ELLIS & ELLIS
[2016] FCCA 964
•28 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS & ELLIS | [2016] FCCA 964 |
| Catchwords: FAMILY LAW – Property – ascertaining the asset pool for division – contributions as breadwinner – contributions as homemaker and parent – sub-section 75(2) factors – just and equitable settlement. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA,75, 79 |
| Cases cited: Ackerman & Ackerman [2013] FMCAfam 109 |
| Applicant: | MR ELLIS |
| Respondent: | MS ELLIS |
| File Number: | LNC 515 of 2013 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 28, 29, 30 and 31 July 2015 |
| Date of Last Submission: | 31 July 2015 |
| Delivered at: | Launceston |
| Delivered on: | 28 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Turnbull |
| Solicitors for the Applicant: | Rae & Partners Lawyers |
| The Respondent appeared unrepresented |
| Counsel for the Independent Children's Lawyer: | Mr P Briffa |
| Solicitors for the Independent Children's Lawyer: | Legal Aid Commission of Tasmania |
ORDERS
That MR ELLIS (“the father”) and MS ELLIS (“the mother”) have equal shared parental responsibility for X born (omitted) 2002, Y born (omitted) 2006 and Z born (omitted) 2009 (“the children”).
That the children live with the mother.
That the children spend time and communicate with the father as follows:
(a)during school terms on a fortnightly basis from after school on Thursday until the start of school on the following Tuesday, commencing on the first Thursday of each school term;
(b)for one week in each school holiday at the end of Terms 1, 2 and 3 as agreed, but failing agreement for the first week of the relevant school holiday;
(c)from 5.00 pm on Maundy Thursday until 5.00 pm on Easter Tuesday;
(d)from 3.00 pm on Christmas Eve until 3.00 pm on New Year’s Eve each year;
(e)for two further periods of one week each during the children’s long summer school holidays as may be agreed, but failing agreement as nominated by the father in writing at least 21 days prior to start of the relevant long summer school holiday;
(f)commencing in the 2018/2019 long summer school holidays the father may at his election combine two of the periods referred to in paragraphs (d) and (e) to provide for a single period of two weeks, provided that the father advises the mother of his election at least 21 days prior to the start of the relevant long summer school holiday;
(g)on each of the children’s birthdays at times to be agreed between the parties, but failing agreement if the birthday falls on a weekday for a minimum of two hours after school and if it falls on a non-school day for a minimum of five hours;
(h)on Father’s Day from 10.00 am on the Saturday preceding Father’s Day until 9.00 am or the start of school on the following Monday;
(i)by telephone at reasonable times; and
(j)on such further or other occasions as may be agreed between the father and the mother from time to time.
That unless the parties agree otherwise the mother must collect the children from the father’s residence for the purposes of changeover at the end of each period referred to in paragraphs (c), (d), (e) and (f) of Order No. 3 hereof and the father (or his nominee) must collect the children from, and return them to the mother or school at all other times.
That unless the parties agree otherwise the children must be enrolled at (omitted) School or (omitted) High School.
That the father and the mother are permitted to travel interstate and/or overseas with the children provided that the parent who is not travelling is provided with at least 28 days written notice of:
(a)the travelling parent’s intention to do so;
(b)a detailed travel itinerary; and
(c)full details of how the children may contacted while travelling interstate and/or overseas.
That if the father provides the mother with Australian passport application forms for the children, the mother must return them to the father properly completed and signed within 21 days.
That in the event that the mother fails to comply with her obligations under the preceding Order hereof, the father has leave to apply for passports for the children notwithstanding that the mother has not provided her consent to the issue of such passports.
That within 45 days the father must do all such acts and things and sign all necessary documents to transfer to the mother all his right, title and interest in the vacant land known as Property F in Tasmania being the property comprised and described in Certificate of Title Volume (omitted) Folio (omitted) (‘the Property F property”).
That the mother must thereafter indemnify the father against any liability for any outgoings in respect of the Property F property.
That Orders No. 1 and 2 of this Court of 30 October 2014 be and are hereby discharged and the mother is entitled to deal with the funds held in (omitted) Bank account No. (omitted) in her name to the exclusion of the father.
That unless specified in these Orders:
(a)each party is solely entitled to the exclusion of the other to all other property in possession of that party as at the date of these Orders;
(b)each party is solely liable for and must indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(c)any claim that either party may have to any superannuation benefit belonging to or earned by the other is extinguished.
That the parties’ Applications for Orders pursuant to Parts VII and VIII of the Family Law Act 1975 are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Ellis & Ellis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 515 of 2013
| MR ELLIS |
Applicant
And
| MS ELLIS |
Respondent
REASONS FOR JUDGMENT
The Applicant is MR ELLIS (“the father”) and the Respondent is MS ELLIS (“the mother”). They seek orders in relation to their children and their property.
Brief background
The father is aged 54 years and the mother is 48 years old. They started living together in 1996 and married in early 1999.
When the parties started living together, the mother owned a home unit in New South Wales (“the unit”) which was subject to a mortgage. The unit was sold at around the time that the parties married and the net proceeds were used to reduce the parties’ mortgage liability in relation to a jointly purchased home in Property M, NSW (“the Property M property”). The mother paid $40,000 off the Property M property mortgage from the sale of her unit.[1]
[1] See page 281 of the transcript
The parties’ daughters, X and Y were born in 2002 and 2006 respectively.
The family moved to Tasmania in 2007. The father worked initially in (omitted) before obtaining his current employment in (omitted).
Their son, Z was born in 2009.
The parties sold the Property M property in 2009 and realised net proceeds of approximately $184,000. Those proceeds were used to purchase a property at Property L in Tasmania (“the Property L property”). That property was subsequently sold and the net proceeds were used to purchase a block of land at Property F (“the Property F block”), with the balance being deposited in a term deposit account with the (omitted) Bank.
The parties separated in early 2012 and the children have lived predominantly with the mother since that time. Until fairly recently the children were spending only two nights per fortnight with their father in (omitted).
The children are currently attending schools at (omitted). The eldest child attends a high school and the others are at a primary school.
In late 2012 the father’s mother died and he inherited a sum of approximately $117,000. He purchased a property in Property A (“the Property A property”) using those funds and a mortgage loan from the (omitted) Bank. The current net value of the Property A property is approximately $91,600.
The father commenced these proceedings when his lawyers filed an Initiating Application on 30 September 2013 seeking parenting orders and property settlement orders. The mother’s lawyers filed a Response in November of that year, but they withdrew from the proceedings in January 2014, and the mother has represented herself since then.
The parties were divorced in March 2014.
In May 2014 I made interim orders requiring the children to be educated at a particular primary school (rather than be home schooled by the mother). Those orders were varied in relation to the eldest child in December that year to enable her to attend a particular high school from the start of 2015. At the same time, I also made consent orders to provide for the children to spend time with their father during those Christmas holidays in three blocks totalling 19 days.
Family Reports by a Family Consultant were released in May 2014 and May 2015. I will refer to them simply as either the first or the second Family Report.
