nature, that can be very difficult.
It might be that at some point this matter needs to come back to Court. The father might form the view that things are going extremely well and that there should be some more time. The mother might not agree with that and the matter might have come back to Court.
I cannot avoid that but I am not prepared to take that leap from Wednesday to Monday at the moment. The end point of my orders will be mid-week time and Friday to Monday once [X] starts Year 1.
I have to decide about the holidays and that is not easy.
I am not going to make an order about holiday time until she starts kindy. When she starts kindy, I am going to order five days in the shorter school holidays in her first kindy year, then a week in the shorter school holidays the next year. The first Christmas school holidays under that scheme which will be at the end of 2021 so we could look at maybe moving on to say three six day blocks in that first Christmas school holidays. Thereafter week about in the Christmas school holidays, unless the parents otherwise agree until she is ten when it will be half-half.
Property
The assets, liabilities and superannuation
The property matter is not going to take so long because sadly, for the parties, they do not have a lot to argue about.
The assets are as follows:
Description
Ownership
Value
Proceeds of Sale
Joint
$93,328.22
Motor Vehicle 1
Father
$10,000.00
Sports equipment & Tools
Father
$5,000.00
Motor Vehicle 2
Mother
$2,000.00
TOTAL
$110,328.22
The liabilities are as follows:
Description
Ownership
Value
Personal Loan
Father
$12,697.00
Visa
Father
$3,849.00
TOTAL
$16,546.00
The superannuation is as follows:
Description
Ownership
Value
Super Fund A
Father
$79,564.00
Super Fund B
Mother
$50,332.00
TOTAL
$129,896.00
There are assets worth $110,328.22, debts of $16,546.00, not much to argue about, and superannuation of $129,896.00.
The applicable law
S.79 (1) of the Family Law Act 1975 empowers the court to make such orders as it considers appropriate altering the parties’ interests in property.
S.79 (2) provides that the court shall not make an order under this section unless it considers that it would be just and equitable to do so.
In Stanford & Stanford the High Court stressed that when an application for a property settlement was made the court must first identify the parties interests in property and then consider whether it was just and equitable to make an order altering those interests. It stressed that this question could not be answered simply by considering whether a party had made contributions as set out in s. 79(4) of the Family Law Act. [12]
[12] Stanford & Stanford (2012) FLC 93-495
It is necessary that I consider making property settlement orders because the parties are separated and there is no prospect of them agreeing about what is to happen to the money in trust.
I intend to take the usual steps to resolve the question of what particular alteration of interests would be just and equitable and those steps are:
i)to assess the contributions of the parties under s79(4)(a), (b) and (c);
ii)to consider the matters in s.79(4)(d), (e), (f) and (g), which includes the matters in s.75(2) so far as they are relevant, and determine whether any adjustment should be made as a result to the contribution based entitlements;
iii)to consider the effect of those findings and resolve what orders are just and equitable in all the circumstances of the case.
Courts often make findings about contributions and s. 75(2) matters on a percentage basis. However in the end the obligation of the court is simply to make the orders which it considers just and equitable.
Contributions
At the commencement of the relationship the parties had the following assets:
Description
Ownership
Value
Motor Vehicle
Father
E$25,000.00
Personal Loan
Father
(E$16,000.00)
Superannuation
Father
$20,000.00
Motor Vehicle
Mother
E$15,000.00
Credit Card
Mother
($UNKNOWN)
Superannuation
Mother
$UNKNOWN
There is not much in that and the critically important thing is that the parties both contributed to the purchase of Property C in July 2014.
The father said that they had saved $43,000.00 and they put in half each toward the deposit. The mother agreed they each put in half the deposit. She was not specific about where the money came from. There was a throw-away reference in one of the verbal exchanges between the parties about her getting money from a relative but trying to resolve that will not assist me. They both contributed.
The father was employed throughout the relationship. The mother was employed for part of the time and was then engaged in home duties or care of [X]. Contributions were equal.
Post-separation the father had sole occupancy of the home and from 30 September 2016 to 8 March 2017 he did not pay the mortgage. I don’t know if it went into arrears or he obtained a moratorium but he didn’t pay it. He said that he used his money to pay down liabilities and refurnish and carry out repairs.
In the mother’s case outline there was a suggestion that there should be an adjustment between the parties for the fact that the father didn’t pay the mortgage during that period. I cannot do that because no figures were provided which would allow me to do it.
