FRANNER & HARKNESS
[2020] FCCA 627
•27 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FRANNER & HARKNESS | [2020] FCCA 627 |
| Catchwords: FAMILY LAW – Parenting and Property. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC(2) , 60CC(3), 75(2), 79A |
| Cases cited: Stanford v Standford (2012) FLC 93-518 |
| Applicant: | MR FRANNER |
| Respondent: | MS HARKNESS |
| File Number: | LNC 288 of 2019 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 29, 30, 31 January 2020 & 4 February 2020 |
| Date of Last Submission: | 4 February 2020 |
| Delivered at: | Hobart |
| Delivered on: | 27 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Verney |
| Solicitors for the Applicant: | Rae & Partners (Devonport) |
| Counsel for the Respondent: | Mr P Sullivan |
| Solicitors for the Respondent: | Paul Sullivan Lawyer |
ORDERS
Parenting orders
That the parents have equal shared parental responsibility for the children, X born in 2007 and Y born in 2009 (“the children”).
That X and Y live with the wife.
That the children spend time and communicate with the husband as follows:
(a)Each second weekend from the conclusion of school on Thursday (or 4.00 pm if not a school day) until the commencement of school on the following Monday (or 9.00 am if not a school day);
(b)For one half of each Tasmanian gazetted school holidays as agreed between the parties, but failing agreement, then for the first half of such holidays, such being from the conclusion of school on the first Friday until 12.00 noon on the second Saturday;
(c)On a week about basis during the Tasmanian gazetted summer school holidays as agreed between the parties, but failing agreement then in 2020/2021 holidays and each alternate year thereafter for the first week of such holidays and each alternate week thereafter and in 2021/2022 school holidays and each alternate year thereafter for the second week of such school holidays and then each alternate week thereafter with the time to commence and changeovers to occur on the Fridays at 4.00 pm;
(d)In any event the children are to spend time with the mother in 2020 and in each alternate year thereafter from 5.00 pm on Christmas Eve until 3.00 pm on Christmas Day and in 2021 and each alternate year thereafter from 3.00pm Christmas Day until 5.00 pm Boxing Day;
(e)In any event the children are to spend time with the father in 2020 and in each alternate year thereafter from 3.00 pm Christmas Day until 5.00 pm Boxing Day and in 2021 and in each alternate year thereafter from 5.00 pm Christmas Eve until 3.00 pm Christmas Day;
(f)If Mother’s Day shall fall on a weekend when the children are with the father then such time with the father shall cease on 5.00pm on the Saturday preceding Mother’s Day but should Father’s Day fall on a weekend when the children are not otherwise with the father then the children are to spend time with the father from 5.00 pm on the Saturday preceding Mother’s Day until the commencement of school (or 9.00 am on the Monday); and
(g)Such other time or variations of the above as may be agreed from time to time.
That time for the children with the father during weekends be suspended during all school holiday periods.
That changeovers for the purposes of these orders that do not occur at the children’s school, take place by the father or his designated agent collecting the children from the mother’s residence at the start of each period of time/with and the mother or her designated agent collecting the children from the father’s residence at the conclusion of each period of time with or such other arrangements as the parties may be agree from time to time.
Property orders
Pursuant to the findings of fact in the reasons herein the net tangible assets of the parties be divided as to 65% to the wife and 35% to the husband.
To give effect to these orders the husband within 28 days of the date of these orders make election and advise the wife’s solicitors accordingly as to whether or not he wishes to retain the property situate at A Street, Town B in Tasmania at value agreed between the parties of $850,000 or such other value agreed between them.
If the husband makes election to retain the property then within 60 days of the date of these orders the wife transfer and/or vest all her right, title and interest in the following to the husband absolutely:
(a)The property situate at A Street, Town B in Tasmania;
(b)The husband’s Motor Vehicle 1;
(c)Miscellaneous farming equipment, machinery and personalty and chattels in the possession of or under the control of the husband as of the date of these orders;
(d)The benefit of the ‘farm bank account’;
(e)Any bank account or like investment in the name of the husband as of the date of these orders;
(f)The husband’s superannuation policy and entitlement but subject to these orders;
(g)The dog ‘C’.
That contemporaneously with the transfer and vesting orders above or otherwise within forty-two (42) days of the date of these Orders, the husband transfer to the wife all his right, title and interest in the following absolutely:
(a)Motor Vehicle 2;
(b)Motor Vehicle 3;
(c)The Horse float;
(d)Any bank accounts or like investments in the name of or to the benefit of the wife as to the date of these orders;
(e)All personalty and chattels in the possession of or under the control of the wife under these orders;
(f)The wife’s superannuation policy and entitlement;
(g)The shotgun once belonging to the wife’s late brother;
(h)The dog “D’.
That contemporaneously with the transfer and vesting orders set out above, the husband make a lump sum payment to the wife so as to give a 65% division of the net tangible assets of the parties to the wife at value pursuant to the reasons herein.
That should the husband not make an election pursuant to these reasons to retain the property at A Street, Town B in Tasmania then the parties do all such acts and things and sign all documents necessary so as to place that property on the market for sale for sale with a real estate agent by a private treaty or auction as agreed between the parties at a sale price or reserve price as agreed between the parties but in default of agreement then as recommended by the agent with the proceeds of sale to be distributed as follows:
(a)To payment of the Westpac Mortgage loan secured by the property at A Street, Town B;
(b)To payment of the horse float loan;
(c)To payment of any outstanding tax liabilities from the sale of farm assets;
(d)To the reasonable costs and disbursement on the sale of the said property;
(e)Then as between the parties so as to give a 65% distribution of net tangible assets to the wife and 35% of net tangible assets to the husband pursuant to the reasons herein.
