DOUGLASS & DOUGLASS
[2016] FCCA 3216
•13 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOUGLASS & DOUGLASS | [2016] FCCA 3216 |
| Catchwords: FAMILY LAW – Parenting – sole parental responsibility order in favour of the wife – living and spend time with arrangements catering to the different needs of the two children – impact of the husband’s mental health on his parental capacity. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA, 65DAA, 75(2), 79 |
| Cases cited: Stanford v Standford [2012] HCA 52 In the Marriage of Hickey [2003]FamCA 395 |
| Applicant: | MS DOUGLASS |
| Respondent: | MR DOUGLASS |
| File Number: | MLC 6305 of 2015 |
| Judgment of: | Judge Williams |
| Hearing dates: | 9, 10 & 12 May 2016 & 17, 18, 24, 27 October 2016 |
| Date of Last Submission: | 27 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 13 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Swann |
| Solicitors for the Applicant: | Alpass & Associates |
| The Respondent: | Represented himself in property proceedings. |
| Counsel for the Respondent: | Ms A. O’Connell (parenting proceedings only) |
ORDERS
All previous parenting orders are discharged.
That the wife have sole parental responsibility for the children X ("X") born (omitted) 2004 and Y ("Y") born (omitted) 2006 ("the children"), provided that the wife shall:
(a)provide the husband with prior notice in writing of any decision she proposes to make in relation to such matters, save for decisions made in medical emergencies;
(b)consider any views expressed by the husband and make a genuine attempt to consult with the husband before making decisions; and
(c)inform the husband in ·writing of the decisions she makes.
That the children live with the wife.
That X spend time with the husband during school terms as follows:
(a)During term 4 in 2016 and term 1 in 2017, each alternate weekend from 3.30pm or the conclusion of school on Friday until the commencement of school on Monday (or 6.00pm if Monday is a public holiday);
(b)Commencing in term 2 in 2017, each alternate weekend from 3.30pm or the conclusion of school on Thursday until the commencement of school (or 6.00pm if Monday is a public holiday).
That Y spend time with the husband during school terms as follows:
(a)During term 4 in 2016 and term 1 in 2017, each alternate weekend from 9.00am on Saturday until the commencement of school on Monday (or 6.00pm if Monday is a public holiday); and
(b)Commencing in term 2 in 2017, each alternate weekend from 3.30pm or the conclusion of school on Friday until the commencement of school on Monday (or 6.00pm if Monday is a public holiday).
That the children spend time with the husband during their school holidays and special occasions as follows:
(a)For the second half of the first term school holidays from 9.00am on the middle Sunday of the holidays until 6.00pm on the day before school recommences, provided that the children shall spend the first half instead of the second half of the holidays with the husband if:
(i)Easter falls on the first, or second weekends of the holidays and the children are to spend Easter with the husband pursuant to these orders; or
(ii)Easter falls on the second or third weekends of the holidays and the children are to spend Easter with the wife pursuant to these orders.
(b)For the first half of the second term school holidays from 6.00pm on the last day of school until 9.00am on the middle Sunday in 2017 and each alternate year thereafter and the second half of the second term school holidays (which includes X's birthday) from 9.00am on the middle Sunday until 6.00pm on the day before school recommences in 2018 and each alternate year thereafter;
(c)For the second half of the third term school holidays from 9.00am on the middle Sunday of the school holidays until 6.00pm on the day before school recommences;
(d)From 6.00pm on the Thursday prior to Easter until 6.00pm on Easter Monday in 2018 and in each alternate year thereafter;
(e)During the long summer school holidays in every year as follows:
(i)From 9.00am on 22 December until 9.00am on 24 December;
(ii)From 5.00pm on Christmas Day until 9.00am on 27 December;
(iii)For two weeks in January in every year, being from:
1. 9.00am on 31 December 2016 until 9.00am on 14 January in 2017 and in each alternate year thereafter; and
2. 9.00am on 14 January 2018 until 28 January 2018 and in each alternate year thereafter unless otherwise agreed in writing.
(f)On the Father's Day weekend in every year from 5.00pm on the Saturday prior to Father's Day until .the commencement of school on the following Monday;
(g)Otherwise as agreed in writing from time to time.
That the husband's time with the children be suspended as follows:
(a)From 5.00pm on the Saturday prior to Mother's Day until the commencement of school on the following Monday; and
(b)From 6.00pm on the Thursday prior to Easter until 6.00pm on Easter Monday in 2017 and in each alternate year thereafter.
That the parties each facilitate telephone communication between the children and the other parent when the children are in their respective care in accordance with the children's wishes.
That each of the parents be authorised to receive copies of school reports, school notices, photograph order forms and any other documents ordinarily provided to parents, and each of the parents be authorised to attend any school-based event to which parents are ordinarily invited.
That each of the parents be authorised to attend any extra-curricular or sporting activity in which the children are participating.
That each of the parents forthwith notify the other in the event of any serious accident or injury affecting the children or either of them and each of the parents be authorised to communicate with any healthcare provider treating the children or either of them .
That each of the parties be restrained by injunction from denigrating the other in the presence or the hearing of the children or discussing the proceedings or the content of any Court document in the presence or the hearing of the children or permitting any other person to do so.
Each of the parties do all things necessary to ensure that the child Y attends all of her (hobby omitted) competitions and commitments whilst she is in their respective care.
That changeovers take place at the children's school on school days and on non-school days, the husband collect the children from and return them to the residential boundary of the wife's home.
That the wife arrange for each of the children to attend counselling with a child psychologist for the next 12 months.
That pursuant to s.65L of the Family Law Act 1975, the Family Consultant, Ms L meet with the children to explain these orders to the children as soon as practicable after the orders are made.
That the husband continue to have psychiatric and/or psychological treatment in accordance with the recommendations of his treating psychiatrist Dr A and provide the wife with:
(a)The name and contact telephone number of the psychiatrist, or psychologist under whose care he is from time to time; and
(b)an authority to obtain information from his treating psychiatrist, or psychologist about the frequency of his consultations, medication, and compliance with treatment recommendations.
PROPERTY
That the monies held in trust by Maurice Blackbum Lawyers (being the remainder of proceeds of sale of Property D) be forthwith divided between the parties in the following proportions:-
(a)$420,602 to the wife care of Alpass & Associates, Solicitors;
(b)The balance to the husband.
That in accordance with Section 90MT(l)(b) of the Family Law Act 1975 ("the Act"):-
(a)The wife is to be entitled to be paid the specified percentage out of the husband's interest in the (omitted) Superannuation Fund ("the Fund");
(b)The husband's entitlement in the Fund is correspondingly reduced by the force of this Order; and
(c)The percentage specified for the purpose of this Order is 50%.
That in accordance with Section 90MT(l)(b) of the Family Law Act 1975 ("the Act"):-
(a)The husband is entitled to be paid the specified percentage out of the wife's interest in the (omitted) Superannuation Fund ("the Fund");
(b)The wife's entitlement in the Fund is correspondingly reduced by the force of this Order; and
(c)The percentage specified for the purpose of this Order is 50%.
That the Trustees of the Fund do all such acts and things and sign all documents as may be necessary to:-
(a)Calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 the entitlement of the wife pursuant to Order 19 and the entitlement of the husband pursuant to Order 20;
(b)Pay the entitlement of the wife whenever the Trustees make a splittable payment from the husband's interest in the Fund; and
(c)Pay the entitlement of the husband whenever the Trustees make a splittable payment from the wife's interest in the Fund.
That Orders 19 and 20 have effect from the operative time and the operative time is the four business days after the date of these orders.
That after service by the wife of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 ("the SIS Regulations), the wife shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife's request in accordance with the SIS Regulations, for the transfer or rollover of the wife's interest in the husband's name in the Fund.
That after service by the husband of the payment split notice in accordance with the SIS Regulations, the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the husband's request in accordance with the SIS Regulations, for the retention of the husband's interest in the Fund.
That the parties do all such acts and things and sign all such documents, including but not limited to signing Trustee Minutes, rollover requests and related documents that may be necessary to rollover or transfer the entitlement of the wife in the Fund to another complying superannuation fund of the wife's choosing and thereupon, the wife resign as a Trustee of the Fund.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any other 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)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)Insurance policies remain the sole property of the owner named therein;
(d)Each party 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; and
(e)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 Douglass & Douglass is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6305 of 2015
| MS DOUGLASS |
Applicant
And
| MR DOUGLASS |
Respondent
REASONS FOR JUDGMENT
Property
INTRODUCTION
This is an application for both parenting and a property adjustment pursuant to s.79 of the Family Law Act1975 (“the Act”).
BACKGROUND
Relationship History
The applicant wife is aged 48. The respondent husband is aged 48.
The wife is employed as a (occupation omitted) on a part-time/casual basis. In her Financial Statement she deposes to an income of $900 per week from her employment, family tax benefit of $112 per week and a child support of $134 per week. Her total estimated weekly income is therefore $1146 per week.
The husband is employed as a (occupation omitted) at (employer omitted), he deposes in his Financial Statement to an income of $1540 per week from his employment, a family tax benefit of $25 per week, he also received $220 per week in rental income. His total estimated weekly income is therefore $1785 per week.
The wife asserts that the parties commenced living together in (omitted) 2002 and married on (omitted) 2003. The husband asserts that the commenced living together just shortly prior to the marriage on 3 March 2003, although under cross-examination he agreed that cohabitation had started some time in 2002 According to the husband they separated under the one roof in late 2011. Both parties agree that they physically separated on 17 October 2014 when the wife left the former family home situated at Property D.
There are two children of the marriage, X born (omitted) 2004 and Y born (omitted) 2006. The children live with their parents pursuant to orders made by consent on the 9 September 2015. (“The parenting orders”).
The parenting orders provide that X lives with his mother eight nights a fortnight and lives with his father six nights a fortnight, and that Y lives with her mother, 10 nights a fortnight and four nights a fortnight with her father.
Both parties seek to change the existing arrangements of the children.
Prior to cohabitation each of the parties had an interest in a property.
