Drewett & Drewett
[2012] FamCA 320
•23 April 2012
FAMILY COURT OF AUSTRALIA
| DREWETT & DREWETT | [2012] FamCA 320 |
| FAMILY LAW – CHILDREN - Husband seeks week-about arrangement - Found not in children’s best interests based on medical evidence. FAMILY LAW – PROPERTY - Initial contributions favour husband - Wife receives inheritance after separation - Problem about dealing with “add backs”. |
| Family Law Act 1975 (Cth) |
| Coghlan (2005) FLC 93-220 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 Kouper and Kouper [2009] FamCA 1080 Kowaliw and Kowaliw (1981) FLC 91-092 Mayne and Mayne [2011] FamCAFC 192 Norbis and Norbis (1983) 9 Fam LR 385 Omacini and Omacini [2005] FamCA 195; (2005) FLC 93-218 Pierce and Pierce [1998] FamCA 74 Polonius and York [2010] FamCAFC 228 Shimizu and Tanner [2011] FamCA 271 |
| APPLICANT: | Ms Drewett |
| RESPONDENT: | Mr Drewett |
| FILE NUMBER: | SYC | 2919 | of | 2008 |
| DATE DELIVERED: | 23 April 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 19 - 21 July 2011; 12, 13 October 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Givney |
| SOLICITOR FOR THE APPLICANT: | Gibson Howlin Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Gillies |
| SOLICITOR FOR THE RESPONDENT: | Paltos Briggs Family Lawyers |
Orders
That the husband and wife have equal shared parental responsibility for the children C born … September 1999 and N born … September 2001.
That the children live with the husband as follows:
(a)in respect of C, during each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday morning;
(b)in respect of N, during each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Monday;
(c)in respect of C and N in the week not referred to in paragraph 2(a) in (b), from after school on Thursday until 7.30pm that evening;
(d)in respect of C and N, for one half of each school term holiday by agreement and failing agreement, the first half in each even numbered year and the second half in each odd numbered year;
(e)in respect of C and N, for one half of the long summer school holidays but on an alternating week-about basis for the 2012-2013 holidays and thereafter, for one half by agreement and failing agreement, the first half in even numbered years and the second half in odd numbered years; and
(f)in respect of C and N, during Father’s Day in each year from 6.00pm on the Saturday before Father’s Day until the commencement of school on the Monday after Father’s Day.
That the children otherwise live with the wife at all other times.
That the husband’s time under paragraph 2(a), (b) and (c) of these orders is suspended during school holidays and the long summer holidays and will resume immediately thereafter as if it had not been so suspended.
That the husband’s time under paragraphs 2(a), (b) and (c) of these orders shall be suspended from 6.00pm on the Saturday before Mother’s Day until the commencement of school on the Monday after Mother’s Day in each year.
That for the purposes of these orders, if the changeover does not occur at school, the father collect the children at the commencement of the time from the wife’s residence and the wife collect the children from the husband’s residence at the conclusion of the allotted time.
AND THE COURT NOTES
A.That no provision is made under these orders for the birthdays of the children or the parents on the assumption that the parties will make a bona fide endeavour to resolve those issues themselves having regard to the fact that each has equal shared parental responsibility.
That by way of settlement of property
(a)the husband pay to the wife $103,292 within 30 days of the day of these orders; and
(b)save as to superannuation, each party otherwise retain to the exclusion of the other, all other assets in their respective possessions as at the time of these orders.
That the husband be responsible for and indemnify the wife in respect of the capital gains tax liability referred to in the proceedings.
That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the interest of the husband in S Superannuation, the wife shall be entitled to be paid a base sum of $78,924 out of the interest of the husband and there shall be a corresponding reduction in the entitlement of the husband.
That this order binds the S Superannuation Trustee.
That all applications are otherwise dismissed save as to questions of costs.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 24 May 2012 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 7 June 2012 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers
That all material produced under subpoenae can be returned to the recipient of the subpoena forthwith.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Drewett & Drewett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2919 of 2008
| Ms Drewett |
Applicant
And
| Mr Drewett |
Respondent
REASONS FOR JUDGMENT
Mr Drewett (“the husband”) and Ms Drewett (“the wife”) began living together towards the end of 1996, married in 1999 and separated in February 2007. Although they are now divorced, I shall refer to them as husband and wife for my convenience.
From the relationship of just over ten years, two children were born. They are C who was born in September 1999 and N who was born in September 2001.
The dispute in this Court is about both the children and the property of the parties.
The issue about the children is whether they should live with the parties on a week-about basis (as the husband proposed) or for three nights per fortnight (as the wife proposed).
The husband’s position was hard to fathom after having heard the evidence of Dr M who said that such an arrangement could not be supported on mental health grounds. Despite that, the husband maintained the seriousness of the problem of his son C was exaggerated by the wife. Even if that was so, it was not exaggerated by Dr M. The position that the husband adopted leaves me uncertain about his focus.
There were other parenting disputes but they were less contentious.
Based on the principle that an equal sharing of time in this particular case requires a modicum of cooperation and a consistency of approach to parenting, I could not find it to be in the best interests of the children for there to be an order for equal sharing of time. The communication between the parents was said to have improved over the last six months but it is still perfunctory. Whilst in many relationships that may not be unusual, here, there is an impact on the children which is emotionally unhealthy.
I am satisfied that the children know of the dislike of their parents for each other and it causes the children not to openly speak about one parent to the other. I am satisfied the children’s strongest attachment is to their mother and that a separation of seven days from her would be distressing and unhealthy for them. There is not a similar difficulty in respect of a separation of that duration from the husband.
The financial dispute is about how to divide a modest pool of assets. The two contentious issues were how to assess and give weight to the husband’s initial financial contribution and then what particular impact a post-separation inheritance in the hands of the wife should have on the assessment. There were other issues associated with “add-backs”.
When the case began on 19 July 2011, the wife’s inheritance had neither crystallized nor been quantified. The question of how to deal with that problem was answered on the second day of the hearing when it was obvious that the case was not going to finish. However, when the hearing resumed in October, the problem remained unresolved. I arranged a telephone mention on 16 December 2011 at which the respective solicitors advised that the wife’s inherited entitlement had crystallized only days before and the quantum would be about $450,000. That arose out of a determination of a superannuation trustee which was said to be subject to an appeal. I told the practitioners that I would wait until a month had passed and if I heard nothing further, I would assume no appeal was being mounted. As that time has now expired, I shall determine the matter.
The hearing in July also had to be adjourned because the parties wanted to view the notes of Dr M who was the single expert witness. Whatever Dr M had read, the issue that gave rise to the halting of his cross-examination was not resurrected in October.
The material relied upon by the parties was initially unclear. In the end, the husband as the respondent relied upon a response filed 10 June 2011, a financial statement filed the same day as well as his trial affidavit. He filed a further affidavit on 12 October to cover the matters that had occurred subsequent to the July adjournment. He relied upon affidavits by his sister, mother and former partner.
The wife as the applicant relied upon an application filed 30 August 2010. She filed a substantial affidavit but only certain paragraphs namely paragraphs 3, 5, 10 to 23, 25, 27 to 31, 33, 35, 37, 39 to 48, 52 to 62, 64, 65, and 68 to 155 were relied upon. Like the husband, the wife filed a further affidavit on 12 October 2011 which updated matters subsequent to July.
In the affidavit of the wife filed in October, she attached a letter addressed by C’s psychologist to a general medical practitioner. It was a curious way to admit important evidence but as I directed Dr M to speak to the psychologist of both C and N, each party had the opportunity to cross-examine Dr M about what C’s psychologist said. Neither party objected to the admission of that material.
In addition to the foregoing, the mother also relied on affidavits by her friend Ms H and the father of her late partner.
The positions of the parties
The wife’s position as set out above in relation to the parenting was not that upon which she opened her case. Initially she said there should be a block period of four nights per fortnight but it was the events that occurred subsequent to July that made her retreat to the position of three nights per fortnight.
In respect of financial matters, the wife said that there should be a finding as to 52.5 per cent to the husband in respect of contribution on the superannuation which was a total of just over $300,000 and a finding of 54 per cent to the husband in respect of the non-superannuation assets of about $1.5 million. These assets excluded the wife’s inherited monies.
Both parties agreed at the conclusion of the hearing that the inheritance issue had to be resolved before any determination about any adjustment for s 75(2) could be made.
The husband’s position was that there should be an assessment based on contribution as to 60 per cent to him and 40 per cent to the wife and that there should be a further 10 per cent to 15 per cent for s 75(2) because of the inheritance. Neither party through their solicitors sought to file further submissions.
Either way, the pool remains modest.
The parties as witnesses
The husband portrayed the wife as calculating and untruthful. The wife portrayed the husband as aggressive and abusive.