Should the husband retain the property at A Street, Town B in Tasmania then he be solely responsible for and indemnify the wife in respect of any liabilities attaching to that property including but not limited to the Westpac mortgage loan secured by the property and in this respect the husband is to make his best endeavours to refinance such loan and to obtain a release for the wife under that mortgage loan liability.
The wife be solely responsible for and indemnify the husband in respect of the husband of the following liabilities:
(a)Horse float loan ($5,000);
(b)Any liabilities to any of the assets retained by the wife pursuant to these orders;
(c)Any and all liabilities incurred by the wife since separation either her name alone or in joint names.
That in any event the husband be solely responsible for and indemnify the wife in respect of the following liabilities:
(a)Any liabilities attaching to any asset retained by the husband pursuant to these orders;
(b)Any and all liabilities incurred by the husband since separation in either joint names or in his name alone.
Pursuant to s.90MT(4) of the Family Law Act 1975, a base amount of $17,986 of the husband’s superannuation interest in Super Fund E with member number … to achieve an equalisation of the parties’ superannuation funds to the non-member spouse, Ms Franner (nee Harkness) to achieve an equalisation of the parties’ superannuation funds.
That in accordance with s.90MT(1)(a) of the Family Law Act 1975:
(a)the non-member spouse (or the non-member spouse’s administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in order (15) herein, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)the entitlement of the member spouse in the Super Fund E (or the entitlement of such other person who becomes entitled to receive a payment out of the member’s spouse’s superannuation interest) is correspondingly reduced by force of this order.
That the trustee of Super Fund E (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the non-member spouse in the immediately preceding clause of this order; and
(b)pay the entitlement whenever the trustee makes a splittable payment from the member spouse’s interest in the said Super Fund E.
That this order has effect from the operative time and the operative time is four (4) business days from the date of service of the order on the trustee.
After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the non-member spouse shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the non-member spouse’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the non-member spouse’s choosing in accordance with the SIS Regulations.
That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
AND THE COURT NOTES:
The value of the non-member spouse’s superannuation interest is calculated in accordance with the SIS Regulations; and
Any payments from the member spouse’s superannuation interest in the Super Fund E made after the trustee has created a new interest in the non-member spouse’s name in the Super Fund E are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
IT IS NOTED that publication of this judgment under the pseudonym Franner & Harkness is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 288 of 2019
| MR FRANNER |
Applicant
And
| MS HARKNESS |
Respondent
REASONS FOR JUDGMENT
Applications
These are parenting and property proceedings where the husband is the applicant. He seeks orders whereby the two children of the marriage, X born in 2007 (aged 12 years) and Y born in 2009 (aged 11 years) live with him and spend either four or five nights per fortnight with the mother. Alternatively, the husband has a 'fall back' position where the children live in a week-about arrangement between the parents.
The husband proposes financial orders where the property of the parties, inclusive of superannuation, be distributed on a 50/50 basis between the parties where he argues that contributions have been equal and that there should be no adjustment to either party by reason of the factors under s.75(2) of the Family Law Act1975 (‘the Act’).
The wife argues for parenting orders whereby X and Y live primarily with her and spend time with their father each alternate weekend from after school on Thursday until the commencement of school on Monday which I calculate to be four nights per fortnight together with time 'up to one half of each school holidays' provided the husband has approved leave of absence from his employment.
Both parties offer the other time on special days and both seek orders for equal shared parental responsibility for the children.
The wife argues for a property settlement of 65% of the net tangible assets in her favour and particularised as a loading of 10% to her on account of contributions and a further 5% adjustment to her after consideration of the s.75(2) factors. She proposes a ‘two pool’ approach where the combined superannuation entitlements of the parties be divided on a 50/50 division.
Background
The wife is 44 years of age being born in 1975. The husband is 41 years old being born in 1978.
The parties commenced their relationship in 1999 and were married in 2001.
The husband and the wife separated in November 2018, initially under the one roof for approximately two weeks, following which the husband moved out of the former matrimonial home.
The husband lives with his parents approximately five kilometres from the wife's residence at A Street, Town B in Tasmania.
The husband has re-partnered with Ms F who is 21 years old and works as a tradesperson in City G.
The husband has worked as a tradesman for a local company for the last 15 or so years. He previously obtained an apprenticeship and work for a local company for some years.
The wife works part time or casual as a sales assistant in Town B.
The wife has re-partnered with Mr H. She and Mr H had met as teenagers but reconnected after the parties’ separation. Mr H lives at Town J which I understand to be approximately 30 minutes drive from Town B. He works as a professional. He has two children aged 15 and 12 years who live primarily with their mother but with frequent contact to him. Mr H and the wife do not formally reside together although it appears that there are ambitions to do so.
Both Ms F and Mr H provided affidavits, gave evidence and were cross-examined.
Despite living with his parents and with evidence of some roles taken by the husband's parents in the care of the children, the husband did not adduce evidence from either of his parents although I understand and accept that both might suffer some medical issues.
The Evidence
The Husband
Mr Franner gave evidence and was cross-examined. He was forthright in his manner and at times to the stage of being blunt. The husband presented as an unsophisticated person but one with a sense of entitlement in respect of the major issues before the Court. He steadfastly refused to make admissions against interest and even when confronted with independent evidence contrary to his own such as not accepting the children's views as related to the family reporter as being made independently and with some rationality.
My observations of Mr Franner were that he had not yet separated emotionally from the marriage breakdown. He presented at times as angry. His demeanour was consistent with the suggestion that he had involved the children emotionally in these adult issues such as questioning the children after the release of the family report.
Overall, I sensed that Mr Franner's participation in these Court proceedings was not child focused in respect of parenting issues and at times his evidence was unrealistic in respect of financial matters.
Nevertheless, I accept that Mr Franner may still be grieving the demise of his marriage including he being required to move from the family farm and to lose daily contact with his children.