In December 1998, the husband and his brother Mr N, purchased a property situated at 3 Property P (“the Property P property”) for the sum of $31,000[1]. In May 1999, the husband purchased his brother’s interest in the Property P property.[2] In May 1999, the husband borrowed $107,600 from (omitted) bank[3] and a mortgage was registered against the title to the Property P property by (omitted) bank.[4] On 4 January 2000, the mortgage in favour of (omitted) Bank was discharged[5]. On 7 December 2000, the husband sold the Property P property for the sum of $100,000[6].
[1] Annexure 7 to wife's affidavit sworn 18 April 2016 (transfer of land).
[2] Ibid (title search of volume (omitted) Folio (omitted) and transfer of land).
[3] Ibid (copy mortgage of land).
[4] Ibid (title search).
[5] Ibid (title search).
[6] Ibid (transfer of land dated 7 December 2000).
On 5 November 1999, the wife settled the purchase of a property situated at Property W (“the Property W property”). The purchase price for the property was $142,000. The property was encumbered by a mortgage to the (omitted) bank of $134,000. In April 2004 [7] the Property W property was sold for $200,000. At the time of sale the property was subject to a mortgage.
[7] Wife's Case Outline document dated to May 2016.
In October 2006 the parties purchased the former matrimonial home situated at Property D for $445,000. The purchase of the property was funded as follows:
a)Husband’s funds accumulated prior to the relationship;
b)Proceeds of sale of the Property W property and/or the share portfolio acquired from the proceeds of sale of the Property W, property.
RELEVANT LEGISLATION PROPERTY
Property proceedings between parties to the marriage are governed by the provisions of s.79 of the Family Law Act1975.
Section 79 (1) of the Act provides that the court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 79 (2) provides as follows:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in property, s.79 (4) of the Act sets out the matters which the court must take into account when considering what order (if any) should be made.
That section provides as follows:
Section 79(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
Section 79(4) (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
Section 79(4) (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
Section 79(4) (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
Section 79(4) (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
Section 79(4) (e) the matters referred to in subsection 75(2) so far as they are relevant; and
Section 79(4) (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
Section 79(4) (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.
Prior to the decision of the High Court in Stanford v Standford [2012] HCA 52 the preferred approach to determine property matters was set out by the Full Court in the matter of In the Marriage of Hickey [2003]FamCA 395.
The approach, as set out in Hickey (supra) may be summarised as follows. Firstly, the court should make findings as to the identity and value of the property pool. Secondly, the court should determine the contributions of the parties both direct and indirect, including financial and non-financial contributions and then determine the contribution based entitlements of each of the parties; as a percentage of the value of the property of the parties. Thirdly, the court should determine whether any further adjustment should be made to the contribution based entitlements of the parties, after giving consideration to the relevant matters referred to in s.75(2) of the Act. Fourthly the court should consider the effect of those findings and decide what order for division of property is just and equitable.
In Stanford (supra) the High Court noted that s.79(1) enables the court to make such orders as it considers appropriate. However, prior to making any orders for the adjustment of parties interests in property, the court must first determine whether it is just and equitable to make any property orders, or to alter the parties interests in property.
The High Court stated in Stanford at [37],
[37] First, it is necessary to begin consideration of whether it is just and equitable to make property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property……. The question posed by s.79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.”
The High Court further stated at [42] that in most cases:
[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. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s.79(4).
In summary, in the majority of matters the decision as to whether or not it is just and equitable for the Court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the court for orders altering their respective property interests.
In this matter the parties have separated and both parties have made an application to the court seeking orders altering their respective property interests. It is clearly just and equitable to adjust property matters between the parties.
Having satisfied myself that it is just and equitable to make an order altering the interests of the parties in the property, the approach and considerations I must make are as follows:
(a)attribute value to the assets comprising the property pool;
(b)identify and give weight to the various contributions of each of the parties as set out in s.79(4) (a) – (c) and make an assessment as to the entitlements of the parties based on their respective contribution;
(c)identify the relevant considerations as set out in s.79(4)(d)-(g), including the matters set out in s.75(2) so far as they are relevant, and then decide whether any further adjustment is appropriate;
(d)consider whether the proposed orders are just and equitable.
PROPOSALS
Applicant Wife
The wife seeks orders that she should receive 60% of the non-superannuation asset pool. In relation to non-superannuation assets, the wife is seeking that each party retain the partial distribution of $100,000, their respective motor vehicles and that the proceeds of sale of the former family home, which are currently held in trust, be divided between the parties to effect an overall division of the parties assets so that she receives 60% and the husband receives 40%.
In relation to the superannuation, she initially sought that the self-managed superannuation fund be divided equally between the parties and that otherwise each party retain their respective superannuation entitlements. However, during the course of the trial it became apparent that the husband had failed to disclose that he had transferred approximately $10,000 of his (employer omitted) superannuation entitlements into a superannuation account with (omitted) superannuation. This occurred between 5 March 2015 and 11 April 2016. During final submissions she amended her position in relation to a division of superannuation, so that she reinstated her initial proposal. The husband agreed with that proposal.
She contends that the contributions of each of the parties are equal and that there should, furthermore, be an adjustment of 10 % in her favour for future needs.
Respondent Husband
The husband seeks orders that he should receive 40% of the funds held in trust, being the nett proceeds of sale of the matrimonial home, and that he retain the balance of the assets in his name, which he asserts comprise the non-superannuation asset pool and that the wife should receive 70% of the funds held in trust, and retain the balance of assets in her name.
In relation to superannuation, he initially sought that each party retain his/her respective interests in all superannuation funds, including their respective individual accounts in the self-managed superannuation fund. He changed his position at the conclusion of the trial. His proposal, which was agreed to by the wife, was that the self-managed superannuation fund would be divided equally between the husband and the wife, and otherwise each party would retain their respective superannuation entitlements.
He contends that the contributions of each of the parties are not equal. He seeks an unspecified adjustment in his favour, as a result of his superior contributions and an unspecified adjustment in his favour, for his future needs.
ISSUES IN DISPUTE AT THE HEARING
The following issues were in dispute in relation to the property proceedings:
i)Whether the parties were separated under the one roof from late 2011;
ii)The extent of the husband’s share portfolio;
iii)The weight to be accorded to the initial contributions of each of the parties;
iv)what adjustment should be made for either party for factors under Section 75(2).
EVIDENCE OF THE PARTIES
Wife
The wife relied on the following documents:
a)Initiating Application filed 6 July 2015;
b)Notice of Risk filed 6 July 2015;
c)Affidavits of the wife filed on 22 June 2015; 18 April 2016; 29 September 2016; and 10 October 2016;
d)Financial Statements of the wife filed 22 June 2015 and 18 April 2016;
e)Affidavit of Ms L (family report writer) filed 23 February 2016.
The wife gave evidence and was cross-examined.
Ms L gave evidence and was cross-examined.
Husband
The husband relied upon the following documents:
a)Response filed on 4 September 2015;
b)Notice of Risk filed on 4 September 2015;
c)Affidavits of the husband sworn on 4 September 2015; 19 April 2016; 3 May 2016; 4 May 2016; 2 August 2016; and 5 October 2016;
d)Financial Statement of the husband filed 4 September 2015;
e)Affidavit of Dr T (psychiatrist) filed 8 August 2016;
f)Affidavit of Dr A (treating psychiatrist) filed 14 October 2016.
The husband gave evidence and was cross-examined.
Dr T was not required for cross-examination.
Dr A was cross-examined and his evidence is referred to at paragraph 213 to 230 hereof.
THE DATE OF SEPARATION
The husband asserts that the parties separated under the one roof in late 2011. The wife disputes this, and says that their marriage remained intact, albeit under extremely difficult circumstances, until she left the former matrimonial home on 17 October 2014.
The husband’s evidence is that in October 2011 the parties attended a relationship counsellor, at his insistence, to discuss strategies for parenting post separation because the relationship was breaking down.[8]
[8] Husband's affidavit sworn to September 2015 at paragraph 34.
The wife denies this allegation and her evidence is that she did not end the relationship during a session with a counsellor in 2011. Rather, she alleges that the husband abruptly left the counselling session to attend a class at (omitted) University.[9]
[9] Wife's affidavit sworn 18 April 2016 at paragraph 14.
The husband did not cross examine the wife about this issue, however, he was cross-examined.
The wife’s counsel relied on subpoenaed medical records relating to the husband’s mental health issues. The husband suffered an episode of severe chronic depression in late 2011, when he was hospitalised at (omitted) Clinic. It was suggested to him, that during this time the relationship was in trouble, however, the marriage remained intact.
The husband’s response was that after late 2011, the parties remained in a marriage of convenience, and thereafter had separate finances, despite the family going on holidays together after 2011. It was put to the husband that the reason the wife had opened a separate bank account at that time was because he had deprived the wife of access to joint credit cards. This was denied by the husband who maintained that the wife had continuing access to the joint account into which his salary was deposited. The husband suffered a further mental health episode in July 2014 when he was admitted to the psychiatric unit of the (omitted) Hospital, (omitted).
Those records indicate that as at 28 July 2014 the husband provided a history to the hospital that he had been in his current marriage for 11 years. The records did not indicate that the husband and wife had separated, although they clearly indicated there had been some troubles in the marriage.
The wife’s evidence is that on the morning of 28 July 2015, during a meeting at the hospital with a doctor and social worker, she made it clear to the husband that he was not welcome to return to the family home upon his discharge from hospital.[10]
[10] Wife's affidavit sworn 22 June 2015 at paragraph 53.
Furthermore, in June 2014 the husband refinanced the mortgage secured against the family home and transferred the property into the joint names of the wife and himself. His evidence was that he did so at the insistence of the wife.
Given the ongoing nature of the relationship between the parties, including their parenting of their two children, the intertwined financial relationship and the contemporaneous records of the hospital, I accept that the party’s marriage was intact, although under severe strain between late 2011 and October 2014. Accordingly, I find that the parties separated on 17 October 2014, when the wife and the children left the former matrimonial home.