The parenting orders sought
In an Amended Application filed approximately two weeks before the hearing, the father sought orders that would inter alia provide for the following:
a)that he and the mother have equal shared parental responsibility for the children;
b)that the children live with her mother;
c)that the children spend time with him each alternate week from 5.00 pm on Friday until 5.00 pm on the next Friday;
d)that the children also spend time with him on special occasions such as Christmas, Easter, Father’s Day, birthdays, etc.;
e)that he have liberal telephone conversation with the children when they are not with him;
f)that the parents share responsibility for the children’s travel between (omitted) and (omitted);
g)that the children be enrolled at particular schools (as opposed to being home schooled by the mother); and
h)various orders to enable the father to travel interstate and overseas with the children, including orders to provide for passports to be issued to the children.
The significant change in the father’s position is that he is now effectively seeking orders for equal time to commence immediately, rather than as part of the staged process set out in his earlier Application, whereby equal time would not have commenced before the start of 2018. The father’s expressed reasons for that change were essentially that the child Z had said things to him shortly prior to the hearing that necessitate an immediate change to equal time from the status quo. I shall refer to that in more detail below.
In essence, the mother’s proposal was that there should be no change from the status quo of the children spending two nights per fortnight with their father and such other times during holidays and on special occasions as may be agreed. The Family Consultant summarised the mother’s position in relation to parenting matters as follows in the second Family Report:[2]
Although [the mother] did not provide an explicit responding proposal, she expressed her view of [the father’s] proposal in general terms. That is, she still wants to home-school the three children “very much”; and she opposes [the father’s] proposal for the children travelling interstate and overseas including passports for them. It seemed that [the mother] does not agree to any extension of the time that the children currently spend with their father including school holidays. She essentially expressed the view that there should be no parenting orders.
[2] At paragraph 8
The property orders sought
The property sought by the father would effectively provide for the following:
a)that the parties’ funds held in the (omitted) Bank be divided on the basis of 45% to the father and 55% to the mother;
b)that their jointly owned land in Property F be sold and that the net proceeds be divided between them in the same proportions;
c)that the parties each keep their own motor vehicles and other chattels;
d)that the parties each keep their own entitlements to funds in banks; and
e)that there be superannuation splitting orders to provide for a “division” on the basis of 67% to him and 33% to the mother.[3]
[3] See paragraph 10 of the father’s Outline of Case
In essence, the mother set out her wishes in relation to a property settlement in paragraph 116 of her second affidavit. She said:
The block of land and the funds held in (omitted) Bank Account … were allocated, prior to separation, for the purpose of providing housing for our family. I am seeking that they be used for their original purpose of providing housing for the children and myself.
She maintained that position to the end of the hearing.[4]
[4] See transcript at page 309
The evidence
The father relied upon a trial affidavit filed shortly prior to the hearing and an up-to-date financial statement filed at that time. He also relied upon an affidavit sworn by his girlfriend on the second day of the hearing and filed in court on that day. He and his girlfriend were both cross-examined.
The mother relied upon an affidavit filed in November 2013 (prepared by the lawyer acting for her at the time) and a handwritten affidavit which she had affirmed and filed on 1 December 2014. For convenience, I will simply refer to those as her first and second affidavits. The mother also relied upon a financial statement filed on 25 November 2013. She was also cross-examined at some length.
The Independent Children’s Lawyer (“the ICL”) relied upon affidavits from four teachers:
·two teachers at Y’s and Z’s primary school;
·one teacher at X’s high school; and
·the Assistant Principal of X’s high school.
Only the Assistant Principal was cross-examined.
The Family Consultant who prepared the two Family Reports was also cross-examined.
Parenting matters - Relevant law
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration,[5] and in determining what is in a child’s best interests I must consider the matters set out in section 60CC of the Act. That section refers to “primary considerations” and “additional considerations”.
[5] Section 60CA
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[6]
[6] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant.[7]
[7] Subsection 60CC(3)
Each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.[8]
[8] See Mulvaney & Lane (2009) FLC 93-404 at paragraphs 76 and 77 and Champness & Hanson (2009) FLC 93-407
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.[9]
[9] Section 61DA
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[10]
[10] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[11]
[11] See subsections 65DAA(2) and (3)
The High Court decision of MRR v GR[12] has clearly stressed the importance of what is “reasonably practicable”. Their Honours[13] made it clear that if it is not open to a Court to find that it is reasonably practicable, within the meaning of s 65DAA(1)(b) of the Act for a child to spend equal time or substantial and significant time with each parent, then it is not open to a court to consider making an order as described in s 65DAA(1)(c).[14]
[12] MRR v GR (2010) FLC 93-424
[13] French CJ, Gummow, Hayne, Kiefel And Bell JJ
[14] Also see Wainder & Wainder (2011) FLC 93-473
It is clear that the court is not restricted to considering only the proposals put forward by the parties.[15]
[15] See KB and TC (2005) FLC 93-224
Discussion - parenting orders
In deciding what orders I should make, I will consider the relevant evidence in the light of the considerations under section 60CC of the Act.
Primary considerations
The benefit of having meaningful relationships with both parents
The father is not suggesting that the children’s meaningful relationship with their mother should not continue. He is seeking equal time with the children.
On the other hand, the mother sees the father’s role in the children’s lives as being secondary to her role as their mother. It is clear that she views a mother’s role as a parent as being more important than the parental role of a father. In the second Family Report, the Family Consultant said this at paragraphs 13 and 16:
From her views, the impression was gained that being a mother is a very strong feature of [the mother’s] personal identity and she regards herself very much as the primary parent.
and
In [the mother’s] view, premised upon her parenting role being primary, [the father’s] secondary parenting role should be reflected in the parenting arrangements.
It is quite clear that nothing in Part VII of the Act provides for an automatic primary role of a mother. Indeed, this primary consideration under section 60CC makes it very clear that fathers and mothers are treated equally under the law.
In Godfrey & Sanders,[16] the Court said:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child's best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child's parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case. [17]
[16] Godfrey & Sanders [2007] FamCA 102 (Kay J sitting as the Full Court)
[17] At paragraph 33
His Honour went on to say:
… what the legislation aspires to promote is a meaningful relationship, not an optimal relationship. [18]
[18] At paragraph 36
In Tait & Densmore,[19] Cronin J considered the distinction made by Kay J in Godfrey & Sanders between an “optimal” relationship and a “meaningful” relationship, and said:[20]
Kay J distinguished between the optimal relationship and the meaningful relationship. The questions that I have just asked apply in both situations. The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
[19] Tait & Densmore (2007) FamCA 1383
[20] At paragraph 170
There was nothing in the evidence that suggested that these children should not continue to have meaningful relationships with both parents. However, having “a meaningful relationship with both parents” does not equate to “spend equal time with each parent”.
Protecting the children from harm from abuse, neglect or family violence
Sub-section (2A) of section 60CC now requires that the court must give greater weight to the consideration set out in paragraph (2)(b) in applying the considerations set out in subsection (2).
In Ackerman & Ackerman,[21] Judge Brown said the following in relation to the requirement upon the court to give greater weight to the need to protect children from harm from abuse, neglect or family violence:[22]
… the court is required to give greater weight, in its determination of a child’s best interests, to issues arising under the primary consideration relating to the protection of children from abuse, neglect or family violence. The recent changes to the Family Law Act, regarding family violence, are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[23]
This does not mean that allegations of family violence are to be uncritically accepted or anything other than closely scrutinised by the court. Nor does it mean that the court must disregard the benefit of a child having a meaningful level of relationship with both parents, even in cases where there are concerns pertaining to family violence.