I am very conscious of the fact that a relationship breakdown and its aftermath can bring out the worst in partners but I do not find that either party’s description in this case is accurate.
In her oral evidence but not her trial affidavit, the wife made accusations that the husband was a violent man who abused her and threw things at her. Importantly, she said that she told psychiatrist Dr M just that. Dr M said no such complaint was made and it was the sort of thing an expert family reporter would look for and pursue.
Despite an assertion that the wife invented things to assist her case, I do not accept that she did. I do accept that she embellished and exaggerated a variety of things.
I indicated at the commencement of the resumed hearing in October that on the evidence I had heard, I would not make strong findings about either party’s credit. However, a variety of issues occurred subsequent to the July hearing which certainly put in doubt the credit of both parties.
Despite my comments about the wife, she otherwise gave her evidence in a measured way. With the benefit of hindsight, she made concessions about the inappropriateness of decisions she had made concerning the children. She described the husband appropriately as a parent. I found she respected his role. Inconsistencies in her evidence were troubling but leaving those aside as they do not substantially affect the determination, I found the wife forthright, and generally believable.
The husband gave his evidence in a quiet and calm way. He saw his position as the correct one. When challenged about inconsistencies, he said he could not recall what and why things had occurred. That was disconcerting but generally, I found him truthful. His approach however was rigid. That changed somewhat when I asked him questions about his children at the end of his evidence and he became emotional. He was able to talk about his children and their achievements. Despite that, whether because of his personality or otherwise, the husband could not see any alternate point of view to his own. His October position was that his relationship with the wife was much better. I reject that and find that it is not good at all and unlikely to improve. The husband’s position was troubling because I am satisfied that C has significant emotional problems arising out of his anxiety attachment to the wife and the husband does not accept that. That gulf between the parties creates a barrier for cooperation.
Throughout her evidence, the wife said she feared contact with the husband. I accept that she does feel that way. Having regard to the conduct of the husband, I find her fear reasonable.
The parties
The husband is a senior public servant aged 42. He works rostered hours on a 10 week cycle and is largely able to control his work obligations.
The wife is a healthcare worker by profession but she works in two areas. First, as a healthcare worker, she works part-time in a medical facility. Secondly, she works in a call centre.
There was controversy about what hours the wife had worked in the past. That controversy arose out of an issue of her leaving the children either unattended or with people about whom the husband expressed concern. It also arose because an order was made by Fowler J on 20 December 2010 in which his Honour ordered:
If either party cannot care for the children for a period of more than two hours, then the other parent be given the first option to care for the children, and each party will advise the parent of their unavailability within three days notice in writing.
I did not have the benefit of his Honour’s reasons but I think the intention was clear that if a party could see the looming prospect of being unavailable for the children, they should give three days notice to the other and request that parent to care for the children. It could hardly be said to apply to parents being stuck in traffic or where they had to shuffle daily activities because of work commitments. That is important in a case where the communication between the parties was at best peremptory because the husband adopted a rigid approach of requiring strict compliance. It was a recipe for trouble. The husband’s approach highlighted the incapacity of the parties after four years of separation to communicate easily about minor and daily decisions concerning their children.
At the very conclusion of the case despite my having expressed concerns in July about order of Fowler J, the husband instructed his counsel to submit that the injunctive orders should continue into the future. I saw, and still see, no basis for that order at all having regard to the ages of the children, the responsibilities undertaken by the wife and the nature of the relationship between she and particularly C. Accordingly I discharged the order upon the close of the trial.
The background
The background of the parties’ relationship can be simply set out. The parties began living together in 1996 and married in 1999. C was born in 1999 and N in 2001. In February 2007, the parties separated under the one roof and that continued until the sale of their home in July 2007.
When the final separation occurred, the children went with the wife. The husband spent time with them by an arrangement that worked around his roster. That arose out of a parenting plan under which the husband’s time was to be as agreed between the parties.
There are two views about what occurred. The husband said he sent his roster to the wife and she accepted it. He said it worked well. The wife’s view was that it was imposed upon her and that there was no discussion or more importantly, no consideration for her needs.
I find that there was much more flexibility in the wife’s work life than that of the husband but that in 2009, the husband did not consider the wife’s needs at all nor her desires. That situation continued until the end of 2010 when the husband articulated a desire to increase his time with the children but not to the extent of an equal sharing arrangement.
The dilemma I have is that the husband chose to seek weekday time for what he described as educational-involvement purposes but forewent weekends when he and the children were otherwise free. Whilst that was a contentious point in the hearing, the husband maintained that it was because he was sticking to a parenting agreement. I do not accept that was a reasonable or responsible thing to do. In 2010, the husband clearly rejected time that he could have spent with the children involved in leisure activities. Importantly his desire to be involved in their educational activities was perplexing because for a large period of the time, the children would have been in school and therefore not really in his care.
From November 2007 until November 2010, the husband was offered time with the children on various occasions and he rejected it. The wife’s diary attached to her affidavit was not the subject of cross-examination. When the husband was asked about the entries, he said that although he had not cross-checked the dates with his rosters, he considered the wife made up the entries. I do not find that to be the case.
A variety of entries in the wife’s diary showed that she made a request for the husband to take the children at times when he was not rostered to work. Some of those dates included times when the wife was working.
In May 2009, C had a Sunday cricket presentation and the wife was working. The husband was not working but he declined to take C to the presentation. The wife arranged for a friend to take C and left work early to attend what was left of the presentation. Two troubling matters arose out of this incident. First, the husband could have taken the time. Secondly, his expressed view which was about his closeness with and involvement in C’s cricket, was inconsistent with his absence from the presentation.
In June 2009, the wife was working a nightshift and the husband declined to retain the children beyond the normal stipulated time. The wife bluntly asked the husband for an opportunity to get some sleep but the husband said that he had a lunch to go to.
In February 2010, the wife asked the husband to have the children for an extra night when she was travelling by plane to see her then partner. The husband declined and the wife arranged for a friend to care for the children.
In September 2009 the wife’s father was dying of cancer and she wanted to visit him. This entailed a flight but it also meant she would be away from her home and she was not working at that particular time. The husband wanted the children only on the Saturday night in the middle of the wife’s trip. Despite that, the wife took the children with her.
In October 2010, a similar situation arose and the husband told the wife to take holidays from her work because he was bringing the children back at the appointed time even though she was working.
I have accepted the wife’s diary as accurate because there are too many incidents consistent with the husband being on leave from work according to his roster.
Even as late as the weekend prior to the commencement of the July hearing, the husband’s rigid approach could be seen. C was involved in football. N was involved in net ball. The wife had a significant role in the net ball. C wanted to attend his sporting venue where photographs were to be taken and he was concerned to be able to get there. He approached the wife who was participating in the netball. She suggested that C ask his father. The husband told C that he could not take him because he wanted to do some exercise that he had prearranged. C returned to his mother. The wife ceased her duties with the net ball, called N out from the game she was playing and took C to his photographed event.
In the October hearing, the husband produced evidence to show that subsequent to July, there was communication between the parties and that things were improving and that the children were not disadvantaged. The wife disagreed. I shall turn to that evidence in a moment but I accept the wife’s version. The husband’s rigid approach can also be seen in two other surprising periods. The first was the death of the wife’s partner and its aftermath. The second was the issue that I have already mentioned relating to the two hour rule which was seen in the orders of Fowler J.
Over a space of months in late 2009, the wife began a relationship with a Mr B. On the evidence, it was clear that the husband was unhappy about the relationship and matters were complicated by the fact that Mr B was geographically far away. For the wife to see him required a long drive or an aeroplane trip. The children were taken by the wife to the area where Mr B lived and introduced to him. On any view of the evidence, the children liked Mr B and he participated in their activities sensitively and appropriately. All of that came to an end in May 2010 when Mr B committed suicide. Only weeks before that incident, the parties including Mr B, had attended upon Dr M for the purposes of the preparation of a family report. No-one foresaw the dilemma that was to unfold.
It would not be unfair to say that the wife was devastated by the death of Mr B. Apart from the fact that she had developed a relationship with him, she had also developed a good relationship with his parents and they in turn with the children.
Immediately after the death of Mr B, the children were with their maternal grandmother. The husband, having learned of the death, insisted that the children be returned to him. Thereafter, unfolded an unseemly situation.
The wife wanted the children to be brought to Mr B’s area so that she could have them with her during what was no doubt a difficult grieving period but she also wanted them to attend his funeral. The husband not only refused that request but insisted that she return to the children in Sydney and explain to them what had happened to Mr B. I am satisfied that the husband threatened to tell the children inappropriately how Mr B died, that is, that Mr B had suicided. The wife returned to Sydney but then took C back to the funeral but not N who was involved in a sporting event.
