FRANKLYN & FRANKLYN
[2021] FCCA 588
•26 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FRANKLYN & FRANKLYN | [2021] FCCA 588 |
| Catchwords: PROPERTY – Final property adjustment – section 75(2) adjustments – consideration of financial and non-financial contributions – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79, 60B, 60CA, 60CC, 61DA, 65DAA. Family Law Rules 2004 (Cth), pt.19.04. |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Babcock & Waddell [2019] FamCAFC 129 Bevan v Bevan (2013) FLC 93-545 Black & Kellner [1992] FLC 92-287 Blinko v Blinko [2015] FamCAFC 146 Goode and Goode (2006) 206 FLR 212 M & M (1988) 166 CLR 69 Mazorski v Albright (2007) 37 Fam LR 518 MRR & GR [2010] HCA 4 Petruski & Balewa (2013) 49 Fam LR 116 Sebastian & Sebastian (No. 5) [2013] FamCA 191 U & U [2002] FLC 93-112 Weir & Weir [1993] FLC 92-338 |
| Applicant: | MR FRANKLYN |
| Respondent: | MS FRANKLYN |
| File Number: | DUC 63 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 1, 2 & 3 February 2021 |
| Date of Last Submission: | 3 February 2021 |
| Delivered at: | Parramatta |
| Delivered on: | 26 March 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Solicitors for the Applicant: | Matthews Folbigg |
| Counsel for the Respondent: | Mr Hogg |
| Solicitors for the Respondent: | KLM Solicitors |
| Counsel for the Independent Children's Lawyer: | Ms Hayward |
ORDERS
Parenting:
That the parties shall have equal shared parental responsibility for the child Y born in 2015 (“Y”).
That the Mother shall have sole parental responsibility for the child X born in 2008 (“X”).
Within six months of the date of these Orders the Mother shall cause the residence of Y and X to be not less than 160kms from the Father’s residence in Suburb K NSW and the Mother shall provide the following information to the Father:
(a)Immediately upon identifying where she will be residing with the children the Mother shall provide the details of the town centre closest to where she will be living.
(b)Immediately upon identifying where she will be residing with the children, the Mother shall notify the Father of which school she proposes each child attend for the purposes of the Father being involved in the decision making and enrolment of the children in school.
If the Mother complies with Order 3 Y and X shall live with the Mother.
If the Mother complies with Order 3 Y shall spend time with the Father as follows, commencing on the first weekend following the Mother’s compliance:
(a)During the school term each alternate weekend from the conclusion of school Friday until the commencement of school Monday with such time to extend to before school on Tuesday if the Monday is a public holiday.
(b)During the school term each alternate week from the conclusion of school Wednesday until 8pm Wednesday being the Wednesday after Y has spent time with the Father on the previous weekend.
(c)For the first half of each NSW school holiday period in odd numbered years.
(d)For the second half of each NSW school holiday period in even numbered years.
(e)On the Father’s Day weekend from conclusion of school Friday until the commencement of school on Monday.
(f)From 3pm until 6.30pm on Y’s birthday if his birthday is a day when the Father would not otherwise spend time with Y in accordance with these Orders.
(g)Such other times as agreed between the parties.
The Father’s time with Y shall be suspended as follows:
(a)For the first half of each NSW school holiday period in even numbered years.
(b)For the second half of each NSW school holiday period in odd numbered years.
(c)On the Mother’s Day weekend from conclusion of school Friday until the commencement of school on Monday.
(d)From 3pm until 6.30pm on Y’s birthday if his birthday is a day when the Mother would not otherwise spend time with Y in accordance with these Orders.
(e)Such other times as agreed between the parties.
Pending compliance with Order 3 (and expiring at the conclusion of six months from the date of these Orders) Y shall live with the Mother and spend time and communicate with the Father as follows:
(a)Commencing on the first weekend following these Orders and continuing each alternate weekend thereafter from 9am Saturday until 4pm Sunday in the Greater Sydney region of New South Wales with changeover to occur at Suburb SS McDonald’s.
(b)Each Tuesday, Thursday and Sunday by video call between 6.30pm and 7pm.
Pending compliance with Order 3 (and expiring at the conclusion of six months from the date of these Orders) X shall live with the Mother and spend time and communicate with the Father as follows:
(a)By video call on each Tuesday, Thursday and Sunday that Y has a video call with the Father in accordance with these Orders, with X to participate in the video call together with Y or immediately after the video call with Y and for this purpose the Mother shall provide X with a private location to conduct that video call and shall not be entitled to listen or participate.
(b)On the first two occasions of Y’s time with the Father in Order 7 the Mother shall cause X to attend at changeover with her when Y spends time with the Father in accordance with Order 7 for the purposes of X spending not less than 20 minutes with the Father and Y at the commencement and conclusion of Y’s time with the Father and the Mother shall not be present during these periods.
(c)At the expiry of Order 8(a), X shall be included in the time that Y and the Father spend together in Order 7 for not less than 3 hours (with that period to be at the commencement of the time) and the Mother shall arrange the attendance of TT Contact Centre and pay the costs associated with that attendance with the Mother to collect X from a changeover location nominated by the Father at the conclusion.
If the Mother complies with Order 3, X shall spend time with the Father as follows:
(a)For a period of two months for not less than 4 hours each alternate weekend with such time to be whilst Y is in the care of the Father.
(b)At the expiry of Order 9(a) at such times as Y is spending with the Father.
(c)The Father shall be at liberty to determine (with the assistance of X’s counsellor referred to in Order 12 below) to determine whether X requires the assistance of a professional supervision service during any part of this time and shall make those arrangements if that is recommended.
If the Mother fails to comply with Order 3, Y shall live with the Father and spend time with the Mother as follows:
(a)On the second weekend of each calendar month from conclusion of school on Friday until commencement of school on Monday with the Mother to collect Y from school at the commencement and return him to school at the conclusion.
(b)On the Mother’s Day weekend from conclusion of school Friday until the commencement of school on Monday with the Mother to collect Y from school at the commencement and return him to school at the conclusion.
(c)For the first half of each NSW school holiday period in even numbered years.
(d)For the second half of each NSW school holiday period in odd numbered years.
(e)Such other times as agreed between the parties.
If the Mother fails to comply with Order 3, X shall live with the Mother and spend time with the Father during each NSW school holiday period for the same period as Y is spending with the Father during that holiday period and at such other times as agreed between the parties.
For the purposes of changeovers which do not occur at the children’s schools the parties shall meet at an agreed midway point between the homes of the parties or attend changeover at such other location as agreed.
If the Mother complies with Order 3, immediately upon the Mother identifying where she will be residing with the children, she is to notify the ICL in writing of the closest town centre to the residence and the ICL shall then nominate an independent counsellor for X. The parties shall thereafter do all things necessary to engage X with that nominated counsellor including but not limited to ensuring his attendance at appointments, taking all reasonable recommendations of the counsellor, and equally paying the costs associated with attendance. The ICL is granted leave provide to that counsellor the following documents:
(a)A copy of these Orders
(b)A copy of the Family Report prepared in these proceedings by Ms UU.
(c)A copy of the Child Inclusive Memorandum prepared in these proceedings by Mr VV.
(d)A copy of any Judgment in these proceedings.
The ICL shall remain appointed for a period of 6 months after these Orders and at the expiry of that 6-month period shall be discharged without further Order.
The Mother is restrained from engaging X or Y in any counselling except in accordance with these Orders or with the written consent of the Father.
Within 7 days of the date of these Orders each parent shall download the application known as “Our Family Wizard” for the purposes of communicating with one another in relation to the children and shall utilise the application for the purposes of non-urgent communication in relation to the children.
Each parent shall be entitled to attend any school and extracurricular activities in relation to either Y or X which parents would ordinarily attend.
Neither party shall denigrate the other in the hearing or presence of the children, nor allow any other person to do so.
Neither parent shall physically discipline either child nor allow any other person to do so.
The parties shall each be restrained from changing Y’s school enrolment (except as provided in these Orders) without the written consent of the other parent.
In the event that either party intends to bring Y or X into the presence of Mr WW, the following shall occur:
(a)The proposed times and dates of such contact shall be provided to the other party in writing.
(b)The party proposing the contact shall provide to the other an undertaking to personally supervise X and/or Y during such contact.
The parties or either of them shall make the children available at such time and place at the direction of the ICL for the purposes of the ICL explaining these Orders to the children.
Costs of the appointment of the ICL in the sum of $6,099.15 for each parent, subject to either party obtaining a waiver in relation to costs.
Property:
Within 90 days of the date of these orders, the applicant husband is to make a cash payment to the respondent wife, in the sum of $99,827.00.
The respondent wife is to remove all caveats and transfer to the applicant husband, the whole of her right, title and interest in the property at ‘C Property’, J Street, Suburb K NSW being the whole of land contained in Folio Identifier Lot … (‘the C property’) and any interest that she has in which may remain in the partnership, Franklyn Partnership (‘the partnership’).
In the event that the applicant husband fails to comply with order 24, then within 28 days of default, the parties shall list for sale and sell the C Property with an agent and using a solicitor and at a price agreed between the parties and failing agreement:
(a)At a price nominated by N Valuers.
(b)With an Agent nominated by the President of the Real Estate Institute of NSW.
(c)A solicitor/conveyancer nominated by the President of the NSW Law Society.
Upon sale of the C Property the proceeds shall be distributed:
(a)To pay the costs of sale, including real estate fees.
(b)To pay outstanding rates.
(c)To discharge any mortgage on which the wife is registered as a co-borrower.
(d)Any balance to the husband.
Unless otherwise provided herein, the applicant husband is the sole owner at law and in equity of:
(a)The property known as ‘B Property’, M Street, Suburb K, NSW, being the whole of land contained in Folio Identifier Lot … and Lot … (‘the B property’).
(b)The property known as ‘O Property’, M Street, Suburb K NSW being the whole of land contained in Folio Identifier Lot … (‘the O Property’).
(c)All plant and equipment located on the O Property, the B Property and the C Property.
(d)All assets held by the partnership.
(e)All assets standing in his sole name.
(f)Any superannuation entitlement held by him.
Upon compliance with order 25 herein, the applicant husband shall be solely liable for any and all liability relating to:
(a)The C property.
(b)The B property.
(c)The O property.
(d)The remaining debt to the P Bank for the finance which was secured on the Motor Vehicle 1.
(e)Any liability attached to the partnership.
(f)Any assets standing in his sole name.
(g)Any liability standing in his sole name.
Unless otherwise provided herein, the respondent wife is the sole owner at law and in equity of:
(a)Any business interest owned by her including her business ‘Q Company’ and all furniture fittings from same.
(b)All sale proceeds of the property at E Street, F Town.
(c)Any superannuation entitlement held by her.
(d)Any asset standing in her sole name.
(e)Any funds retained by her from the R insurance claim in 2017.
The respondent wife shall be solely liable for any and all liability relating to:
(a)Any business owned by her.
(b)Any asset standing in her sole name.
(c)Any liability standing in her sole name.
In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Franklyn & Franklyn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
DUC 63 of 2018
| MR FRANKLYN |
Applicant
And
| MS FRANKLYN |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns parenting and property issues between the applicant, Mr Franklyn (“the applicant father or applicant”) and the respondent, Ms Franklyn (“the respondent mother or respondent”) (“the parties”). The parenting proceedings are in relation to two children, X born 2008 and Y born 2015 (“the children”). It is to be noted that the applicant father is not the biological father of X.
The matter was heard at the Parramatta Registry of the Federal Circuit Court over 3 days, commencing 1 February 2021. The matter was heard using a combination of in person appearances and video conferencing.
Background
The relevant background facts asserted by the parties are as follows:
·The applicant father was born in 1967 and is currently 53 years of age.
·The mother was born in 1971 and is currently 50 years of age.