Even if I had the figures I would not be inclined to make that adjustment. It is true that the father did not pay that mortgage for six months but he has been under considerable financial stress trying to run the parenting proceedings about his daughter. He has incurred substantial legal fees. The matter has had come back to Court on a number of occasions when it really should not have which has resulted in additional legal costs for the father.
In terms of the non-superannuation assets a finding of equality of contributions is open and is the best I can do.
I cannot make any findings about the contributions to superannuation. The father provided me with some figures about what he had at the beginning and what he had at the end but the mother did not so I do not have anything to work with to allow me to make percentage findings about contributions to superannuation.
Obviously the superannuation grew during the relationship. Each party would be deemed to have contributed to that but I cannot do much with it because I do not know how much the mother’s grew. There was an initial contribution by the father and very likely by the mother. I cannot say more than that.
S. 79(4) (d) (e) (f) and (g)
I must consider the matters in s. 79(4) (d), (e), (f) and (g) of the Family Law Act and the only relevant one for this case is s. 79(4) (e) which points me to s. 75(2).
S. 75(2) matters
The father is 33. He is a professional employed by Employer. He has been in that job for 14 years and he is in good health so he has an assured future in terms of income earning.
In his financial statement the father said that he was earning the equivalent of $83,876.00. It was put to him in cross-examination that he had declared an income of $97,000.00 in 2017/18. He said that was with overtime but he obviously has the capacity to earn more than his base salary.
The father has very recently re-partnered. He described Ms G as his girlfriend in his financial statement. She appears to have an interest in a house. No other information was provided about her financial circumstances but with a very short relationship like this and given what the father is seeking, I am not troubled about that absence of information about his girlfriend’s financial circumstances.
The father pays child support of $205.00 per week. He is what might be called a sitting duck in relation to child support because he is a PAYG taxpayer so there is little doubt this will continue into the future.
The father has considerable debt in addition to the liabilities referred to earlier. He owed his solicitors about $52,800.00 when he filed his trial affidavit and said that he would have to pay about $30,000.00 for the trial. Nothing strikes me as being odd about that estimate.
The father has a good income and the asset pool is very small and what he gets from it is not going to be massive no matter how we cut the cake. He has a significant debt for legal fees and no means to pay it other than using his income or what he gets from the property settlement.
The mother is a tradesperson by occupation. She said that when she was working she was earning about $900.00 gross a week. She is not working at the moment, she is caring for [X], and she is dependent on Centrelink benefits and the child support she gets.
The mother said that she did not want to return to her occupation. She said it was a physically demanding job that did not pay much for the hours and the effort. She could return to it though if she chose and she has 10 years’ experience in that field.
What the mother will do if she does not return to it is uncertain. She left school after Year 10 so she would have a bit of study in front of her if she wanted to get any other qualifications. She said she wanted to but did not plan to work until [X] commenced kindergarten. She cannot be criticised for staying out of the workforce while [X] is very young.
The mother has not re-partnered.
The mother owes her brother $36,000.00 for legal fees so she also has a pretty hefty legal bill sitting there. Both parents are also looking down the barrel of an application by the Independent Children’s Lawyer for costs in these proceedings.
Those are the parties’ comparative circumstances and it is clear that an adjustment in the mother’s favour for s. 75(2) factors is warranted.
She is out of the workforce as a result of the care of a child. She intends to be out of the workforce for at least two more years and that is quite reasonable. Even if she goes back to work after that she will face all the difficulties that parents who have primary care of a child face, namely being the one who has to source holiday care, rush off to the school if the child is sick and make arrangements on pupil-free days.
No matter how much child support is paid, it does not entirely compensate for the restrictions and the additional financial burden cast on the primary carer. In Clauson & Clauson the Full Court said as follows:
In this case the husband is paying substantial child support and there is no suggestion that he will not continue to do so. It is thus a significant factor which the Court should take into account in favour of the husband.
But the other s.75 (2) factors are significant. In addition, it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction on an independent lifestyle which the obligation to care for children usually entails: see Langford (16 January, 1995, Full Court, not reported).[13]
[13] Clauson & Clauson (1995) FLC 92-595
The mother proposed that she receive $70,000.00 of the $93,000.00 in trust and the focus on both parties was on what was to do with that money. The mother does not want to take the father’s car and sports equipment and he does not want to take her motor vehicle.