The Wife
Contrary to Mr Franner, Ms Harkness presented as open and candid in her evidence. She was prepared to make admissions against interest such as admissions as to her own mental health history and its impact on the household. Similarly, she admitted that she should have been more positive to the children when learning that Mr Franner had commenced a relationship with Ms F. Further, she was able to concede that she should have shielded the children from the adult dispute in the early days of separation.
Ms Harkness gave her evidence in a considered and informed fashion. She presented as a good historian and, again unlike Mr Franner, she appears to have moved forward emotionally from the marriage breakdown.
Ms F
Ms F presented with a pleasant disposition and obviously supportive of the husband and the children. Her evidence corroborated the statements of the children to the family reporter that they are engaged with and fond of Ms F. She does not present as a new partner attempting to usurp the mother in the children's lives. Overall, I found Ms F to be an impressive witness and an adult who will offer positive aspects in the children's lives.
Mr H
Like Ms F, Mr H was an impressive witness. He gave his evidence in a mature and child focused manner whilst presenting as supportive of Ms Harkness. Despite a previous altercation, Mr H does not seem to hold any residual bitterness towards the husband. He presented as objective and understanding of the complexities and difficulties for these children dealing with their parents’ marriage breakdown.
Ms K
Ms K provided an affidavit affirmed 16 January 2020. She gave evidence in support of the wife and was cross-examined. Ms K and her husband provide frequent assistance to Ms Harkness in the care of the children. She presented as an assertive and consistent witness not swayed in cross-examination. Mr L and Mrs K have had a long friendship with the parties but seem partisan now in their support of the wife. They do, however, offer a valuable and attentive service to Ms Harkness in her care of the children whilst allowing her to pursue her employment.
Mr L
Mr L presented as supportive, but partisan, of the mother’s case. Much of his evidence revolved around an altercation between he and the husband at the former matrimonial home on 1 March 2019. This incident occupied a disproportionate part of the trial in the sense of both time and its probative value. Suffice to say that Mr L claims to have answered a call of some distress from the wife during a changeover for the children. It would seem that the incident may have caused more stress for those children rather than alleviating it.
As with his wife, Mr L offers himself as a person who can assist the wife in the care of the children and indeed has been active in doing so.
Parenting issues
The following broader issues can be isolated in respect of the parenting applications:
a)the veracity of and the weight to be accorded the views of the children;
b)the nature of the continuing relationship between the parents and whether this is conducive to, and in the children's best interest, in respect of the husband’s alternative proposal of an equal-time arrangement;
c)the husband raises issues as to the wife's mental health and historical struggles with depression whereas the wife alleges that the husband consumes alcohol and cannabis to excess;
d)issues of family violence generally permeate the consideration in this matter; and
e)the relative capacity of these parents to attend to their children's physical, intellectual and emotional needs either as primary parent or in an arrangement of a cooperative and communicative shared parenting.
Relevant law – parenting
Parenting matters are provided for in Part VII of the Act. Importantly and fundamentally, s.60CA emphasises that it is the best interests of the children that is the paramount consideration for the Court. Those best interests are considered, weighed and balanced against a background of, firstly, the objects and principles of the Act set out in section for s.60B and secondly, and more pragmatically, to the mandatory considerations set out in s.60CC(2) and (3) of the Act.
Section 60B provides:
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.
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 by 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(1) of the Act offers a presumption that:
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.
That presumption does not apply if the Court is satisfied there has been relevant family violence or abuse of the child.
Alternatively, the presumption at subsection (1) can be rebutted by evidence satisfying the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
In the matter now before me both parties ask for orders for equal shared parental responsibility of the children. They do so against each making allegations of actual and propensity for family violence and where each claim significant difficulties in any form of cooperative or communicative relationship with the other.
Nevertheless, the importance of the presumption at s.61DA in the current matter is that if the presumption applies, or if the Court makes an order for equal shared parental responsibility, then a course of statutory and intellectual consideration flows. Firstly, pursuant to s.65DAA(1) the Court must consider whether it is both in the children's best interests and reasonably practicable for the children to live in an equal time arrangement between the parents. If the answer to either of those questions is in the negative then at sub-section (2) the Court needs to consider whether it is both in the children's best interests and reasonably practicable for the children to live in a regime of 'substantial and significant care' between their parents.
Section 65DAA(3) offers a definition of 'substantial and significant time' as follows:
a) the time the child spends with the parent includes both:
i)days that fall on weekends and holidays; and
ii)days that do not fall on weekends and holidays; and
b)the time the child spends with the parent allows the parent to be involved in:
i)the child's daily routine; and
ii)occasions and events that are of particular significance to the child; and
c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parents.
In essence, the primary positions taken by each of these parties do not fit comfortably with either the definition or spirit of s.65DAA(1) or (2) although each proposal does anticipate to me weekday time for the children with the other parent.
Issues of reasonable practicability do not feature here where the parties live in relative proximity and the focus for the Court is on the children’s best interests.
The family report
Family consultant, Ms M, provided a family report dated 5 December 2019 after interviews of the parents and the children on 24 October 2019. The husband's partner, Ms F, was also interviewed.
Ms M gave evidence and was cross examined.
Ms M makes recommendations in her report and following her cross examination as follows:
101.It is recommended that X and Y live with their mother.
102It is recommended that X and Y spend time with their father every second week from after-school Thursday to before school Monday.
103.It is recommended that X and Y spend time with their father during the school holidays only when their father is also on holidays, and able to spend time with them.
104.It is recommended that Mr Franner and Ms Harkness independently attend counselling for parents who have separated.
Both the husband and the wife gave histories to Ms M and roughly consistent with their evidence to this Court. Specifically Ms M notes at [22] and [23]:
22.Mr Franner alleges Ms Harkness has been physically and verbally abusive to him during their relationship.
23.Ms Harkness alleges that Mr Franner has been physically, emotionally, sexually, financially and verbally abusive to her during the relationship.