·X is born in 2008.
·X’s biological father passed away in 2009.
·The applicant father purchases a farm at Town B in 2011. The applicant father is loaned some farm machinery by his mother.
·The applicant father purchases further land in 2012, EE Property and land adjacent to Town B called ‘O Property’.
·2013 the parties meet on a dating site.
·The applicant father sells “EE Property” in 2013 and in 2014 receives net proceeds of approximately $250,000.
·In either late 2013 or early 2014, the parties commence co-habitation at the B Property. The respondent mother asserts the home is in poor condition.
·The applicant Father asserts X asks him if he can call him “Dad” in late 2013. Later, X’s surname is later changed to Franklyn.
·Renovations asserted to cost $150,000 are carried out on the residence at B Property. The respondent mother asserts she drew down some money on her Suburb CC property to pay for the renovations.
·Parties marry in 2014.
·The respondent mother asserts that the father commences to be verbally abusive towards her after their marriage and this continued until the parties separated.
·The respondent mother moves to H Town prior to the birth of Y.
·Y is born in 2015.
·The respondent mother receives an approximately $270,000 inheritance from her father’s estate.
·Parties purchase the adjoining property to B Property, known as “C Property” in 2015. The applicant father asserts that the respondent mother contributed $100,000 towards the purchase price of $350,000. The respondent mother asserts that her contribution was $135,000. The balance of the funds came from L Bank. The parties agree $171,037.48 paid towards the mortgage on the respondent mother’s Suburb CC property.
·In May 2015, the respondent mother asserts that the applicant father knees her in the back while they are in bed after he was intoxicated. The respondent mother attends F Town hospital the next day.
·At Christmas 2015, an incident occurs in relation to X and his maternal cousin XX. The applicant Father states that he is not agreeable to visiting the home of the cousin in the future. The applicant father asserts that he wanted the matter reported to Police but the respondent mother refuses. The applicant father reports the matter to the, as they were then known, Department of Community Services (“DOCS”) after separation.
·The respondent Mother asserts in early 2016 that the applicant father is violent towards Y, including throwing him on the couch and holding him down.
·The applicant father states that the respondent mother contributed money to L Bank overdraft of $53,500 during the period of six months. The respondent mother asserts that she contributed $145,000 during the period of mid-2015 to mid-2016.
·The respondent mother asserts that, after undergoing surgery in H Town for a medical condition, she began haemorrhaging. The respondent mother asserts that the applicant father says to her words to the effect of “I don’t care if you die”.
·In mid-2016, the respondent mother sells her Suburb CC property for approximately $800,000. The respondent mother receives a net amount of $408,000 from the sale. The respondent mother asserts that she deposits $376,000 from the sale proceeds into the joint commercial loan account.
·In August 2016, the parties purchase a Motor Vehicle 1 for $52,446. the parties borrow $28,969 to assist with the purchase. The parties also purchase a Motor Vehicle 3 for $73,000. The applicant father asserts that the parties borrowed $73,800 from L Bank to fund the proceeds. The applicant father looks after the children for a period of 3 weeks while the respondent mother is hospitalised for further surgery.
·In late 2016, following a major storm, a claim is made on the parties insurance policy with payments made into the respondent mother’s CBA account. The applicant father asserts that $5,000 was paid in late 2016 and $165,116.91 in late 2017. The respondent mother asserts that she received only $164,766 of which $80,000 is paid to L Bank.
·The respondent mother asserts that, at Christmas 2016, the applicant father says to her, words to the effect of “your ass is bigger than your shoulders” and “you are fat, ugly and you smell”.
·In 2017, the respondent mother purchases a commercial premises at E Street, F Town for approximately $200,000, plus costs of purchase. The parties agree that the respondent mother should pay the deposit of $24,000 from her own funds, with the balance of $215,280, plus stamp duty of $6,910 being paid from the joint commercial loan account with L Bank.
·In October 2017, the respondent mother asserts that she arrives home and finds Y in a dirty nappy and clothing, with the applicant father asleep inside the home with empty alcohol bottles nearby.
·On 30 October 2017, the parties separate. The respondent mother leaves the family property with the children. The respondent mother asserts that, at the time of separation, there was 2 tonnes of crops stored in silos at C Property, and 150 tonnes at B Property. The respondent mother further asserts that there were bales of hay in sheds and further bales on the farm. The properties were stocked with approximately, 1000 head of livestock. The respondent mother also asserts that she completed all the book-work for the farm, including all accounting entries, stock counts and orders.
·The applicant father asserts the respondent mother changes the password on the work email account and removed almost all business documents from the home and closes joint accounts.
·In late 2017, the applicant father was served with a provisional Apprehended Domestic Violence Order (“ADVO”), with the respondent mother and the children listed as protected persons. While being served with the provisional ADVO, Police searched the premises and seized all firearms found. The applicant father is charged with offences relating to failing to keep the firearms safely in accordance with the relevant legislation. The applicant father subsequently pleads guilty to a number of offences at the Local Court and is placed on a good behaviour bond. The applicant father’s firearms licence is cancelled. The applicant father asserts that he has not owned or had access to any firearms since then.
·With the exception of a Child Inclusive Conference (“CIC”) on 30 June 2018, the applicant father has not seen X since November 2017.
·In December, the applicant father asserts that he moved approximately 500 livestock to his brother, Mr S’s property. They are then sold with the applicant father receiving approximately $37,000 from Mr S.
·The respondent mother asserts that treatment of livestock took place in early 2018.
·In February 2018, the applicant father initiates proceedings, in this Court, in relation to both parenting and property.
·On 8 May 2018, the parties entered into Consent Orders for the applicant father to spend supervised time with X and Y at YY Contact Centre, H Town, consisting of 2 hours per fortnight. Time spent commences with Y only in July 2018. The applicant father undertakes a Carbohydrate-Deficient Transferrin (“CDT”) alcohol abuse test, which returns a negative result.
·In May 2018, the ADVO application is dismissed at F Town Local Court.
·In early 2019, the respondent mother requests a transfer to I Town Contact Centre. This commences in February 2019.
·Various directions hearings take place, including a Contempt Application against the applicant father in relation to financial matters. The Contempt Application is dismissed.
·On 27 May 2019, a Family report is released to the parties.
·On 8 June 2019, the applicant father asserts that Y tells him he is moving and will not see him again. The applicant father’s solicitors communicate with the respondent Mother’s solicitors, seeking confirmation that she will not move the children from Region ZZ of NSW.
·The Mother moves to City JJ on an undetermined date between June and September 2019. The applicant father asserts this took place in June, the respondent mother asserts that it was September.
·On 13 August 2019, at an Interim Hearing before His Honour Judge Dunkley, the Court Orders parties to engage valuers of their choice, mother to deliver Motor Vehicle 3 to the father. The latter occurs in August 2019. Father asserts the vehicle is damaged and with parts removed.
·5 September 2019, Interim judgement delivered. X and Y to live with the mother. X to spend time with the father as he chooses. Y to spend unsupervised time with the father each Saturday from 10.00 am to 3.00 pm. Mother to relocate her residence to no further than G Town by 11 October 2019.
·11 September 2019, mother files appeal against interim orders of Judge Dunkley followed by a stay application. Stay partially granted.
·In September 2019, Y refuses to leave YY Contact Centre at I Town on a number of occasions to spend time with the father. On 24 October 2019 YY Contact Centre suspend arrangements for changeover with them.
·In November 2019, the father sells Motor Vehicle 3 for $40,000, with the proceeds applied towards the loan, leaving a balance of $8,866.57 owing.
·13 December 2019, appeal hearing before the Full Court of the Family Court. Mother’s appeal upheld, relocation Orders set aside.
·4 May 2020, Interim orders made Y to spend not less than 1 weekend per month in the Suburb AB area with the father and no more than 1 weekend in the City JJ area.
·In 2020, Y meets Ms T, the applicant father’s current girlfriend, for the first time. Father continues to see Y unsupervised either in Sydney or in City JJ.
Parenting Aspects of the Proceedings
It is appropriate to deal with the parenting aspect of the matter first, prior to dealing with the property aspect.
Parenting Proposals
At the commencement of the hearing, the applicant father sought the following substantive parenting Orders, summarised below, which were contained in an Amended Application filed on 15 December 2020.
·The parties shall have equal shared parental responsibility for Y.
·Provided Y’s residence is less than approximately 160 km from the father’s home, Y shall live with the respondent mother, and spend the following time with the applicant father:
§During the school term each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday.
§During the school term each alternate week from the conclusion of school on Wednesday until 8:00pm being the Wednesday after Y has spent time with the applicant father on the previous weekend.
§For half of the NSW school holidays.
§That X shall attend at the same time as Y for time with the applicant father.
·In the alternative, and in the event that the respondent mother does not live with Y within 160 km of the applicant father’s residence, Y shall live with the applicant father and spend the following time with the respondent mother:
§After a period of six weeks from the transition, as recommended by the child psychologist engaged with by the parties to ensure that therapeutic services are available to Y, and in the event there is no recommendation as to the change of residence, then:
§For a period of two months, each alternate Saturday (or other day as nominated by the child psychologist) for a period of two hours with such time to be facilitated and supervised by the child psychologist,
§When safe to do so, on the fifth weekend of each of the NSW school terms from the conclusion of school on Friday until the commencement of school the following Monday with the respondent mother to collect Y from and deliver him back to school,
§One other weekend as agreed between the parties,
§For half of the NSW school holidays.
·In the event that Y moves to live with the applicant father, X shall spend school holiday periods with the applicant father during the same time that Y is spending with the applicant father.
·Y shall communicate with the parent he is not residing with electronically, including a video call at his reasonable request, on Tuesday, Thursday and Sundays, on his Birthday and on Christmas day if he is not in that parent’s care.
The respondent mother sought the following substantive parenting Orders, summarised below, contained in a Case Summary filed on 31 January 2021, provided just before the commencement of the hearing:
·The respondent mother shall have sole parental responsibility for X
·That X will spend time with the applicant father as he wishes.
·If X elects to spend time with the applicant father, it be in accordance with the same time regime as Y.
·That the parties have equal shared parental responsibility for Y.
·That Y live with the respondent mother in City JJ in Queensland.
·For a period of six months, Y spend time with the father from 9:00am on Saturday until 4:00pm on Sunday, on the second weekend of each calendar month in the City JJ region of Queensland; then
·For a further period of six months from after school on Friday until 4.00pm on Sunday of each calendar month in the City JJ region of Queensland.
·Thereafter and ongoing from after school on Friday (or 3:00pm if a non-school day) until before school on Monday (or 9:00am if a non‑school day), unless it is a long weekend, where the applicant father’s time will be extended until 9:00am on the Tuesday, on the second weekend of each calendar month in the City JJ region of Queensland.
·Commencing March 2021, from 9:00am on Saturday until 4:00pm on Sunday on the fourth weekend of each calendar month in the greater Sydney region of NSW.
·Various further Orders relating to block periods during the school holidays.
At the conclusion of the evidence phase of the hearing, the Independent Children’s lawyer (the “ICL”) circulated to the Court, and the parties, the following substantive proposed Orders, summarised below:
·The parties shall have equal shared parental responsibility for Y
·That the parties shall have equal shared parental responsibility for X. In the event that the respondent mother has sole parental responsibility for X, she is to provide the applicant father with details of X’s school, any medical issues, significant schooling or behavioural issues and school reports and details of any significant decisions relating to him.
·If the respondent mother, within 3 months of these Orders, causes the residence of X and Y to be not more than 160 km from the applicant father’s residence, the following applies:
§Should the above occur, X and Y are to live with the respondent mother.
§Y shall spend each alternate weekend from the conclusion of school until Monday morning with the applicant father, together with half of the school holidays.
§Pending a change of residence of X and Y, the applicant father shall spend time with Y each alternate weekend in the greater Sydney area.