THE ASSETS AND LIABILITIES OF THE PARTIES
At the commencement of the trial the agreed assets and liabilities were as follows, save that the husband did not disclose his (omitted) Superannuation entitlements of $10,000, until he was cross-examined.
No. Asset Valuation 1. Proceeds of sale of Property D $680,000 2. Partial payment to wife $50,000 3. Partial payment to husband $50,000 4. Nett proceeds of sale Property F (registered in husband’s name) $71,345 5 Wife’s Ford Territory $20,000 6 Husband’s motor vehicle $4,500 Assets total $875,845 Superannuation 7 Wife ((omitted) as at 19April 2016) $21,719 8 Husband ((omitted) as at 11 April 2016) $31,173 9 Husband ((omitted) as at 19 November 2015) $4366 10. Husband ((omitted)) $19,863 11 Self-managed superannuation fund
((omitted) Superannuation Fund)$297,782 Superannuation Sub-total $374,903 Liabilities 13. Capital Gains Tax from sale of Property F $ Not known Total assets $1,250,748
The additional assets the wife sought to include were as follows:
14. Proceeds of sale of Husband’s share portfolio $26,091
The Husband’s share portfolio
The table of assets and liabilities, as set out in the wife’s Case Outline Document refers to the “wife’s share portfolio $ ?”. This is clearly a typographical mistake, as the wife alleges that the husband has or had a share portfolio which he had failed to disclose during the course of the proceedings.
Initially, the wife alleged that the share portfolio was in the vicinity of approximately $450,000. The basis for that assertion is an application for finance made by the husband to the (omitted) Bank, when applying for a loan in April 2014, to purchase the Property F property. A copy of the loan application is annexed to the wife’s Affidavit sworn 18 April 2016[11]. The loan application was obtained by the wife, in response to a subpoena directed to the (omitted) Bank.
[11] Annexure 9.
At page 4 of the loan application, under the heading “Your financial position”, included under the sub-heading “all other assets,” is an entry stating that the husband had a shareholding of $450,000.
The husband sought to file an Affidavit on the 4 May 2016, which annexes a chain of emails between the husband and his finance broker, Mr J, which purportedly provides an explanation that the figure of $450,000, is a mistake.[12]
[12] Husband's affidavit of 4 May 2016 annexure 1.
The husband was vigorously cross-examined about the alleged share portfolio, including the source of funds which were applied to purchase the Property F property. His evidence was as follows:
(1)He had obtained a loan of approximately $132,000;
(2)$8000 was funded from savings in the parties joint (omitted) bank account;
(3)$40,000 was from the (omitted) bank redraw facility of the mortgage secured against the former family home.
When questioned about his failure to provide source documents which he may have submitted to the (omitted) Bank, his evidence was that he had never submitted any documentation to the bank, rather he provided information to the broker. The only conversation he had with the broker was about the $450,000 error in the loan application.
The wife’s counsel suggested that $450,000 may have been a typographical error, and that he had a share portfolio of approximately $45,000. She put to the husband that in 2011 he had approximately $35,000 in (omitted) shares, and that he had not disclosed what happened to those shares between 2011 and 2014. The husband was taken to Part M of his Financial Statement, where he had not disclosed that he had disposed of shares within the preceding 12 month period. The wife’s counsel called for the husband to produce his share transaction records.
The next morning, the husband produced his share trading records for the period 29 October 2014 to 10 March 2015. Those records were tendered by counsel for the wife.[13] The records indicate that the husband engaged in modest share trading during that period. There are no documents to indicate a share portfolio of the magnitude disclosed by the loan application referred to in paragraph 54 hereof.
[13] Exhibit W2.
When questioned why he had failed to disclose the disposition of shares, the husband’s explanation was that he had only been asked about transactions amounting to $450,000, and not any lesser amount.
A possible explanation offered by the husband about the value of the shares in the loan application, was that he had made a similar loan application in 2011 and at that time he held $35,000 of (omitted) shares which would have been disclosed to the bank The information contained in the earlier loan application may have been mistakenly transcribed into the second loan application.
Under cross examination his explanation for the disposition of the proceeds of sale of the shares was that they were probably applied to the substantial renovations of the former matrimonial home. That evidence contradicts the statement at paragraph 59 of the husband’s affidavit sworn to September 2015 where he deposed that there was an agreement that the wife would retain the Ford Territory motor vehicle and whatever furnishings she wanted from the former matrimonial home, and that the husband would pay the out-of-pocket costs in relation to finishing the Property D renovations, and preparing the house for sale. He estimated those costs at approximately $10,000. It is also contradictory with his statement at paragraph 6.3.8 of his affidavit sworn at 19 April 2016, where he deposes that he went into significant credit card debt finishing and preparing the house for sale and for paying necessary professional services, which he estimates at $10,000. He also deposes that there was an agreement with the wife that he would be reimbursed that money from the sale proceeds, but that never occurred.
Given the respective incomes of the husband and the wife throughout the marriage and the relatively modest asset pool, there was no explanation suggested by the wife, as to a possible source of a share portfolio in the magnitude of $450,000, or the husband’s ability to trade shares so successfully.
I accordingly find that the husband did not, at any relevant time, hold a share portfolio of approximately $450,000. I accept that the husband sold his share portfolio and realised the sum of $26,091, and that he has not satisfactorily accounted for the disposition of the proceeds of sale of the shares.
Counsel for the wife submitted during her final address that the tax returns of the husband for the financial years ended in 2013, 2014 and 2015 disclose that the husband received dividends for shares during those financial years. That is consistent with retention of the shares by the husband. She also submitted that the husband’s credibility was in issue, as he had not been candid about disclosure and most importantly, had failed to disclose the transfer of a portion of his superannuation entitlements into the (omitted) Superannuation fund, until disclosing same under cross-examination. I agree with those submissions as to the husband’s credibility.
As a result of the findings set out herein, the net available asset pool for distribution between the parties is as set out in paragraph 127 hereof.
CONTRIBUTIONS
Initial contributions
The wife asserts that her initial contributions comprise the following:
(1)the equity in a property situated at Property W.
The husband asserts that his initial contributions comprise the following:
(1)The proceeds of sale of a property situated at Property P of approximately $100,000;[14]
(2)Investments and cash held in a company, (business omitted), (“(omitted)”) of which the husband was the sole director and shareholder, amounting to $70,000;[15]
(3)A Nissan motor vehicle valued at $25,000;[16]
(4)Superannuation entitlements of approximately $130,000, which he had accrued between 1990 and 2003[17].
[14] Paragraph 5.1 and annexure 1 of the husband's affidavit sworn 19 April 2016.
[15] Paragraph 5.4 and annexure 4 of the husband's affidavit sworn 19 April 2016.
[16] Paragraph 5.2 of the husband's affidavit sworn at 19 April 2016.
[17] Paragraph 5.3 and annexure 2 of the husband's affidavit sworn 19 April 2016.
The wife did not provide any estimate of the value of her equity in the Property W property as at the date of cohabitation. I note that settlement of the purchase of the property occurred on 5 November 1999 and that, the purchase price was $142,000. The property was subject to a mortgage of $134,000, in favour of the (omitted) bank. The property was sold in April 2004 for the sum of $200,000 resulting in equity of approximately $60,000. This was applied towards family living expenses and the purchase of the former family home in October 2006.
The husband was cross-examined about his initial contributions. The wife initially asserted that at the time of sale, the Property P property was encumbered by a mortgage to (omitted) Bank in the sum of $107,600 and therefore there was no equity in the property. During cross examination the husband gave evidence that he had initially obtained a mortgage facility with the (omitted) Bank, which was effectively a line of credit facility, to enable him to purchase a property in Property F in 1999. The Property F property was sold in 2000 and the mortgage which had been secured against both the Property P and the Property F properties was then discharged. This evidence is entirely consistent with the certificate of title of the Property P property, which is annexed to the affidavit of the wife sworn the 18 April 2016[18] The certificate of title to the Property P property discloses the following sequence of transactions:
(1)On 14 March 1996, the husband and his brother Mr N were co registered proprietors;
(2)On the 11 May 1999, the husband was the sole registered proprietor;
(3)On 11 May 1999, a mortgage in favour of (omitted) Bank was registered on the title;
(4)On 4 January 2000, the mortgage in favour of (omitted) Bank was discharged;
(5)On 4 January 2001, the husband ceased to be registered proprietor.
[18] Annexure 7 to the affidavit of the husband of 19 April 2016.
The husband’s evidence was that the sum of $100,000 being the proceeds of sale of the Property P property was applied by him as follows:
a)Approximately $18,000 was applied to discharge a lease encumbering the Nissan motor vehicle;
b)Approximately $10,000 was spent on the wedding, honeymoon and rings;
c)Approximately $10,000 was spent on furniture and bonds for rental properties;
d)The balance was rolled into savings which the wife had from the sale of the Property W property, and which was later applied towards the purchase of the former family home.
The husband’s evidence about the investments in (business omitted) was that he had $77,000, which was the proceeds of sale of a couple of managed investments. When questioned about a debt of $77,828.66, referred to at item J of the (business omitted) tax return for 2002,[19] his response was that the debt was owed to him, resulting from advances he had personally made to (business omitted). His evidence was that the money which was progressively withdrawn from the investments between 2004 and 2006 was applied towards day-to-day expenses and the purchase of the former family home. As he obtained permanent employment at (employer omitted) in 2002, (business omitted) did not trade after 2002.
[19] Annexure 4 to the affidavit of the husband of 19 April 2016.
During her final address Counsel for the wife submitted that the husband had double counted in relation to the assets he had at the commencement of the relationship. She submitted that the $70,000, which he had invested in the name of (business omitted), was the balance of the proceeds of sale of the Property P property. She submitted the expenditure claimed by the husband from the $100,000, as referred to in paragraph 70 hereof, was entirely consistent with a cash balance of approximately $70,000.