Each party was closely cross-examined by counsel for the other about this particular incident. The husband maintained that he was only trying to protect the children. I reject that. I find that his approach was insensitive.
Subsequent events and in particular the evidence of Dr M show that the children clearly understood that Mr B had died. They spoke of him in positive and happy terms. Excluding them from the mother’s grieving process immediately after the funeral must have been confusing for them because the husband would not have been saying anything positive about Mr B if what he said to the wife was any indication. Hindsight is a wonderful thing but I did not detect in the husband any evidence that he saw any problem with what he had done. More importantly, it highlights the lack of trust of each parent in the other and their inability to be flexible.
In the October evidence, the husband said that things had changed significantly. He pointed to a number of events in which he said there was communication. He referred to telephone discussions and things that the parties had said to each other on a face to face basis at events such as sports days with the children. The wife’s version was markedly different. She conceded each of the events, or at least most of them, had occurred but her conversation with the husband was limited to one word answers or a simple acknowledgment of what was occurring. Whilst each of those “discussions” culminated in decisions being made for the children and the children benefited from their parents engaging in those events, it is hardly cooperative parenting and I find the children know it.
Many parents make decisions for their children that way but in this case, the problem arises because of C’s anxious attachment to the wife. There is a distinct difference between the parties’ views as to what should happen.
When the matter resumed in October, the husband pointed to a meeting where both parties jointly attended C’s psychologist for 45 minutes. This is the psychologist whose “report” was attached to the back of the wife’s affidavit. This “report” was a letter addressed to the wife’s general medical practitioner. The meeting of the parties with the psychologist took 45 minutes. Doing the best I can, it seems to have been an opportunity for the parties to exchange information about C in an environment where they seemed to disagree about what he needed. There is a significant conflict in the evidence about what happened. According to the husband, at the meeting on 4 August 2011, the psychologist’s only real concern was that C was not “opening up to her”. The husband said that six weeks later, he was surprised when he received a telephone call from the psychologist wanting to refer C to a psychiatrist. The psychologist was concerned that C was having trouble sleeping whilst in his mother’s care. In his evidence, the husband said he told the psychologist that he was surprised to hear this because there had been no difficulty in his house. He went on to say that the psychologist told him that C had reported that his relationship with his father had “improved” and that C enjoyed being in his father’s care. In cross-examination, the father agreed that the sleeping problem was raised by the wife in their conjoint discussion. He could not remember the whole conversation but acknowledged the wife did raise her concerns about C’s sleeping. That would seem strange having regard to the husband’s evidence that he was surprised to hear that from the psychologist six weeks later. In his evidence to me, the husband repeated the fact that his recollection was that the wife raised it. He could not have been surprised about such an assertion in September.
The husband was clear in his evidence that the conversation with the psychologist took place on 13 September and at that time there was no relationship difficulty other than about C “opening up”. The psychologist’s letter ironically was also written to the general practitioner on 13 September and it confirmed the difficulties she was having engaging with C. She expressed concerns to the doctor that C was having significant difficulty dealing with the conflict between his parents. This was the conflict that did not seem to be apparent to the husband. The psychologist reported to the doctor that C had significant negative feelings towards his father which made his visits emotionally difficult. She told the doctor that C reported being afraid of his father and had recently lost bladder control whilst in his father’s care. C reported his father being angry and he did not feel safe to tell his father what had happened.
The evidence of the husband therefore could not be right. He knew of the problem at the 45 minute conjoint visit in August. He could not have been surprised when the psychologist told him on 13 September that C was having sleeping difficulties and was distressed about it.
The husband talked effusively about his physical relationship with C. Each of them enjoys football and physical contact but the husband seemed oblivious to the sensitive side of C.
Around the time that C was dealing with a psychologist, N was attending a separate counsellor and when Dr M spoke to that person, he ascertained that there were no current difficulties with N and the counselling should cease. I have no similar difficulties about the relationship between N and the husband as I do concerning C.
After the meeting at the psychologist’s office in August, both parties met outside in a courtyard and spoke to one another. The husband portrayed the meeting as fruitful with the wife being apologetic for the things that she had done in the past and in particular, not telling him of the relationship she had developed with Mr B. The wife disagreed with that version. In his evidence, the husband described this as an informal, cooperative and amicable discussion and the wife was cross-examined about it. Specific details were put to the wife that were not in the husband’s affidavit. Apart from the apology issue, the husband’s counsel put to the wife that the husband had wanted to have dinner together in the future and that she had replied that that was possible but not until after the court proceedings were over. The wife denied that was the conversation. A number of specific issues were put to the wife which she simply denied. I find that the wife’s version is more probable and that things were not as portrayed by the husband.
As an example of the husband’s view about the improved relationship, his counsel cross-examined the wife along the lines that she had telephoned the husband on 13 August. The wife denied that a telephone conversation occurred. The wife volunteered that there were conversations about such things as sporting equipment but most communication went through the children.
The husband’s counsel put to the wife that there was cooperation between the parties on sports days portraying a scene where the parties were effectively together. The wife agreed but she said she attended those events whether the children were in her care or not. The wife distanced herself from any suggestion of being seen together as some sort of co-operative family.
It was put to the wife that after a hockey final involving N, the parties had a conversation about the children but the wife denied that it was anything more than a few words. It was specifically put that both parties were standing with the children making arrangements but the wife strongly disagreed. It was then put to the wife that she was not being truthful. The wife denied the accusation.
Having regard to the inconsistency in the husband’s evidence about his dealings with the psychologist and my general view about his rigid approach to things, I accept the wife’s version as more plausible. Earlier in these reasons, I said that I had some concerns about the wife embellishing and exaggerating things. During the period between July 2011 and October 2011, I could find no evidence that that occurred.
It was only after the July adjournment that the emotional instability of C became serious. He had been in counselling for some time and the psychologist had had no success in communicating with him. Despite that, C was doing well at school, was liked by his peers and had friends. It was put that that was an indication that the wife was exaggerating things to her advantage. I reject that assertion having regard to the evidence of Dr M and the statements that were made to him by C’s psychologist.
The wife’s evidence about the events after July involving C
According to the wife, C was having difficulty sleeping and in a discussion with him, he said that he did not want to go to his father’s. The wife tried to calm him but at stages he was banging his hands on his head. According to the wife, any discussion she had with C about his relationship with his father provoked a negative response.
At the time of the adjournment of the part-heard proceedings, C and N went to the home of their father and C reported that his father had yelled at him and made him wet his pants. He seemed candid enough to tell his mother why he was yelled at. The wife’s evidence was consistent with the views of the psychologist whose “report” I have earlier mentioned.
Counsel for the husband cross-examined the wife about a discussion with C about what had happened at court. Her answer was appropriate in that she said that she simply told him everything was fine. Her discussion with C apparently did not settle or satisfy him.
The husband’s position as set out in his extra evidence in chief was that there was no trouble with C completing his homework or going to sleep at his house. He said that C never displayed anxiety. The husband reported that he told the doctor that the wife was only raising the issues to support herself in the upcoming court proceedings. Whilst it was clear that the counsellor considered C may have exaggerated things, there can be no doubt that there were problems. I am satisfied that the wife accurately recorded what occurred. The fact that the husband did not see any similar behaviour in his house is not necessarily inconsistent with the problem occurring.
It was the wife’s evidence that she asked whether C had spoken to his father about wetting himself and she said that the child replied that he was too embarrassed and afraid to do so. That seems consistent with what the counsellor observed that C reported that he was having significant difficulty falling asleep and he was distressed at bedtime making him make “desperate pleas” for help to his mother. That was linked to the problems that C was having in staying at the home of his father.
Significantly, as late as October 2011, the wife said that C had indicated that he wanted to kill himself. When the wife pressed C, he told her that he had not thought of how he would do that. The wife was cross-examined about why she had not told the husband and her response was indicative of the nature of the relationship between the parties. Notwithstanding the husband was of the view that their relationship had improved, the wife indicated that she had discussed C’s statement with the counsellor who had told her that the child was not suicidal. As a consequence of that advice and because she felt the husband never listened to what she had to say or believed there was a problem, she did not raise it with him. I am satisfied that the wife handled the issue appropriately and the lack of communication with the husband is indicative of a lack of trust.
This then provoked a discussion at the counselling session with C which in turn gave rise to the conjoint session between the counsellor and the parties on 4 August 2011 earlier mentioned.