§X shall participate in electronic communication with the applicant father along with Y 3 times per week.
§On the first two occasions of time with Y set out above, in the greater Sydney area, X shall spend not less than 20 minutes with Y and the applicant father during changeovers pending a change of residence.
§Following the first two occasions, X shall spend not less than 3 hours with the applicant father and Y at a YY Contact Centre in the greater Sydney area with the costs to be paid by the respondent mother.
§X shall spend time, for a period of not less than 4 hours, with Y and the applicant father each alternate weekend at the same time Y is spending time with the applicant father.
§An independent counsellor is to be engaged for X, with the costs to be shared between the parties.
·If the respondent mother does not cause a change in residence of the children, then the following Orders are to apply:
§X is to live with the applicant father.
§X shall spend each alternate weekend with the respondent mother from the conclusion of school on Friday to the commencement of school on Monday, together with half of the school holidays, with the respondent mother to pick up and return X to school.
§Changeovers that do not occur during school time to be at an agreed midpoint between the residence of the respondent mother and the applicant father.
·The ICL is to remain appointed for a period of 6 moths from the date of any Orders, with the ICL to explain any Orders made to the children.
·The costs of the ICL in the sum of $6,099.15 are to be paid by each of the parents.
The Law – The Family Law Act 1975 (Cth)
The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Act.
Section 60B of the Act sets out the objects and principles of Part VII of the Act as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act, relevantly provides as follows:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture
Section 61DA of the Act, relevantly provides:
(1) When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
This is also confirmed by s 65DAA(2)(d) of the Act:
Consider whether the child spending substantial and significant time with each of the parents is reasonably practicable.
Section 60CC of the Act sets out a list of matters that the Court must consider in determining what is in the children’s best interest. Whilst the Act requires the Court to consider all of the matters in s 60CC of the Act, the central issue in those proceedings is balancing the primary considerations set out in s 60CC(2) of the Act against one another. Those considerations are as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2)(a) of the Act requires the Court to give greater weight to the need to protect the children from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence (s 60CC(2)(b) of the Act).
Section 60CC(3) of the Act sets out additional considerations in determining what is in the children’s best interest. Broadly, these considerations deal with the following matters:
a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant;
The task of applying s 60CC(3) of the Act – Additional Considerations, is an evaluative exercise that necessarily involves the trial Judge determining what weight should be given to each relevant consideration. Each of the considerations found in s 60CC of the Act, must be taken into account and needs to be considered, as regards to each of the two children, who are the subject of these proceedings.
Relevant Case Law
The relevant principles in relation to parenting proceedings are well settled (see: Goode and Goode (2006) 206 FLR 212). In Mazorski v Albright (2007) 37 Fam LR 518, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
… A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.
The High Court in the matter of M & M (1988) 166 CLR 69 set out the relevant test in relation to unacceptable risk. The assessment of unacceptable risk is to be derived from the accumulation of factors proven at a civil standard. In the matter of Blinko v Blinko [2015] FamCAFC 146, the Full Court provides that an unacceptable risk of harm, that is said to be present, needs to be evaluated against the prospect of it actually occurring, as against the protective measures that might be put in place to ameliorate or minimise that risk, to an acceptable level.
A consideration of the relevant case law and the statute law, makes it clear that the paramount consideration when making parenting Orders are the best interests of the children (see: s 60CA of the Act). There is a presumption that it is in the best interests of the children, for the children’s parents to have equal shared parental responsibility (see: 61DA of the Act). However, that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (see: s 61DA(2) of the Act).
Counsel for the respondent mother submitted that a number of further cases were of particularly relevance to this matter, the first being MRR v GR [2010] HCA 4, that requires a Court to consider whether a proposal, including one of substantial and significant time, is reasonably practicable and feasible in all the circumstances, including the circumstances of the parents, to make particular parenting Orders. The second, U v U [2002] HCA 36 requires the Court, in relocation cases, to have regard to all options, considered separately, in determination of the best interests of the children. In Babcock & Waddell [2019] FamCAFC 129, Aldridge J emphasised what he considered as a fundamental freedom established by Kirby J in AMS v AIF where His Honour referred to the “high importance to freedom of movement and the right of adults to decide where they live”.
Documentary Evidence
The following documentary evidence was tendered to the Court:
(1)Exhibit 1: Affidavit of the applicant father dated 15.01.2021
(2)Exhibit 2: Financial Statement of applicant father dated 15.01.2021
(3)Exhibit 3: Affidavit of Ms T (witness) dated 15.01.2021
(4)Exhibit 4: Affidavit of Mr S (witness) dated 21.1.2021
(5)Exhibit 5: Affidavit of the respondent mother dated 15.1.2021
(6)Exhibit 6: Family Report –Ms UU
(7)Exhibit 7: Child Inclusive Conference Memorandum – Mr VV
(8)Exhibit 8: Chartered Accountants – 30.6.2017
(9)Exhibit 9: Chartered Accountants – 30.6.2018
(10)Exhibit 10: Emails – dated 21.10.2018 & 31.10.2018
(11)Exhibit 11: Email - letter dated 1.9.2020
(12)Exhibit 12: Letter– dated 28.9.2020
(13)Exhibit 13: Page 10 of 14 only – Affidavit of the applicant father dated 6.8.2019
(14)Exhibit 14: Paragraph 60 & 65 ONLY – Affidavit of the respondent mother dated 19.3.2018
(15)Exhibit 15: Email dated 15.10.2018
(16)Exhibit 16: Notes - various
(17)Exhibit 17: Commonwealth Bank Statement – Mr RR June 2018- December
(18)Exhibit 19: Affidavit – Mr AC
The Applicant Father’s Evidence
The applicant father’s evidence is contained within his trial Affidavit filed 15 January 2021. The applicant father deposes that, very early in the relationship, the respondent mother stated that she wanted X to have his surname. The applicant father deposes that he taught X how to ride a two wheeler push bike and later a motor bike. Following X commencing to reside at B Property, he was initially enrolled in AD School in G Town. At the request of the respondent mother, X was enrolled in term one of 2015 at AE School in H Town. From about term two in 2015, X moved back to the AF School in F Town. In about 2017, the respondent mother stated that she didn’t think that the AF School was good for X and she was moving X to F Town School.
The applicant father deposes of several periods of time when he had sole care of X together with, or including, Y.
The applicant father states that the respondent mother had some difficulties later in her pregnancy with Y and it was agreed between the parties that she would rent a house in H Town so that the respondent mother could stay close to the hospital as Y’s birth approached. The respondent mother lived in H Town for three months and she told the applicant father that she enjoyed living there. The applicant father states that he was fully involved in Y’s care. After Y stopped breastfeeding, it was deposed that the applicant father prepared meals, fed, bathed and dressed him. The applicant father acknowledges that Y suffered from eczema as a baby
The applicant father denies any alleged abuse of the respondent mother and the children. The applicant father denies ever giving X alcohol to drink and denies that he has ever refused to let the respondent mother access medical assistance.
The applicant father concedes that he destroyed a family dog in 2017 after the dog chased and killed farm animals on at least three separate occasions. The applicant father also concedes that he put down one of his working dogs following an accident in which the dogs suffered a broken leg. Neither the respondent mother, nor the children were present when the dogs were put down.
The applicant father denies alcohol abuse. To provide reassurance in this regard, the applicant father had no difficulty in agreeing to undertake a CDT test in May of 2018 that returned a clear result.
The applicant father states that the parties separated around 30 October 2017. The applicant father anticipated that the respondent mother and the children were going to work/ school/ care in F Town. In November 2017, the applicant father was served with a Provisional ADVO. Whilst being served with the Order, Police searched the applicant father’s premises and removed a number of guns. The applicant father admits to pleading guilty to firearm offences relating to the safekeeping of the guns and receiving a 12 month good behaviour bond, as well as a fine. The applicant father confirms that his firearms licence was cancelled and that he does not own any guns at present, nor does he have any guns on the property.
The applicant father gives evidence as to spending time with Y in City JJ following an Interim Hearing at the Parramatta registry of the Federal Circuit Court before Judge Harman. Difficulties occurred because of COVID-19 travel restrictions.
The applicant father expressed surprise and concern that in July 2020, and again in early August, he received letters from the respondent mother’s solicitors alleging that he had re-partnered and was expecting the arrival of a baby in the near future. This letter demanded the new partner’s full name and date of birth, the date she was due to give birth or if she had already given birth as well as the name and date of birth of the new child. The applicant father questioned the basis for these assertions.
The applicant father deposes that he met and formed a relationship with his girlfriend Ms T. Ms T works as a health care worker in Sydney. During 2019, the applicant father and Ms T started to see more of each other and, generally, Ms T comes up to B Property about once a month and the applicant father travels to Sydney to see her. Ms T has been introduced to Y and has spent time with the applicant father and Y during times that Y is in his care.
The applicant father deposes that if the respondent mother stays in City JJ, it will be very difficult for Y to spend time with him. The applicant father states that there are number of large towns within the 160 km radius that he proposes the respondent mother should relocate to being, H Town, I Town and F Town.
The applicant father deposes that, if Y were to live with him on a full‑time basis, he anticipates that he would enrol Y in G Town School and drive him to and from school for some years. However, there is a school bus available.
In cross examination by counsel for the respondent mother, the applicant father acknowledged that Y does suffer from eczema and has some allergies. The applicant father acknowledged that the respondent mother has communicated with him in relation to Y’s medical needs, although he denied that he had been given full and frank information regarding all of Y’s medical needs.
The applicant father conceded that he had no issues using FaceTime to talk to Y, however, the applicant father noted that Y had never rung him of his own volition. The applicant father conceded that he was aware of Y’s extra-curricular activities in City JJ including sporting activities and these have been advised to him by the respondent mother.
In relation to X, the applicant father was asked what Orders he would like to see made. The applicant father replied that, given his age, he was not sure that it was wise to order X to spend time with him. The applicant father was prepared to participate in family therapy if it would support X spending time with him. It was put to the applicant father that he only made a report to the Department of Communities and Justice (“the Department”) after separation in order to bolster his case that the respondent mother was not acting protectively towards X. The applicant father denied this and so stated that he was concerned because the respondent mother had talked about going to the G Town property where X’s cousin still lived. The applicant father denied smacking the children on the bottom on an ongoing and regular basis but did admit to smacking them on a couple of occasions. The applicant father denied holding the children under covers and holding either of them down, except in play. The applicant father agreed that he had rubbed out the children’s homework on the basis of assisting the children to submit correct homework. The applicant father was aware that X had expressed a view that he did not want to spend time with the applicant father but denied that he had been nasty to X.
The applicant father denied allegations put to him that he drank 8 to 12 bottles of beer per night. The applicant father agreed that he had left guns around the house unlocked in contravention of safety requirements. The applicant father denied allegations put to him that he had been verbally abusive towards the respondent mother and called her “hopeless” and “unable to cook”.
The applicant father admitted to destroying the dogs, including a family pet, but stated that he had discussed the matter with the respondent mother prior to destroying the dog. The applicant father did not shoot the dog deliberately to show that he was in control and to frighten the respondent mother.
It was put to the applicant father that he had considerable flexibility in his farming activities that would allow him to travel to City JJ to see the boys.
The applicant father agreed that his current child support assessment is $8.00 per week but he indicated he is paying an additional $42.00 per week voluntarily making a total of $50.00 per week.
Ms T’s Evidence
Ms T is the current girlfriend of the father. Ms T requested that the Court keep confidential her surname and current address. Ms T lives in Sydney and is employed as a health care worker. Ms T met the applicant father in 2018 via mutual friends. Ms T first visited B Property in early 2019 and since that time, travels about once a month to B Property for a weekend and, about once a month, the applicant father stays with her in Sydney for the weekend.