The rational for the amendments is to safeguard children from coming to harm as a result of exposure to family violence. Section 60CC(2A) makes this the court’s priority, in cases where the protection of children from harm, as a result of exposure to family violence, abuse or neglect is germane.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
[21] Ackerman & Ackerman [2013] FMCAfam 109
[22] See Ackerman at paragraphs 71 to 74
[23] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
I consider that to be an accurate and succinct statement of the law in relation to subsection 60CC(2A).
In the second Family Report, the Family Consultant said:
[The children] seem to enjoy their time with their father and no significant concerns have been raised about their safety and well-being with their father in this updated family assessment.[24]
[24] At paragraph 37 (with emphasis added)
While the mother alleges that there had been family violence during the relationship, her allegations are in large part denied by the father. However, I accept the statement of the Family Consultant set out in the paragraph immediately above, and I am satisfied that the children do not need protection from harm of the type referred to in paragraph (2)(b) of section 60CC. Consequently, I will deal with the general issue of family violence in more detail below under the appropriate heading.
Relevant additional considerations
The children’s views
I agree with what my brother Judge Scarlett said in Sproat & Brimm:[25]
There is no magic in a Family Report or a Court Expert Report, but such a report is usually a most useful resource for a Court making parenting orders. It is the judge who must decide, having considered all the evidence (Hall & Hall[26]).
[25] Sproat & Brimm [2013] FCCA 1823 at paragraph 107
[26] Hall & Hall (1979) 5 Fam LR 609; FLC 90-713
The second Family Report is “a most useful resource” because it provides the most up-to-date independent evidence in relation to the children’s views.
In relation to X, the Family Consultant said:
32. The impression was gained that X is contented living with her mother. She is generally happy spending time with her father although sometimes she is frustrated that she lacks personal space away from her siblings; and she would like more opportunity to do the activities that she enjoys with her father rather than catering for the needs of her siblings. For example she would like to do more outdoor activities such as horse riding, archery and riding motorbikes. She impressed as being a physically active young person.
33. X was ambivalent even reluctant about extending alternate weekends with her father to include the Friday evening. At first she said that she did not want to miss attending “Kids Club” on Friday evenings. She expressed uncertainty about swapping the schedule of weekends because she said that on the alternate Friday evenings she enjoys a movie night with her mother and siblings that includes watching Better Homes and Gardens which her father does not like. She later speculated that her weekend with her father might commence Friday evenings once she turns 13 years of age when her involvement in “Kids Club” will change.
34. X expressed very strong interest in travelling with her father interstate and to (country omitted). She said that she “really wants to travel” and “would love to go” to (country omitted). She said that her mother had told her that she could travel out of Tasmania once she turned 12 years but her mother had since changed her mind. X wryly commented that her mother would be angry about her telling of her desire to travel with her father, although she was not worried about this. X said that she would very much prefer to travel on her own with her father because travelling with her siblings can be tiresome.
36. X stated strongly that she would like to spend school holidays with her father.
In relation to Y’s views, the Family Consultant said:
28. Y indicated that she is happy with the current arrangements for spending time with her father on alternate weekends and Wednesday evenings. She described a range of enjoyable activities with her father, and also with his girlfriend Ms T. She stated that she would like alternate weekends with her father to include the Friday evening. She surmised that her mother could drive the children to Mr Ellis’ home after Kids Club. Y sounded definite that she would not like to extend Wednesday visits overnight at her father’s home. She said that it is a long drive between her father’s home and where she lives and goes to school. She explained that the trip feels like a long time for her and that it would be a long drive for her father.
29. Y indicated that she would like to spend a week of school holidays with her father. She was less keen about spending a week on a holiday interstate, i.e. Queensland. She was much less keen about but not resistant to a holiday in (country omitted). She said that Queensland and (country omitted) “are a bit far”. She said she flew to Sydney with her mother to visit her maternal grandfather and she winced when adding that the flight “popped my ears”. She then said however that she would be comfortable with a trip interstate to Sydney if her father took her there. Y stated that her mother would not like her and her siblings to travel far away from home without her.
The Family Consultant said that:
Z is a young child with an understanding of his circumstances typical of his age. Z likes school and he enjoys being with each parent and his father’s girlfriend …[27]
[27] At paragraph 25
I do not have any difficulty accepting the Family Consultant’s observation that “X, Y and Z seem to enjoy their time with their father …”[28]
[28] At paragraph 37
The relationships of the children with the parents and other people
At paragraph 24 of the second Family Report, the Family Consultant stated:
The children were observed for a short period in the children’s assessment room with each parent. The children enjoyed their play activities, engaged well with each other and were joined by each parent with evident pleasure. The interaction of the children with [the father] and [the mother] was affectionate and appropriate with no discernible differences between each parent. The observation suggested that the children are content with their mother and enjoy being with their father.
It is not difficult for me to conclude that the children have loving and meaningful relationships with both parents.
Although the children’s relationships with the father’s girlfriend had not been long standing at the time of the hearing, they appeared to be positive.
The extent to which the parents have fulfilled their obligations to maintain the children
In her first affidavit the mother did not appear to complain about the father not paying enough to her for the financial support of the children. She simply said: “I also receive child support from [the father] for the three children”.[29]
[29] At paragraph 137
However, the Family Consultant stated the following in the first Family Report:
She said that [the father] could be more helpful if he stopped the legal proceedings and provided more financial and practical support to her and the children in their household.[30]
[30] At paragraph 24
During her cross-examination, however, it was quite clear that the mother was attempting to portray the father as somebody who was not meeting his legal obligations in relation to Child Support. I asked her some questions about that as follows:[31]
Court: There’s an assessed amount?
Mother: Yes.
Court: He’s paying to you less than that amount?
Mother: Yes.
Court: But he’s also paying something on top of that in terms of school fees; is that right?
Mother: Yes.
Court: Do the two add up to the amount that is assessed?
Mother: I would say they probably do.
[31] Starting at page 167 of the transcript
Significantly, it was the mother’s evidence that she has been able to save approximately $13,000 while in receipt of only Government benefits and the father’s Child Support payments,[32] so I conclude that the mother was being somewhat disingenuous by suggesting that the father has not been meeting his legal obligation to pay Child Support as assessed.
[32] See page 135 of the transcript
The capacity to provide for the children’s needs
Given what I have said immediately above, I conclude that the parties are able to provide for the children’s physical needs.
I have some concerns about the mother’s ability to recognise the children’s emotional needs to continue their relationship with their father. However, I will refer to those below under my consideration of paragraph (m) of sub-section 60CC(3) of the Act.
It is clear that the parents have different views about the children’s educational needs. The mother wishes to home-school the children and the father is opposed to that.
In the first Family Report, the Family Consultant said this at paragraph 50:
The children’s schooling is a significant issue in dispute between [the parties]. It will benefit the children if they are settled in education as soon as possible and if both parents are involved in their education. It may be quite challenging for [the father] to be involved if the children are schooled at home by their mother, given the strong disagreement between the parents about this issue.