There have been seven reported incidents of family violence noting Mr Franner as the offender and in March 2019 mutual police family violence orders were issued with the wife being subsequently charged with one count of breach.
Ms M had the advantage of interviewing X and Y and observing them with their parents. The children described mutually positive and supportive relationships.
At [67] Ms M reports X as follows:
“I get on best with Mum… I can talk to her and she gives me choices… it is always good with Mum”. X stated that his mother “acts differently” now that their father no longer lives with them”. He said that the home is quieter, more spacious, calmer and more peaceful since their father no longer lives with them. X said "I've been with mum my whole life and I like being with her”. He said that he found it hard to spend a full weekend away from her.
[68] X described not seeing a lot of his father when his father lived with them. He said, “It was mostly me, Mum and Y”. He described his father as coming home late from work and rarely coming home early enough to engage with him. X also complained about his father “trying to run our lives”. He stated “I love him… but we're not close… I see him now a whole lot more than I ever did before.” He said that his father often asks them what they are doing when with their mother and then “yells at us and tells us not to go places with Mum”. He said “I don't feel secure with Dad … I don't feel safe with him… I'm always scared he will get mad.”.…
X went on to state that he was often a “bit bored” with his father and described his father as making decisions for him rather than consulting with him.
X was positive in his comments in respect of Ms F but described some annoyances with his paternal grandparents with whom he stays when with his father.
X was also positive in respect of Mr H and his children.
In respect of interim arrangements whereby the children spend Wednesday overnights with their father, X expressed some difficulties with that arrangement in the sense of not being able to settle. He stated that he would prefer a block of five nights rather than a split of four and one nights.
It is clear that Ms M, both in her report and her oral evidence, places some weight on X’s views. At [73] of the report appears the following:
X's views appear to have been formed by his own experience, and he impressed as being mature enough to have formed his own opinion. He has developmentally reached the age where he has an increasing capacity to understand parenting arrangements, and to make future plans based on his own experiences. His views appeared consistent with later family observations and with the family history.
Y also expressed some difficulties with the punctuation of Wednesdays into the fortnightly regime. She went further to say, however, that she would find a block of five consecutive days away from her mother to be difficult. Y stated at [77] that she loves her father and likes spending short periods with him. She expressed similar concerns as did X in respect of the lack of consultative parenting by Mr Franner. Again and similar to her brother, at [80] Y is reported as:
Y described having a close relationship with her mother and said that she liked living with and spending time with her. She said that (sic) found living with her mother more peaceful and less demanding than when she lived with her father.
As with her brother, Y expressed having a good relationship with Ms F but to having some difficulties with the paternal grandmother.
The children were observed with the both parents. At [86] Ms M reports:
The children were observed to interact with their father in a rather stilted and forced manner. The relationship observed was not an easy and relaxed one.
To the contrary, Ms M noted her observations of the children and the mother at [87] as follows:
When the (sic) Ms Harkness entered the observation room, she was greeted with warmth. X was observed to hug his mother and to skip around her in an excited manner. Ms Harkness easily hugged X back and asked him and Y “how about we play bowls?”
Throughout the interaction Ms Harkness was heard to compliment and encourage the children saying “nice writing Y” and “nice bowling X” at different times. They also commenced playing a game of UNO. On this occasion, the children looked more at ease, laughing and assisting each other in the game. They both appeared to be invested in the game and appeared to be having a relaxed and fun time.
In her evaluation Ms M noted the continuing animosity between the parents and says at [90]:
It is considered that family violence is a factor that needs to be taken into account in the parenting arrangements, which should continue with changeovers occurring without the necessity for either parent to be present.
Ms M considers but is dismissive of the father's alternative proposal of an equal time arrangement. During her evidence in Court, Ms M went to some trouble to explain the generally accepted traits that underpin a successful equal shared parenting regime with emphasis on the abilities of the participants to be cooperative, communicative and respectful. She did not find these traits apparent in these parents. At [91] Ms M opines:
It is unlikely that 50/50 week about parenting, would offer X and Y a stable parenting regime. Mr Franner impressed as a parent who considers his opinion needs to take pre-eminence, and he articulated scant regard for the children's views and wishes. This parenting approach is unlikely to make co-parenting in a week-about arrangement beneficial to X and Y. The existence of ongoing family violence would further make it difficult for Ms Harkness and Mr Franner to co-parent in an equitable and harmonious manner.
Ms M repeated that the children's views expressed independently that they do not wish to live primarily with their father or even for a period of five consecutive days.
Ms M recommendations seem to be rationalised at [96] where she says:
X and Y did not impress as just not liking to spend time with their father they also impressed as actively wanting to spend time with their mother. They both independently described positive and warm relationship with their mother and wanting to be in her company. X expressed this as “I could not cope with being more than four nights away from mum… I don't really want to go off with him [Dad]… I feel best with Mum”. Y expressed this as “I want to live with Mum… I would miss Mum if I spent that time [five nights] with Dad … I would not like that”.
At [99] is a summary of her conclusions as follows:
It is likely that as Ms Harkness has been the undisputed primary parent of X and Y she has more readily, and easily, adopted her parenting style to their developmental needs. In the same way, it is likely that Mr Franner due to his minimal involvement in the children's lives, has yet to appreciate that X and Y are no longer little children, and that his parenting style has to accordingly adjust.
Section 60CC considerations
Section 60CC(2)(a) the benefit to the children of having a meaningful relationship with both of their parents.
The tenor of the husband’s evidence is that the Court should make orders maximising his time with the children so as to have a consequent benefit of a meaningful relationship with him. The authorities, of course, consistently suggest that the Courts consideration is focused on the quality of the relationship between children and parent rather than simply the quantity of the time.[1]
[1] McCall & Clark [2009] Fam CAFC 92 @ [119]
Although a ‘primary’ consideration, this is not of itself determinative of the orders that the Court should make but rather simply one of a plethora of considerations to be weighed and balanced on the particular factual platform and circumstances before the Court[2].