Ms T has not met X but first met Y in 2020 when he was spending time in Sydney with the applicant father. In late 2020, Ms T travelled to Town AG with the applicant father while he spent time with Y. In total, Ms T has met Y on approximately six occasions.
The applicant father and Ms T do not live together and do not plan to do so in the near future or make any long-term plans while the current Family Law proceedings are still outstanding. Ms T deposes that they do not have any joint finances or bank accounts.
In cross examination by counsel for the ICL, Ms T indicated that she was happy for X to also spend time with her and the applicant father in Sydney, however, her home only had two bedrooms and it might be somewhat difficult. Ms T indicated that she was aware that the application of the applicant father was that if the respondent mother did not relocate to an area near B Town, then the children might live with the applicant father. Ms T was happy with the possibility that, if she was to move to B Town, she would live with the children and the applicant father. Ms T confirmed that she had no children of her own.
The Respondent Mother’s Evidence
The respondent mother’s evidence is contained within a trial Affidavit sworn on 15 January 2021. The respondent mother confirms that apart from a CIC that took place on 30 June 2018, X has not seen the applicant father since November 2017. The respondent mother states that she holds concerns that Y is at an unacceptable risk of harm in the applicant father’s care. These risks include, but are not limited to, Y being exposed to and subjected to domestic and family violence as well as the applicant father’s inability to care for Y’s specific health needs.
The respondent mother alleges that Y becomes extremely distressed just before he is about to visit the applicant father. The respondent mother states that she encourages him by saying words to the effect of “it will only be for little while and you can see me after”.
The respondent mother states that she believes that the applicant father poses a risk of physical harm to Y and that she observed, on numerous occasions, the applicant father throwing Y on the lounge in a violent manner and saying words to the effect of “stay there”. The respondent mother alleges that this occurred between 2 to 5 times per week, leaving bruising on Y from this conduct.
The respondent mother alleges that Y has allergic reactions and this is exacerbated while he plays on the farm. The respondent mother alleges that Y also suffers from asthma, which can be caused by dietary factors as well as when he gets hot and is exposed to dust and pollens. Since moving to City JJ, the respondent mother alleges that Y’s eczema has improved and he benefits from undertaking sports. The respondent mother alleges that the applicant father is unwilling, or unable, to look after Y’s specific health needs and has even questioned the need for Y to attend a psychology appointment. The respondent mother alleges that after Y spends time with his father, he loses weight and she feels like she has a never-ending cycle having to pick up the pieces after the applicant father feeds Y junk food.
The respondent mother alleges that, during the course of their relationship, the applicant father would drink to excess, on most nights, consuming 8 to 12 bottles of beer per night and spirits 2 to 3 nights per week. The respondent mother alleges that, following their marriage, the applicant father became physically, verbally and emotionally abusive towards herself and the children. The respondent mother alleges that the applicant father would dictate her finances and would only allow her $100 per week on general living expenses such as groceries. The respondent mother alleges that the applicant father would constantly say derogatory things to her like “you’re hopeless”, “you irritate me” and “you don’t know how to cook”.
In or around June 2015, the respondent mother alleges that the applicant father kneed her in the back while she was in bed. The respondent mother alleges that she was in so much pain that she attended F Town Hospital the next day.
The respondent mother alleges that when the applicant father’s friends come to the property, they regularly drink and play with guns while driving around the property.
The respondent mother deposes that, following Interim Orders by Judge Harman, she has continued to facilitate Y spending time with the applicant father in City JJ or in Sydney. The respondent mother states that both the maternal grandmother and her sister reside in Sydney. The respondent mother states that the maternal grandmother is currently receiving treatment for cancer.
The respondent mother deposes that Y has started attending AH School and is progressing well.
In relation to her relocation to City JJ, the respondent mother states that she discussed this with her previous solicitor and she understands that her previous solicitor had informed the applicant father of the proposal. The respondent mother currently resides in a two bedroom apartment in City JJ which is within a short distance of the children’s school. The respondent mother’s brother, Mr AJ and his wife also live in City JJ and assist with school drop offs and pickups, on average, twice a month.
The respondent mother deposes that if she were to relocate to Region ZZ, she would have difficulty finding work as a tradesperson and would face severe financial and practical hardships. The respondent mother said she currently does not have a motor vehicle and does not have the financial means to purchase one.
The respondent mother raises concerns with the report prepared by the Family Consultant and denies that she appears to be alienating X and trying to alienate Y from the applicant father. The respondent mother reiterates that her concern, since separation, has been the risk of harm that the applicant father poses to the children. The respondent mother believes she is acting in a protective manner by allowing the children to spend time with their father in a safe environment.
During cross examination by counsel for the applicant father, it was put to the respondent mother that she had no intention of returning to live in Region ZZ. The respondent mother replied that she would find it very difficult, but if she had to, she would do so. The respondent mother stated that she would only go back to Region ZZ if ordered to do so, or if the children were to live in Region ZZ. The respondent mother indicated that she had no idea where she would live. The respondent mother had lived in H Town and G Town previously but she would need a vehicle as buses are not available.
The respondent mother raised concerns that if she was residing some distance from the applicant father, that it would make time spent on Wednesday nights impracticable. The respondent mother was not prepared to accept that X loved life on the farm, but conceded that X had called the father “dad”. The respondent mother also conceded that X did take the applicant father’s surname after she and the applicant father were married. The respondent mother stated that this was X’s decision. It was put to the respondent mother that the applicant father saw X as his son and that he demonstrated this by doing the things that he did. The respondent mother agreed. The respondent mother was unsure, even today, whether or not X had a warm and loving relationship with the applicant father. The respondent mother stated that it was X’s decision not to spend time with the applicant father. The respondent mother denied that she had failed to support X in spending time with the applicant father. The respondent mother said it was always X’s decision not to see the applicant father.
The respondent mother stated that she was willing to allow both boys to undergo family therapy. The respondent mother denied that it was her position, until the day before the commencement of the trial, that she wanted the children to have no time and no contact with the applicant father. The respondent mother denied that she has deliberately stopped X’s relationship with the applicant father and has used X to present that the applicant father was a dangerous individual. The respondent mother denied telling the Family Consultant that the applicant father never physically touched her. It was put to the respondent mother that, she believes the applicant father to be a physical risk to the children, which she agreed, yet the proposed Order was that Y stay with the applicant father unsupervised. It was put to the respondent mother that this was not being consistent. It was suggested that the respondent mother did not generally believe the applicant father is a physical risk to the children. Various other allegations of physical harm that the respondent mother had raised were put to her on the basis that she had made them up. The respondent mother denied this.
It was also put to the respondent mother that there was no evidence in the mandatory reports made to the Department that Y had suffered bruising whilst in the father’s care.
Under cross examination by counsel for the ICL, the respondent mother agreed that she had allowed X to make a decision as to whether or not he should see his father. It was put to the respondent mother that this was not an appropriate parental action. After seeing the report from the CIC, the respondent mother was asked if she made any inquiries about what an alienation dynamic means. The respondent mother replied “no”. In relation to paragraph 84 of the Family Report, the respondent mother denied that X was hyper vigilant, and stated “it was just [X] being [X]”. It was suggested to the respondent mother, and denied, that she had coached the children as to what to say in the Family Report interviews. The respondent mother denied that it was difficult for young child to travel long distances including air travel. The respondent mother suggested that Y and the respondent mother enjoyed the monthly travel.
The Family Consultant’s Evidence
The evidence of the Family Consultant was interposed during the cross examination of the respondent mother. The Family Consultant prepared a Family Report dated 17 May 2019. In preparing the Report, the Family Consultant had been able to access, and considered, a CIC that was dated 28 June 2018.
The writer of the CIC noted that neither X nor Y had seen the applicant father since November 2017. The applicant father said he had not sought to approach the respondent mother about this because shortly after their separation an ADVO Application was served upon him, which had subsequently been dismissed at F Town Local Court. The writer of the CIC noted that the respondent mother stated that she had been in contact with F Town Police, who were considering bringing a further ADVO application against the applicant father, on the grounds that crucial evidence was overlooked during the Local Court hearing.
The respondent mother alleged a history of “verbal and mental abuse”, alleging that the applicant father repeatedly denigrated her throughout the relationship although “he never touched me physically”. The respondent mother alleged that the applicant father was coercive and controlling towards her, damaging tyres in her vehicle to prevent her leaving the property as well as controlling her financially. It was put to the respondent mother that the applicant father says that she was managing their farm/ business finances, in response, the respondent mother claimed that it occurred “under his close scrutiny and control”.
The CIC writer noted that the respondent mother did not report any incidents or behaviours involving family violence to the Police, or other authorities, until after she left the relationship. It was noted that one complaint, however, had been made alleging verbal and psychological abuse to a counsellor in approximately 2015. The respondent mother claimed that the applicant father had attempted to “suffocate” X under a blanket on 10 November 2017 while she was outside the house. The respondent mother stated that X did not disclose this incident to her until sometime after she left the relationship. The applicant father denies that the incident occurred. The applicant father stated that X and Y sometimes pretended to hide under their blankets in the morning.
The CIC writer noted that the respondent mother claimed that shortly after separation, the applicant father had threatened to “kidnap” the children and, since then, has been attempting to elicit information from people and agencies about their whereabouts. Consequently, the respondent mother said that they are effectively living in hiding.
The respondent mother described X as being frightened of the applicant father and concerned for the safety of Y. The respondent mother also asserted that X believes that Y can’t go back to the farm on his own. The respondent mother stated that if the applicant father was a good person, she would be happy to have him see the children, however, she does not believe that he is a good person. The respondent mother stated that Y in particular was demonstrating very challenging and defiant behaviour because she believes he is experiencing traumatic “memory flashback’s”.
Upon attending at the conference, the respondent mother became upset and distressed to discover that the applicant father was also present. The respondent mother expressed fear about being in close proximity to the applicant father. Although they were initially reluctant to spend time with the applicant father, once time commence, it was observed that neither child had any apparent difficulty in interacting with the applicant father. In the CIC writer’s observation, neither child had difficulty interacting with the applicant father and demonstrated warm, happy and comfortable interactions. Neither child demonstrated any fear, anxiety or even wariness about being in close proximity to the applicant father. X was asked about what school he attends and he declined to say, indicating “you might have to ask mum about that”. X said the reason why they left the family home was because “[Mr Franklyn] was being quite mean to us, I saw him smack my brother and throw him on the lounge, he did it quite a lot”. X also said that the applicant father “gave me a massive smack and held me under the blanket… Trying to suffocate me”. X agreed that he had called the applicant father “dad” but after they broke up, he called him “Mr Franklyn”. X stated that the applicant father used to yell if he “had something wrong with his homework and would make me rub it out and do it again”. X indicated that the respondent mother would say “can you please rub it out… She says please and thank you but [Mr Franklyn] doesn’t”. When asked if the applicant father had ever hurt his mother, X replied “[Mr Franklyn] made mum cry”. There was also some discussion about the applicant father killing three of their pet dogs. In paragraph 38, the CIC writer noted, somewhat surprisingly, that the respondent mother claimed that she did not in fact dislike the applicant father, despite suggesting the opposite with almost everything she did and said during the conference. The CIC writer noted that X stated that he clearly understands that his mother does not like the father. The respondent mother denied negatively influencing X against the applicant father, either deliberately or otherwise. However, X acknowledged that his mother has told him information since separating from the applicant father which portrays him (the father) in a negative light.