In the second Family Report she said this at paragraph 40:
While home schooling is a matter for the Court to consider, with information from expert educational sources, it can be noted that attending school is important to children’s personal and social development generally. Depending on particular circumstances, home schooling may not inevitably constrain children’s social development. The advantages to [all three children] of attending a conventional school, however, could be twofold. That is, their exposure to social interaction in an institutional setting, and with others from different backgrounds and in larger groups; and reduced exposure to potential parental conflict about their education. Both parents could be involved in the children’s education without undue conflict or restriction. This does not seem to be feasible if [the mother] home-schools the children against their father’s views. Communication and cooperation between [the father] and [the mother] has been very poor so it is difficult to envisage that they would be able to discuss the children’s educational needs and progress productively.
The mother set out her evidence in relation to home schooling from paragraphs 46 to 63 of her second affidavit. Nothing in that evidence, or any of the evidence put forward by her in the witness box, shows me that the children would receive a better education at home than they would get in mainstream (omitted) schools. All three children are currently attending (omitted) schools.
The ICL accurately summarised some of the teachers’ evidence as follows:[33]
The teachers’ affidavits confirm that X and Y are progressing satisfactorily, above average academically. Both the [Primary School] teachers and the [High School] teachers have, in their expert opinion, detected a need to improve the girls socialising skills.
[33] See page 272 of the transcript
He went on to say:
In my submission, the girls’ daily attendance in a school environment is more likely to improve those skills than home schooling. And it also poses the question: If the girls are progressing and doing well and improving their socialising skills, why endanger that situation by adopting a different teaching modality?
The ICL continued in his closing submissions:
Z’s behaviour in 2015, by way of example, was not good. It was reported that he was kicking and hitting other children even when unprovoked but the evidence of [his teacher], in her affidavit, confirmed by the mother, that it has improved. And [his teacher] points out that Z has received some targeted attention from the school to correct that problem. The mother says that she too has worked on the problem. So, in effect, in my submission, the children have had the benefit of the school and parents combined input. A combination not necessarily available if Z had been exclusively home schooled.[34]
[34] Also at page 272
The father’s counsel submitted:[35]
In relation to the schooling, your Honour, the evidence of [the Family Consultant] at paragraph 40 is clear. There are many advantages to retaining the children in their current school. The children are doing well.
[35] See page 302 of the transcript
He went on to say:[36]
[36] At page 303 of the transcript
The mother doesn’t have the capacity to provide for these children’s educational needs at a teacher level. She’s not qualified. She has never been qualified to teach primary school children nor secondary school children. The content of what she would be able to teach in accordance with her beliefs is concerning. Would she be able to talk about science in the traditional way that it’s taught in schools, or would it be informed by her fundamental religious beliefs, which – she has said that she doesn’t see there is a need to talk about evolution, to talk about other things. I think I referred to the periodic table and other things. These don’t seem to be within her framework of the ideas that might be taught to children if she was undertaking the teaching.
She doesn’t have the qualifications.
The mother conceded that she has no primary or secondary school teaching qualifications,[37] and her evidence in relation to evolutionary theory was as follows:
Mr Turnbull: Okay. I’m going to ask you again. The theory of evolution is that something that you accept?
The mother: Not in the term that Darwin put it.
Mr Turnbull: Well, what term do you say?
The mother: I believe we all evolve spiritually, eventually if you listen to God.
Mr Turnbull: Okay. Well, let’s talk about Darwinian evolution. Do you accept that theory?
The mother: No.
Mr Turnbull: No. But what you say is that what’s set out in Genesis, that is, that God created Adam and Eve and all other things in seven days, that is what you say is the truth?
The mother: Yes.
[37] At page 200 of the transcript
More importantly, the mother provided no evidence to show that home schooling produces better academic or social outcomes than conventional schooling, so I find the submissions by the ICL and the father’s counsel against home schooling in this case to be compelling.
The attitudes of the parents to the children and parental responsibilities
In some respects there is some overlapping between this consideration and the consideration referred to immediately above, but it is clear that both parties take their parental responsibilities seriously, notwithstanding that they have different views about some matters, including education and religion.
I will refer to religious matters further below.
The practical difficulty and expense of the children spending time with and/or communicating with a parent
As stated above, the father lives in (omitted) and the mother and children live in (omitted). The children’s schools are in (omitted).
I pointed out on Day 1 that the bus timetable attached to the father’s Affidavit[38] would not allow the children to catch that bus in time because it leaves (omitted) at 3.15 pm. That clearly caused some difficulty because the father had wrongly stated in his Affidavit that the children would catch the bus at 4.00 pm.[39]
[38] Annexure “H”
[39] At paragraph 126
When the father gave his evidence on Day 2, he indicated that his girlfriend would be available to pick up the children from school at (omitted) and drive them to his home if they are to live with him every second week. He said that if his girlfriend could not be available, there was after school care or he may be able to take parental leave from his work. However, when he was questioned about that later he admitted that he would not be able to take parental leave every day.
When the father’s girlfriend was cross examined by the mother, she conceded that it was only the previous evening that she and the father had made the decision that she would collect the children after school on a daily basis at times when the children are with the father.
The father’s girlfriend is employed as a (occupation omitted) in the private sector. Her evidence was that she (duties omitted) on what is close to being full-time. However, she said that (duties omitted), so she could generally be available between 2.00 pm and 6.00 pm to collect the children from (omitted). The relevant paragraphs in her affidavit were:
9. I have advised [the father] that I am willing and available to assist him with the transport arrangements by picking up the children from their respective schools at the end of each school day in (omitted) and take them to [the father]’s home. I am able to ensure that my work schedule accommodates my availability to do this. I am also able to care and look after the children at [the father]’s home until he gets home from work at 5/5:30pm.
10. I would travel to [the primary school] arriving before 3:00pm and collect Z and Y from their class rooms and then we would travel on to [the high school] to collect X from a designated meeting spot.
11. If I am unable to collect the children for any reason I would have advised [the father] in advance so that he can make alternative arrangements.
However, she did not produce evidence from her employers or the (employer omitted).
In my view, the transport proposals put forward by the father for the children to live week and week about between the parents are not really practicable at this time if the children continue to attend schools in (omitted).
The likely effect of any change in the children’s circumstances
I will refer to this in my general conclusions below.
Any family violence involving the children or a family member
Since 7 June 2012, “family violence” has been defined in the Act as follows:
4AB(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
4AB(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
Subsections (3) and (4) assist the Court to determine whether a child has been exposed to family violence. They read:
4AB(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
4AB(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
Under the heading “Family Violence”, paragraph 85 of the mother’s second affidavit reads as follows:
I very firmly state that [the father] has perpetrated Family Violence upon me.