Paragraphs 16 of the husband’s Affidavit sworn to September 2015 is entirely consistent with that proposition. He deposes as follows:
“In response to paragraph 18, I say that the share portfolio to which the wife refers was in fact, established by me using funds from the sale of the home. I had owned on an unencumbered basis at Property P. I had sold that home for $100,000 and I converted the funds into a share portfolio to grow them to provide for our financial future. In addition, I also had an interest in a consulting company, which had established in the 1990s. I liquidated the company, so as to enable me to access my assets which were held via a company structure. The share portfolio was managed by myself and generated positive returns. At the commencement of our relationship, I had a car worth $20,000, superannuation benefits of about 150,000 and I also had savings in shares of $100,000.”
There is no suggestion in that affidavit that the husband had $100,000 plus an additional $70,000 invested in a company. It appears that the husband located the documents in relation to (business omitted) shortly prior to swearing his affidavit on 19 April 2016 and attempted to increase his initial contribution by the amount of $70,000.
I accept the evidence of the husband as to the existence of the (business omitted) investments, however, I find that investment was part of the $100,000, which he received from the sale of the Property P property.
As referred to at paragraph 67 hereof, the Nissan motor vehicle was encumbered by a lease of $18,000, which was discharged by the husband from the proceeds of sale of the Property P property.
The husband’s evidence as to the value of his superannuation at the date of cohabitation is slightly problematic. He asserts that he had superannuation entitlements of approximately $130,000 at the date of cohabitation. He relies on the documents annexed to his affidavit of 19 April 2016[20]. Those documents established that as at May 2011 the husband had the following superannuation entitlements, which were rolled into the self-managed (omitted) Superannuation Fund:
(1)(omitted) rollover and the superannuation fund $50,018.43;
(2)Super trace eligible rollover fund $157.53;
(3)(omitted) $ $4,465;
(4)(omitted) $50,000;
(5)(employer omitted) superannuation fund $94,649.21.
[20] Annexure to the affidavit. The husband of 19 April 2016.
The husband’s evidence was that he accumulated these entitlements, apart from (employer omitted), between 1990 and 2002. From 1990 until 1998, he was employed by the (employer omitted). From 1998 until 2002 he was self-employed. He commenced employment with (employer omitted) in 2002, and thereafter did not contribute to any super scheme other than (employer omitted).
In the absence of any evidence of the value of the superannuation schemes, other than (employer omitted), as at 2002, I am unable to determine the exact value of the husband’s superannuation entitlements as at the date of cohabitation. However, his evidence was that no further contributions were made by him after 2002.The balance of the various funds in 2011, which was rolled over into the self-managed superannuation fund, was increased by interest which had accrued on the initial contributions between 2002 and 2011 The wife did not make any contribution to these funds, nor did she assert that that was the case.
Contributions during the marriage
The wife’s case is that the contributions of the parties throughout the marriage were equal.
She asserts that her contributions during the marriage were made more difficult and onerous by reason of the mental health problems which the husband suffered during the marriage. In particular, I note that the husband suffered acute episodes of mental health problems in 2011 and 2014. In addition to her part-time employment, her evidence was that she was primarily responsible for the care of the children, and that the husband by virtue of his mental health issues was unable to greatly assist her.
In stark contrast, the husband asserts that his contributions during the marriage were far in excess of the wife’s. In support of this assertion, he alleges that he did at least 50% of the house work, home and garden maintenance and care of the children.[21]
[21] Paragraph 6.1 of the husband's affidavit of 19 April 2016.
Additionally he relies on the renovation work he carried out to improve the former family home and the resultant allegedly record price achieved at auction of the property, which he attributes to both his skills at renovating the property and marketing the property. What he does not address is that whilst he was physically carrying out renovations to the property the wife had the care of the two children of the marriage.
The wife’s evidence is that she was actively involved in the renovations of the former family home. She says that the husband regularly provided her with a list of tasks to attend to, which she did, and which involved co-ordinating suppliers, purchasing items and bagging up rubbish for removal.
I do not accept that the husband’s contributions during the marriage were in excess of the wife’s. I find that the wife’s contributions as a homemaker and parent, and her part-time employment are equivalent to the contributions of the husband, as a homemaker and parent, and his full-time employment.
Contributions post separation
Neither party led specific evidence as to their contributions post separation, other than following separation, the husband remained in the former family home and carried out significant renovations to the property. During this time, the wife was the primary carer of the two children of the marriage. The orders were made by consent on 9 September 2015 in relation to the children.
Overall Contributions
Having considered the evidence of both parties, and having weighed the competing proposals, I determine that the overall contributions of the parties to the non-superannuation assets are equal. The husband had superannuation entitlements substantially in excess of the wife, but it is not possible to quantify the amount.
The s.79 (4)(d),(e),(f) and (g) and the s.75(2) factors
Section 79(4)(d): the effect of any proposed order upon the earning capacity of either party to the marriage.
The orders which I propose to make will not have any affect upon the earning capacity of either party.
Section 79(4)(e): the matters referred to in S75(2) so far as they are relevant
Section 75(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
The wife is currently aged 48 and enjoys good health. The husband is aged 48 and enjoys good physical health. However, he has experienced a number of mental health issues in the past. According to the wife, from approximately 2003 the husband sought psychiatric treatment from Dr A and was placed on antidepressant and mood stabiliser medication.[22] The husband experienced three acute episodes of mental health problems, the first in early 2011, when he was hospitalised at (omitted) Hospital, in October 2011, when he was hospitalised in the (omitted) Clinic and in July 2014, when he was again hospitalised at (omitted), (omitted) Hospital.
(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
[22] Paragraph 32 of the wife's affidavit sworn 22 June 2015.
The wife is on a part-time basis employed as a (occupation omitted), and subject to her obligations to care for the children, she is able to continue in this employment. The husband cross-examined the wife at length about alleged inaccuracies in her Financial Statement and in particular, he alleged, she had significantly understated her actual income. She was directed to item 9 on page 3 of her Financial Statement,[23] where she deposed to earning a salary of $900 per week, which the husband submitted was equivalent to $46,000 per annum, and not $40,000 per annum, which was the income amount she had sworn to in her affidavit. The wife explained that the discrepancy could be due to variations in her weekly income, which depended on the extent of the work she was offered and was able to accept. She was also cross-examined about how she had managed to increase her savings when her financial statement discloses a deficiency of income. Her explanation was, that she had had a bond refunded which enable her to increase her savings. She was also cross-examined about the (omitted),[24] which quite clearly enables her to earn a small amount of tax-free income as is often the case in the (omitted) field of employment.
[23] Sworn 18 of April 2016.
[24] Item 37,page 6 of wife's financial statement sworn 18 April 2016.
I accept that the wife has used her best endeavours to accurately reflect her fluctuating income. However, taking the husband’s assertions about the wife’s income, at their highest, it is apparent that the wife’s income is approximately half of the husband’s.
The husband asserted that if the wife worked full-time, she would be capable of earning an income of between $70,000-$85,000 per annum. Her response was that she hadn’t worked full-time, although an income of that amount might be possible if she did. She was not aware that full-time employment was available to her and indeed she had not been offered full-time employment. The wife’s income and earning capacity is obviously constrained by her primary care of the children. Even if she were offered full-time employment, it is likely that as a (occupation omitted) she would be required to work shift work, which she may not be able to accept due to her commitments in caring for the children.
The husband is employed as a (occupation omitted) with (employer omitted) having obtained this employment in 2011. His Financial Statement[25] discloses an average weekly income of $1785. In addition, the husband conceded he receives the benefit of approximately $20,000 per annum by way of a novated lease which is provided by his employer. The husband was asked on many occasions to produce a payslip to establish his current income, given that the Financial Statement was sworn nine months ago, however he did not do so.
[25] Sworn 4 September 2015.
I note that the acute psychiatric episodes referred to in this judgment, did not disrupt the husband’s continual employment. Although he was made redundant from (employer omitted) in 2008 he was reemployed as from 2011. However, during the first part of the trial it was his evidence that (employer omitted) is likely to cease or at least change the nature of his employment in the near future. If this occurs, the husband’s evidence as to his future options with his employer was as follows:
(1)Resignation;
(2)“performance managed” out of his current job;
(3)Received a redundancy.
The husband’s evidence was that the most likely option would be that he would be made redundant from (employer omitted), and if that occurred, he would be entitled to receive four weeks pay for each year of service, which would accrue from 2011. He would also be entitled to receive pro rata long service leave, which would result in six weeks of leave.
In terms of the husband’s future employment prospects, in the event he were terminated from (employer omitted), his evidence was that he would initially look for a job which did not involve the same level of intellectual function, and that he could possibly work for a smaller, more dynamic company, such as (omitted) where he was employed during his break from (employer omitted) and which he enjoyed. He also gave evidence that he has a (qualifications omitted) from (omitted) University in (qualifications omitted), having studied part-time between 2008 and 2012.
When the trial resumed in October 2016, the husband was still employed at (employer omitted) and seemed to be perplexed when I asked him about the security of his future employment with (employer omitted). He seemed to accept that his future employment with (employer omitted) would continue and that it had not been jeopardised by his past mental health issues.
Even if the husband did not continue to be employed by (employer omitted), I have no doubt that the husband is highly intelligent and resourceful and would in the future, be able to find employment to enable him to generate an income commensurate with his current income. I note that the husband’s current income, when adding back the benefit of a novated lease of his motor vehicle, is close to $100,000, which is significantly greater than the income of the wife.
In terms the property and financial resources, the orders which I propose to make would enable each of the parties to make a significant contribution towards the acquisition costs of appropriate accommodation for themselves of the children.
(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
Pursuant to the orders I propose to make, the wife will have the primary care of the two children of the marriage. However, the children will spend significant and substantial time with the husband.
(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
As previously referred to both of the parties will be able to earn income sufficient to support themselves and contribute towards the support of the two children.
