Furlan and Furlan and Anor
[2018] FCCA 3157
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FURLAN & FURLAN & ANOR | [2018] FCCA 3157 |
| Catchwords: FAMILY LAW – Property – small asset pool – just and equitable to make property orders – contributions assessed to be equal – notional add back of sum of money received by the Wife following separation – adjustment to the Wife as primary carer of the Children – sale of the former matrimonial home. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA, 69ZW, 75, 79, 90ME, 90MT, 91B, 117 |
| Cases cited: In the Marriage of Hickey [2003] FamCA 395 Harridge & Anor & Harridge & Anor [2010] FamCA 445 Stanford v Stanford (2012) 247 CLR 108 Beklar & Beklar [2013] FamCA 327 Stott & Holgar & Anor [2017] FamCAFC 152 |
| Applicant: | MR FURLAN |
| First Respondent: | MS FURLAN |
| Second Respondents: | MR WYCOMB & MS WYCOMB |
| File Number: | MLC 8210 of 2016 |
| Judgment of: | Her Honour Judge C E Kirton QC |
| Hearing dates: | 26, 27 and 28 February 2018 |
| Date of Last Submission: | 28 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| The Applicant appearing in person |
| Counsel for the First Respondent: | Mr Lovering |
| Solicitors for the First Respondent: | Clark Family Lawyers |
| The Second Respondents appearing in person |
| Counsel for the Independent Children’s Lawyer: | Mr Ambrose |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
All previous Orders with respect to the children [X], born [date] 2008 and [Y], born [date] 2014 (Children) be discharged.
Parenting
The Applicant (Husband) and the Respondent (Wife) have equal shared parental responsibility for the Children.
The Children live with the Wife subject to and conditional upon:
(a)The Wife continuing to live with the Second Respondents at their home until at least 28 February 2019; and
(b)That after 28 February 2019 the Wife not reside outside a radius of 10 kilometres of the home of the Second Respondents.
The Husband spend time with the Children during school term each fortnight as follows:
(a)Each alternate week from the conclusion of school (or day care) or 3.30 pm on Thursday to the commencement of school (or day care) or 9.00 am on Monday (or Tuesday if Monday is a public holiday in the State of Victoria);
(b)Every other week from the conclusion of school (or day care) or 3.30 pm on Thursday to the commencement of school (or daycare) or 9.00 am on Friday.
The Husband spend time with the Children during school term holidays as follows:
(a)For one half of the Victorian first term school holidays being:
(i)The first half in 2019 and each alternate year thereafter;
(ii)The second half in 2020 and each alternate year thereafter;
(b)For one half of the Victorian second and third term school holidays and the long summer school holidays, with the Husband and the Wife to agree as to which half and in the absence of agreement the Husband to have the first half in odd years and the second half in even years.
Notwithstanding any other order, the Children spend time with the Husband and the Wife:
(a)From 5.00 pm Christmas Eve until 11.00 am Christmas Day in 2018 and alternate years thereafter, with the Husband;
(b)From 11.00 am Christmas Day until 5.00 pm Boxing Day in 2019 and alternate years thereafter, with the Wife;
(c)As may otherwise be agreed by the Husband and the Wife in writing.
The Husband’s time with the Children be suspended as follows:
(a)In the event that Mother’s Day falls on the Husband’s weekend, from 5.00 pm on the Saturday before Mother’s Day to the commencement of school (or childcare) or 9.00 am on Monday;
(b)In the event that either of the Children’s birthday falls during the Husband’s time, then the time be suspended from the conclusion of school (or childcare) or 3.30 pm on the child’s birthday to the commencement of school (or childcare) or 9.00 am the following day.
The Wife’s time with the Children be suspended as follows:
(a)In the event that Father’s Day falls on the Wife’s weekend, from 5.00 pm on the Saturday before Father’s Day to the commencement of school (or childcare) or 9.00 am on Monday; and
(b)In the event that either of the Children’s birthday falls during the Wife’s time then the time be suspended from the conclusion of school (or childcare) or 3.30 pm on the child’s birthday to the commencement of school (or childcare) or 9.00 am the following day.
Where changeover does not occur at the Children’s school or daycare, it shall occur at the McDonald’s Restaurant in Suburb A.
Each parent notify the other immediately of:
(a)Any change of address or telephone number;
(b)Any injury or illness of either child requiring medical treatment.
The Wife authorise all day care, kindergarten or schools at which the Children may attend to:
(a)Provide the Husband, at the expense of the Husband, copies of all reports, notices and applications for photographs in relation to the Children;
(b)Communicate with the Husband either by telephone, in writing or by personal attendance, in relation to the Children’s progress;
(c)Allow the Husband to attend all functions to which parents are invited.
For the avoidance of doubt the Husband is at liberty to attend school events, parent-teacher interviews and the like to which parents are invited.
The Husband and the Wife, their servants or agents be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party.
The Wife comply with all directions of, and treatment from her mental health practitioners, including practitioners at Community Mental Health Service.
The Wife obtain from one of her mental health practitioners and provide to the Husband every three months until [X] commences secondary school, a brief written updating report in relation to her mental health and compliance with treatment.
The Husband forthwith enrol in, attend and complete a Men’s Behaviour Change Course and provide proof of completion to the Wife as soon as practicable.
The Order of Judge Williams dated 15 November 2016 for the appointment of the Independent Children’s Lawyer is discharged.
Property
The Husband and the Wife:
(a)Do all acts and things and sign all necessary documents required to place on the market the property situate at and known as Property K in the State of Western Australia (Property K property); and
(b)Shall list the Property K property with [Real Estate] within 14 days of the date of these Orders.