The mother’s proposal that she receive $70,000.00 which equates to about 70 % of the pool, is entirely reasonable. The pool is small. The father is earning a very good income. Half of the money the mother receives will go to pay her legal fees anyway so there is not going to be much left.
I suspect that all of the amount the father receives will go to pay his legal fees because there will only be $23,000.00 left for him and he has other debts. However, in view of the parties’ comparative circumstances and the small size of the pool, the mother getting $70,000.00 from the money in trust is entirely reasonable.
The mother proposed a split of the superannuation and in my view that should also occur although not necessarily in the terms that the mother wanted. It should occur because the father is in the workforce; he is accruing further superannuation as we speak. The mother is out of the workforce as a result of caring for the child and is not accruing any superannuation and there is that disparity in their circumstances.
I am going to make an order which was one of the proposals the mother put forward, which will have the effect that each party gets 50% of the superannuation pool, which will involve a split of about $14,500.00 to the mother.
It will not be of any use to her at the moment. If the government keeps up its plans it will not be any use to her for the next 30 years but it will be some compensation for the fact that she is not earning superannuation at the moment because of having the care of the child.
Spousal Maintenance
I finally come to the spousal maintenance claim.
S. 72 (1) of the Family Law Act says that:
(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
The mother’s application for spousal maintenance was filed very late. The parties separated in January 2016 and are divorced. It is now toward the end of 2018, so nearly three years have passed since the parties separated, and the application for spouse maintenance was filed only a short while ago.
That is a relevant consideration when it comes to whether I will make an order.
In the application for spouse maintenance, the mother’s solicitor sought leave to file it out of time because there is a time limit in s. 44(3) of the Family Law Act about filing applications for spousal maintenance once parties are divorced. However, during closing submissions the mother’s counsel submitted that no extension of time was needed because the application was made in the context of a live property settlement matter.
For reasons I am going to explain in a moment, I am going to dismiss the spousal maintenance application, so I am not going to trouble myself about whether the application is within time or out of time. If it is out of time I would not have given leave and if it is in time I would dismiss it. The father’s counsel did not make any submissions contesting what the mother’s counsel said to me anyway so let us proceed on the assumption that it is made within time and I have jurisdiction to deal with it.
Before making a spousal maintenance order I must be satisfied that the mother is unable to support herself adequately, and she clearly isn’t. Her only income is Centrelink benefits and s. 75(3) of the Family Law Act says that I must ignore that so effectively the mother has no income. She is getting child support but that is intended to support the child. She does not have the capacity to support herself at the moment and she is entitled to stay out of the workforce in order to care for [X].
However I can only order spouse maintenance to the extent the first mentioned party is reasonably able to maintain the other party.
The father is earning a base salary of about $87,000.00. He is not paying any housing costs and on the face of it he has some surplus of income over liabilities.
However the father has a massive debt for legal fees which he is paying off at $500.00 per week. He is not going to get much out of the property settlement to enable him to reduce that debt. It will at best halve the existing debt of $52,000.00 and then he will have another $30,000.00 to pay, so we are talking about him having a continuing liability of over $50,000.00 after the property settlement orders. He does not have any assets that he can call on to help him pay that debt. The only way he can pay it is from his income.
It might be argued that the father’s liability to pay legal fees should not take priority over his liability to support his wife but in this particular case it strongly does, because the father commenced these legal proceedings in 2016. He entered into a payment arrangement with his solicitor during the course of these proceedings. It was something he was entitled to do and it was something he needed to do so that he could have a relationship with his daughter.
The father has a liability to pay those legal expenses which was incurred long before the mother made this application. He has to repay that debt. The only way he can repay it is out of his income. If he is going to repay it at the rate of $500 per week, then he does not have the capacity to pay $500.00 per week spouse maintenance to the mother.
The father does not have the capacity to pay spouse maintenance. He does not have it because of the debt for legal fees and the mother cannot argue that her need for maintenance should take priority over the father’s liability to pay his legal fees when the father has no other means to pay that debt and he has a legal liability to pay it and if he does not pay it he will go bankrupt.
I am going to dismiss the spouse maintenance application.
I certify that the preceding two hundred and forty four (244) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 22 January 2019
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Family Law
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Property Law
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