In the succeeding 24 paragraphs under that heading the wife sets out a number of matters, but many are either not particularised or do not fall within the definition of family violence. Some examples are:
[The father] remains very angry at me and he has made very clear that he hates me. The father has communicated to me on a number of occasions that he hates me.[40]
Throughout our marriage [the father] would make comments about something. These comments just felt “off”. If I reacted in any way, he would say “You bite so easily”. During disagreements father would use the word “fucking”. [The father] has called me “weird” on a number of occasions. The incidents were initially sporadic and towards the end of the marriage they became more regular. I would put the incidents down to something I must have done or that [the father] was under stress. As his wife I would try to help or simply apologise.[41]
After moving to Tasmania [the father] fluctuated from being despondent to more outbursts. In addition to his attacks on me he would often make comments such as “I’ll be happy when …”, “What about me?” and “Why do you love me?”[42]
One of the children has commented to me that “Daddy’s eyes are strange”. His left eyebrow lifts when he is in “argument” mode.[43]
[40] Paragraph 87
[41] Paragraph 90
[42] Paragraph 92
[43] Paragraph 109
At paragraph 89 of her second affidavit, the mother said:
I recall the first prominent family violence incident which [the father] perpetrated upon me. We were in (country omitted) at the time. It was the year that [the father]’s father passed away. I thought we were having a normal discussion at the table with his mother. That night when we were in bed I recall that Mr Ellis poked his finger into my chest and said “do not ever fucking disagree with me in front of my mother again.” X was just 15 months old at the time. I was shocked and extremely frightened. I didn’t know what to do.
If that incident took place and X was 15 months old at that time, then the parties continued to live together for more than eight years after it occurred.
The father was specifically asked by the mother whether he recalled such an incident and his response was that he did not.[44] However, I subsequently asked him whether it could have happened and he conceded that it may have happened.[45]
[44] Page 107 of the transcript
[45] Page 111 of the transcript
The father’s evidence about family violence in his trial affidavit was succinctly put as follows:
140. There was no physical violence at all during the relationship by me. There was however three incidents I can recall where I did shout at [the mother] and there was a heated encounter as follows:
(a) firstly in relation to an issue of money;
(b) secondly, one day in relation to the way [the mother] was speaking to X in relation to her chooks. She was speaking to her in an awful manner, this was not the first time she had done it and I was fed up with her speaking to the children in this way;
(c) thirdly, [the mother] and I had an argument in relation to a house that we were seeking to build. This is also in light of there being unresolved issues surrounding the breakdown of our relationship.
141. The above incidents were isolated incidences surrounding the breakdown of our marriage and I strongly dispute the assertions by [the mother] that I am abusive.
Those three incidents had previously been mentioned in a letter from the father’s lawyers to the mother.[46]
[46] See Annexure “L” to the father’s trial affidavit
His trial affidavit went on to say:
143. Whilst [the mother] and I have arguments since separation, I would say that there have been no incidents of any type of family violence between [the mother] and I since separation …
The references in the father’s trial affidavit as set out above show a concession on his part that he and the mother had arguments before and after they separated, but I am not persuaded that their arguments can be defined as “family violence”, because I am not satisfied on balance that they were “violent, threatening or other behaviour … that coerced or controlled … or caused the family member to be fearful” within the terms of section 4AB of the Act. Even if I am wrong about that, however, I am satisfied that those incidents are in the past, and the improved relationship between the parties gives me confidence that they are unlikely to re-occur in the future.
The mother claimed at paragraph 108 of her second affidavit that the father had “belted” X on one occasion. She put that specific allegation to him in cross examination and his response was:
No, I don’t recall. I recall smacking X. On what occasion I don’t know, but that’s not something that occurred recently.
The father has clearly used corporal punishment at times as a disciplinary measure. However, it would appear that the children are no longer concerned about that because (as mentioned above) the Family Consultant reported that the children “seem to enjoy their time with their father and no significant concerns have been raised about their safety and well-being with their father …” .[48]
[48] At paragraph 37 (with emphasis added)
Any family violence orders
In my view, it is of some significance that the mother does not appear to have made any applications in any Court for orders in relation to any alleged family violence.
Any other relevant fact or circumstance
In my view, it is appropriate to include here a consideration that was previously a consideration under section 60CC; that being the “willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”.
In his closing submissions, counsel for the father stated that “the mother gave an impression of pervading negativity towards the father”.[49] He went on to submit: “In relation to the encouragement of the relationship, this is clearly a very relevant matter. The mother does not have the capacity to encourage the children’s relationship with their father. In essence, the mother doesn’t think the children should have a relationship with their father. She doesn’t value it.”[50]
[49] At page 292 of the transcript
[50] At page 297
The mother’s negative view of the father is very clearly influenced by the fact that he does not share her strongly held “born-again Christian” beliefs.
In the interview for the first Family Report, the Family Consultant reported that: “[The mother] stated that she wants the children to grow up ‘Godly’ and that according to the Bible, she should not “let the children go near [the father]”. The mother had made specific reference to St Paul’s second letter to Timothy, Ch 3 at verses 1 to 5.
When she was cross-examined about that by the father’s counsel, this exchange took place:
Mr Turnbull: And you’ve held this view that Mr Ellis is someone that people should have nothing to do with. You’ve held that since separation, haven’t you?‑‑‑No.
Since after separation?‑‑‑Yes.
You’ve certainly held it since the first report was released in May 2014?‑‑‑Yes, because it was highlighted to me in some documents that I was reading at the time.
And you hold it to this very day?‑‑‑I believe, as I said, the characteristics are negative, and they have a negative impact on the people around them, that there can be repair of those characteristics.
When you say people shouldn’t have anything to do with Mr Ellis, what you’re really saying is that your children should not have anything to do with Mr Ellis, isn’t it?‑‑‑It is concerning that my children are exposed to those characteristics of their father, yes.
So you say he’s a lover of money?‑‑‑This court case indicates that. Yes.
He’s a lover of himself?‑‑‑Yes.
He’s boastful?‑‑‑Those characteristics were evident in our marriage.
So the answer’s yes?‑‑‑Yes.
He’s proud?‑‑‑Yes.
Abusive?‑‑‑Yes.
Disobedient to his parents?‑‑‑I don’t know about his relationship with his parents.
Ungrateful?‑‑‑Yes. Unfortunately, the word “thank you” very rarely came from his mouth.
Unholy?‑‑‑I don’t know about his – yes. I don’t know about that one.
Without love?‑‑‑It’s hard to see. He doesn’t have the ability to love, unfortunately. That’s – yes.
Unforgiving?‑‑‑Yes.
Slanderous?‑‑‑Yes.
Without self-control?‑‑‑Yes.
Brutal?‑‑‑Yes.
Not a lover of the good?‑‑‑Yes.
Treacherous?‑‑‑I’m not quite sure about that one.
Rash?‑‑‑I’m not quite sure of the understanding of the word “rash”.
Conceited?‑‑‑I’ve seen that.
Lover of pleasure rather than a lover of God?‑‑‑Yes.
This is the man who is the father of your children?‑‑‑Yes.
That’s how you see him?‑‑‑Unfortunately, that is a sad view, but I’m – it’s sad, and I’m saddened to actually see that, but I’m very sorry for him that he has ‑ ‑ ‑
Do you hate him?‑‑‑No, I don’t. I actually cry and pray for him.
Given the mother’s negative attitude to the father, it does not surprise me that in the first Family Report, the Family Consultant said that well defined final court orders may assist the parties to minimise the prospects of future court proceedings.[51]
[51] At paragraph 48
Should there be equal share parental responsibility?
It is to the father’s credit that he seeks an order for equal shared parental responsibility. In my view, that should apply because the father needs to be involved in making decisions about the children’s ongoing welfare.
Should the children spend equal time with their parents?