The reserve price for the Property K property shall be a price agreed between the Husband and the Wife and in default of agreement within 14 days of these Orders, at a price nominated as the fair market value by [Real Estate].
Upon sale of the Property K property, a contract of sale shall be executed by the Husband and the Wife, with the proceeds of sale to be distributed at settlement of the sale in the following manner and priority:
(a)To meet all costs, commissions and expenses associated with the sale;
(b)To discharge any mortgage and caveat encumbering the Property K property;
(c)To meet all conveyancing costs associated with the sale of the Property K property;
(d)To meet the amounts required to pay all municipal and water rates outstanding with respect to the Property K Property;
(e)The balance will then be divided as follows:
(i)To the Husband 35%;
(ii)To the Wife 65%.
The parties be granted liberty to apply to the Court with respect to the sale of the Property K property as may become necessary in order to give effect to these Orders.
Pending the completion of the sale of the Property K property:
(a)The Husband have the sole right to occupy the Property K property and during such right of occupation the Husband pay all instalments pursuant to the mortgage and all the rates and taxes and the like apportionable outgoings as they fall due.
(b)The Husband and the Wife hold their respective interests in the Property K property upon trust pursuant to these Orders.
(c)Neither the Husband or the Wife sell, transfer, further encumber or otherwise deal with their respective interests in the Property K property without the prior written consent of the other, other than for the purpose of complying with these Orders.
In default of the Husband or Wife or either of them doing all acts and things and executing all such documents as may be necessary to give effect to these Orders, a Registrar of the Federal Circuit Court of Australia be appointed pursuant to s.106A of the Family Law Act 1975 (Cth) (Act) to execute all documents and to do all acts and things necessary to give validity and operation to these Orders.
Having been accorded procedural fairness in relation to these Orders, Orders 25, 26 and 27 are binding on Super Fund 1.
In accordance with s.90MT(1)(a) of the Act, whenever a splittable payment within the meaning of s.90ME of the Act becomes payable to or on behalf of the Husband from his interest in the Fund, the Wife is entitled to be paid (by the Trustee of the Fund) the amount calculated in accordance with pt.6 of the Family Law (Superannuation) Regulations 2001 (Cth) (Regulations), using a base amount of $35,433 and there is a corresponding reduction in the entitlement the Husband would have had but for these Orders.
Order 25 has effect from the operative time, which is seven days from the date of service of sealed Court Orders upon the Trustee.
The Trustee, in accordance with the obligations set out under the Act and the Regulations shall do all acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the Wife in accordance with these splitting Orders.
After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regulations), the Husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Wife’s request in accordance with the SIS Regulations, for the payment of the non-member spouse interest by way of a lump sum entitlement in accordance with the SIS Regulations.
The parties be granted liberty to apply to the Court with respect to paragraphs 24 to 28 of these Orders.
Unless otherwise specified in these Orders, and save for the purpose of enforcing any monies due under these Orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these Orders.
(b)Monies standing to the credit of the parties in any personal bank account as at the date of these Orders shall become the sole property of the party in whose name that account is held.
(c)All insurance policies remain the sole property of the named owner.
(d)Each party shall be solely responsible for the payment of any card debt accrued in their respective name as at the date of these Orders.
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
All extant applications be otherwise dismissed.
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Furlan & Furlan & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE
MLC 8210 of 2016
MR FURLAN
Applicant
and
MS FURLAN
First Respondent
and
MR WYCOMB & MS WYCOMB
Second Respondents
REASONS FOR JUDGMENT
Introduction
The Applicant (Husband) and the Respondent (Wife) are the parents of the children [X], born [date] 2008 and [Y], born [date] 2014 (Children). The Second Respondents are the parents of the Wife.
The Husband and the Wife are in dispute about the living and spend time arrangements for the Children and the division of their property.
Issues in Dispute
The following issues were in dispute in the parenting proceedings:
a)Whether both parents should have equal shared parental responsibility for the Children or whether the Husband should have sole parental responsibility;
b)Who the Children should live with;
c)The time the Children should spend with the parent with whom they do not live;
d)Whether the Wife’s time with the Children should be supervised by her parents or whether they should continue to be in substantial attendance and if so, for what length of time.
The following issues were in dispute in the property proceedings:
a)Whether the sum of $76,500 received by the Wife in January 2016 should be notionally added back into the asset pool;
b)The percentage adjustment of the parties’ property;
c)Whether the Husband should retain the former matrimonial home or whether it should be sold and the proceeds of sale divided between the parties;
d)The adjustment to each party for s.75(2) of the Family Law Act 1975 (Cth) (Act) factors.
Synopsis
In relation to parenting I have determined that it is in the Children’s best interests that:
a)The Husband and the Wife have equal shared parental responsibility for the Children;
b)Children live with the Wife subject to and conditional upon:
i)Wife continuing to live with the Second Respondents at their home until at least 28 February 2019; and
ii)The Wife after 28 February 2019 not residing outside a radius of 10 kilometres of the Second Respondents’ home.
c)The Children spend time with the Husband:
i)During the school term, each fortnight as follows:
1. Each alternate weekend, from the conclusion of school Thursday until the commencement of school Monday (or Tuesday if Monday is a public holiday);
2. Every other week from the conclusion of school Thursday until the commencement of school Friday;
d)For one half of the school term holidays and long summer vacation. Each half of the first term holidays will be alternated to allow for Easter to be celebrated in alternate years;
e)For specified times at Christmas and on Mother’s Day and Father’s Day.
In relation to property, I have determined that:
a)The former matrimonial home should be sold and the net proceeds of sale divided as follows:
i)To the Husband 35%.
ii)To the Wife 65%.
b)There be an equalisation of the Husband’s superannuation entitlement which will result in a payment from the Husband’s fund to the Wife.