[2] Champness & Hansen [2009] Fam CAFC 96
The evidence before me satisfies me generally that X and Y, at 12 and 11 years of age respectively, have established relationships with each of their parents. This being the case, and again given their ages, I am comfortable in concluding that the orders which I make will continue to benefit the quality of those relationships.
The evidence given and adduced in Court also satisfies me that the children’s current primary source of attachment, support and dependency rests with their mother and this itself suggests that she may have assumed a primary parenting role during the course of the relationship.
Section 60CC(2)(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
Each of these parents sought to emphasise family violence, within its broad definitions in the legislation, in this matter. Nevertheless I prefer to see family violence here more in its contextual nature and particularly given the emotions of the relationship breakdown between these two parents. As such, and whilst the personal relationship between these parents remains antagonistic and suspicious, the manifested instances of violence might be seen as more situational than entrenched. Again, much time and effort was put towards one incident in March 2019 involving the husband and Mr L. The surrounding circumstances, however, are again suggestive of situational violence rather than innate characteristics. Both of these parents have now re-partnered. In a sense they have or are moving on from the demise of their own relationship. There are indications by both of them in the witness box of a greater sense of insight into the need to protect their children from the conflict still potential in their own relationship.
Section 60CC(3)(a) any views expressed by the children and any factors such as the children’s maturity or level of understanding the Court thinks is relevant to the weight it should give the children’s views.
These children’s views are clearly and consistently articulated as being to reside primarily with their mother. The applicant husband unsuccessfully attempts to challenge the veracity and rationality of the children’s views being based on their misunderstanding of the wife’s conduct towards him. I prefer that the children’s views are informed, empirically based, rational and mature. Such views are succinctly noted by the family reporter at [96] as both children ‘actively wanting to spend time with their mother’ and particularising that they would prefer not to spend more than block periods of 4 nights away from their mother. Equally however, it is apparent that both children wish to continue a direct relationship with their father but with a preference to have a home base with their mother.
Section 60CC(3)(b) the nature of the children’s relationship with each of their parents and other persons (including grandparents).
My observations of each of the parties in the witness box together with their evidence corroborates the views of the family reporter that the children have a more comfortable and secure relationship with their mother than they currently do with their father. There is conflict for both children with their father’s more assertive and less consultative parenting style. Similarly the clear indications are that neither child is comfortable with their father’s current living arrangements and that their relationship with their grandparents is not generally a comfortable one. That situation, of course, may be rectified should the husband’s own living arrangements become more stable and independent.
All indications are that the children have enjoyable and comfortable relationships with both Ms F and Mr H.
Section 60CC(3)(c) and (ca) the extent to which each of the children’s parents has taken, or failed to take the opportunity to participate in making long term decisions in respect of the children to spend time with the children; to communicate with the children; and to fulfil it’s obligations to maintain the children
Generally, the family unit prior to separation evolved in a traditional form of the husband being the breadwinner and being a hard worker in that role. He worked extra time in casual employment and on the farm. This, in turn left the primary parenting role to the wife. This, however, cannot be seen as a criticism of the husband given that each of the parties acquiesced to the delegations within the family unit.
Section 60CC(3)(d) the likely effect of any changes in the children’s circumstances including the likely effect of the children on any separation on any of the parents.
The orders that each of the parties seek will continue to provide frequent and regular time for the children with each of the parents. The husband’s primary position, however, would involve a more drastic change for these children. As mentioned above, by reason of the assuming of roles during the relationship and the circumstances since the demise of the parents’ marriage, these two children have come to understand their mother as their primary parent. The husband seeks to assume this role. My observations of him in the witness box were of a general lack of insight into the impact of such a change would have on these two children where such orders would be contrary to their own wishes and preferences. These parents have different parenting styles where the mother is more consultative and inclusive of the children whereas the father seems more assertive and less child focused in his decision making. A change of primary residence and parent would therefore, in my view, impact significantly on these two children and, I expect on their relationships with each of their parents moving forward.
Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficultly or expense would affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
The parents live in close proximity and despite their poor personal relationship and work commitments, they have been able to continue the children’s relationships with both of them thus far. The indications are that the parents will continue to live in the same locality.
Section 60CC(3)(f) the capacity of each of the children’s parents; and any other person (including any other grandparent or other relative) to provide for the children’s needs, including emotional and intellectual needs.
The husband’s affidavit material is critical of the wife’s capacity as a homemaker during the relationship. The home is described as chaotic, untidy and unkempt. At [10] of the family report, Y describes the family home before separation as ‘crowded, noisy and chaotic’. Ms Harkness admits her difficulties in managing the household during an unhappy marriage. There are suggestions that she suffered a form of depression or similar emotional illness. Nevertheless, all indications now are that the mother has addressed these circumstances and that her homemaker and parenting skills are such that she provides adequately for the children.
The children complain generally about their father’s current living arrangements with his own parents. His evidence is that this situation will be rectified after these orders. There are, however, more subtle criticism of the husband’s parenting style and, in particular, his insight into the emotional needs of the children. This is perhaps best put by the family reporter at [94] where she says:
The children, negatively described Mr Franner’s expressed parental attitude of the children needing to ‘fit in’ with him in the following way. X expressed it as ‘he’s trying to run our lives…he asks about what we have been doing with mum…he yells at us and tells us what we should be doing…he doesn’t give us choices when we are with him…his controlling.’ Y expressed it as ‘Dad goes off his head…when he finds out who we have been with…we always don’t have a say…Dad doesn’t give us a choice.’ Both children expressed a fear of their mother and Y was observed at the prospect of travelling from the Court to her father’s home after this assessment.