At paragraph 39, the Family Consultant noted that X’s reluctance to disclose (to the Family Consultant) where he is currently going to school also suggests a considerable degree of parental/adult coaching or influence, which has caused X to align, still further, to his mother’s position. The CIC writer noted that X’s awareness of his mother’s strong negative views of the applicant father is considered likely to have placed significant emotional pressure on him to be consistent with that view. At paragraph 40, the CIC writer concluded that there were significant doubts about the veracity of X’s verbal responses during the conference, and there were questions about the extent to which both children, but X in particular, were being exposed to negative views about the applicant father by the respondent mother. Critically, and almost prophetically, the CIC writer concluded:
“Collectively, the foregoing information suggest the existence of an alignment/alienation dynamic which, if allowed to continue along its present trajectory, is considered likely to result in [X] (and possibly [Y]) eventually having no relationship with the applicant father whatsoever”.
At paragraph 42, the CIC writer noted that, given Y’s relatively younger age, (at the time of the conference) he appeared to have been protected from much of the foregoing influences by his relative youth, although this factor will not continue to afford him such protection in the future.
During cross-examination, the Family Consultant noted that, at the time she prepared her report, she discussed issues of relocation and what that might mean in relation to the children with the respondent mother. The Family Consultant noted that as at the time of writing the report, the respondent mother was seeking sole parental responsibility for both children and that the applicant father spend no time with them.
At paragraph 16 of the Family Report, the Family Consultant noted that the mother alleged that the applicant father was verbally emotionally and financially abusive, as well as displaying coercive and controlling behaviour. The Family Consultant noted that the respondent mother did not report any physical abuse, although the written and verbal material about this is inconsistent. At paragraph 17 of the Family Report, the Family Consultant noted that the applicant father agreed that there had been verbal conflict. The applicant father alleges the respondent mother was financially controlling pre separation and post separation. At paragraph 20 of the Family Report, the Family Consultant noted that the applicant father admits to alcohol use but denied alcohol abuse.
At paragraph 22 of the Family Report, the Family Consultant notes that the respondent mother reports that the boys were receiving trauma based counselling.
Paragraph 28 of the Family Report, the Family Consultant opines “The respondent mother appears to be alienating [X], and trying to alienate [Y], from the applicant father”. The Family Consultant noted that the respondent mother does not appear to consider that Y has a right to know his paternal family and does not want Y to have a meaningful relationship with his father, and will not permit X to have a relationship with the applicant father.
At paragraph 34, the Family Consultant noted that X was hyper vigilant and appeared to say what his mother had told him to say. X responded to several questions with comments such as “I’m not allowed to say”. This was consistent with the previous presentation.
The Family Consultant appropriately details the versions of events given by each of the parties as to circumstances leading up to them cohabiting, their time during the relationship and post separation.
At paragraph 86, the Family Consultant notes that X said he had some good times on the farm but he did not want to see the applicant father, because he has to do what is mother says, and she does not want him to see the applicant father. X said “he is not my dad, he is [Y]’s dad and [Y] has to see him”.
At paragraph 87 of the Family Report, the Family Consultant notes that X was asked what he would do if he wanted to see the applicant father in the future. X said he did not think his mother would let him do so. X said he wanted to have a normal life and he wants all of this to be over, “I want all this Court stuff to finish so mum is not so angry”. He said “I want to have fun with my friends and with [Y], I want to be active and I want to enjoy life”.
Due to his age and developmental level, Y was not interviewed but was observed acting very well with the applicant father in the playroom.
In her evaluation, at paragraph 91 of the Family Report, the Family Consultant noted that the central issue in the matter is how Y will spend time with his father and if X will spend time with his stepfather.
The Family Consultant noted that, at paragraph 97 of the Family Report, the respondent mother comes from, what she describes, as a close-knit Country AK family who previously lived in urban areas, and gained employment in relatively high paid positions in urban areas. On forming a relationship with the applicant father, the respondent mother moved to live on an isolated farm which was some distance from the nearest town and inhabited a house which, she described, as basic and unkempt. The Family Consultant noted that the respondent mother is not familiar with farming practices as well as strategies used to manage issues that arise on farms and that she found some of the applicant father’s farm management practices to be abhorrent. The Family Consultant notes that there appears to be a misalignment between what the respondent mother perceives as abhorrent and what can be seen as normal practices on the farm. The Family Consultant notes that the respondent mother found this environment difficult and when she spent time in H Town before and after Y’s birth, she did not want to return to the farm. In addition, the applicant father is estranged from his extended family which could have contributed to him being emotionally distant and not meeting the respondent mother’s emotional needs.
At paragraph 100 of the Family Report, the Family Consultant acknowledged that the allegations made by the respondent mother as to family violence were serious and, if they were correct, they should not be ignored. The Family Consultant noted, however, that the respondent mother’s written and verbal narrative was inconsistent, particularly her narrative of the events that led to the matter proceeding through Court.
At paragraph 102 of the Family Report, the Family Consultant noted that it was apparent that the respondent mother wants to move far enough away to ensure that it is too difficult for the applicant father to have a meaningful relationship with X or Y. The respondent mother was not going to inform the applicant father that she was relocating the children’s residence to Queensland.
At paragraphs 104 and 105 of the Family Report, the Family Consultant concluded that it was apparent that X in particular has been strongly encouraged to become estranged from the applicant father, and has been encouraged to develop a view that the applicant father will either hurt him or take him away. At paragraph 107 of the Family Report, the Family Consultant concluded that the relocation of Y to City JJ could not be supported as it would mean the end of his relationship with his father. The respondent mother was not supportive of Y having any relationship with the applicant father and if this was further constrained by distance, it is unlikely Y would see his father again.
At paragraph 108 of the Family Report, the Family Consultant concludes that the respondent mother’s inconsistencies and failure to see issues from anyone else’s perspective other than her own is concerning, despite the allegations she has made. The respondent mother is protective of her children and is taking care of them but has not addressed a significant issue, which is the need for a child to have a meaningful relationship with their father.
At paragraph 109 of the Family Report, it was concluded that both X and Y are vulnerable and they will have long-term emotional issues if this dispute is not resolved in a child focused manner. If this manner continues on its current trajectory, it is unlikely that the children will have a meaningful relationship with the applicant father and Y will not be able to maintain his paternal identity.
The Family Consultant recommended that the children continue to live with the respondent mother, but in the New South Wales Region ZZ area. It was also recommended that X be referred to an independent counsellor nominated by the ICL.
During further examination in chief by the ICL, the Family Consultant acknowledged that the current proposal by the respondent mother was that there be equal shared parental responsibility in relation to Y and that the current interim arrangements for Y, spending alternate weekends with his father, in either City JJ or the greater Sydney area, should continue.
Given the respondent mother had relocated to City JJ, the Family Consultant was asked to consider their return to Region ZZ. The Family Consultant believes that the children should have access to the applicant father as that was developmentally appropriate and this would require a relocation to Region ZZ. The Family Consultant acknowledged that this would require a change in schools, which was best achieved at the beginning of a school year.
On being advised that X had not seen the applicant father since the CIC in 2017, the Family Consultant stated that in her view, X should spend time with the applicant father. The Family Consultant was not sure that the respondent mother would encourage it as the Family Consultant was still of the view that the situation as reported in the CIC memorandum was correct. In the Family Consultant’s view, X will only see his father if he is given emotional permission by the respondent mother and all Court Orders are complied with, if so ordered. If it was ordered to occur, this would need to be supported in an independent manner through the provision of counselling to X on issues relating to alienation. Any reintroduction of X to the applicant father should be a slow process. It was put to the Family Consultant that the respondent mother says that X should spend time with the applicant father “as he wishes”. If that were to be the Order, the Family Consultant concluded that X will not spend any time due to him being influenced by his mother.
The Family Consultant stated that she really struggled with the respondent mother and was concerned that she had not been honest with her (the Family Consultant). The Family Consultant stated that the current case was “one of the worst examples of alienation I have seen”.
In relation to the allegations of family violence, while acknowledging what had been reported by the respondent mother, although denied by the applicant father, there was no material to indicate that the family violence alleged was sufficient for restrictions to be placed on the time the children should spend with the applicant father.
During cross examination by counsel for the applicant father, the Family Consultant confirmed that X had a lack of emotional permission to see the applicant father. The concerning issue was that Y would not be also given such permission. In the Family Consultant’s view, Y not only needed permission but encouragement. The Family Consultant was asked to consider whether the respondent mother had the capacity to give emotional permission. The Family Consultant answered “no”.
In relation to various options, the Family Consultant was of the view that it would be best if the respondent mother were to relocate to Region ZZ area, but acknowledged that if this were forced upon her, the respondent mother would be resentful. If the respondent mother relocated to Region ZZ, it was best that the children live with her and that both boys spend time with their father. In the Family Consultant’s view, if the respondent mother was not prepared to relocate to the Region ZZ area, that it would be appropriate that Y lived with his father so as to ensure he could have a relationship with him.
During cross examination by counsel for the respondent mother, it was put that there had been a significant change in the mother’s attitude in that she was no longer seeking sole parental responsibility together with no time and no contact. The Family Consultant stated, in her view, having read all of the material that had been lodged with the Court following the Family Report, she was not convinced that the respondent mother had in fact changed. In order for there to be a significant change, the respondent mother would need to demonstrate, firstly, an intent to change, secondly, a capacity to change and, thirdly, an ability to sustain that change. The Family Consultant stated that she had not seen any of those three indicators in any of the new material that had been provided.
The Family Consultant was unable to comment on the possibility that X had formed independent negative views of his relationship with the applicant father and, that given the time that had elapsed between the writing of the report and the hearing today, parts of the report she acknowledged were redundant.
In relation to the issue of family violence, the Family Consultant acknowledged that family violence can occur inside families and is unknown to the outside world, particularly if the former family violence was coercive and controlling behaviour. The Family Consultant responded that, in her view, there was no evidence of coercive or controlling behaviour by the applicant father. The respondent mother had significant control of the farm and family finances. In the Family Consultant’s view, the respondent mother had issues in adjusting to rural life and the isolated living on the property near G Town.
The Family Consultant was asked if the Court formed a view that the respondent mother had facilitated time spent by Y with the applicant father in the last 18 months, whether that would indicate the respondent mother would support a relationship in the future. The Family Consultant replied that she had no evidence that the respondent mother would do that and that, in the Family Consultant’s view, the respondent mother does not want to support the relationship. The Family Consultant was prepared to concede, however, that it was possible that the respondent mother’s views had changed.
Issues of Credibility
The Court has carefully considered all of the evidence provided by the applicant father both orally and in documents tendered in evidence. The Court found the applicant father to be considered in his answers. The applicant father made appropriate concessions against his interest when required and, in particular, in relation to issues with firearms. The Court was of the view that the applicant father’s evidence was both credible and truthful.
The Court also carefully considered the evidence of the respondent mother both orally and in documents tendered in evidence. The Court has concerns as to the respondent mother’s statements that the applicant father was informed of her intention to relocate to City JJ. A number of property issues relating to the ownership of livestock by Ms T, and the loan of machinery by the paternal grandmother to the applicant father as discussed below, which were put to the relevant witnesses could not be sustained. Documents were produced supporting the ownership of the livestock by Ms T.
The Court has considerable concerns as to the denials by the respondent mother that she has sought to alienate the children from the applicant father. The Court prefers the opinions of the writer of the CIC memorandum and the writer of the Family Report. The Court does not accept there has been a change of heart in this regard by the respondent mother.
The above concerns, as well as the issue of family violence discussed below, have caused the Court to carefully scrutinise the respondent mother’s evidence, overall, and exercise some caution as to the overall credibility of her evidence and the weight that should be given to her evidence.
Issues of Family Violence
The respondent mother raised issues of family violence during the course of the marriage, including coercive and controlling behaviour by the applicant father towards the respondent mother and physical violence in respect of her and the children. There are also allegations of alcohol abuse in relation to the applicant father.
In relation to alcohol abuse, the respondent mother painted a picture of excessive alcohol usage on a nightly basis. The applicant father undertook a CDT test which provided a negative result. In the absence of any other evidence, the Court is not prepared to accept the respondent mother’s allegations of alcohol abuse by the applicant father. Contained within the applicant father’s tender bundle is a copy of the transcript of the defended hearing in relation to the respondent mother’s application for an ADVO. This hearing took place in May 2018, a relatively short period after the party separated.