A further incident occurred on football grand final day in 2011 when C was with his father. At 9.48pm, C rang the wife at work and told her that he was at the husband’s home alone. He reported that his father had gone out with friends and said that he would be back. He said that N had gone to the movies with another girl and that he had been given a choice of going to the movie or staying home by himself. The husband agreed that he did leave C but it was not for that long a period of time. He was watching a band some three to four hundred metres away. His evidence was that C was alone only from 8.30pm until the movie finished at 9.10pm. At 9.10pm, the movie having finished, he expected N to be home with C. The difficulty I have with that evidence is the preciseness with which the wife reported that C rang namely at 9.48pm. The husband’s evidence was that he was away from 8.30pm to 10.15pm. I take into account the wife’s reporting of the conversation with C which was terminated because he said that he could hear the door opening and he thought it was his father. There was no suggestion at that time that N was at home. I have the position of the husband that he was away until 10.15pm and that he had presumed that N had returned when the movie concluded and I have the wife’s position about the preciseness of the time of the telephone call. There is some significance in the timing because the wife concluded her shift at 10.30pm that night. On the balance of probabilities, I accept the evidence of the wife. The only importance of this evidence is that it supports the evidence of Dr M about the anxiety that C has of being separated from his mother. My concern is the fact that the husband does not seem troubled because his view is that it does not occur in his household even to the extent that his evidence was that C had not wet himself as alleged by the wife.
I am satisfied that the wife is the parent more conscious of C’s needs but having regard to the evidence of Dr M to which I shall now turn, there is a significant problem here and it needs to be addressed by orders because the parties are incapable of resolving the matter themselves.
The hearing in December 2010
I have already referred to the hearing before Fowler J and the order for the parents to give notice if they were to be away for more than two hours. This hearing also set down a significant sharing of time between the parents.
With the March 2010 report to the Court and the death of the wife’s friend Mr B changing her parenting focus, on 20 December 2010, Fowler J ordered inter alia the children spend each alternate weekend with the husband from after school on Thursday until before school on the Monday morning and from after school on the Monday to before the school on Tuesday in each alternate week. His Honour ordered that the wife collect the children from the husband on Mondays in the first period and the Tuesday in the second period rather than take them to school. The wife requested the husband to vary that arrangement so that she could work on the Tuesday. This was something which the husband portrayed as showing cooperation between the parties.
To some degree, that arrangement has worked. However, each child has articulated a desire to have less time. That became evident from the evidence and opinion of Dr M.
The family report
Dr M is a consultant child-family and adult psychiatrist. He was acknowledged by both parties as an expert. He gave evidence and was cross-examined. I accept his evidence.
In March 2010, Dr M saw the parties and the children. C was then 10 and N eight. At that time, the burgeoning dispute was about the wife wanting to move to northern New South Wales and Dr M noted the wife’s frustration at the husband’s objection to her going.
Importantly, the wife described to Dr M that C had areas of obsessive personality and what were described as eccentricities. She had consulted a psychologist. She told Dr M that C had experienced bullying at school. She reported C as crying and not wanting to go to the husband.
The husband told Dr M that he was not aware that C had been attending a psychologist.
When Dr M interviewed C, he noted ambivalence about contact with the husband but positive comments about the wife. When the subject of the relocation was raised, C referred to his mother’s desires.
Dr M heard positive things from N about both husband and wife.
Dr M concluded that C was identified as having a primary anxious attachment to the wife and this was in the context of a child who was emotionally vulnerable. Despite that, both children were found to have an important and significant relationship with both parents.
Dr M was critical of the wife for influencing the children about the relocation but at the same time, was highly complimentary of the part she had fulfilled in her role as the primary caregiver albeit well-supported by the husband.
A year after Dr M saw the parties, he undertook another examination. This time, the focus of relocating had gone and the wife’s partner Mr B had been deceased for about nine months. The wife said that the time ordered by Fowler J four months before was too long.
Dr M noted the impact on C of the death of Mr B. C complained that the time with the husband was “too much”. The previous ambivalence was now strident unhappiness. C who had been attending his psychologist, told Dr M that he did not think it was necessary for him to so attend.
Having regard to the evidence of Dr M about his discussion with psychologist Ms F, C’s view can be seen in context. He was not opening up to Ms F at all. N on the other hand felt the split of time between her parents was “okay” but she missed her mother.
Dr M was concerned about the husband’s inability to see the significance of the death of Mr B on the children. Whilst I can understand the husband’s frustration at the wife’s desire to relocate and his lack of information about what was happening, he failed to see how happy his children were and that is unfortunate. In that environment, their experiences could not be easily shared with their father.
The sad experiences of the children arising from the death of Mr B and watching their mother’s grief warranted counselling according to Dr M but he also felt that with what they had been through and their awareness of the parental conflict, their “wishes” in respect of time with their father should be given “a significant weight”. I agree.
Dr M did not then support an equal sharing of time because of the ongoing conflict, the lack of trust, the poor communication and the difficulties of problem solving. I also agree because it was having an impact on the children who were very aware of their parents’ problems. Importantly, the ongoing dispute was also affecting C’s anxiety.
Between the hearing in July 2011 and when I resumed on 12 October 2011, the situation had not improved. Although the husband said it had, I reject that. The communication was still peremptory. Problem solving and conflict had abated because the parties had less opportunity to engage but otherwise, there was no sign of the necessary attributes of successful parenting particularly with the problems of C to which Dr M paid significant attention.
At my request, Dr M spoke to the counsellors of the children.
Dr M said that this was a critical development time for N and it was important for her to have a relationship with the husband particularly given the loss of males in her life in her maternal grandfather and ironically, Mr B.
Dr M reported that N’s psychologist had recommended to the parents that there be separate and additional time between N and the husband but the wife was not happy about the feedback. The psychologist told Dr M that she had indicated to the wife a need to be firm with the children. She described N’s time with the husband as “incredibly crucial” and that it ought to be special time away from C.
Dr M spoke to Ms F. The psychologist expressed concern to Dr M about C’s relationship with his father. She said that C was overwhelmed by it and that the husband was an omnipresent and pressing figure. According to Dr M, C reported that he had been left alone and he had difficulty sleeping in the father’s home. He had had panic attacks but he was able to let his feelings out with his mother but not his father. I accept that evidence is correct.
Ms F told Dr M that it was difficult for C to use the “therapeutic space” but that he was starting to get comfortable. He was starting to express himself.
Dr M wondered about the method of therapy Ms F was using because it did not involve the husband. Ms F took the view that if the husband went into C’s “space”, it would be seem as an intrusion. Accordingly, Dr M said that Ms F had said that she was not willing to expose the husband and C together. Dr M said that he had thought about that and having regard to the way the therapy was going, it made sense.
Ms F had made a recommendation that C see a psychiatrist because of the complexity of the problem. Dr R was the psychiatrist who was to look after C’s problems and he needed various expert reports.
Dr M spoke to Ms F about C’s statement about contemplating suicide. She told Dr M that he was not suicidal in her opinion but at the same time, C felt overwhelmed and was unable to continue doing what he had been doing before. Ms F had told Dr M that she had undertaken various assessments and found C more vulnerable and having an anxious temperament. She confirmed he certainly had obsessive compulsive traits.
Dr M said that C had an anxious attachment, was vulnerable and overwhelmed and as such, if his time with his father was shortened, he might feel better in himself.
I specifically asked Dr M his view about an equal sharing of time on a week and week about arrangement. He said it would concern him but he then went on to elaborate that it was not good for C’s mental health.
Dr M thought that five consecutive nights was too much.
The question was inevitably raised about splitting the siblings having regard to the recommendation that N needed special time with the husband but he said that it was not a big issue and N’s counsellor was only talking about a separate night.
Counsel for the husband probed Dr M carefully in cross-examination. She put to him that if the problems existed as described by the wife, they would have manifested themselves elsewhere. For example, Dr M was asked to comment on the inconsistency between the wife’s version of C’s sleeping arrangements and the evidence of the husband which was that he was doing well. Dr M could do no more than acknowledge the inconsistency.
In the context of a child who was being overwhelmed and wanting his time with his father reduced, Dr M was asked why the child would come home from school to his father and detail all of the things that had happened in a bullying incident at school. Again, Dr M acknowledged that the inconsistency was difficult to explain. Dr M’s attention was drawn to the fact that C’s school report was good and that he had friends. That too would appear to be inconsistent with a child who was not sleeping and was very anxious and dependent upon his mother emotionally.
Much of the cross-examination of Dr M was to highlight the inconsistency and therefore the prospect that the wife was embellishing or exaggerating the problem. The difficulty I have with that concept however is that it was not suggested that C was not saying these things to Ms F. Dr M expressed concern about what was happening to C based upon the observations of Ms F. The husband acknowledged that in his meeting with the wife at Ms F’s office, the sleeping problems were spoken of by the wife.
It is not appropriate for me to speculate as to why there would appear to be inconsistent behaviour in the two households. There is sufficient evidence for me to be concerned about the fact that there is that inconsistency. The psychologist for C was sufficiently concerned about the complexity of the problem to refer him to a psychiatrist. Dr M had seen vulnerabilities and obsessive traits in early 2010 and now they were being spoken of by the child’s psychologist.