Section 60CC(3)(g) the maturity, sex, lifestyle and background including lifestyle, culture and traditions of the children and either of the children’s parents and any other characteristics of the children that the Court deems relevant
The children currently share a bedroom at their father’s home with their grandparents. This may influence their preferences as to their overall living arrangements where they maintain their own rooms in the former matrimonial home with their mother. They are also of ages and opposite sexes whereby it is perhaps inappropriate for them to be sharing a bedroom even in the shorter term. Secondly, these are children who, from the family report, appear to be mature, informed and voluntary in the statements of their preferences and in particular, to live primarily with their mother.
Section 60CC(3)(h) if the children are Aboriginal or Torres Strait Islander
Not relevant.
Section 60CC(3)(i) the attitude of the children and the responsibilities of parenthood demonstrated by each of the children’s parents.
I had the advantage of seeing the parents give their evidence in Court. This, coupled with the observations of the family reporter lead me to conclude that Mr Franner is somewhat naive in his understanding of the responsibilities of parenting. He gives a distinct impression of ‘parenting as a right’. He at times seemed entitled in his application that the children live primarily with him and without insight and focus on the children’s own needs and views. Such is consistent with the children’s complaints of their father that he focuses on his own interests and activities over and above mutual involvement with them. There is some merit in the mother’s criticism of him taking an interstate holiday at a time when the children were to spend school holidays with him and where he deposited the children with relatives rather than the children spending that time with their mother. Further, there are strong indications on the evidence, including from the husband himself, that his lack of insight into the needs of the children and the impact of the parent’s separation on them extends to him exposing the children to the adult dispute including questioning the children about their interviews with the family reporter. Whilst the wife suffered difficulties in discharging her responsibilities in the later stages of the marriage, the strong suggestion is that she was suffering a form of mental health issue at the time. All indications now are that Ms Harkness is child focused and competent in discharging those responsibilities.
Section 60CC(3)(j) & (k) any family violence involving the children or a member of the children’s family and any family violence orders
There are current mutual family violence orders between these parents. The mother has been charged with one count of breach of an order to which she intends to defend the charge at a hearing which was to take place following the evidence before me. Suffice, for me to say, that the particulars of that count or breach do not feature highly in my determination of these children’s best interests.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the initiation of further proceedings in relation to the children
The husband understandably expresses some concern in respect of the stability of his children by reason of the wife commencing a relationship with Mr H where Mr H lives in a town some 30 minutes from Town B. On reflection I do not see that this is an issue which should lead to further proceedings in the sense of any ‘relocation’ type application.
Findings and Conclusions
Each of these parents argue a primary position that the children, X and Y, should live primarily with them. The father’s alternative position is for equal shared care arrangement for the children between the parents.
I find that the children’s primary attachment and dependency is with their mother. It follows that I find that she has historically been the primary parent within what was a traditional household. This is not a criticism of the husband but simply a fact of the delegation of roles within the family unit.
These children have established and relatively comfortable relationships with each of their parents. The children’s concerns with their father rest on his current living arrangements with his parents and his parenting style which is less inclusive and child focused than that of the mother.
There is a toxic and conflictual relationship between these parents. Undoubtedly there have been instances of family violence within the broad definitions of that term. Nevertheless and with the flux of time following the demise of their relationship, I am confident that these parents will be able to shield the children from these adult issues.
In this respect, the husband must still address his insight into the impact on the children by exposure to the adult conflict. I am not satisfied that he has currently achieved such an insight.
The children have clear and informed views that they prefer to live with their mother. They have articulated this position to each of their parents which itself demonstrates a high level of maturity and rationality. They have been able to tell the family reporter of the rationale for their preferences. As such, I am obliged to consider the impact of the children of any orders which would be contrary to their views. Given the ages and maturity of these two children, I fear that an order in the terms of the husband’s primary position would impact negatively for these children in respect of their relations with both their father and their mother. They would undoubtedly miss their mother and particularly so where each of the children have expressed a view not to be away from their mother for block periods of more than
four consecutive days. Further, it is entirely possible that they would form a resentment to their father which would further impact on what is currently a somewhat tenuous relationship.
I am satisfied that the wife now has the capacity to attend to the children’s physical, intellectual and emotional needs. She has acknowledged her previous deficiencies. All of the evidence satisfies me that she has addressed those issues which may well have been situational in respect of the unhappy marriage. To the contrary, the husband does not appear to have similarly moved on from the breakdown of the marriage. He remains overtly bitter towards the wife. He has exposed the children to that bitterness. His own living circumstances, by his own admission, are transient. His parenting style continues to reflect the role that he took during the marriage and he is not insightfully inclusive of the children in their relationships with him.
I am satisfied that both Ms F and Mr H offer proper supportive roles for both Mr Franner and Ms Harkness. Neither Ms F nor Mr H seek to usurp the actual or emotional positions of the father and the mother. The children enjoy the company of Ms F and Mr H.
For all of these reasons, I am satisfied that the best interests of the X and Y rest with them remaining living primarily with their mother. I note the children’s explicit views to the family reporter in respect of not spending block times away from their mother of any long duration. I also note the views of the children, and apparently shared by both parents, that the interim orders which punctuate long-weekend time for the children with the father on alternate Wednesdays have had limited utility and neither children nor parents prefer a continuance.
Both parents seek an order for equal shared parental responsibility for the children. Whilst the presumption at s.61DA might not strictly apply here, I have some confidence that the current poor communicative relationship between these parents might improve following the conclusion of these proceedings and hopefully with the benefit of these reasons. In those circumstances, and where it is important for these two children to understand that their parents are both contributing to long term important decisions for them, I intend to make an order for equal shared parental responsibility.
There will be orders for X and Y to live with their mother and spend time with their father each second weekend from the Thursday after school until Monday at the commencement of school. Such an order will give these children a sense of routine without the inconveniences of the interim order for alternate Wednesdays. It will also give the father the opportunity for some involvement in the children’s schooling and for the children to see and understand him taking that responsibility.