As mentioned above, the significant change in the father’s position is that he is now effectively seeking orders for equal time to commence immediately, rather than as part of a staged process, and his expressed reasons for that change in position resulted from things that the child Z had said to him shortly before to the hearing. He explained it this way in his trial affidavit:
43. The reason my position has changed and the reason that I now consider this change needs to take place straight away is that Z on a number of occasions over the course of the last week whilst he has been in my care , expressed concerns and options including the following:
(i) that Satan is in my (dad) heart not Jesus;
(ii) that I (dad) has been to Satan’s house and that is why I don’t look after his mum;
(iii) that I (dad) do not care about children and that I (dad) have motorbikes and beer and Satan is in my house and not Jesus.
I asked Z who said this or who told him this and he told me that his mum had told him. These comments and reference to Jesus and Satan have been made at random times over the course of the week and is extremely concerning to me. I have also noticed that Z is not sleeping as well as he usually does and seems restless and conflicted about what is going on. He has clearly been thinking a lot about what his mother has told him. Except for these moments during the week, the time with the children over the holidays has gone really well.
This exchange took place when the mother was cross-examined about that by the father’s counsel:[52]
Mr Turnbull: Do you have any account as to why Z would be saying that Satan is in his heart, not Jesus?
The mother: Yes, I do. I believe my little son is very blessed, in that he had three Christian women at his home birth in (omitted), and I believe, actually, from that birth that something started to work within us as a family to draw us closer to God. And I believe also that Z has the ability to read hearts. He actually reads my heart, and at one stage told me that, “You don’t have Jesus in your heart, because your heart is broken and He can’t stay there.” He has also told me that his heart is broken, and Jesus can’t be in his heart. And at other times he says, “Satan is in my heart now.” He has also told other people that Jesus is in their heart. He – yes, he assesses. He sees hearts. It would be interesting to see what he said about yours.
Mr Turnbull: You believe that Z has the power of prophecy, don’t you?
The mother: I believe he has some gift of the Holy Spirit, as we are all blessed with when we choose to follow.
Mr Turnbull: But you believe that he has the power of prophecy?
The mother: I believe he has an ability to get messages, yes.
[52] Page 162 of the transcript
That and much of the other evidence makes it clear that the children are influenced by the mother’s strongly held “born-again Christian” beliefs. Given that they spend the majority of their time in the mother’s household, that is not really surprising; nor is it surprising that the father wishes to exercise some balancing influence over the children.
In my view, an immediate move to equal time would be too much of an “overcorrection” from what the children have known since the parties separated. What is needed are firm orders that provide for increased time in the father’s household, but not equal time. In this regard, children’s best interests will be served by them spending;
·a “long weekend” each fortnight of five nights with their father during school terms; and
·additional time with their father during holidays.
I am satisfied that the children will cope with five nights per fortnight because they have manage blocks of seven days during school holidays.
In her second affidavit the mother said:
Since being “born again”, as a Christian I celebrate every day and have been set free of the traditions of men and “special” days such as Christmas, Easter and birthdays. Jesus Christ told us how we were to remember Him until He comes again.
She is entitled to hold that view, but it is not one that is shared by the father (or the community generally). In my opinion, the children will benefit from spending those special occasions with their father.
I am also of the view that there should be more equitable sharing of the travel arrangements during school holidays. The mother has a car and she travels to (omitted) from time to time.
Interstate and overseas travel
The father would like to be able to take the children on trips interstate and overseas. He has family in Queensland and in (country omitted).
In the second Family Report, the Family Consultant said the following:[54]
X expressed very strong interest in travelling with her father interstate and to (country omitted). She said that she “really wants to travel” and “would love to go” to (country omitted). She said that her mother had told her that she could travel out of Tasmania once she turned 12 years but her mother had since changed her mind. X wryly commented that her mother would be angry about her telling of her desire to travel with her father, although she was not worried about this. X said that she would very much prefer to travel on her own with her father because travelling with her siblings can be tiresome.
and
Y indicated that she would like to spend a week of school holidays with her father. She was less keen about spending a week on a holiday interstate, i.e. Queensland. She was much less keen about but not resistant to a holiday in (country omitted). She said that Queensland and (country omitted) “are a bit far”. She said she flew to Sydney with her mother to visit her maternal grandfather and she winced when adding that the flight “popped my ears”. She then said however that she would be comfortable with a trip interstate to Sydney if her father took her there. Y stated that her mother would not like her and her siblings to travel far away from home without her.
[54] At paragraphs 34 and 29
It appears that Z was not questioned about the issue.
The mother’s resistance to the father taking the children on trips interstate and overseas appears to be more emotional than logical. The Family Consultant reported as follows:[55]
[The mother’s] response to the proposal that the children travel interstate and overseas with their father was visceral. [The mother] characterised such travel especially to (country omitted) as [the father’s] intention to take the children away from her. [The mother] moreover stated that the children are too young to be separated from her as their primary nurturer. She surmised, when probed, that the children might be sufficiently mature to travel when Z is eight years old. According to [the mother], X is not ready to travel e.g. with her father to visit her brother in Queensland.
[55] At paragraph 22 of the second Family Report
I am of the view that the children are old enough to travel interstate and/or overseas with either of their parents, subject to the other parent being provided with appropriate notice and full details of the proposed travel.
I note that the father proposed that “both parties be permitted to take the children on overseas travel to a Hague Convention Country”. In my view, such an order is unnecessary because the only intention shown at this time is for the father to take the children to (country omitted) and the orders that I make will allow for adequate notice to be given in relation to the proposed travel itinerary.
Compliance with the Orders
In the first Family Report, the Family Consultant said this:[56]
Well defined final court orders may assist them to minimise the prospects of future court proceedings. [The mother], much to her credit, frankly expressed her view that the children may not benefit from spending time with their father, from the perspective of her religious beliefs. While these religious beliefs seemed to be deeply held, [the mother] espoused her commitment to her legal obligations. On balance, it is tentatively concluded that [the mother] may not obstruct or undermine the children’s relationship with their father to a significant degree, especially if court orders are in place.
[56] At paragraph 48
During cross-examination, the mother was asked whether she would comply with Court Orders and she said that the Orders would need to be “in line with my value system”.[57] While that may seem to provide the mother with an “excuse” not to comply with the orders of this Court if she does not like them, I am sure that she is aware of what St Paul wrote in a letter to the Christians at Rome (Romans 13):
1. Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God.
2. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation.[58]
[57] At page 149 of the transcript
[58] Source: >
That advice has been stated in more modern language as follows:
13:1-2 - Every Christian ought to obey the civil authorities, for all legitimate authority is derived from God’s authority, and the existing authority is appointed under God. To oppose authority then is to oppose God, and such opposition is bound to be punished.[59]
[59] Source: >
Indeed, that more modern version continues:
13:3-4 - The honest citizen has no need to fear the keepers of law and order, but the dishonest man will always be nervous of them. If you want to avoid this anxiety just lead a law-abiding life, and all that can come your way is a word of approval. The officer is God’s servant for your protection. But if you are leading a wicked life you have reason to be alarmed. The “power of the law” which is vested in every legitimate officer, is no empty phrase. He is, in fact, divinely appointed to inflict God’s punishment upon evil-doers.