The reasons for my determination follow.
Background
The Husband was born on [date] 1976 and is currently aged 42 years. The Wife was born on [date] 1981 and is currently aged 37 years. They commenced cohabitation in 2003.
At the commencement of the relationship the Husband was working as a [occupation omitted] and the Wife was working in an [occupation omitted] role as a contractor.
The Wife’s evidence was that soon after the relationship commenced she became aware that the Husband was a regular user of heroin. On one occasion in 2005 she found the Husband unconscious. She performed CPR on the Husband and called an ambulance. The paramedics were able to resuscitate the Husband and he was taken to the Hospital.
The Husband and wife married on [date] 2007.
[X] was born on [date] 2008. Prior to the birth of [X], the Husband and the Wife were living with the Second Respondents at their home in Suburb B. The relationship between the Husband and the Wife began to deteriorate prior to the birth of [X]. It continued to deteriorate after the birth and in 2009 the Wife terminated a pregnancy due to the poor state of the relationship, although the Husband disputed the reason for this situation.
In [date] 2009 the Husband and Wife separated after the Husband hit the Wife in the presence of the maternal grandmother and [X]. After a separation of approximately three weeks, the Husband and the Wife reconciled and moved to live in a rental property in Suburb C.
The Husband then undertook further education and became qualified as a [occupation omitted]. This enabled him to apply for work in the [employment] industry.
In [date] 2011 the Husband and the Wife moved to Perth with [X].
Upon moving to Perth, the Husband commenced to work in the [employment] industry as a [occupation omitted] from Perth to Region L, Western Australia. Typically his employment roster would be 23 days away on Region L and then 10 days in Perth on a monthly basis. There were some changes to the Husband’s roster subsequent to moving to Perth, however he continued to spend considerable periods of time away from home working.
In [date] 2012 the former matrimonial home at Property K, a suburb of Perth (Property K property) was purchased by the Husband and the Wife for $392,500. The purchase was funded with the assistance of a mortgage from the Bank 1 (Mortgage).
On [date] 2014, [Y] was born.
The Wife’s evidence was that in about [date] 2015, she discovered that the Husband had been using multiple internet hook-up sites and that he had been involved in multiple affairs throughout the marriage.
The Husband and the Wife then commenced couples and individual therapy due to the breakdown of their relationship.
In early 2015 the Wife was diagnosed with Attention Deficit Hyperactivity Disorder and prescribed Ritalin by Dr J.
In about [date] 2015, Dr J diagnosed the Husband with Bi-Polar II disorder and prescribed anti-depressants for the Husband.
The Husband and the Wife separated under one roof on 4 September 2015. It was the Wife’s evidence that the separation took place because she discovered that the Husband was still participating in extra-marital relationships.
From September 2015, the Husband stopped depositing money into the shared transaction account of the Husband and the Wife. This left the Wife without any ability to pay for the needs of the Children or herself. As a consequence, she withdrew money from the redraw account attached to the Mortgage to pay for the living expenses of herself and the Children.
It was the Wife’s evidence that the Husband refused to move out of the Property K property. In about December 2015 she found bottles of various pills and a ‘rock’ of what she assumed to be heroin in the Husband’s motorcycle helmet.
On [date] 2016 the Husband and the Wife signed a handwritten agreement for the Husband to transfer $71,500 to the Wife. The Wife transferred $76,500 from the redraw account attached to the Mortgage into an account in her name.
On [date] 2016 the Husband and the Wife signed a handwritten agreement that the Husband would transfer $100,000 to the Wife.
On [date] 2016 the Wife, with the agreement of the Husband travelled to Melbourne with the Children to visit the Second Respondents and the maternal family for a holiday. Whist the Wife was in Melbourne she decided to remain in Melbourne with the Children permanently, so that she could be closer to her family.
The Wife commenced to consult with Dr R, psychiatrist, following her relocation to Melbourne.
On [date] 2016 the Wife had a panic attack and was admitted to the Hospital. The Wife was placed on a compulsory treatment order and remained at the Hospital for two weeks.
On [date] 2017 the Husband ceased working as a [occupation omitted] from Perth to Region L and moved to Melbourne to live with his parents.
On [date] 2017 the wife voluntarily re-admitted herself to the Hospital for two weeks, due to the adverse side effects of the antipsychotic medications that she had been prescribed. Her symptoms stabilised once she ceased taking the antipsychotic medication and commenced taking mood stabilisers, in particular sodium valproate (Epilim). Following discharge, the Wife was then referred to Continuing Care Team. She started to consult with Dr A (psychiatrist). She also started to consult with her case worker at least once a month.
Dr A has diagnosed the wife with Bipolar Affective Disorder. Dr A has also given the wife a preliminary diagnosis of Attention Deficit Hyperactivity Disorder.
Procedural History
Commencement in Magistrates Court of Western Australia
This proceeding was initially commenced by the Husband in the Perth Registry of the Magistrates Court of Western Australia on 2 March 2016.