(e) the responsibilities of either party to support any other person; and
Other than her obligations and responsibilities to support the two children of the marriage, the wife is not responsible for the support of any other person. The husband gave evidence that he may be responsible for the support of his 25-year-old daughter Ms N and possibly his disabled brother at some time in the future. In relation to Ms N, his evidence was that she has substance abuse and mental health problems and that he pays some expenses for Ms N. It was conceded that the husband was not Ms N’s carer. In relation to his brother, Mr N, the husband’s evidence was that Mr N was unlikely to be reliant on the husband financially in the future, however it was more that he would require to spend some time with Mr N. He said he would be able to manage some of Mr N’s needs, but otherwise he would have to rely on hired help. The husband acknowledged, quite properly, that Y and X were his priority.
(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
This is not applicable to either party.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
It is anticipated both the husband and the wife will continue to earn income and with the capital they will receive as a result of these orders, they will be able to provide a reasonable standard of living for themselves and the two children.
(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
This is not applicable to either party.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
This is not applicable to either party.
(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
This is not applicable to either party.
(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
This is not applicable to either party.
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
Both the husband and the wife will be able to continue to earn income and to continue with their respective roles as parents.
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
This is not applicable to either party.
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
This is not applicable to either party.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
This is not applicable to either party.
(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;
The husband was cross-examined about his history of payment of child support. His evidence was that his current child-support liability was approximately $600 per month, and that he was up to date with payments. In addition to child-support, he had paid some minor expenses for the children including, a semester of (hobby omitted) fees, (hobby omitted) fees, some school fees, and some clothing for the children.
The mother’s counsel cross-examined the father about a series of applications which he had made to the Child Support Agency with the aim of reducing child-support. The first of the applications was in May 2015, the second was in September 2015, when he challenged an income estimate reconciliation of $250 and a penalty of $25, the third was in October 2015, when he sought to have car lease payments of approximately $900 per month, which were referable to the mother’s car, offset against his child-support, and the fourth was an attempt to stop the child support agency from collecting child-support. He also conceded that he had made an application to the Administrative Appeals Tribunal to review decisions of the Child Support Agency, however, he denied that by his actions he had consistently tried to minimise child-support. Despite these applications, the father maintained that he was currently up to date with child-support in accordance with the relevant assessment.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
All relevant factors have been referred to in this judgement.
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
This is not applicable.
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
This is not applicable.
Section 79(4)(f) any other order made under this act affecting a party to the marriage or a child of the marriage; and
The parenting orders relating to the children of the marriage. I refer to in this judgement.
Section 79(4)(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
This is referred to at paragraphs 101 and 112 hereof.
Is it just and equitable to alter the parties’ property interests
Both parties, in their respective Application and Response have sought orders adjusting their respective interests in property.
As a result of the findings made relating to contributions and future needs, I am satisfied it is just and equitable to make orders adjusting property between the parties.
Just and Equitable adjustment to the parties’ property interests
I have determined that the party’s non-superannuation assets should be divided so that the wife receives 60 percent and the husband will receive 40 per cent.
On the basis of the non-superannuation pool of assets, the wife would receive approximately $535,602 and the husband would receive approximately $357,068.
During the course of final submissions, the parties agreed that the self-managed superannuation fund would be shared equally between them and additionally the wife would retain her (omitted) superannuation and the husband would retain his entitlements in the (employer omitted), (omitted), and (omitted) superannuation funds.
On the basis of the superannuation pool of assets, the wife will receive $170,610 and the husband will receive $204,293.
The division of assets I have determined is summarised as follows:
Wife’s Assets
| Payment from funds held in trust | $420,602 |
| Previous distribution of trust monies | $100,000[26] |
| Ford territory Motor Vehicle (current Red Book valuation) | $15,000 |
| Total non superannuation assets | $535,602 |
| Wife’s superannuation ((omitted)) | $21,719 |
| Self-managed superannuation fund | $148,891 |
| Total superannuation | $170,610 |
[26] Additional distribution of $50,000 was made to each party. By consent, pursuant to orders made on 28 October 2016.
Husband’s Assets
| Payment from funds held in trust | $155,132 |
| Previous distribution of trust monies | $100,000 26 |
| Motor vehicle | $4,500 |
| Nett proceeds of sale of Property F property | $71,345 |
| Husband’s shares | $26,091 |
| Total non-superannuation assets | $357,068 |
| Husband’s superannuation (employer omitted), (omitted) (omitted) | $31,173 |
| Self-managed superannuation fund | $148,891 |
| Total superannuation | $204,293 |
The practical outcome of the division of assets will provide both parties, with a lump-sum of capital which will enable them to purchase accommodation to rehouse themselves and the children, or alternatively to obtain adequate rental accommodation. The husband, by virtue of his superior income will have a greater borrowing capacity than the wife and this is reflected in the distribution of the proceeds of sale of the family home.
The result will enable both parties to hopefully have their own homes, and to re-establish their lives. Accordingly, I am satisfied the outcome is just and equitable.
Parenting
The proposals of the parties
The wife’s proposal
The parenting orders which the wife seeks are as follows:
2. That the wife have sole parental responsibility for making decisions in relation to the school education, healthcare, psychological treatment and religious instruction of the children X (“X”) born (omitted) 2004 and Y (“Y”) born (omitted) 2006 (hereinafter together referred to as “the children”), provided that the wife shall:
a) provide the husband with prior notice in writing of any decision she proposes to make in relation to such matters, save for decisions made in medical emergencies;
b) consider any views expressed by the husband and make a genuine attempt to consult with the husband before making decisions; and
c) inform the husband in writing of the decisions she makes.
3. That subject to order 2 herein, the husband and the wife otherwise have equal shared parental responsibility for the children.
4. That the children live with the wife.
5. That X spend time with the husband during school terms as follows:
a) During term 4 in 2016 and term 1 in 2017, each alternate weekend from 3.30pm or the conclusion of school on Friday until the commencement of school on Monday (or 6.00pm if Monday is a public holiday);
b) Commencing in term 2 in 2017, each alternate weekend from 3.30pm or the conclusion of school on Thursday until the commencement of school (or 6.00pm if Monday is a public holiday).
6. That Y spend time with the husband during school terms as follows:
a) During term 4 in 2016 and term 1 in 2017, each alternate weekend from 9.00am on Saturday until the commencement of school on Monday (or 6.00pm if Monday is a public holiday); and
b) Commencing in term 2 in 2017, each alternate weekend from 3.30pm or the conclusion of school on Friday until the commencement of school on Monday (or 6.00pm if Monday is a public holiday).
7. That the children spend time with the husband during their school holidays and special occasions as follows:
a) For the second half of the first term school holidays from 9.00am on the middle Sunday of the holidays until 6.00pm on the day before school recommences, provided that the children shall spend the first half instead of the second half of the holidays with the husband if:
i. Easter falls on the first, or second weekends of the holidays and the children are to spend Easter with the husband pursuant to these orders; or
ii. Easter falls on the second, or third weekends of the holidays and the children are to spend Easter with the wife pursuant to these orders.
b) For the first half of the second term school holidays from 6.00pm on the last day of school until 9.00am on the middle Sunday in 2017 and each alternate year thereafter and the second half of the second term school holidays (which includes X’s birthday) from 9.00am on the middle Sunday until 6.00pm on the day before school recommences in 2018 and each alternate year thereafter;
c) For the second half of the third term school holidays from 9.00am on the middle Sunday of the school holidays until 6.00pm on the day before school recommences;
d) From 6.00pm on the Thursday prior to Easter until 6.00pm on Easter Monday in 2018 and in each alternate year thereafter;
e) During the long summer school holidays in every year as follows:
i. From 9.00am on 22 December until 9.00am on 24 December;
ii. From 5.00pm on Christmas Day until 9.00am on 27 December; and
iii. For two weeks in January in every year, being from:
1. 9.00am on 31 December 2016 until 9.00am on 14 January in 2017 and in each alternate year thereafter; and
2. 9.00am on 14 January 2018 until 28 January 2018 and in each alternate year thereafter unless otherwise agreed in writing.
f) On the Father’s Day weekend in every year from 5.00pm on the Saturday prior to Father’s Day until the commencement of school on the following Monday;
g) Otherwise as agreed in writing from time to time.
8. That the husband’s time with the children be suspended as follows:
a) From 5.00pm on the Saturday prior to Mother’s Day until the commencement of school on the following Monday; and
b) From 6.00pm on the Thursday prior to Easter until 6.00pm on Easter Monday in 2017 and in each alternate year thereafter.
9. That the parties each facilitate telephone communication between the children and the other parent when the children are in their respective care in accordance with the children’s wishes.
10. That each of the parents be authorised to receive copies of school reports, school notices, photograph order forms and any other documents ordinarily provided to parents, and each of the parents be authorised to attend any school-based event to which parents are ordinarily invited.
11. That each of the parents be authorised to attend any extra-curricular or sporting activity in which the children are participating.
12. That each of the parents forthwith notify the other in the event of any serious accident or injury affecting the children or either of them and each of the parents be authorised to communicate with any healthcare provider treating the children or either of them.
13. That each of the parties be restrained by injunction from denigrating the other in the presence or the hearing of the children or discussing the proceedings or the content of any Court document in the presence or the hearing of the children or permitting any other person to do so.
14. Each of the parties do all things necessary to ensure that the child Y attends all of her (hobby omitted) competitions and commitments whilst she is in their respective care.
15. That changeovers take place at the children’s school on school days and on non-school days, the husband collect the children from and return them to the residential boundary of the wife’s home.
16. That the wife arrange for each of the children to attend counselling with a child psychologist for the next 12 months.