13:5-7 - You should, therefore, obey the authorities, not simply because it is the safest, but because it is the right thing to do. It is right, too, for you to pay taxes for the civil authorities are appointed by God for the good purposes of public order and well-being. Give everyone his legitimate due, whether it be rates, or taxes, or reverence, or respect!
Because the mother’s Christian beliefs are so strongly held, I have confidence that she will obey the Orders of this Court, even if she is not happy with them. I am also sure that the mother is aware that there can be serious consequences if one fails to comply with Orders under the Family Law Act 1975.
Property matters - Relevant law
Prior to the High Court decision in Stanford v Stanford,[60] the general approach to the determination of a property settlement application appeared to have been well established by authority as a multi-step process.[61] The steps were said to involve:
a)Firstly, an identification and valuation of the property, liabilities and financial resources of the parties;
b)Secondly, an evaluation of the contributions made by the parties as defined in section 79(4) of the Act;
c)Thirdly, a consideration of any relevant matters under subsection 75(2) of the Act; and
d)Fourthly, before making an order adjusting property interests, being satisfied in all the circumstances that it is just and equitable to do so under subsection 79(2).[62]
[60] Stanford v Stanford (2012) FLC 93-518; (2013) 293 ALR 70
[61] See Lee Steere (1985) FLC 91-626; Ferraro (1993) FLC 92-335; Clauson (1995) FLC 92-595, Hickey (2003) FLC 93-143 and C & C (2005) FLC 93-220
[62] Also see Russell v Russell (1999) FLC 92-877
However, in Stanford, at paragraph 37, their Honours French CJ, Hayne, Kiefel and Bell JJ said:
37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
In paragraph 40 of Stanford, their Honours went on to say:
40. Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”.[63] To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
[63] R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 257
Subsection 79(2) provides that the “court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”
Subsection 79(4) sets out the matters to be taken into account when the Court considers what orders (if any) should be made in property settlement proceedings. It is not necessary to recite them in full at this point.
In the majority judgment in Bevan & Bevan,[64] Bryant CJ and Thackray J said:
The High Court in Stanford has laid down three “fundamental propositions” which will provide useful guidance to trial judges in approaching the task under s 79. These were recited above, and could be summarised thus:
1. Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2. The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3. A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.[65]
[64] Bevan & Bevan (2013) FLC 93-545
[65] At paragraph 73
However, it is important to note that their Honours said this in paragraph 42 of Stanford:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
In my view, this is one of those cases where it will be just and equitable to make property settlement orders because both parties are seeking property settlement orders. The father is essentially seeking a 45/55 division of the “hard assets” and an equalisation of superannuation interests, whereas the mother would like orders requiring the father to transfer his interests in the (omitted) Bank deposit and the block of land in Property F to her.
Clearly, both parties’ proposals will require this court to make orders. However, their proposals are also quite incompatible.
However, it is important to recall that subsection 79(4) states that ‘in considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account” the matters listed therein. The specific use of the words “what order (if any)” in the subsection clearly allows the court to make no order altering property interests if that is considered appropriate.
Since the end of 2002 courts have been required to treat any superannuation interest as “property” for the purposes of property settlements and in appropriate cases courts may “split” superannuation interests. As mentioned above, the father seeks superannuation splitting orders to provide for a “division” on the basis of 67% to him and 33% to the mother.
The assets and liabilities
For the purposes of determining the asset pool, I intend to apply the maxim de minimus non curat lex to exclude minor bank accounts (including those in the names of the children) and the parties’ household furniture.[66] The parties also have an entitlement in a (omitted) investment. However, the company is in liquidation and I accept that it is unlikely that the parties will realise anything from that “asset”. I agree with the proposition put forward by the father’s lawyers that there should simply be an order that provides for any funds received from the liquidation to be divided equally between them.
[66] For a discussion of the application of the de minimis principle see the Full Court decision in Milankov and Milankov (2002) FLC 93-095
The mother did not dispute any of the values attributed to the assets in the asset pool as set out in exhibit F3. Consequently I adopt those values.
Relying upon decisions like Victor & Victor and Mistle v Mistle,[67] the father’s counsel sought to persuade me that I should exclude the Property A property which the husband had purchased using funds inherited after the parties separated. While that is an approach open to me, I prefer to include the Property A property in the asset pool and make an appropriate adjustment for the fact that the mother did not contribute to the inheritance received by the father.
[67] Victor & Victor [2011]FMCAfam 920; Mistle v Mistle [2010] FamCA 29
I therefore propose to adopt the two pool approach in relation to non-superannuation assets and superannuation entitlements.[68] The assets and liabilities are set out on that basis below.
[68] See C & C (2005) FLC 93-220
Asset Owner $ Value The Property F block Joint 50,000 (omitted) Bank Deposit Mother 142,274 Mazda motor vehicle Father 18,450 Suzuki motor bike Father 6,225 Toyota motor vehicle Mother 17,200 The Property A property (net of mortgage) Father 91,958 (omitted) Bank deposit Mother 13,090 Total $339,197 In Exhibit “F3” the father’s lawyers sought to include two “add backs” as notional property in the asset pool. The father’s counsel quite properly conceded that $7,000 spent by the father on legal fees should be accounted for in my calculations. He also sought to include $1,141 because that appeared to be a shortfall in funds that the mother claimed she had spent on the Property F block.[69]
[69] See Exhibit “M3”
In my view, it is not appropriate to take account of the sum of $1,141. That is because it is likely to be is included in any savings that the mother currently has or was spent by her in normal day to day living. In that regard, I note that “the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule”.[70] In any event, de minimus non curat lex is also applicable in relation to that sum.
[70] See C and C [1998] FamCA 143 and NHC & RCH (2004) FLC 93-204
However, I will take account of the $7,000 spent by the father on legal fees when calculating a just and equitable settlement rather than included as a current asset.
I note also that in Bevan & Bevan[71] the majority of the Full Court of the Family Court considered Stanford and made these comments:[72]
We observe that ‘notional property’, which is sometimes ‘added back’ to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute ‘property of the parties to the marriage or either of them’, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage - and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.
[71] Bevan & Bevan (2013) FLC 93-545
[72] At paragraph 79
The parties liabilities are:
Father’s Credit card 1,120 Father's (omitted) Account loan 18,534 Mother’s car loan 15,000 Total 34,654 Consequently, the net value of the non-superannuation assets is $304,543.
The parties have superannuation entitlements as follows:
Father's (omitted) Superannuation
116,212
Mother's (omitted) superannuation
36,200
Total
$152,412
Contributions
It is important to note that the assessment of contributions is generally not an exercise of mathematical precision. In Hayne and Hayne,[73] Pawley J said:
In matters such as this one cannot approach the problem with an eye for meticulous detail. It should rather be dealt with broadly so that the end result can be said to be just and equitable.
[73] Hayne and Hayne (1977) FLC 90-265 at p. 76,415
Similar statements were made in Garrett and Garrett,[74] Clives and Clives,[75] Kessey and Kessey,[76] and Poulos and Poulos[77] and it is clear that any evaluation of the weight to be attributed to different types of contributions - such as direct financial contributions and indirect non-financial contributions - cannot possibly be a science involving precise measurement.