The Husband in his Initiating Application filed on 2 March 2016 sought interim orders that:
a)The Children live with the Second Respondents or the paternal grandparents in Melbourne and that the Wife have liberty to also reside with the Children.
b)The grandparents accommodating the Children and the Wife were to supervise the Wife when she was caring for the Children.
c)Whilst the Wife was living in Melbourne, the Husband have contact with the Children during his rostered days off for a period of not less than 4 hours per day, including not less than 5 overnight stays.
d)The Wife undergo a mental health assessment and undergo any treatment then recommended.
e)Upon the Wife’s mental health issues being resolved and her health care professionals being satisfied that she will comply with her treatment program:
i)That the Children reside with the Wife whilst the Husband is working away;
ii)That the Children reside with the Husband when he is not working.
f)Alternatively to paragraphs (a) to (e) above, orders that:
i)The Children be returned to Perth and reside with the Husband in the former matrimonial home;
ii)The Husband have the sole responsibility for the day to day care, welfare and development of the Children;
iii)The Wife be at liberty to live in the former matrimonial home and have supervised contact with the Children;
iv)If the Wife did not live at the former matrimonial home, that the Children have supervised contact with the Wife for a period of not less than 4 hours per day, with the supervision to be undertaken by the Husband or the paternal grandparents;
v)The Wife undergo a mental health assessment and undergo any treatment recommended;
vi)Upon the Wife’s mental health issues being resolved and her health care professionals being satisfied that she will comply with her treatment program:
1. The Children reside with the Wife whilst the Husband is working away;
2. The Children reside with the Husband when he is not working.
In the Initiating Application the Husband sought final orders that:
a)The Children reside with the Wife whilst the Husband is working away and with the Husband when he is not working.
b)The Husband and the Wife have the joint responsibility for the long term care, welfare and development of the Children.
c)If the Wife was not fit to look after the Children in the opinion of a mental health care professional, then the Children reside with Husband and he have responsibility for the care, welfare and development of the Children until the Wife’s mental health issues are resolved and her health care professionals are satisfied that she will comply with her treatment program.
The Husband also filed a Notice of Child Abuse, Family Violence (or Risk) on 2 March 2016. The basis of the Husband’s concerns were stated to be issues relating to the Wife’s mental health combined with the fact that the Wife had re-located to Melbourne with the Children and that the Husband did not know at that time where the Children were living.
On 15 March 2016 orders were made for the Wife to file responding material and for the proceeding to be adjourned to 4 April 2016.
On 24 March 2016 the Wife filed a Response to the Initiating Application. She sought interim and final orders that the proceeding be transferred to the Family Court of Australia at Melbourne. The Wife also sought orders for the sole parental responsibility of the Children, that the Children live with her and that the Husband pay her costs of the proceeding.
The Wife also sought interim orders in her Response to Initiating Application that:
a)A report be provided by the Department of Health and Human Services, Child Protection Unit pursuant to s.69ZW of the Act in relation to the Children.
b)A Family Report be prepared.
c)The parties each undertake psychiatric assessments.
d)The Husband undertake supervised urine analysis within 24 hours of being requested by the Wife’s solicitors.
Transfer to Family Court of Western Australia
On 4 April 2016 the Magistrates Court of Western Australia ordered that the Husband file an amended Form 1 Application and transferred the proceeding to the Family Court of Western Australia.
On 11 April 2016 the Husband filed an Amended Initiating Application. The interim orders that were then sought by the Husband were that:
a)The Children be returned to Perth and reside with the Husband in the former matrimonial home.
b)The Husband have the sole responsibility for the day to day care, welfare and development of the Children.
c)The Wife have supervised contact with the Children for a period of not less than 4 hours per day.
d)The Husband and Wife undergo a mental health assessment and undergo any treatment then recommended.
e)Upon the Wife’s mental health issues being resolved and her health care professionals being satisfied that she will comply with her treatment program:
i)That the Children reside with the Wife whilst the Husband is working away;
ii)That the Children reside with the Husband when he is not working.
f)A report be provided to the Family Court of Western Australia by the Department of Health and Human Services, Child Protection Unit pursuant to s.69ZW of the Act in relation to the Children.
g)An Independent Children’s Lawyer be appointed.
h)The Wife bear the Husband’s costs of the proceedings.
The Husband also amended the final orders sought in the Amended Initiating Application to include an order that the Wife pay the Husband’s costs of the proceeding.
On 16 May 2016 the Husband’s lawyers FourLion Legal Pty Ltd filed a Notice of Ceasing to Act, dated 8 May 2016.
On 16 May 2016 the proceeding came before Chief Justice Thackray in the Family Court of Western Australia at Perth. Procedural orders were made for the filing and service of further affidavits by the Husband and the Wife and adjourning the proceeding to 13 July 2016.
On 7 June 2016 the Husband filed a Notice of Address for Service wherein he commenced to act on his own behalf.
Transfer to Family Court of Australia
On 13 July 2016 Chief Justice Thackray made orders transferring the proceedings to the Melbourne Registry of the Family Court of Australia and requesting Victoria Legal Aid to appoint an Independent Children’s Lawyer.
Orders were also made that the Husband spend time with the Children in Melbourne. Orders were made that:
a)The Husband was to reside in his parent’s home when visiting Melbourne to see the Children.
b)At least one of the paternal grandparents were to be present from 6.00 pm to 9.00 am the following day whenever the Children were in the home.
c)During school term time the Husband to spend time with [Y] on Tuesdays and Thursdays from the start of school to 6.00 pm, save for the first four visits which were to be of four hours duration only.
d)During term time the Husband to spend time with [X] on Tuesdays and Thursdays from the end of school to 6.00 pm.
e)During school holidays the Husband spend time with the Children on Tuesdays and Thursdays from 9.00 am to 6.00 pm.
f)On weekends the Husband spend time with [X] from 9.00 am Saturday to 6.00 pm Sunday.
g)On weekends the Husband spend time with [Y]:
i)Until the start of next term from 9.00 am to 6.00 pm Saturday and Sunday;
ii)From the start of next term from 9.00 am Saturday to 6.00 pm Sunday.