The Local Court Magistrate noted that, under the relevant domestic violence legislation in New South Wales, the Court may, on application, make an Apprehended Violence Order if it is satisfied on the balance of probabilities that the complainant has reasonable grounds to fear on behalf of herself and the children, as well as reasonable grounds to fear and in fact fears, noting however that in relation to the children it is not necessary for the Court to be satisfied that the person for whose protection the order would be made, in fact, fears.
At point 40 on page 55 of the transcript, the learned Magistrate states as follows “I must say that I found the statement of [Ms Franklyn] (the respondent mother) to be very general, lacking much substance”. At point 45 on page 57 of the transcript the Magistrate states as follows:
I am troubled by the evidence given by the complainant in these proceedings. I find there is a degree of exaggeration. I am not satisfied on the balance of probabilities that there are reasonable grounds to fear, though I do accept that the complainant actually fears whether or not there is some sort of or sense of paranoia or not, which may lead her belief that the defendant hired [a] man with a backpack and a suit to walk around and follow her at various locations in [F Town] or not. I don’t know but even if I was satisfied there are reasonable grounds to fear it is not a matter in my view that it is appropriate to make an apprehended violence order for the protection of the persons named in the complaint.
While this Court must form its own view on the issue of family violence, this Court is entitled to take into account the findings of the local Court Magistrate as set out above. The Court notes that, as a result of the Interim ADVO being issued, the applicant father’s firearms were seized from him. The applicant father no longer has access to any firearms and is unlikely to be able to obtain a firearms licence in the future. This mitigates against any fears the respondent mother may have in relation to the usage of firearms by the applicant father in an inappropriate manner.
The Court notes that there is some evidence of complaints of family violence being made by the respondent mother in 2015 prior to the parties separating. This report was apparently made by a psychologist who saw the respondent mother about relationship issues during her pregnancy with Y.
Based on the totality of the evidence, including the independent evidence of the Family Consultant and the writer of the CIC memorandum, together with the material set out above, the Court is not satisfied that the applicant father poses a risk to either of the children and that there is a need to protect the children from being subjected to, or exposed to abuse, neglect or family violence at the hands of the applicant father.
The Court considers the evidence of Ms T to be truthful, credible and not shaken under cross examination. Based on her evidence, together with the evidence of the applicant father, the Court finds, as a fact, that the livestock are Ms T’s and do not form part of the joint matrimonial assets.
Evidence of the Respondent Mother as to Property
The respondent mother relied upon her trial Affidavit sworn the 15 January 2021 which contained no less than 31 annexures. The tender bundle consisted of no less than 1000 pages containing a large amount of financial records.
At paragraph 166 of the respondent mother’s Affidavit, the respondent mother complains that the applicant father has deliberately hid the value of stock and crops. The respondent mother states that she believes that the applicant father has lied about transferring stock off the farm. The respondent mother complains that the applicant father has breached various Orders made on 10 May 2018 by the Court. In correspondence dated 1 September 2020, the applicant father disclosed that he had a debt to LL Company of $86,113.19 as at May 2020. The respondent mother states “she believes [Mr Franklyn] is still farming as he now has a significant debt with a company specialising in agriculture and farming business”. The respondent mother suggests that the applicant father would have received approximately $5,000-$10,000, per annum, in cash sales from livestock, based on what he has earned in previous years. The respondent mother alleges that, at the time of separation, there was hay valued at $56,000 which has not been accounted for. The respondent mother alleges that the applicant father has transferred land to his brother, Mr S.
The respondent mother agrees that she purchased a property in F Town for $240,000 and paid a deposit of $24,000 from her own funds and $215,280 from a joint commercial loan. The respondent mother also agreed to receiving the amount of $164,766 from the proceeds of an insurance claim. The respondent mother claims to have paid $145,000 during the period of July 2015 to May 2016 from her own funds for joint farming purposes.
The respondent mother asserts that she assisted the applicant father with work around the property, including mustering stock, moving stock drenching, fencing, feeding, cooking for contractors and workers and undertaking the farm’s bookwork. The respondent mother also attended to most homemaker and parenting duties throughout the relationship.
The respondent mother confirms that the F Town property was sold for $155,000 which was paid to her. The respondent mother confirms that she has been unable to work since early 2020 and is currently on Centrelink benefits, but hopes to hire a room and commence work as an allied health worker at the AO Company in City JJ. The respondent mother confirms that she seeks to retain 60% of the overall property pool.
Under cross examination by counsel for the applicant father, the respondent mother confirmed that she had received a total of $376,000 from the sale of the Suburb CC property that was paid into the joint property pool. The respondent mother also spent an amount of $59,560 from the Q Company business account on various equipment, some of which was returned. The respondent mother agreed that she had received an inheritance of approximately $110,000 from her uncle in 2016 which was not included in her Affidavit. The respondent mother denied that she had tried to hide it, even though it was placed in a bank account in X’s name.
The Matrimonial Asset Pool
Each party relied upon a Balance Sheet for which there was substantial agreement but some differences that the Court will be required to rule on.
The applicant father’s Balance Sheet is as follows:
| Balance Sheet Note: This document can be sent by electronic means between the parties prior to it being filed at court. | Article I. | Name | MR FRANKLYN | |||||||||||||
| File No | DUC63/2018 | |||||||||||||||
| Date | 1/2/2021 | Time 10 am | ||||||||||||||
| Before | Judge Humphreys | |||||||||||||||
| Ownership | Description | Description | APPLICANT | RESPONDENT | ||||||||||||
| ASSETS | ||||||||||||||||
| 1 | Joint | 'C Property', J Street, Suburb K NSW | 515,000 | |||||||||||||
| 2 | Applicant | 'B Property’, M Street, Suburb K | 1,130,000 | |||||||||||||
| 3 | Applicant | 'O Property', M Street, Suburb K | 330,000 | |||||||||||||
| 4 | Applicant | Westpac | 0 | |||||||||||||
| 5 | Applicant | NAB 1 Account number …89 | 741 | |||||||||||||
| 6 | Applicant | L Bank - …05 | 40,556 | |||||||||||||
| 7 | Joint | L Bank - account number …54 | 50 | |||||||||||||
| 8 | Respondent | Q Company | 10,000 | |||||||||||||
| 9 | Applicant | Motor Vehicle 1 | 35,000 | |||||||||||||
| 10 | Applicant | Equipment Item 3 | 60,000 | |||||||||||||
| 11 | Applicant | Equipment Item 4 | 60,000 | |||||||||||||
| 12 | Applicant | Equipment Item 2 | 7,000 | |||||||||||||
| 13 | Applicant | Motor Vehicle 4 | 5,000 | |||||||||||||
| 14 | Applicant | Equipment Item 5 | 9,000 | |||||||||||||
| 15 | Applicant | Motor Vehicle 5 | 4,000 | |||||||||||||
| 16 | Applicant | Equipment Item 6 | 6,500 | |||||||||||||
| 17 | Applicant | Motor Vehicle 6 | 800 | |||||||||||||
| 18 | Applicant | Motor Vehicle 2 (Husband uses AQ valuation, Wife uses AP Valuation appraisal) | 90,000 | |||||||||||||
| 19 | Applicant | Motor Vehicle 7 | 4,000 | |||||||||||||
| 20 | Applicant | Equipment Item 7 | 6,000 | |||||||||||||
| 21 | Applicant | Livestock feeder | 800 | |||||||||||||
| 22 | Applicant | Equipment Item 9 | 4,000 | |||||||||||||
| 23 | Applicant | Equipment Item 10 | 800 | |||||||||||||
| 24 | Applicant | Motor Vehicle 8 | 450 | |||||||||||||
| 25 | Applicant | Equipment Item 11 | 700 | |||||||||||||
| Total | $ 2,310,397 | $10,000 | ||||||||||||||
| PREMATURE DISTRIBUTIONS | ||||||||||||||||
| 26 | Respondent | Receipt of Joint insurance monies | 132,000 | |||||||||||||
| 27 | Respondent | Receipt of sale proceeds of the F Town property | 155,000 | |||||||||||||
| 28 | Respondent | Expenditure of monies from business account | 59,560 | |||||||||||||
| 29 | Respondent | Loss on sale of F Town | 90,000 | |||||||||||||
| 30 | Respondent | Post-separation inheritance received and not accounted for ($110,000) | Exclude | |||||||||||||
| Total | $436,560 | |||||||||||||||
| LIABILITIES | ||||||||||||||||
| 31 | Joint | L Bank - overdraft Account number …03 | 149,406 | |||||||||||||
| 32 | Joint | L Bank - Commercial Loan Account number …99 | 447,000 | |||||||||||||
| 33 | Joint | P Bank | 33,524 | |||||||||||||
| 34 | Joint | L Bank Loan (Motor Vehicle 3) | 9,978 | |||||||||||||
| 35 | Applicant | Loan from brother (for legal fees –agreed excluded) | $70,000 | Struckout | ||||||||||||
| 36 | Joint | Outstanding council rates | 14,268 | |||||||||||||
| 37 | Applicant | LL Company | 91,908 | |||||||||||||
| 38 | Applicant | MM Pty Ltd | 38,154 | |||||||||||||
| 39 | Applicant | Mr OO | 2,000 | |||||||||||||
| 40 | Applicant | Mr NN | 15,000 | |||||||||||||
| 41 | Applicant | PP Accountants | 6,820 | |||||||||||||
| Total | $ 878,058 | $ 808,058 | ||||||||||||||