I accept the evidence of Dr M that C is having difficulty separating from his mother for the periods sought by the husband and having regard to his expert view that it is not good for C’s mental health, the opinion is powerful. Dr M also accepted the views of the psychologist of N that she no longer needed assistance but that it was critical to her own development that she spend more time with her father but in the absence of C. According to Dr M however, having regard to the way in which the children had spoken, their views should be followed. There is merit in that.
In all of the evidence about parenting, each parent looked at their respective relationships with children through a prism of subjective judgment that only their version was right. Each saw the development of the children as better in their hands. Only the relevant experts remained objective as they focussed on the developmental interests of the children. The objective opinion of Dr M therefore must carry very significant weight.
Other witnesses
The evidence of Ms H was contained in an affidavit filed 2 June 2011. Ms H was not required for cross-examination. This witness knew the wife for approximately 14 years and played sport with her. A variety of statements were made about conduct which have no bearing on these proceedings having regard to the specific evidence of the parties and psychiatrist Dr M. Other statements as to opinion and conclusions took the matters no further.
Much of the observation by Ms H and in particular, her recounting of things said by the parties, was really not controversial having regard to what was in dispute between them.
Leaving aside the small type face of the affidavit, a more careful and objective analysis of the relevance of that evidence by the practitioner who prepared or settled the document may have taken some angst out of what was already an unhappy dispute between the husband and the wife.
The evidence of Mr D was not subject to challenge. It was contained in an affidavit filed on behalf of the wife on 6 June 2011. His evidence concerned the husband’s conduct upon the death of Mr B. He witnessed the various text messages of the husband. In respect of that evidence, it simply corroborated what the wife went through. Much of the wife’s evidence on that issue was not disputed by the husband.
Mr D detailed his observations of the impact of Mr B’s death on the two children but that too was not controversial because Dr M noted the views of the children about Mr B.
Mr D’s evidence did not add anything of significance to the proceedings.
The husband relied upon an affidavit by his mother filed on 10 June 2011 which was not the subject of challenge.
This witness set out her role as a grandparent during the time that the parties were together. She was clearly a concerned and competent grandparent.
Sadly, after the parties separated, the relationship between the husband and his mother deteriorated and there was minimal contact. The grandmother went on assisting the wife. The tenor of her affidavit about that time was less than complimentary of the wife suggesting that the wife was not being responsible as a parent and that the explanations for her conduct were untrue. In her affidavit, the grandmother noted personal things about the wife’s presumed sexual conduct that clearly disappointed her. It would seem that the basis for her initial concern about her own son’s conduct abated and her approbation was then directed to the wife.
Insofar as her evidence had some relevance to the proceedings, it concerned her observations of handovers and the interactions between the parents. Much of this was early after separation so that its relevance did not assist me in the more important period of the parties’ relationship which was in 2011.
The husband’s sister also swore an affidavit that was filed on 10 June 2011. Her evidence concerned observations of the husband as a father and her discussions with the wife in 2009 about the wife’s budding relationship with Mr B. Of some significance was the fact that the witness thought the wife was very happy. To the extent that evidence was called to suggest that the wife was being less than candid with the Court or with the husband about the relationship with Mr B, it has no significance in this parenting dispute.
The other witness who swore an affidavit which was filed on 17 June 2011 was the husband’s former partner. This evidence too was designed to show the husband’s capacity and responsibility as a parent. Much of that evidence was not disputed and I have no doubt that the husband did love the children very much. The problem I have is with the husband’s approach to communication with the wife and his lack of understanding about C’s anxiety.
The witness said that her relationship with the husband broke down in August 2010. She attributed the breakdown to the proceedings placing immense pressure on the relationship with the husband. Subsequent to the conclusion of the relationship, the witness and the husband have remained friends. They were together on the day that caused angst for C having been left at home alone. It was said that C elected to stay home alone and there was no indication either before or after the husband left of any distress. Interestingly, C rang the mobile telephone of the witness during the night and she said he did not appear distressed. One wonders why he would have telephoned because eventually, he did ring his mother. Her observations of C after returning do not assist me because the evidence of Dr M is that C does suffer from an anxiety in being away from his mother. C has the capacity to do things at school which would seem inconsistent with any emotional difficulty but with the evidence of the psychologist and Dr M, it seems that he has the problem but puts on a brave face in front of the husband and those around him.
The same problem appears in the evidence of the witness about June 2011 when she observed C with his father in a very contented state. There is no doubt that C wants time with the husband but it seems the duration is the problem. The evidence of this witness confirms that.
A shared parenting order?
Section 65DAA of the Act provides that if a parenting order is to provide that a child’s parents are to have equal shared parental responsibility, mandatory questions have to be asked and considered by the Court.
If an equal shared parental responsibility order is made, the Court must consider the children spending equal time with each parent. However, before such an order can be made, the Court must consider whether it would be in the best interests of the children for that to occur. Because of the evidence of Dr M, in my view, it would not be in the best interests of the children for them to spend equal time with both parents. Equality of time does not mean necessarily a week-about or any particular combination of time so long as it is otherwise equal. The disruption to these children of short periods of going backwards and forwards would not be in their best interests. Longer periods of time such as a week about arrangement would create enormous anxiety for C. In respect of N, there is less of a problem but she needs a stable base. In respect of C, the refusal by the husband to accept the extent of the problem (as distinct from accepting the problem exists) means that I could not be satisfied that it would be in C’s best interests to be separated from his mother for the periods suggested by the husband. Indeed, I find it would be emotionally harmful for C.
Having regard to the lack of trust and communication between the parties at the moment, an equal sharing arrangement would not be reasonably practicable. Most of the communication is through the children and each mistrusts the other’s motives for seeking the orders that are now proposed.
Having rejected equal time, the Court is obliged to consider substantial and significant time as defined by the Act. That is, each parent should share in the activities of the children beyond just leisure time activities. That of course must be tailored around the children’s best interests and again the evidence of Dr M is convincing. I propose to follow that expert evidence. Substantial and significant time as defined must also be reasonably practicable and to a large degree it is here. Distance between the parties and their respective work commitments enable them both to share in the various activities of the children. The question of the extent of that sharing must be determined by what is in the children’s best interests having regard to the evidence.
The best interests of the children
Section 60CA requires the Court to regard the best interests of the children as the paramount consideration. That best interests principle is guided by the mandatory consideration of the matters in s 60CC. The primary considerations in s 60CC are the protection of children from harm whilst at the same time making orders enabling the children to benefit from a meaningful relationship with both parents. There is no question in this case that the children are protected by both parents from abuse and psychological harm. Similarly, each parent although to different degrees, provides the children with the benefit of a meaningful relationship.
Both of the children enjoy the positive things in the relationships. As examples, N enjoys time away from C and her leisure activities with her father are exciting. When C plays football with his father, he seems to enjoy the rough and tumble of it. Both children have a close and affectionate relationship with their mother which was borne out when they saw her happy with a budding relationship and also her role in their respective sports. Everything about the relationships looks sound except the extent of the time.
This is a case about how much time the children can manage without it destabilising them.
Section 60CC requires the Court to consider a number of factors as they affect the children. In this case the views of the children as expressed are clear. N wishes to spend time with her father and is not necessarily troubled by the absence of her brother. C however is very troubled by the duration of the absence from his mother but otherwise has a reasonable relationship with his father. In my view, the views of the children should be taken into account but not necessarily entirely followed.
Another consideration is the nature of the children’s relationship with each parent. I think I have made it clear that the parents both love their children and the children love them but there is an anxiety problem for C. N has now completed counselling and does not seem to be distressed by the breakdown of the relationship of her parents. Both children are therefore close to both parents.
Parenting responsibility is a factor that the Court is obliged to consider. The way in which parents act is important because it indicates how seriously they place the interests of their children ahead of their own for the future development of the children. It is about fulfilling responsibilities as parents. I have expressed some concerns about the way in which the husband has fulfilled those responsibilities. In my view, the wife has been more child-focussed.
The capacity of each of the parents to carry out the necessary physical supports for the children is not in doubt. Each provides appropriate accommodation and care when the children are with them. The husband’s criticism of the wife relating to the failure to comply with the orders of Fowler J left me puzzled because there was no evidence to show that the wife had in any way neglected the children or left them in a dangerous position. That also assists in the determination of which of the two parents is more child-focussed. It clearly indicates their respective attitudes to parenting.
Despite the evidence of the wife about her fears of the husband and his behaviour towards her, I am satisfied that there are no family violence issues in this case that have any impact on the decision that I have to make in respect of the time that each child spends with their parents.
The husband pays child support appropriately and I see no reason why that intention or approach would change in the future.