Transfer to Federal Circuit Court
On 23 September 2016 a Registrar in the Family Court of Australia at the Melbourne Registry made orders for the Husband and Wife to file and serve further documents and for the proceeding to be transferred to the Federal Circuit Court at Melbourne.
The Husband filed an Application in a Case on 8 November 2016. The Husband sought to increase his time with the Children and to remove the need for supervision by his parents overnight from 6.00 pm to 9.00 am the following day whenever the Children were residing at his parent’s home.
On 9 November 2011 the Wife’s lawyers, Gadens filed a Notice of Withdrawal as Lawyer and the Wife then commenced to act on her own behalf.
The proceeding first came before the Federal Circuit Court on 15 November 2016 before Judge Williams. Orders were made for a Child Inclusive Conference pursuant to s.11F of the Act to take place on 29 November 2016 and for the report to be provided orally to the Court later that day. The Husband was ordered to serve the Wife with his Application in a Case, supporting affidavit and a copy of the orders made that day.
The Child Inclusive Conference took place on the morning of 29 November 2016. The family consultant provided an oral report to Judge Williams in court that afternoon. As a result of the report Judge Williams requested pursuant to s.91B of the Act that the Department of Human Services intervene in the proceedings. The matter was listed for final hearing on 29 March 2017 and trial directions were made.
Orders by consent were also made on 29 November 2016 that the Children live with the Wife, conditional upon the Children being accommodated in the home of the maternal grandmother. The Husband’s time with the Children was ordered to take place in accordance with the orders made by the Family Court of Western Australia on 13 July 2016. Both the Husband and the Wife were ordered to undertake supervised urine screens to detect illicit drugs upon request from the Independent Children’s Lawyer. The parties were ordered to attend upon Dr O with the Children for the purposes of a psychiatric assessment and the preparation of a family report.
On 4 January 2017 the Husband filed a Contravention Application relating to a dispute that had arisen with the maternal grandmother and maternal aunt on Christmas Day 2016 and the subsequent time that he had spent with the Children. The Contravention Application was listed for hearing on 1 March 2017.
On 25 January 2017 Telford Story & Associates filed a Notice of Address for Service and commenced to act on behalf of the Husband.
On 2 March 2017 Orders by consent were made by Judge Williams that the Husband have leave to withdraw his Contravention Application and that the maternal grandparents be joined as respondents to the proceeding. All previous parenting orders were discharged and orders were made that included the following:
a)The Children live with the Husband:
i)In each alternate week from 3.30 pm or the conclusion of school or kindergarten on Friday until 9.00 am or the commencement of school or kindergarten on Monday, commencing 3 March 2017;
ii)In each alternate week from 3.30 pm or the conclusion of school or kindergarten on Wednesday until 9.00 am or the commencement of school or kindergarten on Friday, commencing 8 March 2017.
b)The Children otherwise live with the Second Respondents.
c)The Children be in the care of the Second Respondents at specified times at Easter and on Mother’s Day and in the care of the Husband at specified times on Father’s Day.
d)The Children spend time with the Wife at such times as agreed between the Wife and the Second Respondents, provided that one of the Second Respondents, the maternal aunt and/or the maternal uncle was in substantial attendance.
The Wife again retained lawyers and on 10 August 2017 Clark Family Lawyers filed a Notice of Address for Service. They continued to act on behalf of the Wife throughout the rest of the proceeding and final hearing.
On 12 September 2017 the Wife filed an Amended Response. The Wife sought final orders that the Husband and the Wife have equal shared parental responsibility, that the Children live with her and that the Husband’s time and communication with the Children be on such terms as the Court considered appropriate. The Wife sought to be excused from further particularising the further orders she sought pending the completion of the family report and the psychiatric assessments for the Husband and the Wife.
The interim orders sought in the Amended Response included orders that:
a)The Children live with the Wife.
b)The Children spend time with the Husband:
i)Each alternate week from 3.30 pm or the conclusion of school or day care on Tuesday to the commencement of school or day care on Friday;
ii)Each alternate week from the conclusion of school on Friday to the commencement of school (or day care) on Monday.
c)Where changeover does not occur at the Children’s school or daycare, it should occur at the McDonald’s Restaurant in Suburb A.
d)The Husband undertake random supervised drug screen testing when requested by the solicitors for the Wife.
e)The Husband attend and complete an anger management course nominated by the Independent Children’s Lawyer (ICL).
On 14 September 2017 Judge Williams ordered that the Husband and Wife attend a conciliation conference on 13 October 2017 and made procedural orders relating to the conciliation conference. The proceeding was otherwise adjourned to 15 November 2017 for an interim hearing.
The Husband acted on his own behalf again during the hearing on 14 September 2017. From that time until the conclusion of the final hearing he continued to be self-represented.
The Wife filed a further Amended Response on 12 October 2017 seeking interim orders in relation to the property of the Husband and the Wife. The Wife sought the sale of the former matrimonial home in Perth and claimed 50% of the Husband’s entitlement in the Super Fund 1.
The Husband and the Wife with her lawyer attended the conciliation conference on 13 October 2017. No agreement was reached in relation to the division of the property between the Husband and the Wife.
On 23 October 2017 the Husband filed an Application in a Case seeking interim and final parenting orders and final property orders.
On 15 November 2017 Judge Williams made orders by consent that specified the time that the Husband and the Wife would have with the children on Christmas Eve and Christmas Day. Judge Williams ordered that the proceeding be adjourned for final hearing on 26 February 2018. Further orders made included that:
a)The Husband must forthwith attend and complete a Men’s Behaviour Change Course as nominated by the ICL.
b)The Husband undertake random supervised drug tests when requested by the ICL.
c)The Wife was to attend upon Dr O on 12 January 2018 for the purposes of the preparation of an updated psychiatric assessment.