| SUPERANNUATION | ||||||||||||||||
| Member | Name of Fund | Type of Interest | Applicants value | Respondents value | ||||||||||||
| 42 | Applicant | Super Fund 2 | Accumulation | 20,954 | ||||||||||||
| 43 | Respondent | Super Fund 1 | Accumulation | 49,800 | ||||||||||||
| Total | $ 20,954 | $ 49,800 | ||||||||||||||
| NET ASSESTS WITH NO PROPERTY ADJUSTMENT | ||||||||||||||||
| Ownership | Description | Applicants value | Respondents value | |||||||||||||
| 44 | Assets | $2,310.397 | $10,000 | |||||||||||||
| 45 | Premature Distributions | $436,560 | ||||||||||||||
| 46 | Less Liabilities | (878,058) | ||||||||||||||
| 47 | Superannuation | 20,594 | 49,800 | |||||||||||||
| Total | $ 1,452,933 | $ 496,360 | ||||||||||||||
| TOTAL ASSETS (including Superannuation) | $ 1,452,933 | $ 496,360 | ||||||||||||||
The respondent mother’s Balance Sheet is as follows:
| Balance Sheet Note: This document can be sent by electronic means between the parties prior to it being filed at court. | Article II. | Name | MS FRANKLYN | |||||||||||
| File No | DUC63/2018 | |||||||||||||
| Date | 1/2/2021 | Time 10am | ||||||||||||
| Before | Judge | |||||||||||||
| Ownership | Description | Wife’s Value | Source of Value | |||||||||||
| ASSETS | ||||||||||||||
| 1 | Joint | 'C Property', J Street, Suburb K NSW | 515,000 | N Valuers dated 12 January 2021 | ||||||||||
| 2 | Applicant | 'B Property', M Street, Suburb K | 1,130,000 | N Valuers dated 12 January 2021 | ||||||||||
| 3 | Applicant | 'O Property', M Street, Suburb K | 330,000 | N Valuers dated 12 January 2021 | ||||||||||
| 4 | Applicant | P Bank (the car lease – see below) | ||||||||||||
| 5 | Applicant | Westpac | 0 | |||||||||||
| 6 | Applicant | NAB 1 Account number …89 | 741 | |||||||||||
| 7 | Applicant | L Bank – …05 | 40,556 | H’s bank statement | ||||||||||
| 8 | Joint | L Bank –account number …54 | 50 | |||||||||||
| 9 | Applicant | L Bank - Commercial (see liabilities) | ||||||||||||
| 10 | Respondent | Q Company | 10,000 | |||||||||||
| 11 | Applicant | Motor Vehicle 1 | 35,000 | AQ valuation dated 21 November 2019 | ||||||||||
| 12 | Applicant | Equipment Item 4 | 60,000 | AQ valuation dated 21 November 2019 | ||||||||||
| 13 | Applicant | Equipment Item 4 | 60,000 | AP Appraisal dated 8 August 2018 and AQ valuation dated 21 November 2019 | ||||||||||
| 14 | Applicant | Equipment Item 14 | 9,000 | AQ valuation dated 21 November 2019 | ||||||||||
| 15 | Applicant | Equipment Item 15 | 6,500 | AP Appraisal dated 8 August 2018 | ||||||||||
| 16 | Applicant | Equipment Item 6 | 6,500 | AQ valuation dated 21 November 2019 | ||||||||||
| 17 | Applicant | Equipment Item | 9,000 | AP Appraisal dated 8 August 2018 | ||||||||||
| 18 | Applicant | Equipment Item 6 | 6,000 | AP Appraisal dated 8 August 2018 | ||||||||||
| 19 | Applicant | Motor Vehicle 6 | 800 | AP Appraisal dated 8 August 2018 and AQ valuation dated 21 November 2019 | ||||||||||
| 20 | Applicant | Equipment Item 17 | 13,500 | AP Appraisal dated 8 August 2018 | ||||||||||
| 21 | Applicant | Motor Vehicle 2 | 75,000 | AP Appraisal dated 8 August 2018 | ||||||||||
| 22 | Applicant | Equipment Item 9 | 4,000 | AQ valuation dated 21 November 2019 ($4,000) AP Appraisal dated 8 August 2018 ($6,000 to $7,500) | ||||||||||
| 23 | Applicant | Equipment Item 10 | 800 | AQ valuation dated 21 November 2019 | ||||||||||
| 24 | Applicant | Motor Vehicle 8 | 450 | AQ valuation dated 21 November 2019 | ||||||||||
| 25 | Applicant | Equipment Item 11 | 700 | AP valuation dated 21 November 2019 | ||||||||||
| 26 | n/a | Equipment Item 2 | 7,000 | AQ valuation dated 21 November 2019 | ||||||||||
| 27 | Applicant | Equipment Item 12 | 15,000 | AP Appraisal dated 8 August 2018 | ||||||||||
| 28 | Applicant | Equipment Item 18 | 35,000 | AP Appraisal dated 8 August 2018 | ||||||||||
| 29 | Applicant | Equipment Item 7 | 6,000 | AQ valuation dated 21 November 2019 ($6,000) AP Appraisal dated 8 August 2018 ($2,500) | ||||||||||
| 30 | Applicant | Equipment Item 19 | 800 | AQ valuation dated 21 November 2019 | ||||||||||
| 31 | Applicant | Motor Vehicle 4 | 5,000 | AQ valuation dated 21 November 2019 | ||||||||||
| 32 | Applicant | Motor Vehicle 5 | 4,000 | AQ valuation dated 21 November 2019 | ||||||||||
| 33 | Applicant | Motor Vehicle 9 | 4,000 | AQ valuation dated 21 November 2019 | ||||||||||
| 34 | Applicant | Equipment Item 12 | 41,500 | AP Appraisal dated 8 August 2018 | ||||||||||
| 35 | Applicant | Equipment Item 20 | 100,000 | AP Appraisal dated 8 August 2018 | ||||||||||
| 36 | Applicant | Equipment Item 14 | 6,000 | AP Appraisal dated 8 August 2018 | ||||||||||
| Total | $ 2,537,897 | |||||||||||||
| Initial distribution | ||||||||||||||
| 37 | Respondent | Sale proceeds of F Town Property | 155,000 | |||||||||||
| Total | $ 155,000 | $ | ||||||||||||
| LIABILITIES | ||||||||||||||
| 38 | Joint | L Bank – overdraft Account number …03 | 149,406 | |||||||||||
| 39 | Joint | L Bank – Commercial Loan Account number …99 | 447,000 | |||||||||||
| 40 | Joint | P Bank (Motor Vehicle 1) | 33,524 | |||||||||||
| 41 | Joint | L Bank Loan (Motor Vehicle 3) | ||||||||||||
| 42 | Applicant | Loan from brother | ||||||||||||
| 43 | Joint | Outstanding council rates | ||||||||||||
| 44 | Applicant | LL Company | ||||||||||||
| 45 | Applicant | MM Pty Ltd | ||||||||||||
| 46 | Applicant | Mr OO | 2,000 | |||||||||||
| 47 | Applicant | Mr NN | ||||||||||||
| 48 | Applicant | PP Accountants | ||||||||||||
| Total | $ 631,930 | $ 0 | ||||||||||||
| SUPERANNUATION | ||||||||||||||
| Member | Name of Fund | Type of Interest | Wife’s value | |||||||||||
| 49 | Applicant | Super Fund 2 | Accumulation | 20,954 | ||||||||||
| 50 | Respondent | Super Fund 1 | Accumulation | 49,800 | ||||||||||
| Total | $ 70,754 | |||||||||||||
| FINANCIAL RESOURCES | ||||||||||||||
| Ownership | Description | Wife’s value | ||||||||||||
| 51 | N/A | |||||||||||||
| Total | $ 0 | $ 0 | ||||||||||||
| NETT TOTAL ASSETS (including Superannuation) | $ 1,976,721 | |||||||||||||
Based on the evidence of Mr S, the Court is satisfied that items 15, 18 and 20 on the respondent mother’s Balance Sheet, being an Equipment Item 15, an Equipment Item 6 and Equipment Item 17, belong to the paternal grandmother and are on long term loan to the applicant father. It is the Court’s view that these should be excluded from the joint Balance Sheet. Other items such as Equipment Item 21 and Equipment Item 22 were also loaned by the paternal grandmother, but the Court has been unable to identify them in the parties’ respective Balance Sheets.
Equipment Item 2 is valued by the respondent mother by reference to a AQ Company valuation dated 8 August 2018, at $15,000 compared to a valuation by the applicant father of $7,000. The Court prefers the former, independent valuation.
Motor Vehicle 2 is valued at $90,000 by the applicant father, but $75,000 by the respondent mother, by reference to a valuation. The Court prefers the latter. The respondent mother includes in her Balance Sheet Equipment Item 20 with a value of $100,000. The father applicant gave evidence that it did not work and was returned to the distributor. The Court accepts that evidence and excludes it from the Balance Sheet.
Equipment Item 18 valued at $35,000, Equipment Item 23 valued at $41,500 and Equipment Item 14 valued at $6,000 are included in the respondent mother’s Balance Sheet. However, these assets do not appear in the applicant father’s Balance Sheet. Each was identified in an appraisal undertaken in August 2018. In the absence of evidence from the applicant father as to the whereabouts of these assets, or their value, the Court accordingly proposes to include them in the Balance Sheet for the valuation given in the appraisal.
The Court does not accept that the applicant father is hiding additional assets and that all joint assets have been listed above. The Court has excluded the inheritance received by the paternal grandmother, post separation.
Both parties agree that the respondent mother received an initial distribution of $155,000 from the sale of the F Town premises. A loss of $90,000 was incurred on the sale of the premises purchased in F Town from joint assets. This loss was occasioned post separation. The premises were purchased for the respondent mother to conduct a business from, and were renovated. The respondent mother never used the premises and they were left empty, and was later sold at a considerable loss. The Court is satisfied that, in the circumstances, it is open to the Court to include these funds as a premature or initial distribution.
Evidence was given that the respondent mother received $132,000 net funds from an insurance claim as a result of hail damage to the B property, which was paid into her personal account. The Court accepts that evidence. It should be included as an initial or premature distribution.
Based on the totality of the evidence in the financial records, the Court accepts the applicant father’s submission that the respondent mother received an amount of $59,560 from the proceeds of the sale from her Suburb CC property, which she spent at her discretion. This should be characterised as an initial or premature distribution. The Court accepts the submission from Counsel for the applicant father that it would be unfair to credit the respondent mother for her capital contributions, without accounting for the distributions to the respondent mother.
In terms of liabilities, there is agreement as to the extent of loans from the L Bank and P Bank. The Court accepts evidence by the applicant father as to various other liabilities outstanding, including rates, LL Company, MM Pty Ltd, Mr OO, Mr NN and PP Accountants. A loan from Mr S of $70,000 for legal fees expended by the applicant father has been excluded as a liability.
There is agreement between the parties as to the extent of superannuation assets in their respective names.