17. That the husband continue to have a psychiatric and/ or psychological treatment in accordance with the recommendations of his treating psychiatrist, and provide the wife with:
the name and contact telephone number of the psychiatrist, or psychologist under whose care he is from time to time
an authority to obtain information from his treating psychiatrist, or psychologist about the frequency of his consultations, medication, and compliance with treatment recommendations
The husband’s proposal
The parenting orders which the husband seeks are as follows:
a)That the parties retain equal shared parental responsibility for the children;
b)That the children live with the husband as follows:
i)During the school term times from 5 PM on Wednesday until 5 PM on Saturday in each week
ii)For one half of the school term and long summer holidays at times to be agreed but in default of agreement for the first half, with the first half being calculated it is being from the day the school term ends until 5 PM on the middle day, and the second half being calculated as from 5 PM on the middle day until the commencement of the new school term;
iii)For Father’s Day in each year from 5 PM on the Saturday prior to Father’s Day until 5 PM on Father’s Day;
iv)Each of the children’s birthday and the father’s birthday if the children are not already in the care of the father, from 5 PM until 8 PM. If the school day, and from 10 AM until 2 PM if a non-school day;
v)For Christmas in 2016, and each alternate year from 5 PM on Christmas Eve until 5 PM on Christmas Day;
vi)For Christmas in 2017 and each alternate year thereafter from 5 PM on Christmas Day until 5 PM on Boxing Day;
vii)By telephone on a reasonable basis;
c)The children live with the wife at all other times.
The father also seeks generalised orders in relation to schooling, participation in extracurricular and sporting activities, and medical notifications.
Issues in dispute
The following issues are in dispute between the parties in relation to the parenting proceedings:
a)Parental responsibility for the children;
b)Whether the X’s time with the father should be reduced to 4 nights per fortnight, and Y’s time increased to 3 nights per fortnight, as sought by the mother;
c)Whether X’s time with the father should remain in accordance with the existing arrangements, namely six nights per fortnight, as sought by the father;
d)Whether Y’s time with the father should be increased from the existing 2 nights per fortnight to 6 nights per fortnight, to coincide with the time X currently spends with his father;
e)The father’s mental health and its impact on his capacity to care for the children.
Fortunately for the children, the parents effectively agree on the time the children should spend with each other during the school holidays and special occasions. They also agree on the orders in relation to schooling, participation in extracurricular and sporting activities and notifying each other in the event, the children require medical attention.
The Applicable Law
Part VII of the Family Law Act1975 (Cth) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60 CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will firstly consider the primary considerations of the act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
The existing orders, which were made by consent on 9 September 2015 provides that the children have a meaningful relationship with both parents.
The proposals of both parents also provides for the children to have a meaningful relationship with both parents.
This was not in issue during the trial.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother raised concerns about the fathers past mental health issues, and his capacity to care for the children. Both parents were assessed by Dr F, psychiatrist. As the psychiatric assessments were some time ago, during the course of the trial, orders were made by consent for the father to be psychiatrically assessed by Dr T.[27]
[27] Order 1 of the orders made by consent on 31 May 2016.
The father did not seek an order that the mother be psychiatrically assessed by Dr T. Accordingly I am entitled to conclude that he has no concerns about the mother’s mental health.
The father maintained that the mother engaged in parental alienation of the children.[28]
[28] Paragraph 138 of the family report of Ms L filed 6 October 2016.
Despite the allegations made by each parent against the other, both counsel in their final submissions propose that the children continue to spend substantial and significant time with the other parent. However, the wife’s proposal is subject to the husband continuing to have psychiatric and/or psychological treatment in accordance with the recommendations of his treating psychiatrist, and providing an authority to the wife to obtain information from that treating psychiatrist.
The additional considerations are set out in s.60CC (3) of the act. I will now consider the additional considerations.
Section 60CC(3)(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 now aged 12 and is in Grade 6 at (omitted) Primary School. Y is now aged 10 and is in Grade 4 also at (omitted) Primary School. The first family report does not specifically address the children’s views about their live with and spend time arrangements.
The report does however identify that each child presented in a cooperative manner during the interview.[29] Y described her family in positive terms and commented that her parents are “nice” and was loyal to both not wishing to identify any negative attributes. X spoke positively of his family, noting that he was saddened by the separation and that his father “got sick” and now “had changed” and he “is not drinking”.
[29] Family report at paragraphs 84 and 88.
The husband’s evidence is that X “was really clear that he wanted an equal time arrangement and was quite vocal about that”.[30]
[30] Father's affidavit sworn to 2 September 2015 at paragraph 52.
The husband filed an Application in a Case on 15 June 2016, together with an affidavit in support sworn on 14 June 2016. That application was listed before me in the duty list on 3 October 2016.
On 3 August 2016 the husband filed a Contravention Application, which was supported by an affidavit sworn on 2 August 2016.
The Application in a Case sought the appointment of an Independent Children’s Lawyer and specifically that “the Independent Children’s Lawyer is permitted to meet with and interview the children separately/jointly as required.”
It was apparent from that application and the submissions made by the husband in the duty list, that he sought evidence of the children’s views, so that evidence could be adduced at trial.
I was not prepared to make an order for an Independent Children’s Lawyer and instead an order was made by consent providing for the children to attend Ms L for the purposes of ascertaining the views of the children. I also made an order that the husband pay Ms L’s costs at first instance in relation to the children’s attendance on her and the preparation of the third report.
On 10 October 2016 Ms L prepared a report titled “Second Supplementary Report”. That report provides evidence of the children’s views in relation to their living arrangements.
Both children identified the parental conflict which had continued for the past two years and both were tired of it.
X identified the difference in parenting styles of his two parents. He recounted that his life with his father:
“…entailed many activities and he enjoyed these activities. He contrasted this to his mother’s home, stating that is more relaxed at his mother’s home. He advised that his friends do not come to spend time with him when you that his father’s home because of the scheduled activities, where as he invites his friends to play or stay over, when he is at his mother’s home.” [31]
[31] Page 4 of the second supplementary report dated 10 October 2016.
According to Ms L, X “noted that he was content and wants to ‘do what is happening now’, referring to the current four days three-day split week that he spends with his parents.”[32]
[32] Page 4 of the second supplementary report dated 10 October 2016.
Y at times “Became confused with his schedule” and said, “I’m forgetting which house I’m going to be moving to”.[33]
[33] Page 5 of the second supplementary report dated 10 October 2016.
She reported to Ms L that “although she is able to cope with a long time with each parent at Christmas time, she desires and craves separate time with her mother.” Furthermore, she sees “that her father favours her brother and his activities, hence she enjoys her separate time with her mother.”
Ms L’s evidence was that the children’s cognitive ability and maturity was commensurate with their age.
The wife’s evidence was that the father had attempted to pressure the children to live with him on a week about arrangement, or alternatively spend more time with him than was presently occurring.
She said that the current arrangements had been imposed on her by the husband during a period of acute turbulence and disruption in the household. Following the husband’s discharge from (omitted) psychiatric facility, in August 2014 the wife was desperate to physically separate from the husband, and the only means to achieve separation was for her to leave the family home with the children. She said that she was coerced and pressured by the husband into agreeing with the existing arrangements. In her view, the husband had attempted to continually pressure and influence the children about their eventual living arrangements.
On 22 May 2003 Dr A forwarded a letter to the husband’s GP, Dr C. [54] That letter summarised the husband’s condition as follows:
“In summary, he is a man suffering from a relapse of a depressive disorder on the background of chronic dysthymia. He has a history of a severe depressive episode which possibly consisted of psychotic symptoms in 1995. Also the episode of hypomania in 1999, suggests that he may also be suffering from bipolar 11 disorder (that is depressive episodes and hypomanic episodes) and may also have the potential to suffer from a full blown bipolar disorder. His current depressive episode is characterised by anxiety symptoms and does not seem to have any psychotic symptoms at present but I will continue to re-assessed for this.”
[54] Exhibit W20 at page 143.
The evidence of Dr A was that he continued to reassess the husband on a regular basis, every few weeks or so for two years between 2003 and 2005. The husband was medicated with both an antidepressant, which had been prescribed by his GP and a mood stabiliser.
When challenged by the mother’s counsel, as to why his report annexed to his affidavit stated “but I have not definitively made a diagnosis of any form of bipolar disorder”, his evidence was that a diagnosis of bipolar 11 disorder was a fluid diagnosis, which would take many years to be definitive. Notwithstanding his lack of formal diagnosis of bipolar 11, his evidence was that the husband had experienced depression and some hypomania over the years. He agreed that the husband’s intermittent attendance on him subsequent to 2005 may have hampered his ability to make a definitive diagnosis.
During 2006 the husband consulted Dr A nearly every month. In 2007 he consulted Dr A approximately every six months, and in 2008 on one occasion. He ceased Valporate, a mood stabiliser, in 2007.
In April 2011 the husband had a brief admission to (omitted) Hospital, psychiatric unit.
On 14 October 2011 the husband was again referred by his GP, Dr D. On 18 October 2011, Dr A reported to Dr D.[55] That letter summarises the husband psychiatric history , and further states:
“Upon reviewing him when he was admitted to the (omitted) Clinic on 17 October 2010. It is clear there has been a very significant deterioration in his relationship with Ms Douglass over the past few years. As you describe in your letter this has reached a point of almost no communication, significant emotional manipulation on his part, according to Ms Douglass. His perception of this is that they have just grown apart and there is no intimacy.”
“I have planned to increase his Lexapro and get on top of his insomnia in the first instance and will proceed from here as an inpatient and subsequently as an outpatient.”
[55] Exhibit W 20 at page 161.
The husband was an inpatient at (omitted) Clinic from 17 October 2011 until 21 October 2011.
In November 2011 the husband attended Ms B, psychologist. Dr A was not involved in that treatment. Ms B wrote to the husband’s GP on 26 November 2011.[56]
[56] exhibit W 20 at page 57
The husband suffered a significant relapse in his mental health in July 2014 when he was admitted to (omitted), the psychiatric unit of (omitted) Hospital. Dr A was not involved in his care during that episode.
The husband did not consult Dr A until 1 June 2016 in the course of this proceeding. He then attended again on 12 July 2016 and 4 October 2016, to enable a report to be prepared by Dr A. He had continued to take an antidepressant, Lexapro, since October 2011, when he was admitted to (omitted) Clinic.
Counsel for the wife cross-examined Dr A about the husband’s personality issues, which were referred to in his report. His evidence was that the husband had a “Cluster B” type personality and that common traits of a “Cluster B” personality are mood instability, vulnerability to depressive episodes, significant fear of rejection or abandonment, perception of catastrophic events if a relationship fell apart, extreme focus on own needs, and can appear to be paranoid and angry.