On 22 February 2018 the Wife filed a further Amended Response.
The Proposals of the Parties at Trial
The Independent Children’s Lawyer’s Proposals
Parenting
The final orders sought by the ICL were included in a Minute of Proposed Final Orders (Minute of Proposed Orders) that was submitted by Counsel for the ICL during his final submissions. Those orders are as follows:
a)All previous orders with respect to the Children be discharged.
b)The Wife and the Husband have equal shared parental responsibility for the Children.
c)The Children live with the Wife subject to and conditional upon:
i)The Wife continuing to live with the Second Respondents at their home until at least 28 February 2019; and
ii)The Wife not residing outside a radius of 10 kilometres of the Second Respondents’ home.
d)The Children spend time with the Husband:
i)During the school term, each fortnight as follows:
A. Each alternate weekend, from the conclusion of school Thursday until the commencement of school Monday (or Tuesday if Monday is a public holiday);
B. Every other week from the conclusion of school Thursday until the commencement of school Friday.
ii)For one half of the school term holidays and long summer vacation.
e)Notwithstanding any other order, the Children spend time with the parents:
i)On Father’s Day and Mother’s Day (as the case may be) from 5.00 pm the preceding Saturday, if not already in that parent’s care;
ii)From 5.00 pm Christmas Eve until 11.00 am Christmas Day in 2018 and alternate years thereafter, with the Husband;
iii)From 11.00 am Christmas Day until 5.00 pm Boxing Day in 2019 and alternate years thereafter, with the Wife;
iv)As otherwise agreed by the parents.
f)The Wife comply with all directions of, and treatment from her mental health practitioners including practitioners at [Mental Health Facility].
g)The Wife obtain from one of her mental health practitioners, and provide to the Husband, a brief updating report in relation to her mental health and compliance with treatment every three months, until such time as [X] commences secondary school.
h)Each parent notify the other immediately of:
i)Any change of address or telephone number;
ii)Any injury of illness or either child requiring medical treatment.
i)For the avoidance of doubt it is noted that the Husband is at liberty to attend school events, parent-teacher interviews and the like to which parents are invited.
j)The appointment of the ICL be discharged.
k)Certify for advocacy.
l)All extant parenting applications be otherwise dismissed.
In final submissions counsel for the ICL sought the following further orders:
a)That the Husband forthwith enrol in, attend and complete a Men’s Behaviour Change Course and provide proof of completion to the Wife as soon as practicable.
b)That during the first term school holidays the week during which Easter occurs should be alternated each year between the parents.
Documents relied upon by the Independent Children’s Lawyer
The ICL relied upon the following documents:
a)Affidavit of Dr O, filed 13 September 2017.
b)Affidavit of Dr O, filed 21 February 2018.
The Husband’s Proposals
Parenting
The final parenting orders that the Husband sought were set out in the Application in a Case that the Husband filed on 23 October 2017. Counsel for the ICL and the Wife agreed that as the Husband was self represented, they had assumed that the orders sought in the Application in a Case were the orders that the Husband was seeking at the trial. This was notwithstanding that these orders were variously described as interim and final orders and that there was some limited duplication between the interim and final orders sought.
The final parenting orders sought by the Husband were that:
a)The Husband have the sole parental responsibility for the long term and day-to-day care, welfare and development of the Children.
b)That the Children live with the Husband.
c)The Wife is advised of any serious illness or serious injury suffered by the Children.
d)The Husband and the Wife keep each party notified of their current phone number at all times and notify each party within 24 hours of a change.
e)The Husband authorise all day care, kindergarten or schools at which Children may attend to:
i)Provide the Wife, at the expense of the Wife, copies of all reports, notices, and applications for photographs in relation to the Children;
ii)Communicate with the Wife either by telephone, in writing or by personal attendance, in respect to the Children’s progress;
iii)Allow the Wife to attend all functions to which parents are normally invited.
f)That the parties, their servants or agents be restrained by injunction from:
i)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party;
ii)Discussing these proceedings with or in the presence of the Children and from permitting any other person to do so.
The Husband also sought interim parenting orders in the Application in a Case, filed on 23 October 2017. These orders were:
a)That the Children live with the Husband.
b)That the Children spend time with the Husband as follows:
i)Each week from 9.00 am Monday to 3.00 pm on Friday;
ii)Each alternative week from 3.00 pm on Friday to 9.00 am on Monday;
iii)Such further or other time as agreed between the parties in writing.
c)That the Children stay in the home of the Second Respondents when not with the Husband and the Wife to be supervised by the Second Respondents or sibling when with the Children.
d)That for the purposes of change over pursuant to these orders, where the changeover does not occur at the Children’s school or day care, it shall occur at the McDonald’s Restaurant in Suburb A.
e)That notwithstanding anything in these orders, the Husband spend time with the Children from 3.00 pm on 24 December 2017 and 2:00 pm on 25 December 2017 and each year thereafter.
f)That notwithstanding anything in these orders, the Wife spend time with the Children from 2.00 pm on 25 December 2017 to 10.00 am 26 December 2017 and each year thereafter.
g)That the Respondents bear the costs of these proceedings.
h)That each party shall keep the other party advised of their current mobile phone number, email address and residential address at all times.
i)That the parents are restrained from discussing these proceedings with the Children and from allowing any other person apart from a family consultant, counsellor or Independent Children’s Lawyer to discuss the proceedings with the Children.
j)That the Husband and the Wife keep the other party informed of any of the following happening to the child:
i)An appointment being made for the child to attend on a treating specialist;
ii)The child having an accident, injury or illness that requires his hospitalisation.
k)That the parties, their servants or agents are hereby restrained by injunction from:
i)Abusing, consulting, belittling, rebuking or otherwise denigrating the other party.
ii)Discussing these proceedings with or in the presence of the Children and from permitting any other person to do so.