The Court finds that the appropriate Balance Sheet for the purpose of further consideration is as follows:
| Balance Sheet Note: This document can be sent by electronic means between the parties prior to it being filed at court. | Article I. | Name | FRANKLYN | ||||||||||||||
| File No | DUC63/2018 | ||||||||||||||||
| Date | 1/2/2021 | Time 10 am | |||||||||||||||
| Before | Judge Humphreys | ||||||||||||||||
| ASSETS | Applicant’s Value | Respondent’s value | Source of Value | ||||||||||||||
| 1 | Joint | 'C Property', J Street, Suburb K NSW | 515,000 | 515,000 | N Valuers valuation dated 12 January 2021 | ||||||||||||
| 2 | Applicant | 'B Property', M Street, Suburb K | 1,130,000 | 1,130,000 | N Valuers valuation dated 12 January 2021 | ||||||||||||
| 3 | Applicant | 'O Property', M Street, Suburb K | 330,000 | 330,000 | N Valuers valuation dated 12 January 2021 | ||||||||||||
| 4 | Applicant | P Bank (the car lease – see below) | |||||||||||||||
| 5 | Applicant | Westpac | 0 | 0 | |||||||||||||
| 6 | Applicant | NAB 1 Account number …89 | 741 | 741 | |||||||||||||
| 7 | Applicant | L Bank – …005 | 40,556 | 40,556 | H’s bank statement | ||||||||||||
| 8 | Joint | L Bank –account number …54 | 50 | 50 | |||||||||||||
| 9 | Applicant | L Bank - Commercial (see liabilities) | |||||||||||||||
| 10 | Respondent | Q Company | 10,000 | 10,000 | |||||||||||||
| 11 | Applicant | Motor Vehicle 1 | 35,000 | 35,000 | AQ valuation dated 21 November 2019 | ||||||||||||
| 12 | Applicant | Equipment Item 3 | 60,000 | 60,000 | AQ valuation dated 21 November 2019 | ||||||||||||
| 13 | Applicant | Equipment Item 4 | 60,000 | 60,000 | AP Appraisal dated 8 August 2018 and AQ valuation dated 21 November 2019 | ||||||||||||
| 14 | Applicant | Equipment Item 14 | 9,000 | 9,000 | AQ valuation dated 21 November 2019 | ||||||||||||
| | | Equipment Item | | | | ||||||||||||
| 16 | Applicant | Equipment Item 6 | 6,500 | 6,500 | AQ valuation dated 21 November 2019 | ||||||||||||
| 17 | Applicant | Equipment Item 16 | 9,000 | 9,000 | AP Appraisal dated 8 August 2018 | ||||||||||||
| | | Equipment Item | | | | ||||||||||||
| 19 | Applicant | Motor Vehicle 6 | 800 | 800 | AP Appraisal dated 8 August 2018 and AQ valuation dated 21 November 2019 | ||||||||||||
| | | Equipment Item | | | | ||||||||||||
| 21 | Applicant | Motor Vehicle 2 | 75,000 | 75,000 | AP Appraisal dated 8 August 2018 | ||||||||||||
| 22 | Applicant | Equipment Item 17 | 4,000 | 4,000 | AQ valuation dated 21 November 2019 ($4,000) AP Appraisal dated 8 August 2018 ($6,000 to $7,500) | ||||||||||||
| 23 | Applicant | Equipment Item 10 | 800 | 800 | AQ valuation dated 21 November 2019 | ||||||||||||
| 24 | Applicant | Motor Vehicle 10 | 450 | 450 | AQ valuation dated 21 November 2019 | ||||||||||||
| 25 | Applicant | Equipment Item 11 | 700 | 700 | AQ valuation dated 21 November 2019 | ||||||||||||
| 26 | n/a | Equipment Item 12 | 7,000 | 7,000 | AQ valuation dated 21 November 2019 | ||||||||||||
| 27 | Applicant | Equipment Item 24 | 15,000 | 15,000 | AP Appraisal dated 8 August 2018 | ||||||||||||
| 28 | Applicant | Equipment Item 18 | 35,000 | 35,000 | AP Appraisal dated 8 August 2018 | ||||||||||||
| 29 | Applicant | Equipment Item 7 | 6,000 | 6,000 | AQ valuation dated 21 November 2019 ($6,000) AP Appraisal dated 8 August 2018 ($2,500) | ||||||||||||
| 30 | Applicant | Equipment Item 19 | 800 | 800 | AQ valuation dated 21 November 2019 | ||||||||||||
| 31 | Applicant | Motor Vehicle 4 | 5,000 | 5,000 | AQ valuation dated 21 November 2019 | ||||||||||||
| 32 | Applicant | Motor Vehicle 5 | 4,000 | 4,000 | AQ valuation dated 21 November 2019 | ||||||||||||
| 33 | Applicant | Motor Vehicle 9 | 4,000 | 4,000 | AQ valuation dated 21 November 2019 | ||||||||||||
| 34 | Applicant | Equipment Item 23 | 41,500 | 41,500 | AP Appraisal dated 8 August 2018 | ||||||||||||
| | | Equipment Item | | | | ||||||||||||
| 36 | Applicant | Equipment Item 14 | 6,000 | 6,000 | AP Appraisal dated 8 August 2018 | ||||||||||||
| Total | $ 2,411,897 | $ 2,411,897 | |||||||||||||||
| Initial distribution | |||||||||||||||||
| 38 | Respondent | Receipt of Joint insurance monies | 132,000 | ||||||||||||||
| 39 | Respondent | Receipt of sale proceeds of the F Town property | 155,000 | ||||||||||||||
| 40 | Respondent | Expenditure of monies from business account | 59,560 | ||||||||||||||
| 41 | Respondent | Loss on sale of F Town | 90,000 | ||||||||||||||
| Total | $ $436,560 | $436,560 | |||||||||||||||
| LIABILITIES | |||||||||||||||||
| 43 | Joint | L Bank – overdraft Account number …03 | 149,406 | ||||||||||||||
| 44 | Joint | L Bank – Commercial Loan Account number …99 | 447,000 | ||||||||||||||
| 45 | Joint | P Bank (Motor Vehicle 1) | 33,524 | ||||||||||||||
| 46 | Joint | L Bank Loan (Motor Vehicle 3) | 9,978 | ||||||||||||||
| 47 | Joint | Outstanding council rates | 14,268 | ||||||||||||||
| 48 | Applicant | LL Company | 91,908 | ||||||||||||||
| 49 | Applicant | MM Pty Ltd | 38,154 | ||||||||||||||
| 50 | Applicant | Mr OO | 2,000 | ||||||||||||||
| 51 | Applicant | Mr NN | 15,000 | ||||||||||||||
| 52 | Applicant | P Accountants | 6,820 | ||||||||||||||
| Total | $ 808,058 | $ 808,058 | |||||||||||||||
| SUPERANNUATION | |||||||||||||||||
| Member | Name of Fund | Type of Interest | Wife’s value | ||||||||||||||
| 52 | Applicant | Super Fund 2 | Accumulation | 20,954 | |||||||||||||
| 53 | Respondent | Super Fund 1 | Accumulation | 49,800 | |||||||||||||
| Total | $ 70,754 | ||||||||||||||||
| FINANCIAL RESOURCES | |||||||||||||||||
| Ownership | Description | Wife’s value | |||||||||||||||
| 53 | N/A | ||||||||||||||||
| Total | $ 0 | $ 0 | |||||||||||||||
| NETT TOTAL ASSETS (including Superannuation) | $ | $1,674,593.00 | |||||||||||||||
This results in a joint asset pool of $1,674,593.00.
Contributions
At the commencement of the relationship, the applicant father had the properties at B and O valued currently at $1,130,000.00 and $330,000.00 respectively, or $1,460,000.00 in total. A property at Town EE was sold in 2014 for approximately $250,000 which was used to reduce the applicant father’s overdraft of $302,000.00 to $105,591.00. The value of the properties, less the overdraft, leaves a contribution of $1,354,409.00. Added to this must be the value of machinery purchased, stock on the property, stored hay and crops, which is not valued, and superannuation entitlements of approximately $3,000.00. Counsel for the applicant father submits that an appropriate value on the contributions for the applicant father should be $1,500,000.00, in total. The Court accepts that figure as the best as is available on the evidence before it.
The respondent mother had a property at Suburb CC. It is common ground that the respondent mother sold the property for $900,000 in 2016 and received net proceeds of $809,543.00 from the sale. After the respondent mother discharged her mortgage of $403,887.00, it is agreed she introduced $376,000.00 into the property pool.
An issue exists between the parties as to further contributions by the respondent mother. The respondent mother received an inheritance in 2015, of $250,000 from the estate of her father. Counsel for the applicant father submits that, of that figure, only $171,000.00 should be included, as it was used to pay down the mortgage debt. The property pool should exclude $100,000.00 drawn down to pay for the C Property
Counsel for the respondent mother submits that $135,000.00 of that inheritance was used to partly fund the purchase of the O Property and that the respondent mother made transfers of an additional $145,000.00 into the property pool during the period of July 2015 to May 2016.
The Court is prepared to accept, as common ground, that the respondent mother contributed to the property pool $376,000.00 from the sale of the Suburb CC property, as well as a minimum of $135,000.00 towards the purchase of the O property. It is difficult to reconcile the difference claimed by the applicant father of additional contributions of $36,000.00 to make the claimed total contribution of $171,000.00 with the claim of the respondent mother of further contributions of $145,000.00 or $280,000.00 in total, on top of the funds from the sale of the Suburb CC property.
Given the respondent mother’s assets only consisted of the property in Suburb CC, and the inheritance, it is difficult to see where the total of $280,000 could have originated. The Court is prepared to allow an amount for contributions which is set at $200,000 plus the $376,000 from the sale of the Suburb CC property. The Court thus sets the respondent mother’s contributions as $576,000 in total.
Accordingly, the Court finds the applicant father’s contributions as $1,500,000.00 and the respondent mother’s as $576,000.00.
It is common ground that the applicant father undertook work on the farm, tending to the livestock, fencing, mustering and moving and feeding stock. The Court accepts that the respondent mother participated in many of the farm activities, but, in particular, acting as the primary home maker and parent for the two children throughout the relationship as well as undertaking all of the farming bookwork prior to separation.
The Court is of the view that, whilst this was a very short marriage, both of the parties undertook a lot of hard work to an equal extent.
Counsel for the respondent mother submits that the applicant father has failed to disclose information in relation to the parties farming enterprise since separation in October 2017 and thereafter. It is submitted that a 7.5% adjustment should be made in the respondent mother’s favour as a consequence of the applicant father’s failure to disclose his full financial situation. Reliance was placed on the cases of Weir & Weir [1993] FLC 92-338 and Black & Kellner [1992] FLC 92.287. The Court has carefully considered this submission. The Court notes that over a thousand pages of material were provided, consisting mainly of financial records comprised within the respondent mother’s tender bundle. In addition, the respondent mother’s Affidavit annexed numerous financial records to it.
The Court notes that contempt proceedings against the applicant father for failing to make financial disclosures and non-compliance with other Orders was dismissed by this Court before her Honour Judge Obradovic in August 2018. As pointed out by counsel for the applicant father, he has provided his tax returns and it was submitted that he has done his best to comply with onerous requests for disclosure in the circumstances. This includes having to recreate financial accounts and documentation following the respondent mother leaving the family residence and taking relevant records with her and changing passwords on some accounts.
Given the respondent mother undertook all the bookwork for the farm, the Court is satisfied that she has been well able to gain access to all relevant financial material through the use of subpoena, or requests for the applicant father to make financial disclosure. In regards to the respondent mother’s allegations that the applicant father has ownership of the livestock on the property, the Court is satisfied, of the evidence of Ms T, that she owns them. The Court is of the view that the respondent mother is simply unable to accept any version of events that is not consistent with her own view. Further, the allegations put to Mr S that the applicant father was the sole owner of the 2020 crops cannot be sustained. The respondent mother’s claim of non-disclosure by the applicant father must also contrasted to her non-disclosure of a further inheritance which she placed in a bank account under X’s name. In the circumstances, the Court is not prepared to exercise its discretion to make a further adjustment in favour of the respondent mother, in that, the Court is not satisfied that there has been non-disclosure by the applicant father. The Court does not accept that a cash flow budget document prepared by the applicant father 12 months in advance is in any way an accurate indication of actual future cash flows, particularly in years of drought.
Section 75(2) Factors
The Court takes into account the following factors pursuant to s 75(2) of the Act which are relevant to the matter:
·Both of the parties are relatively young and have the capacity to be able to undertake remunerative employment into the foreseeable future.
·The Court notes the claim that the respondent mother suffers from medical conditions, and has been previously diagnosed with cancer.
·Whilst the applicant father has continued to engage in farming activities, the respondent mother is currently unemployed, having relocated to City JJ, where she claims she is currently unable to find work as a tradesperson in her specialised field and has been reliant on Centrelink benefits since March 2020. The respondent mother claims that she is hoping to lease out a room to conduct her business and hopes to be able to earn approximately $55,000-$65,000 per annum.
·The Court notes that the respondent mother currently has primary care of the children but that may change, depending upon if the children relocate to the Region ZZ area.
·The Court notes the applicant father currently makes the required child support payments, as assessed by the relevant authority.
·The Court notes the reasonably short duration of the marriage and that it has not affected the earning capacity of either parent from that time or before the marriage.
·The Court notes that neither party is co-habiting with another person.
Finding
The respondent mother’s position is that there should be a 60/40% split of the matrimonial assets in her favour. The applicant father’s position is that there should be a 25/75% split in his favour. Taking account of distributions already made on behalf of the applicant father, this would result in no further distribution of matrimonial assets to the respondent mother.
The respondent mother’s claim can be best described as ambitious, given the initial contributions of the applicant father, the limited length of the marriage, her limited contributions overall and the funds already paid out to her.
Taking into account the respondent mother’s contributions and the factors pursuant to s 75(2) of the Act listed above, the Court forms the view that a just and equitable distribution of the joint matrimonial pool of assets is a 35/65% split in favour of the applicant father. From the joint asset pool of $1,674,593.00, the respondent mother is to receive a gross amount of $586,187.00. From this should be deducted the amounts previously paid out to the respondent mother of $436,560.00, leaving a net amount of $149,627.00. The Court is of the view that the respondent mother should retain her current superannuation, valued at $49,800.00, leaving the applicant father to make a cash payout to the respondent mother in the sum of $99,827.00.
The applicant father is allowed a period of 90 days to make the payment ordered, failing which, the property known as C Property is to be sold and the proceeds used to fund the payout to the respondent mother. Appropriate procedural orders to give effect to the property adjustment and the parenting orders are made at the beginning of this judgment.
I certify that the preceding two-hundred-and-twenty-eight (228) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 25 March 2020
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