Dr A agreed that the husband would benefit from ongoing consultations and management by him, which would include ongoing psychotherapy with him rather than a psychologist to be arranged by (employer omitted), as proposed by the husband.
In terms of the assessment of future risk, his evidence was that the husband would always be vulnerable to depressive episodes as he had a past history of significant episodes of depression and crisis. These episodes could be triggered by any significant emotional problem for the husband emanating from either work or relationship problems.
His evidence was that the aim of psychotherapy was to develop insight and awareness of difficult periods in his life and have the tools and strategies to do something about it, in times of crisis. He agreed that he did not have complete confidence that the husband would self-refer in times of crisis.
I propose to make orders that the husband immediately commence psychotherapy with Dr A and continue to abide by the treatment and recommendations of Dr A and that the husband authorize the wife to obtain all relevant information from Dr A. This will provide an appropriate safeguard for the children, in the event the husband suffers a relapse of his mental health. I do note however, that Dr A, when asked whether the husband presented as a risk to the children, responded that he had not assessed the husband as a risk and that it would be unlikely.
Husband’s admission to (omitted) July 2014
The wife’s solicitors subpoenaed the husband’s medical records from (omitted) Health. The (omitted) Hospital discharge summary, dated 23 July 2014 was tended by counsel for the wife.[57]
[57] Exhibit W20.
The Discharge Summary states that the husband was admitted to the psychiatric unit on 19 July 2014 at 14.26. He was discharged on 28 July 2014. The principal diagnosis was Dysthymic disorder. The clinical synopsis diagnosis was, Dysthymic disorder, Hx anxiety and depression, cluster B personality traits, ETOH abuse, and stress and anxiety related to relationship and employment.
Subsequent to his discharge from hospital the husband did not consult Dr A, however, he continued to consulted his GP, Dr D.
Evidence of Ms L family report writer
During the course of the proceedings Ms L prepared three reports as follows:
i)Family Report dated 15 January 2016;[58]
ii)Supplementary Report dated 24 September 2016;[59]
iii)Second Supplementary Report dated 10 October 2016.
[58] Annexure 1 to the affidavit of Ms L sworn 16 October 2016.
[59] Annexure 2 to the affidavit of Ms L sworn 16 October 2016.
Ms L gave evidence and was cross-examined by both counsel for the wife and the husband. I found her to be an impartial, professional and impressive witness, who was prepared to make concessions when appropriate.
In the family report her recommendations for the parenting arrangements for X and Y were that the children live with their mother, and during term time spend time with their father, from after school Friday commencement of school on the following Tuesday each alternate weekend. She also recommended that the children see their father after school in the intervening week for dinner or activity. She did not endorse the current arrangements of a split week with different arrangements for each child.
During the course of the property proceedings it became apparent that Ms L did not have access to the husband’s significant medical records prior to preparing the family report. Arrangements were made to provide Ms L with the husband’s subpoenaed medical file and for her to prepare a further report.
Her conclusions and recommendations, after reviewing the medical file are as follows:
“Mr Douglass need is to have close and ongoing time with the children. The children’s needs to have settled and predictable week (sic). The two regimes are in contrast to each other. On the best interests of the children’s perspective. The writer’s recommendations in the family report are considered to be in the best interests of the children.”
As referred to at paragraph 151 to 155 hereof, the husband was particularly concerned that Ms L did not specifically address the children’s views in her family report or the supplementary report.
An order was made on 3 October 2016 providing for the children to attend Ms L to ascertain their views and the preparation of a further report.
The children’s views, as ascertained by Ms L, are referred to at paragraphs 158 to 161 hereof.
Ms L during cross-examination, said that the children when expressing their views, did not look at what was in their best interests. Her evidence was that the children could not conceptualise any alternative arrangements, as the split week had been the reality for them since separation. She also said that the children had not been sufficiently sheltered from discussions with their father about his views of the arrangements.
Her evidence was that if the arrangements differed from the existing, then the children would be able to adapt and accept the new arrangements. X stated to her that he could adapt and, upon reflection, she thought that Y had emotional needs to spend more time with her mother.
She concluded that it would be beneficial for the children to have individual arrangements. In particular Y was aware that X was her father’s favourite and that it would benefit her to have individual time with her mother as a reprieve from both her father and the ongoing conflict with X. If this were to occur it would be helpful for the children to have the arrangements explained to them by an independent person, and she was prepared to assume that role.
In clarifying the most appropriate arrangements for the children, her evidence was that X should spend four nights a fortnight with his father in a block, however, this should be implemented gradually. She proposed that as X would commence secondary school in 2017, he should spend a three night block with his father each alternate weekend from Friday conclusion of school until commencement of school Monday for the remainder of term four 2016 and for term one 2017. X’s time could increase from Friday to Tuesday each alternate weekend from the commencement of term two, 2017.
In relation to Y, the most appropriate arrangements for her would be to commence spending time with her father for the remainder of term four 2016 and from the commencement of term one, 2017 from Friday conclusion of school until Sunday 5 PM, each alternate weekend. Y’s time could increase from Friday after school until commencement of school Monday each alternate weekend, from the commencement of term two, 2017.
Additionally, the children could have a meal with their father in the alternate week, but such time should not be overnight.
She agreed with the proposals for sharing the holidays.
In relation to the husband’s mental health issues, and the impact on the children, her evidence was that Mr Douglass’ acceptance of his mental health was rationalised by him. For example he described himself as bohemian and eccentric, to excuse his mental health problems. She perceived that the husband had little insight to be able to manage his own responses to emotional highs and lows and he would have little capacity to see the impact of his behaviour on the children. The husband appeared focused on his own distress rather than considering the children’s perspective or indeed that of their mother. The husband sees his behaviour as different to the way others perceive him.
Her evidence was that the husband had two primary responses to the breakdown of the family relationship, namely residual anger towards the wife for leaving the family, and secondly, feeling sorry for himself. That manifested in aggression, and maladaptive behaviour. The husband’s outrageous and bizarre response to the wife’s application for divorce was an example of deeply ingrained anger and aggression towards the wife.
The children have also been exposed to, and impacted by the father’s responses. In particular, X’s anger and aggression and his sense of wanting to be fair and loyal to his father. She agreed that the impact on the children of their father’s behaviour would be greater if they are exposed to him every few days.
Her evidence of the impact of long-term exposure to residual hostility and self-sympathy was that it was would be likely to affect their adult understanding of how relationships work and their ability to problem solve with their peers.
She recommended that the children have some form of psycho education to enable them to be informed and understand their father’s mental health issues. It would also enable the children to identify a potential deterioration in the husband’s mental health and would function as a protective mechanism for the children. She agreed that it was imperative that the husband continue with therapy with a psychiatrist, such as Dr A and that the children should also have access to a counsellor to discuss both the issue of sibling conflict and the impact of their father’s mental health of them, as they develop awareness of it.
Equal shared parental responsibility
Section 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1) … if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) … if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Parental Responsibility
Both parents initially sought orders that they have equal shared parental responsibility for the children.[60] During the course of the trial the wife changed her proposal, and during final submissions I was informed by her counsel that she sought an order for sole parental responsibility in relation to school education, health care, psychological treatment and religious instruction of the children. This was subject to the proviso that the wife would advise the husband prior to making any decision, would consider any views expressed by the husband, and thereafter inform him in writing of decision she would make.
[60] father's response filed for September 2015 and mothers outline of case document filed 5 May 2016
The wife’s evidence in support of an order for sole parental responsibility may be summarised as follows:
a)the circumstances surrounding X’s choice of high school;
b)the dictatorial and offensive communication, including text messages and emails from the husband to the wife;
c)the husband’s false claims that X had been hospitalised on the evening of 16 April 2015;
d)the necessity for the children to receive education and counselling about the husband’s mental health issues;
e)the husband’s scornful and bizarre attitude to religion as demonstrated by his response to the wife’s application for divorce.
The circumstances surrounding X’s choice of high school
The husband claims that the wife failed to consult him about X’s choice of secondary school and that she unilaterally enrolled him in (omitted) High School without consulting the husband.[61]
[61] Paragraph 7.5 of the husband's affidavit affirmed 5 October 2016.
The husband was cross-examined at length about this assertion. He conceded that there had been discussions between the parents via text message as early as 12 November 2015.[62] He had signed the enrolment form for X at (omitted) High School and the allegation was simply incorrect. He signed the enrolment application whilst at court in May 2016, and had signed a form in August 2016 to finalise the enrolment.
[62] Exhibit W9.
As at the date of swearing his affidavit on 5 October 2016, the husband had signed documents enrolling X in (omitted) High School. I find that the wife had consulted him about X’s choice of high school. He was well aware that X’s enrolment had been finalised by that date. There was no satisfactory explanation why he chose to swear an affidavit which was blatantly incorrect.
The dictatorial and offensive communication, including text messages and emails from the husband to the wife
The husband was extensively cross-examined about communication between the parents in relation to the children and the activities.
On 24 October 2014 the husband forwarded a further email to the wife as follows:
“did not appreciate you gatecrashing my time with the children today. I only get to see Y two days a week and then you turn up out of the blue and spoil it.
Very stalker like behaviour.
DO NOT do it again without getting my explicit agreement prior. I wish to spend quality time with the children without you interfering.”[63]
[63] Exhibit W14.
On 8 December 2014 at 3:41 PM the husband forwarded an email to the wife as follows:
“please be aware. I’ll be taking X for Xmas haircut sometime in the next fortnight.
Under no circumstances are you or any of your deluded friends to cut his hair.”[64]
[64] Exhibit W15.
On 16 April 2015 the husband forwarded an email to the wife in the following terms:
“Y is now enrolled in, stage left on Saturdays. A very expensive program that I am paying for .So do not organise or expect her to participate in anything else on Saturday.”