For the purposes of s 60CC(4) and (4A) the reasons I have set out above indicate the various concerns that I have had about each of the parents subsequent to separation. To the extent that it is a criticism of the husband, I am satisfied that he did not take up the opportunities to spend time with the children that he could have and I reject his suggestion that he was really wanting to be involved in the educational aspects of the lives of the children. I could find nothing in the evidence to criticise the wife in terms of her encouraging the relationship between the children and the husband. Although it was clear that the husband was indicating through his approach to this litigation that he thought that the wife was very negative about his role, that is not a finding that I would make.
In my view, the evidence of Dr M is very powerful and persuasive. He has had the benefit of speaking to some of the other professionals who have been involved in the lives of both children. In those circumstances, I propose to follow the recommendations of Dr M.
Property
The parties began their relationship in September 1993 but did not live together until October 1996 at which stage the husband had purchased a property at Suburb G. The evidence shows that co-occupation and settlement of the purchase of Suburb G occurred on or around the same date.
The precise details are not important because the relationship was of some 15 years but when cohabitation commenced, the husband’s equity in Suburb G was about $220,000. The husband asserted that he was able to buy Suburb G having received the sale proceeds of an earlier property, some savings and a loan from his mother. Although the wife did not concede the loan, there is no other plausible explanation because the undisputed evidence appears to be that there was a mortgage of approximately $93,000.
From the commencement of the relationship, the parties contributed their joint efforts both financially and otherwise to their benefit. Each worked and contributed financially. It was not suggested that the wife did not make an indirect contribution to the mortgage on Suburb G.
The husband also had superannuation which was greater in value than that of the wife.
The wife began the relationship with modest personal property and modest superannuation. At the hearing, she produced bank records showing that at around the time of cohabitation, she had $25,000 savings.
The parties’ approach to this issue is best seen in the outlines of their counsel. The wife’s counsel described it in his written submissions thus:
It is submitted that overall the father’s contributions exceed those of the mother’s because of the initial contribution.”
The submission then went on to set out how that disparity should be assessed. In his final address, counsel for the wife put the specific figures as follows. He said in respect of non-superannuation assets, there should be an assessment favouring the husband as to 54 per cent but with s 75(2) favouring the wife, there should be an adjustment in her favour of 6 per cent. Overall therefore, there should be a division as to 52 per cent to the wife and 48 per cent to the husband. In respect of superannuation assets it was submitted that the husband should receive 52.5 per cent and the wife 47.5 per cent for the purposes of an adjustment that required a splitting order.
In respect of superannuation, it was acknowledged by the wife that both parties had superannuation at the commencement of cohabitation with “the husband’s being greater than the wife”.
The husband’s counsel described the same issues in a written submission thus:
The parties appear to agree that the husband made a greater initial contribution to the assets of the parties by virtue of his significant net interest in the [Suburb G] property, significant savings and superannuation interests.
In her final address, counsel for the husband put the specific figures as being 60 per cent for contribution and, depending upon the size of the wife’s inheritance, a further 10 to 15 per cent, that is, a division of between 70 per cent and 75 per cent to the husband.
The justification therefore for a greater assessment favouring the husband was that the husband’s initial contributions, his greater earnings and financial management enabled the parties to have the “extent of assets” demonstrated in the balance sheet.
On the evidence, I find that the husband’s contribution at the start of the relationship was greater than that of the wife but I am not otherwise able to (or prepared to) find that the other bases just referred to justify any “loading” in favour of the husband.
During the relationship, both parties committed themselves to work for each other and for their family. There was no suggestion in the evidence that each did not diligently strive to achieve their goals. They invested well and were financially successful. To descend to an assessment where (for example) one party had a penchant for investing whilst the other was mowing lawns, is unhelpful where both fulfilled their roles to the best of their abilities. So too, disparity of income during the relationship is a factor to be taken into account in assessing the extent and weight to be given to each party’s contribution but it is also difficult to compare financial contributions and non-financial contributions in dollar terms. Homemaker and parenting roles are clearly assessable in quality terms but quantification in dollar terms is not simple. The parties descended into minute detail about vacuuming and other household chores. That was demeaning of themselves.
All of the evidence points to the finding that during their cohabitation and marriage, their contributions were equal save obviously for the initial one to which I have referred but that was a long time ago and many and varied contributions were made thereafter.
Separation under the one roof began on 1 February 2007 and the parties remained there until July 2007.
On either view of the evidence, the wife’s role in caring for the children was greater than that of the husband. The husband did not initially pay child support but his income went into a joint account and the amount paid in to that account by the husband was greater than that of the wife who was also working. The wife paid for expenses from her income for the children.
In July 2007, the parties physically separated and the husband began formally paying child support.
The husband’s income was also used for things such as medical expenses and holidays. The wife paid for her vehicle expenses. Each effectively continued on with their role prior to separation. It is inappropriate to discretely quantify the value of those post-separation roles in dollar terms. Apart from the fact that their personal relationship altered significantly, other aspects of their previous life together went on as usual. As such, contributions should be assessed globally for the whole of the relationship with a consideration of differences in those contributions.
The husband submitted that what happened after their separation under one roof should be assessed other than equally and this becomes relevant in what was described as an “add back” to which I shall turn below.
Having regard to the modest portion of time the post-separation period and the time the parties were apart in the total scheme of the relationship, I do not find the contributions in that post-separation period unusual or justifying any adjustment.
Before making any formal assessment, it is important to look at the property that was to be divided.
What was common ground was that I should follow the four step process. I propose to do that.
That is the process set out by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at 78,386 where the Full Court said:
Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
The first step therefore is to determine the pool of assets.
This case was prepared for trial by Watts J and specific orders were made that the parties use notional amounts because a number of assets had been sold and each party had been paid various sums from the cash proceeds. The parties channelled what money they had into other assets as well as their own legal expenses. This highlights the dilemma of using notional figures where s 79 of the Act refers to the division of the property of the parties. The property under consideration has traditionally been interpreted as that which exists at the time of trial. A case such as this also creates the difficulty of adding-back notional figures but the parties were able to successfully come up with a list of assets that they asked me to notionally divide. For reasons set out below, I have separated superannuation from the other assets of the parties.
Another complicating issue for the parties was the wife’s entitlement to the distribution of the estate of Mr B. At the time of the hearing, the entitlement had not been quantified because the trustees had to deal with another claimant. By December 2011, the solicitors for the parties told me in a telephone hearing that the issue had been resolved by a distribution to the wife of 91% of the total Mr B estate. The precise figure is irrelevant but it will be approximately $450,000. Whilst there can be no doubt that the husband did not contribute in any way to that particular sum, it is still an asset of the parties or either of them as at this time. It was the common approach of the parties for me to take that entitlement into account when I came to make any adjustment for s 75(2) factors. I propose to follow that approach and remove the sum from the pool of divisible assets at this time.
Thus the assets of the parties to be so divided are as follows:
Wife’s household contents $20,000
Husband’s household contents 10,000
[Boat] 800
Wife’s Westpac account 1,200
Husband’s Commonwealth bank account
from [Lot 1 I Street] sale 152,168
The proceeds of the sale of [Suburb J] 224,498
The parties’ calculated historic account
for sale of property and distributionof money 1,130,926
Sub-total $1,539,592
Less liabilities
Capital gains tax 57,000
Sub-total $1,482,592
The $1,130,926 referred to in the pool was an agreed figure. It was made up of the following:
As to the husband:
His car $3,800
Half of the [Suburb K] property $350,000
The Bank of Queensland $57,854
[Lot 2 I Street] division $52,163
The [Gold Coast] division $41,000
[Lot 3 I Street] division $51,300
Toyota proceeds division $9,845
Total: $565,962
It will be obvious from some of the calculations that I have rounded off some of the figures.
The wife received an almost identical sum to the husband before trial, she having received the same amounts referred to above save that instead of the husband’s car, she retained her post-separation inheritance of $2800. On the basis that the division is otherwise identical to that of the husband, the wife received $564,962.
Add-Backs
The parties disputed four specific items. These were items that were included in the balance sheet required by the orders of the Court and which the parties provided jointly. Two of the four items were disputed. Before looking at the particular items, it is helpful to contemplate the difficulty that add-backs cause in such a distribution.
In Kouper and Kouper [2009] FamCA 1080, a decision of Murphy J his Honour said:
90.The decision whether to add back to the pool of assets, property disposed of or money spent, occurs against a legal framework where the general principle is that the Court takes the property of the parties or either of them as it finds it at the date of trial.
91.Financial losses incurred by the parties or either of them during the course of the marriage should generally be shared by them, although not necessarily equally (Kowaliw & Kowaliw (1981) FLC91-092 at 76,643-4 per Baker J).
92.Adding back to the pool is the exception, not the rule. An exception can exist where one party has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets; or where one of the parties has acted recklessly, negligently, or wantonly, with matrimonial assets, the effect of which has reduced or minimised their value or the pool assets (as to which see Kowaliw above).