At the commencement of the trial the Husband changed his position from the one he sought in the Application in a Case. At trial he proposed that the Children should live with him and that they would spend time with the Wife each alternate weekend and one night in the alternate week. This would result in an arrangement where the Children spent 9 nights a fortnight with the Husband and 5 nights with the Wife. The Husband also proposed that the Children’s visits with the Wife be supervised by the Second Respondents.
During the trial the Husband gave evidence that he did not intend to continue to work as a [occupation omitted] and that he was intending to find work in Melbourne.
At the conclusion of the trial the Husband responded to the Minute of Proposed Orders by seeking the following orders that:
a)The Children live with the Husband.
b)The Wife live with the Second Respondents at their home at Suburb B until at least 28 February 2019.
c)The Children spend time with the Wife, each fortnight as follows:
i)Each alternate weekend, from the conclusion of school Friday until the commencement of school Monday;
ii)Every other week from the conclusion of school one weekday (being a Monday to Thursday as nominated by the Wife) until the commencement of school the next day;
iii)During the school term holidays between terms two and three and three and four, for the first week of the school holidays from the conclusion of school on Friday until 5.00pm on the middle Friday;
iv)During the long summer school holidays for one week in the third week of the holidays and then for another week in the sixth week;
v)That during the first term school holidays the week during which Easter occurs should be alternated each year between the parents.
d)The Husband’s time with the Children be suspended as follows:
i)In the event that Mother’s Day falls on the Husband’s weekend, from 5.00 pm on the Saturday before Mother’s Day to the commencement of school on Monday;
ii)In the event that either of the Children’s birthday falls during the Husband’s time, then the time be suspended from the conclusion of school or 3.30 pm on the child’s birthday to the commencement of school on the following day.
e)The Wife’s time with the Children be suspended as follows:
i)In the event that Father’s Day falls on the Wife’s weekend, from 5.00 pm on the Saturday before Father’s Day to the commencement of school on Monday; and
ii)In the event that either of the Children’s birthday falls during the Wife’s time, then the time be suspended from the conclusion of school or 3.30 pm on the child’s birthday to the commencement of school on the following day.
f)The Children spend time with the parents as follows:
i)From 5.00 pm Christmas Eve until 11.00 am Christmas Day in 2018 and alternate years thereafter, with the Husband;
ii)From 11.00 am Christmas Day until 5.00 pm Boxing Day in 2019 and alternate years thereafter, with the Wife.
g)Where change over does not occur at the children’s school or day care, it shall occur at the McDonald’s Restaurant in Suburb A.
h)The Second Respondents or the maternal aunt or uncle be in substantial attendance when the Children spend time with the Wife.
Property
The final property orders the Husband sought are set out in his Application in a Case, filed on 23 October 2017. The Husband sought orders:
a)That the parties do all acts and sign all necessary documents required to have the Wife removed from the title of the Property K property and the mortgage.
b)That the Respondents pay the [Husband] 50% of all mortgage repayments since separation in September 2015. Totalling $38,750[1].
c)That the Wife and the Second Respondents:
[…] pay 50% of all costs relating to the property, Property K outlined in the Financial Statement of [Husband], dated Monday 9 October 2017. From the date of separation 2015[2].
d)The Wife and the Second Respondents:
[…] repay the [Husband] the difference of current market from $76,500 already removed from redraw on mortgage account on the [date] 2016. Current market appraisal as prepared by Mr N on the 19 September 2017, range starting $320,000[3].
e)At the conclusion of all payments of the Respondents to the [Husband], the [Wife] to be removed from the mortgage by order of court and the [Husband] to be the sole owner of Property K[4].
f)That the Wife and the Second Respondents pay for all relocation costs of the Husband to Melbourne.
g)That the Respondents reimburse the [Husband] for all travel costs between Perth and Melbourne to see his children in 2016[5].
h)That the Wife and the Second Respondents pay the Husband’s costs of the proceedings.
[1] Husband’s Application in a Case, filed 23.10.17, at [Property 14].
[2] Ibid., at [Property 15].
[3] Ibid., at [Property 16].
[4] Ibid., at [Property 17].
[5] Ibid., at [Property 19].
At the conclusion of the hearing, the final orders that the Husband sought from the Court were those contained in his Application in a Case that he filed on 23 October 2017. The Husband however:
a)Abandoned each of the claims insofar as they were made against the Second Respondents apart from the claim for costs of the proceeding; and
b)Abandoned the claim that the Wife and the Second Respondents were to:
[…] repay the [Husband] the difference of current market appraisal from $76,500 already removed from redraw on mortgage account on the [date] 2016. Current market appraisal as prepared by Mr N on 19 September 2017, range starting $320,000[6].
[6] Ibid., at [Property 16].
Documents relied upon by the Husband
The Husband relied upon the following documents:
a)Affidavit of the Husband, filed 21 February 2018 and affirmed on 19 February 2018.
b)Application in a Case, filed 23 October 2017.
c)Affidavit of the Husband, filed 23 October 2017 and sworn 20 October 2017.
d)Financial Statement, filed 9 October 2017 and sworn on that day.
e)Affidavit of the Husband, filed on 23 February 2017 and sworn on that day.
f)Affidavit of Mr M, filed on 23 February 2017 and sworn on that day.
g)An affidavit of the Husband filed on 4 January 2017 and incorrectly stated to have been sworn on 17 October 2016 (being a date prior to the events the subject matter of the affidavit).
h)An affidavit of the Husband filed on 4 January 2017 and incorrectly stated to have been sworn on 17 October 2016 (being a date prior to some of the events the subject matter of the affidavit) and also stated to have been sworn on 4 January 2017.
i)Affidavit of the Husband, filed 8 November 2016 and affirmed 17 October 2016.
j)Affidavit of the Husband, filed 20 June 2016 and sworn on 17 June 2016.
k)Case Information Affidavit, filed on 2 March 2016 and affirmed by the Husband on 28 February 2016.