On the 29 April 2015 the wife forwarded an email to the husband asking him to reconsider his decision to not allow Y to attend her (hobby omitted) camp, which presumably was on a Saturday. That email stated as follows:
“Y is very upset that you have said she cannot attend her (hobby omitted) camp, please reconsider.
This is her fifth year of participation in (hobby omitted), which she loves as it is her chosen competitive sport. She had a commitment as part of a team to attend camp and competitions that may be on a Saturday. It will only be a few Saturdays for the entire year.
She has done one class in the new activity you have chosen to her, so how can you justify to her that she has to miss out on a fun camp with friends, or participation in a competition she has been practising hard for and looking forward to? It is mean and unreasonable and not putting Y’s wishes first.”
On 1 May 2015 at 3.33pm, the husband forwarded a responding email to the wife’s email of 29 April 2015, which can only be described as patronising and offensive. That email stated as follows:
“I wish to attend an auction on that day.
But I won’t be.
Why? Because I don’t have deposit. That’s why.
Sometimes you don’t get things in your way all the time Ms Douglass. That is the reality that you escaped from the 10 years. Welcome back to reality.!”
On 1 May 2015 at 5:09 PM. the husband forwarded a further email to the wife as follows:
“Have discussed with Y and I am reconsidering, and essentially waiting to see your proposal for:
Rectifying the issue you have created on Wednesday evenings; and
X (hobby omitted) tryout and possible selection in training squad. Please respond.”.
On 3 May 2015 the husband forwarded a further email to the wife as follows:
“if you take Y to (hobby omitted) camp on May 16. Do you undertake to BOOK and TAKE Y to (hobby omitted) lesson on Monday 15th of June?”
On 27 September 2015 at 3:04 PM the wife forwarded the husband and email about Y’s proposed (hobby omitted) on Thursday, 1 October 2015. Her email said:
“please let me know when you will drop Y”
On 27 September 2015 at 6:08 PM the husband responded as follows:
“after I get an answer as to how I get my$50 K , released”
The emails referred to in paragraphs 263 to 269 hereof were tended by the wife’s counsel as exhibit W13.
On 14 April 2016 the wife forwarded an email to the husband about Y’s (hobby omitted) camps for 2016. The wife requested that the husband confirm arrangements with her to avoid anxiety for Y. As he did not respond, she forwarded a further email to the husband on 29 April 2016 requesting confirmation of arrangements to enable Y to attend her (hobby omitted) camp on 12 May 2016.
On 16 April 2015 the husband and the wife engaged in series of text messages about dropping off the children and X’s homework.[65] The text messages commenced at 5:01 PM and were initiated by the husband. They are as follows:
[65] Exhibit W15.
“Where are X and Y
Well?
Would you like me to drop Y to you or are you coming to training?
Drop Y here. ASAP
Went to your house you went there, we are home
Bring Y over now
Who is bring X home? (sic)
X is here too. He says he doesn’t want to play (hobby omitted) any more. And wouldn’t do training.
What?
I have had a gutful of you. Bring the kids here now.
I will take X training next week. You but out. Freak
I need to Y after school urgently
why?
None of your business
Where the fuck is X home work?
What are you asking?
He has not done any home work this year. Says his book and sheet are listen (sic) somewhere in that dump of a house you like (sic)in
He has done all his homework in first term! He only had to do one task on the sheet because he went to (omitted) camp. He has left his book at school, but has a spare here. He also does his 1000 mathletics points per week.
X says thats more bulshit. (sic). He hasn’t seen his home workbook for ages.
You need to get X (hobby omitted) jumper tomorrow. He needs is (sic) Saturday”
It is abundantly clear that the preceding examples of emails and text messages that the husband is disrespectful and uncooperative towards the wife. He conceded that his behaviour was not appropriate, was disrespectful and uncooperative, and with hindsight, he could have been more appropriate in his communications. This does not excuse the outrageously rude and condescending tenor of the emails and text messages forwarded by the husband. Even whilst being cross-examined the husband did not appear to fully comprehend the extent of his discourteous behaviour and the effect it could possibly have on the wife. At times he almost seemed to think the communications were amusing.
I have absolutely no confidence that any amount of therapy or counselling will result in the husband having a sincere respectful and appropriate attitude towards the wife. She should not be subjected to, scornful and condescending comments and communications in the future. If orders were made providing for the parents to have equal shared parental responsibility, I have no doubt that the husband would continue with his disrespectful communications, which would ultimately lead to increased conflict between the parents with adverse consequences for the children.
The husband’s false claim that X had been hospitalised on the evening of 16 April 2015
Annexure 10 to the wife’s affidavit sworn 18 April 2016 is a series of text messages between the husband and the wife, which occurred on 16 April 2015. The husband’s text message is as follows:
“X in hospital call urgently.”
The wife responded: “What is wrong where is X?”. She did so on two occasions.
The wife’s evidence about the history of this incident is set out in her affidavit of 22 June 2015.[66] After checking with the emergency Department of the (omitted) Hospital, the wife arranged for the police to attend the husband’s home. They did so and telephoned the wife to advise her that X was asleep at the husband’s home.
[66] At paragraphs 83 – 85.
The husband conceded under cross-examination that X had never been hospitalised, and that he had sent an email to the wife at around 11 PM on that night, despite his evidence that he was in bed asleep at that time, discussing whose turn it was to have the children for Christmas in the December 2015 holidays.
It is simply unbelievable that a parent who has the care of a child would advise the other parent, that the child was in hospital and then refuse to answer telephone calls or respond to frantic text messages. There is no justification whatsoever for such behaviour. The only explanation offered by the husband was that he was probably angry.
It is not feasible to expect the wife to communicate and reach agreement with the husband when he demonstrates such blatant disregard and disrespect for her.
The necessity for the children to receive education and counselling about the husband’s mental health issues
Whilst being cross-examined, Ms L gave evidence that the children should receive education about the husband’s mental health issues. The purpose of that was twofold, firstly for the children to gain have some understanding of the husband’s mental health and consequent behaviours and secondly, to enable the children to have an independent professional with whom they could discuss any concerns they may have.
The husband has demonstrated problematic behaviour in the past in relation to the wife’s attempt to arrange for the children to attend counselling.
On 24 October 2014 the husband forwarded an email[67] to the wife in relation to the children attending counselling, as follows:
[67] Exhibit W15.
“Read the family law act.
You have absolutely no right to run off organising child psychologists without consultation.
I AM THE CHILDREN’S FATHER!
This reeks of the same BULLSHIT you put X through a few year back . When according to you (& YOU ALONE). He was autistic, or ADD or Asperger’s .I forget which.
The person with an diagnosed/unresolved psychological/personality problems is YOU.
One of your symptoms is that you PROJECT your inner problems onto those around you.
Another symptom is that you think you have some expertise that you do not and go around DIAGNOSING imaginary conditions for people around you who do not meet your UNREASONABLE expectations.
Please get yourself helped for the children’s benefit Ms Douglass.”
Even if the husband was angry at the wife ostensibly organising for the children to see a counsellor, without consulting him, there is no justification for the rudeness and the underlying contempt towards the wife and her attempts to obtain counselling for the children.
It is difficult to contemplate the husband’s support for any counselling the wife might arrange for the children, even if such counselling was pursuant to court orders.
The husband’s scornful and bizarre attitude to religion as demonstrated by his response to the wife’s application for divorce
Religion was not the subject of any cross-examination, or conflict in the proceedings. However, the husband’s bizarre and mocking response to the wife’s application for divorce, is indicative of his attitude towards religion.
The husband’s response contains quotes from the Bible about marriage, which the husband admitted under cross-examination, he had googled and inserted into the application. There was no explanation why it was necessary to file such a contemptuous response, other than the husband wished to aggravate and annoy the wife.
Again it is almost impossible to comprehend that the wife would have any prospect of a civil and rational discussion with the husband about religious issues for the children, if same were to arise, given his apparent attitude towards religion.
Conclusion as to parental responsibility
Having considered the matters raised in paragraphs 259 to 292 hereof, I have concluded that the presumption of equal shared parental responsibility should not apply in this case as it is not in the best interests of the children.
I am satisfied that there is evidence to rebut the presumption. An order for equal shared parental responsibility requires the parents to cooperate in making long-term decisions about current and future education, major health issues, religion and cultural upbringing, the children’s names and any change in the children’s living arrangements which will make it significantly more difficult for the children to have a relationship with the other parent.
There have been obvious and significant problems with communication in the past. I am of the view that the husband’s past conduct and contemptuous and highly disrespectful attitude towards the wife would render it impossible for the parents to be able to learn to communicate in the future for the benefit of the children. Whilst it would be preferable if these parents could improve their communication and cooperation skills to reach agreement about these issues in the future, the prospects that they would be able to do so are extremely bleak. I have no confidence that the husband’s lack of insight and personality problems would enable him to put aside his disrespectful and supercilious attitude towards the wife, to communicate appropriately about the children.
It is certainly not in the children’s best interests for ongoing conflict between their parents to be exacerbated by imposing a regime of cooperative future decision-making which can never be achieved.
Furthermore, I have no confidence that the husband would be able to seriously participate in decisions about education, health and religion, given his scornful and contemptuous attitude, as evidenced by the email and text messages. I also have concerns that his mental health issues may affect his capacity to make appropriate decisions for the children in the future. I have full confidence that the wife will make appropriate decisions for the children in relation to major long-term issues affecting them, as she has demonstrated she is a devoted, committed and responsible parent.
Accordingly, I intend to make orders for sole parental responsibility to be vested in the wife, subject to her notifying the husband and considering his view prior to making any decision.
Statutory Pathway
I have determined that it is in the best interests of the children that there should not be an order for equal shared parental responsibility and I am not required to address the statutory pathway set out in s.65DAA(1)-(5).
Conclusion
I accordingly conclude that orders for the children to live with their mother and spend time with their father, in accordance with the proposal of the mother and the recommendations of Ms L, are in the best interests of the children.
For these reasons, I make the order set out at the commencement of this judgement.
I certify that the preceding three hundred and one (301) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 13 December 2016
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Injunction
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Remedies
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