[74] Garrett and Garrett (1984) FLC 91-539
[75] Clives and Clives (2008) FLC 93-385 at paragraph 44
[76] Kessey and Kessey (1994) FLC 92-495 at page 81,150
[77] Poulos and Poulos (1984) FLC 91-515 at p. 79,184
As mentioned above, the mother owned the unit in New South Wales when the parties started living together in 1996. It was subject to a mortgage liability and when the unit was sold at around the time that the parties married, the net proceeds used to reduce the parties’ mortgage liability in relation to their jointly purchased Property M property. I accept that the mother paid $40,000 off the Property M property mortgage from the sale of her unit.
The husband’s evidence is that at the commencement of cohabitation he possessed household chattels and a Holden that was approximately fourteen years old. Consequently, I conclude that the mother’s initial contributions were quite significantly greater than those of the father.
At the start of cohabitation, both parties were working but following the births of children the parties adopted the “traditional” roles of the father being the breadwinner and the mother being the homemaker. The mother refers to this at paragraph 39 of her first affidavit and, to his credit, the father says this at paragraph 154 of his trial affidavit:
I would say that it would be fair to describe mine and [the mother]’s role during the marriage as being relatively equal and notwithstanding [the mother] was employed at times I was the primary income earner and [the mother] was the primary homemaker and parent.
I make the assumption that in saying that he acknowledges that his primary financial contributions from his employment were equal to that of the mother’s primary contributions as a homemaker and parent. It is clear from well-known decisions[78] that contributions “made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent”[79] should not be recognised merely in a token manner, but rather, they should be recognised in a substantial way.
[78] For example, see Rolfe and Rolfe (1979) FLC 90-62 and Mallet v Mallet (1984) FLC 91-507
[79] See section 79(4)(c)
This was reinforced in Ferraro,[80] when the Full Court said:
The task of evaluating and comparing the parties’ respective contributions where one party has exclusively been the breadwinner and the other exclusively the homemaker, is a most difficult one to perform because the evaluation and comparison cannot be conducted on a “level playing field”. Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family. Secondly, whilst a breadwinner contribution can be objectively assessed by reference to such things as that party’s employment record, income and the value of the assets acquired, an assessment of the quality of a homemaker contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent and cannot be readily equated to the value of assets acquired. This leads to a tendency to undervalue the homemaker role.[81]
[80] Ferraro (1993) FLC 92-335
[81] Per Fogarty, Murray and Baker JJ at page 79,572
Given what is set out above, I conclude that apart from the mother’s greater financial contribution at the start of the relationship (from the sale of her unit) and the father’s inheritance after separation, the parties contributions overall should be assessed as being equal. However, in relation to that, I set out some important comments below.
The father’s counsel sought to persuade me that I should take into account the fact that the father’s superannuation had increased significantly in value after separation because of generous contributions by his employer and the fact that he “salary sacrificed” further amounts into his superannuation fund. I would also assume that the father’s superannuation entitlement experienced some growth in the fund during the period. However, I consider it to be a mistake to attribute the post-separation increase in the value of the father’s superannuation to contributions on his part. My reasons for saying this are that the mother continued her homemaker and parent contributions without much assistance from the father throughout that period and I have concluded above that her contributions are equal to his breadwinning contributions. It is for that reason that I have included the values of their superannuation at the date of the hearing in the superannuation pool set out above.
In my view, the mother’s initial contribution that came from the sale of her unit needs to be seen in context. In some earlier cases, it was suggested that initial contributions could be eroded by time. However, in Pierce v Pierce the Full Court said:[82]
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home ...
[82] Pierce v Pierce (1999) FLC 92-844 at paragraph 28
In this case, the increased equity in the Property M property arising from the sale of the mother’s unit was carried forward to the purchase of the Property L property. From the unchallenged evidence set out in paragraph 128 of the mother’s second affidavit, it appears that her contribution of $40,000 amounted to 30% of the purchase price of the Property M property and accounted for the entirety of their equity in that property shortly after it was purchased. It must follow that the mother’s equity in her unit at the start of cohabitation gave these parties a springboard to increase their equity in subsequent properties that they purchased.
It appears from the father’s trial affidavit that the parties’ equity in the Property L property when they purchased it was approximately $135,000 (because the purchase price was $315,000 and the mortgage liability was approximately $180,000).[83] Clearly, the mother’s earlier contribution by increasing their equity by $40,000 was a contribution of some significance.
[83] At paragraph 157
Similarly, the father’s inheritance after the parties separated is significant in relation to the total equity that the parties have in non-superannuation assets. Indeed, that $91,958 accounts for approximately 30% of the net total of $304,543.
Viewed in those terms, I conclude that the mother’s initial contribution from the equity in her unit must be seen as almost equating to the father’s post-separation contribution from this inheritance.
In those circumstances, I would see the parties’ overall contributions to both superannuation and non-superannuation assets as being equal. However, these matters are not determined solely on the basis of contributions.
The sub-section 75(2) factors
As mentioned, the father is 54 years old and the mother is aged 48 years. Both appear to be in reasonable health.
The father is employed as a (occupation omitted) and his income is in the vicinity of $64,000 per annum. He is able to salary sacrifice some of his income into superannuation. He owns a home in (omitted) and his mortgage commitment is $376 per week.
The mother is not employed. She was asked a number of questions by the father’s counsel about her ability to obtain employment. She indicated when cross-examined that she had not applied for employment and her stated reason was: “No, because I’m a mum.” She added that it would be difficult for her to get a job in (omitted) between 9.00 am and 2.00 pm and I accept that to be the case.
At the time of the hearing, neither party was cohabiting full-time with any other adult.
While paragraph (b) of sub-section 75(2) requires me to have regard to “the physical and mental capacity of each of them for appropriate gainful employment”, paragraph (l) specifically refers to “the need to protect a party who wishes to continue that party’s role as a parent”. It is certainly clear that the mother has the care or control of three children of the marriage who have not attained the age of 18 years, and she has been available to them full-time and has provided for their physical needs with her only source of income being government benefits and Child Support payments since the parties separated.
It is clear that the sub-section 75(2) factors favour an adjustment in the mother’s favour and I am of the view that adjustment should be significant in order to do justice and equity.
Conclusions re property
The mother seeks orders that would transfer the Property F block to her and enable her to use the funds retained in the (omitted) Bank to build a home to house herself and the children. That would mean that she would retain the following in non-superannuation assets:
The Property F block 50,000 (omitted) Bank Deposit 142,274 Toyota motor vehicle 17,200 (omitted) Bank deposit 13,090 Sub-total $222,564 Less loan for her car 15,000 Net Total $207,564 That amounts to 68% of the total net value of the non-superannuation pool. In my view, a settlement on that basis is just and equitable because:
a)The father will still retain 69% of the total value of the superannuation assets in circumstance in which it is likely that he will see growth in that asset from contributions in the years to come;
b)The mother’s superannuation balance is unlikely to grow very significantly in the short term at least, but her current need for non-superannuation assets should be properly recognised; and
c)The father has already had the benefit of $7,000 that he used to pay legal fees.
I will therefore make property orders to provide for what I have set out above.
I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Date: 28 April 2016
[47] Page 108 of the transcript
[53] At paragraph 82
0
8
2