…
94.The Full Court [in Townsend and Townsend [1994] FamCA 144; (1995) FLC 92-569 per Nicholson CJ) has rejected the notion that add-backs only arise where “waste” can be established. The issue of “add-backs” is but part of the s 79 exercise, and, accordingly, it is governed by the principles of justice and equity (per Nicholson CJ):
Although [the statement of Baker J just referred to] correctly crystallised the legal position so far as the case that his Honour was dealing with was concerned, it should not, in my view, be taken as meaning that in a case such as the present one, it is not appropriate to take the fact that a party has received funds into account, simply because they have been expended in a way which does not fit within the categories described by His Honour.
In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances, I consider that it would be unjust in the extreme, to simply treat such conduct by the husband as a matter to which regard should be had under s 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi-licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those monies, is to bring them into the pool of assets on a notional basis, and make a distribution accordingly.
…
99.That add-backs are exceptional has also been emphasised in the Full Court in C v C ([1998] FamCA 143) where, (at para 46) the Full court held:
Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool, ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives.
Murphy J went on to consider the difficulty of trying to apply a mathematical or accounting exercise in respect of dollars spent long ago. I agree that it is not difficult to assess what those expenditures were but to give them weight or indeed, add them notionally to a pool, is not just a simple mathematical exercise. Murphy J referred to the decision of the Full Court in Norbis and Norbis (1983) 9 Fam LR 385 (unaffected by the subsequent decision of the High Court) and said of that decision that the entire s 79 exercise is not a mathematical or accounting exercise.
In respect therefore of add-backs, Murphy J said:
The expression “add backs” is, of course, convenient enough and is in wide use. Indeed, it might be observed that, increasingly, (and despite the Full Court seeking to emphasise that they are the exception and not the rule) there seem to be few cases in which it is not said that “add backs” of some significance should form part of the divisible assets.
The issue of add-backs was again considered in Shimizu and Tanner [2011] FamCA 271. Bryant CJ referred to the judgment of Murphy J in Kouper as distilling the principles from the Full Court authorities. Her Honour said the approach of Murphy J was useful in the context of the case her Honour was hearing.
Shimizu and Tanner was considered by the Full Court (Faulks DJC, May and Strickland JJ in Mayne and Mayne [2011] FamCAFC 192. Faulks DCJ said the judgment of Bryant CJ (and hence that of Murphy J in Kouper) was definitive of the issues. May J did not refer to the principles because her Honour said the source of the difficulty in that particular appeal had been in the confusion arising from a number of concepts. Strickland J approached the matter differently. His Honour said:
172.In relation to the first issue, there is no warrant in any authority, in logic or otherwise to find that funds that have been expended by one party prior to separation cannot be notionally added back simply because the actions occurred prior to separation, and that is the case whether the basis for adding back is a finding of waste or non-disclosure. It is not the case that the only basis for notionally adding back assets is that one party should not benefit from a premature distribution. As has often been said it is also appropriate to notionally add back assets where there is financial misbehaviour or financial misconduct which has the effect of reducing the assets available for distribution (Omacini & Omacini (2005) FLC 93-218). Of course, individual circumstances may not justify the notional adding back, but that does not say anything about the ability to do that where warranted.
His Honour then considered the various issues arising from the way in which parties spend their funds. His Honour said that one looked at conduct which had economic consequences (as in Kowaliw and Kowaliw (1981) FLC 91-092) but also the principles about expending funds on legal fees and premature distributions of assets as described in Omacini and Omacini [2005] FamCA 195; (2005) FLC 93-218. His Honour made reference to the Full Court decision of Polonius and York [2010] FamCAFC 228 where it was held that financial misconduct or financial misbehaviour could be dealt with in a number of ways within the four step process. Importantly, Strickland J in referring to Shimizu and Tanner but also Kouper and Kouper (No 3) said he did not agree that the decisions were definitive of the issues under discussion because there was nothing new (or definitive) in those decisions. The principles outlined by Murphy J and subsequently Bryant CJ have defined the matters where consideration is required but if they are not definitive, they are certainly a very strong guide. I propose therefore to adopt the approach from Shimizu where Bryant CJ said:
74.In Kouper & Kouper (No 3) [2009] FamCA 1080 at paragraphs 90 to 113 Murphy J sought to distil the principles from the Full Court authorities on the question of add-backs by reference to five questions, which are as follows (at par 108):
(a)Is it contended that property (including money), that would otherwise be available for distribution between the parties if a s 79 order is made, has been dissipated with a consequential loss to the property otherwise potentially divisible between the parties at the date of trial?;
(b)If so, is it alleged that the dissipation of property was in respect of things other than what, in the particular circumstances of this particular marriage, can be classified as “reasonable living expenses”?;
(c)If it is asserted that any loss to the divisible property results from dissipation of property other than in respect of such expenses, why is it asserted that the result should be a sharing of that loss by the parties other than equally?
(d)If it is contended that this be the result, why should there be an add back (which brings to account, dollar for dollar, such past expenditure in current dollars) as distinct, for example, from there being an adjustment being made pursuant to s 75(2)(o)?; and
(e)How should either any “add back”, or adjustment pursuant to s 75(2)(o), be quantified?
In this case, the add-backs, albeit encouraged by a precedent form used at times by the Court, should only be brought back into the pool in some form or another, if there is agreement between the parties or where, after answering the questions set out above, an injustice would be caused to one of the parties by ignoring a particular item.
In this case, $27,000 fell into the hands of the wife from a redundancy that she received on 31 March 2010 from her employment. She had had that employment since 2001. It will be remembered that the parties separated in early 2007. The wife’s evidence about the use of those funds included that it went towards a mortgage that she had obtained and thereafter, the facility was used from time to time. In addition, she used the redundancy funds to live on. Thus, the money seems to have gone into reasonable living expenses which have caused no significant loss (if at all) to the parties. It is difficult to see that as an “add-back” so called but in any event, I could not discern what portion (if any) really was attributable to the marriage. I propose therefore to ignore the $27,000 sum.
The second matter related to a sum of $11,633 which was calculated by the husband to have been paid into the parties’ joint bank account during the period that the parties had separated but where they were still living under the one roof. In other words, subsequent to separation, the parties continued to do what they had done for a number of years. Moneys went into bank accounts and various expenses were paid.
Counsel for the husband valiantly argued that the separation under the one roof, that is, the decision of the parties to end their relationship, somehow made a difference. I reject that view. Even if I am wrong about that, the evidence does not support adding back that particular sum. The wife did the usual household tasks as she had always done and the husband did what was required of him. The children were cared for by both parties. Why would the quantifiable money contribution then be isolated from and distinguished from, the non-financial contributions that both parties made in their respective and continuing roles?
The evidence does not support any unusual quantifiable contribution in this period. The parties shared responsibilities, which had they not done so, would have increased liabilities, reduced bank balances or caused additional credit facilities to be used. Each did what they had always otherwise done as I have earlier set out. A concerning issue was that the parties seemed to ignore the fact that by adding the sum back into the pool, if that was to occur, it was then to be divided again in the ultimate division. Accordingly, I propose to ignore the $11,633.
There were two uncontroversial “add-backs”. The first was the husband’s redraw against the Suburb J mortgage of $31,231.82 and the second related to the payment of part-proceeds of the I Street property to the husband of $18,300. As both parties wanted that added to the pool, I shall add it back accordingly. As such, the pool referred to earlier must now include a further $49,531.82 making a total pool for division excluding superannuation of $1,532,123.
Superannuation
Both parties have superannuation. The wife has health industry fund and a First State Superannuation entitlement of approximately $69,200 and the husband has a defined benefit interest in S Superannuation of $254,734 and a First State Superannuation accumulation fund of $5218.
The wife sought a superannuation splitting order in percentage terms so that there would be a modest recognition in favour of the husband as a result of his initial contribution which was greater than hers. That differential sought by the wife was as to 52.5 per cent to the husband and 47.5 per cent to the wife.
The superannuation trustee had been served with notice of the proposed superannuation splitting order and it was common ground that no objection had been raised by the trustee to the prospect of those types of orders being made.
In Coghlan (2005) FLC 93-220 the majority of the Full Court said,
We consider the preferred approach to the determination of property settlement cases must be to prepare, in addition to the list of items of property which would clearly fall within the definition of that term in s 4(1), a separate list containing any superannuation, interest or interests valued according to the regulations if a splitting order is sought in any application before the court or if no such order is sought that either according to the regulations or otherwise.
Their Honours said that whether or not a splitting order was sought on either party's application, their contributions to both the property as defined in s 4(1) and also the superannuation interests should be assessed. The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered. The s 75(2) factors would then be considered.