Whereas the wife seeks conditions upon the children’s school holidays with the husband being conditional him being on leave from his employment, I prefer that the children spend equal time with the parents during their school holidays. Each of these parents work.
Each of them would be equally required to make alternate arrangements for the children. Each have strong support networks. In such circumstances I do not think it proper to place such conditions or constraints on the children’s time with their father. Ideally, of course, there should be no repetition of the previous situation where there was an interim order for the children to spend school holidays with their father but where he chose to deposit the children with other persons whilst he pursued an interstate holiday. As such, a higher degree of cooperation, trust and respect between these parents might give some flexibility during school holidays if the children’s needs conflict with either parent’s work commitments.
Property
The applicant husband proposes orders whereby all of the property of the parties including their superannuation entitlements be divided on a net 50/50 basis. He argues that the relationship was a long one of
20 plus years duration. He says that contributions overall should be seen as being equal. Of course, the husband’s argument is based on his quest to have the children live in an equal time regime between the parents and hence he argues there should be no adjustment by reason of the fact it’s under s.75(2) of the Act.
The wife argues that she should receive 65% of the net asset pool with the superannuation entitlements to be split as to effect a 50/50 division of the parties’ total superannuation entitlements. Specifically, she argues for a loading of 10% of the tangible property pool in her favour by reason of superior contributions and notably an inheritance received by her from her late mother’s estate in about 2009 which included the property on which the former matrimonial home now sits.
Relevant law
Matters of property settlement are dealt with under s.79 of the Family Law Act 1975 where the Court has a broad discretion to make orders which are just and equitable in altering the property interest of parties subject to the statutory limitations.
The well-known decision of the High Court in Stanford v Standford[3] served to remind trial judges of the fluidity of the considerations rather than the rigidity which had previously imbued the process and specifically where s.79(2) provides a precondition to any consideration of adjustments that it be just and equitable to make any order in the particular circumstances of the parties before the Court. This consideration is not to be simply conflated with a consideration of contributions pursuant to s.79(4) although this may be an element of the greater consideration.
[3] (2012) FLC 93-518
In the matter now before me the parties endured a relationship of more than twenty years duration. There are children of the relationship.
They have accrued real property and other assets. I am satisfied that the marriage has broken down. In all of those circumstances, I am easily persuaded that it is just and equitable to enter into a consideration of altering their property interests.
The Court is then to determine the property pool. ‘Property’ includes assets, liabilities and financial resources of the parties or either of them. Superannuation is to be treated as ‘property’ although not strictly having the same characteristic as an asset. The Court is then to give value to each element of the pool and hence to the property pool itself.
Section 79(4) then provides that the Court is to consider the contributions by or on behalf of each of the parties to the acquisition, conservation or improvement of the property pool. Contributions may be of a direct or indirect financial type. Contributions may be of a non-financial type including as homemaker and parent.
After a consideration of any distribution of the property pool by reason of contributions the Court then considers whether there should be any further adjustments to either of the parties on account of matters set out on s79(4)(d)-(g) including relevant matters under s.75(2) under the Act.
It is open for the Court to consider the property pool on a global basis inclusive of superannuation being a ‘one pool’ approach or, more commonly, on a ‘two pool’ approach with separate considerations of the tangible property pool and then the superannuation entitlements.
Finally, and sometimes controversially, the Court is then to ‘stand back’ and consider whether the orders proposed to be made from these considerations are in themselves just and equitable as distinct from a simple percentage division.[4]
[4] Russell v Russell (1976) 134 CLR 495
The property pool
The husband’s affidavit at [60] sets out his view as to the property pool. The wife in her trial affidavit [92] says that she generally agrees with the husband’s affidavit. As such, I am able to find the parties agreed property pool as follows:
Assets
Value
A Street, Town B (on market)
$850,000E
Motor Vehicle 1 (husband)
$50,000
Motor Vehicle 2 (wife)
$20,000
Motor Vehicle 3
$15,000
Horse Float
$10,000
Livestock (March 2019)
$75,000E
Farm account
$30,807.46
Bank accounts
Nominal
Assets
$1,050,807.46
Wife’s superannuation
$70,052
Husband’s superannuation
$106,024
Total superannuation
$176,076
Total Assets
$1,226,883.46
Liabilities
Mortgage loan – Westpac
-$147,067
Horse float loan
-$5,000
Total Liabilities
-$152,067
Net Assets
$1,074,816.46
The wife also says that the husband has retained or disposed of a quantity of farm plant and equipment. Generally the evidence from both sides was unsatisfactory with respect to these items. The husband made some concessions in respect of disposing of some items to his brother, or claiming on other instances that family members actually owned the relevant items. I am unable to make any precise findings save and except that I will take into account under s.75(2)(o) that the husband has retained the benefit of some farm plant and equipment albeit not at significant value.
Secondly, the husband claims that there is a potential benefit in a family tax lump sum to be paid to the parties or to the wife.
He estimated such payment to be $14,000. He includes it in his affidavit as a ‘financial resource.’ Again, the evidence in respect of this issue is unsatisfactory. I am generally satisfied that the wife has, and will now continue, to be the primary parent for these children and hence has an entitlement to a Centrelink benefit as calculated by that department. If the husband has any entitlement then it is a matter for him to make an application to the relevant government department rather than to use this Court to pursue an order that may well be contrary to the departmental assessment process.
There are other smaller discrepancies between the parties consistent with the operating and management of a farming enterprise such as the continuing variation of head of stock and stock prices on the farm. To their credit, the parties are able to agree the livestock value as of March 2019 at $75,000E.
Contributions
At the commencement of their relationship in 1999 the husband owned a block of land which was sold approximately 2 years later for $30,000. That money was contributed to the parties’ first home. Each of the parties otherwise owned motor vehicles, motor bikes and personalty with no substantial value.
In about 2008/2010 the wife received an inheritance from her late mother’s estate of the farming property on which the former matrimonial home now sits at A Street, Town B. There is no evidence in proper form as to the land value back noting some form of inferior residence did sit on the property. The parties agree that the building of the former matrimonial home cost approximately $300,000 and that the property is currently on the market for $850,000. I can infer and deduce, therefore, that the inheritance by the wife was of significant value and, indeed, sits now at the value in respect of the current overall wealth of these parties.
Each of the parties worked during the relationship albeit with the wife taking time off from her employment to assume the role of homemaker and parent. Further, it is agreed that the husband was a hard worker and often took on extra work such as farmhand. Although, the husband was the primary income earner overall during the relationship, I am satisfied that the parties each assumed delegated roles within the family unit and that overall their contributions, save and except for the wife’s inheritance, were equal during the relationship.
The husband appears to claim some contribution by his work on the property at A Street, Town B prior to the wife receiving the property by inheritance. The parties agree that they had intended to build a residence on that property prior to the death of the wife’s mother including residential arrangements for the wife’s mother. I am generally satisfied that both the husband and the wife did some preliminary work on that property prior to it coming to the wife by inheritance but reject any argument by the husband that this amounts to some extra contribution by him.
Since separation the children have continued to live primarily with the wife although they spend significant and substantial time with the husband. The wife has had the continued use and benefit of the former matrimonial home although the husband has had the continuing benefit of the farming enterprise operated on that property. In these circumstances and without evidence of any precision I do not intend to make any further adjustments on account of post-separation contributions.
This was a relationship of near 20 years duration. It brought into the world two children. There have been many and varied contributions by the parties both indirect and direct and of financial and non-financial types. The husband’s initial contribution of $30,000 is traceable in the real property of the parties should be given some weight albeit within the context of that contribution being introduced in 1999 and against the myriad of other contributions of the parties. The other noted contribution is the wife’s inheritance. As mentioned above, there is no evidence of precise dollar value of that contribution although I am able to make inferences that it is of significant value when seen within the current value of the tangible property pool. Nevertheless, the Court must be careful not to fall into error in ‘isolating’ such a contribution where the relationship is long and the contributions are many and where the Court in this case takes a holistic or global approach to contributions.[5] However, the wife’s inheritance, albeit received half way through this 19 year relationship should be given some weight.
It remains traceable in the context of the current wealth of the parties in the form of land. I infer that it was of significant value relative to the current property pool. Taking all of those matters into account, including the timing of the inheritance and the context of the total contributions of the parties, I am of the view that there should be a loading to the wife of 10% of the property pool on account of contributions.
[5] Jabour & Jabour [2019] FamCAFC 78
Section 75(2) Considerations
Both parties remain in employment. The husband has a superior income to the wife from her employment with a business at Town N. The husband’s financial statement discloses an income on $78,000 per annum. It is agreed that he previously supplemented this income by his farm work and, in particular, as a farming contractor. The husband’s evidence in Court was unsatisfactory as to his reasons for ceasing this latter employment where he suggests the contracts to have been taken over by his brother. The Court’s consideration is, of course, as to the income earning potential of the parties rather than simply their current relative incomes. In any event, I am satisfied that the husband’s current and potential income is superior to that of the wife.
Both parties have re-partnered but the nature of each of those relationships suggests no strong nexus of either support or dependency for either of them.
Pursuant to my orders, the children will continue to live primarily with their mother although it is likely that those orders will require both parents to obtain accommodation and facilities commensurate with the children’s needs. I am satisfied on the balance of probabilities that the husband has disposed of or retains a quantity of plant and equipment not valued in the asset pool above. I am unable to attribute value in the sense of an asset and think it proper that this matter be taken into account under s.75(2)(o) of the Act.
The husband pays child support to the wife in a quantum of $175 per week. This, of course, is seemingly calculated on the income from his formal employment and may vary only slightly in accordance with the parenting orders I intend to make pursuant to these reasons.
Finally, in respect of the discrepancy in the parties’ incomes, the husband’s counsel mounts an argument in respect of their ‘disposable income’ with the wife being in receipt of some government benefits and/or child support. Firstly, it is not for the Court to undertake a strict mathematical approach in the form of the husband’s counsel’s submissions. Secondly, the benefits that the wife receives and including child support should be seen within the context of the wife having responsibilities for that support of the children.
Taking all of these matters into account I am satisfied that a further adjustment to the wife of 5% of the tangible property pool is just and equitable thereby giving the wife 65% of that net tangible pool and 35% to the husband.
I note, consistent with the majority of applications that are filed in this registry, that each of the parties seeks an orders to achieve an equality of their superannuation entitlements. This is despite the Court being enabled (and obliged) to reference the same contribution and s.75(2) factors to superannuation as to tangible assets where the authorities make it clear that superannuation is to be ‘treated as property’ for the purposes of a s.79 consideration. Nevertheless, on the basis that neither party argues to contrary, I am prepared to make orders which equalize their superannuation and on the figures before me this would require a split to the wife from the husband’s policy of a base amount of $17,986.
Sundry considerations
There is an argument between the parties as to who is to retain the shotgun. The firearm belonged to a member of the wife’s family who is now deceased. Its value is sentimental. I am of the view that the wife should retain the shotgun.
The parties own two dogs. During the proceedings they were able to agree for each to keep one dog.
The wife asked for final orders for the sale of the former matrimonial home. The husband in his case summary document also proposes an order for the sale of the home. However, in his evidence in Court (and as acknowledged in the wife’s affidavit) he is open to the possibility of retaining the former matrimonial home and the farming property. Despite the wife’s insistence, I am of the view that the husband should be given the opportunity to retain the property and my orders will provide accordingly.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 27 March 2020
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