Similarly, the parties' future superannuation prospects, be they in capital or income form, would also need to be considered. The overall justice and equity of the ultimate award, including any proposed splitting order or the need for such an order, would then be considered. The Full Court then went on to set out how that pathway was to be followed. Their Honours then said:
In the context of the consideration of the matters referred to in subparagraphs (b) and (c) of a preceding paragraph in which they referred to the pathway the following matters may be relevant: the relationship between years of fund membership and cohabitation; actual contributions made by the fund member at the commencement of the cohabitation (if applicable) at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse's present and/or future entitlements under the fund.
Their Honours then said:
If this approach is adopted whereby superannuation interests are dealt with separately from properties defined in s 4, but are subject to the considerations in s 79(4) then not only will any contributions both direct and indirect by either party to such superannuation interests be more likely to be given property recognition, but the real nature of the superannuation interests in question can also be taken into account both in consideration of the s 75(2) matters and in the final assessment of whether the ultimate order is just and equitable.
The Full Court referred to the real nature of the relevant superannuation interest and by that they were referring to not just the value of the superannuation interests according to the regulations but also the relevant value to the party in the future. In this case, the parties have obtained and agreed upon the valuations of their respective interests and it was not suggested that I should examine what those interests will mean for them in the future. Initially therefore, I propose to simply assess their respective contributions and then make adjustments separately.
Contribution
It will be seen that in respect of the two pools referred to above, the contributions of the husband were recognised by the wife as being greater predominantly by virtue of his initial contribution in both pools. Having regard to the acknowledgement of the wife, I will make an assessment appropriately.
The husband’s argument was that his initial contribution gave rise to a “springboard” into other assets not reflected in the pool. In Pierce and Pierce [1998] FamCA 74 the Full Court (Ellis, Baker and O’Ryan JJ) observed that the obligation of the trial judge is to not only identify the relevant contributions but also to assess them. Their Honours went on to say that in considering the weight to be attached to an initial contribution, regard must be had to the use made by the parties of that contribution. Obviously, where there is a springboard effect, the usual situation is that the seed capital continues to grow. In this case, there was a significant contribution at the start and it was thereafter, used in a variety of ways. That can be seen in both the real property assets of the parties and also the husband’s superannuation. Their Honours however went on to say that all contributions had to be assessed and the initial ones had to be weighed against all other relevant contributions. In this case, to a large degree, the parties articulated the parameters of the contributions. In my view they are well within the range of what is a discretionary judgment. I take into account that in addition to the husband’s initial contribution, both parties made other and different contributions. Ultimately, it is not the percentage but the underlying value that must be reflected in a just and equitable outcome. In this case it is the gap between the percentage points which enables the Court to see how much more the husband is receiving over and above what the wife has by way of contribution.
It was the uncontroversial evidence that in 1996, the family home at Suburb G was purchased by the husband. This was the third year of the parties’ relationship and before they commenced to live together. It is noticeable that in establishing her initial contribution, Exhibit W1, the wife produced savings records which predate the cohabitation but the correspondence is addressed to the Suburb G address. In any event, the husband submitted that the equity he had was the springboard for the future investments. In the year after the parties commenced living together, they jointly bought their first investment property and about two years later, C was born. C’s birth altered the family’s financial dynamic because the wife took maternity leave. A year later, the parties renovated Suburb G. The relevance of the husband’s initial contribution has to be seen in the light of all of these contributions as well as those of the springboard variety. It was not until 2002 that subsequent investment possibilities arose.
In his final address, counsel for the wife submitted an acceptance that the disparity of contribution should still favour the husband. The husband’s counsel submitted that it should be 60 per cent to him and 40 per cent to the wife, in other words that the husband should be recognised as having provided 1.5 times that of the wife. I reject that as not being a realistic recognition of the rich tapestry of contributions other than the money ones that each party made. I am also mindful that investment brings with it gains not only in cash terms but also tax deductions. Each of the parties benefited in a multitude of ways as well as made sacrifices to gain the benefits in the long term. Thus, the so-called springboard effect has to be considered but having regard to the duration of the relationship and the multitude of contributions, there should not be a simple linear increase. There are many issues that cloud the assessment pathway when a court has to convert the qualitative analysis to a quantitative one.
In my view there is a difference predominantly recognised by the wife and I assess the contributions as to 55 per cent to the husband and 45 per cent to the wife. In my view a 10 per cent gap between the parties or a sum of between $140,000 and $150,000 now adequately reflects the greater initial contribution by the husband notwithstanding that the dollar value of that sum now is less than the initial dollar value then contributed. That is because of the varied contributions that both parties have made over the years. I make that finding in respect of both the superannuation and non-superannuation pools of assets.
The financial resources issue
In the “balance sheet” provided by the parties, reference was made to the husband having 1260 hours of long service leave entitlements. The husband’s column said that it had no value. Neither party addressed the issue in evidence in any serious way or submitted that I should adopt any particular course of action. I propose to ignore the item.
Liability for credit card
In the balance sheet, both parties adopted a figure of $4482 for a credit card of the husband and endorsed it with the words “accrued after separation”. No-one raised the relevance of the issue but it seems to me that it is not something that I should take into account because I do not know the details for which it was used or even whether the balance is referrable to joint expenses or as the wife seemed to allege, holidays and medical treatment. In the scheme of things, it is a modest amount and I propose to ignore it.
Section 75(2) factors
Section 79(4) of the Family Law Act 1975 (Cth) (“the Act”) requires the Court to take into account the matters referred to in s 75(2) insofar as they are relevant. The matters set out in s 75(2) that are relevant in this case entitle me to say that there is no justification for any further adjustment to the assessment relating to contributions. Both parties are in their early 40s. Both have employment. Both have qualifications and experience that would entitle them to be confident of remaining in the workforce. The husband, as a senior public servant, has security of tenure and the wife has skills that would enable her to be assured of employment. The wife’s annual income from employment was said to be about $67,600 to which was added a further $3,300 in government benefits and child support. Just how the child support will be affected as a result of the parenting orders that I propose to make is not clear but on the evidence of the wife, she was receiving about $10,500 per year in child support. The husband earned significantly more than the wife, declaring his wage to be about $137,500 per annum. He also declared income from investments but I have not taken those into account having regard to the fact that in the future, that may alter by virtue of the property orders that I propose to make. On any view however, the husband has a much greater earning capacity than does the wife. The wife will have the greater control of both children but that is not to say that the husband will not have a significant role in the lives of the children.
The wife will have the benefit of the estate money that I have excluded from the pool but the husband will also have a greater share of the balance of the pool having regard to the finding that I have made that his contribution was greater than that of the wife. This is not a case in which the duration of the marriage has affected the earning capacity or lifestyle of either of the parties and in my view, despite the division of the assets between them, each will be reasonably comfortable into the foreseeable future. I do not intend to make any adjustment under s 75(2) relating to superannuation interests because I have included that in a separate pool. However, I am able to take into account that each party has superannuation to which they will continue to contribute and retirement for both is a long way in the future. Having regard to the greater capital retained by the wife, there is no basis for an adjustment in her favour despite her having the children and a lower income. The greater income in the hands of the husband and the wife’s greater responsibilities for the children means that there is no justification for an adjustment in favour of the husband. In my view, this is a case where there ought to be no adjustment for s 75(2) matters.
The ultimate division of the non-superannuation assets
With a pool of $1,532,123 which includes the “add backs”, 55 per cent in favour of the husband comes to $842,668 and 45 per cent to the wife comes to $689,455.
On the basis of the pool as divided already between the parties and as to the assets retained by them, with the husband being responsible for the capital gains tax but also retaining the boat, he has approximately $896,428 worth of assets but also add backs of $49,532 whilst the wife has only $585,000 or thereabouts. However, she has the inherited funds. To achieve the outcome to which I have just referred, the husband needs to pay to the wife $103,292 to achieve a just and equitable outcome.
On that basis, each party is receiving sufficient capital to enable them to house themselves. In my view that is a just and equitable outcome.
Having considered the respective contributions to the superannuation assets referred to earlier, I would again find no basis for an adjustment under s 75(2). The superannuation should be divided as a whole as to 55 per cent to the husband and 45 per cent to the wife.
There is an agreed pool of superannuation of $329,142. The wife should receive 45 per cent of that which is $148,114 and she currently has $69,190. There must be a splitting order of the husband’s superannuation of $78,924. That is a just and equitable adjustment. The superannuation trustee has been given notice and does not object to the orders being made.
Each party will otherwise retain the assets in their respective possessions but they will hold them upon trust pending the final distribution and compliance with these orders. Otherwise the proceedings will be dismissed.
I shall make provision in the event that any party desires to make an application for costs and that can be done by written submission and in writing and I shall determine the matter in chambers.
I certify that the preceding Two Hundred and Four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 April 2012.
Associate:
Date: 23 April 2012
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