The Wife’s Proposals
Parenting
The final parenting orders that the Wife sought from the Court at the commencement of the trial are set out in the Wife’s Amended Response, filed 22 February 2018.
The orders are summarised as follows:
a)That the Husband and the Wife have equal shared parental responsibility for the long term and day-to-day care, welfare and development of the Children.
b)That the Children live with the Wife.
c)That in the event that the Husband is working in Region L, the Husband spend time with the Children as follows:
i)For a period of 7 days during his rostered time off as agreed between the parties and in accordance with his work roster and in default of agreement from 3.30 pm or the conclusion of school on Friday to the commencement of school or 9.00am on the following Friday;
ii)During the school term holidays between terms one and two, and three and four, for a period of 10 days as agreed between the parties;
iii)During the school term holidays between terms two and three, for the first week of the school holidays, from the conclusion of school on Friday until 5.00 pm on the subsequent Friday;
iv)During the long summer school holidays for a period of 14 days as agreed between the parties; and
v)Such other times as agreed in writing between the parties.
d)That in the event that the Husband is not working at Region L, the Husband spend time with the Children as follows:
i)Each alternate week from the conclusion of school (or day care) or 3.30 pm on Tuesday to the commencement of school on Friday;
ii)Each alternate week from the conclusion of school on Friday to the commencement of school (or day care) on Monday;
iii)During the school term holidays between terms one and two, two and three and three and four, for the first week of the school holidays, from the conclusion of school on Friday until 5.00 pm on the middle Saturday;
iv)During the long summer school holidays for the first week of the school holidays, from the conclusion of school on Friday until 5.00 pm on the subsequent Friday and each alternate week thereafter; and
v)Such further or other times as agreed between the parties in writing.
e)The Husband’s time with the Children be suspended as follows:
i)In the event that Mother’s Day falls on the Husband’s weekend, from 5.00 pm on the Saturday before Mother’s Day to the commencement of school on Monday;
ii)In the event that either of the Children’s birthday falls during the Husband’s time then the time be suspended from the conclusion of school or 3.30 pm on the child’s birthday to the commencement of school on the following day.
f)Wife’s time with the Children be suspended as follows:
i)In the event that Father’s Day falls on the Wife’s weekend, from 5.00 pm on the Saturday before Father’s Day to the commencement of school on Monday; and
ii)In the event that either of the Children’s birthday falls during the Wife’s time then the time be suspended from the conclusion of school or 3.30 pm on the child’s birthday to the commencement of school on the following day.
g)That where change over does not occur at the Children’s school or daycare, it shall occur at the McDonald’s Restaurant in Suburb A.
h)That the Husband spend time with the children from 5.00 pm on 24 December 2018 to 9.00 am on 26 December 2018 and each alternate year thereafter.
i)That the Wife spend time with the Children from 5.00 pm on 24 December 2019 to 9.00 am on 26 December 2019 and each alternate year thereafter.
j)That if the Husband is unable to care for the Children for periods greater than 8 hours, the Wife have the first option to care for the Children.
k)That the Husband and the Wife communicate via text messages only, save and except for emergencies.
l)That the Wife keep the Husband advised of any serious illness or serious injury suffered by the children.
m)That the Wife and the Husband keep each other notified of their current phone number at all times and to notify each party within 24 hours of a change of either.
n)That the Wife authorise all day care, kindergarten or schools at which the Children may attend to:
i)Provide the Husband, at the expense of the Husband, copies of all reports, notices and application for photographs in relation to the Children;
ii)Communicate with the Husband either by telephone, in writing or by personal attendance, in relation to the Children’s progress;
iii)Allow the Husband to attend all functions to which parents are normally invited.
o)That the parties, their servants or agents be restrained by injunction from:
i)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party;
ii)Discussing these proceedings with or in the presence of the Children and from permitting any other person to do so.
In final written submissions, Counsel for the Wife submitted that the Wife sought final parenting orders as set out in her Amended Application filed 22 February 2018, except that she sought the following amendments:
a)That in the event that the Husband is not working out of the State of Victoria, the Husband spend time with the Children as follows:
In a two week cycle:
i)In week one, from the conclusion of school Thursday until the commencement of school Monday;
ii)In week two, from after school Thursday until the commencement of school Friday.
b)That the Wife reside with the Children at the Second Respondents’ house until 28 August 2018 and thereon she be permitted to reside in an area that is proximate to the Second Respondents (no more than a 15 minute drive).
In final submissions Counsel for the Wife adopted the submissions of Counsel for the ICL. He submitted that the Wife agreed with the proposed orders contained in the Minute of Proposed Orders submitted by Counsel for the ICL, but submitted that the Wife:
a)Preferred to be required to continue living with the Second Respondents at their home only until 28 August 2018; and
b)Did not agree to obtain from one of her mental health practitioners, and provide to the Husband, a brief updating report in relation to her mental health and compliance with treatment every three months, until such time as [X] commenced secondary school.
Property
The final property orders that the Wife sought from the Court at the commencement of the trial are set out in the Wife’s Amended Response, filed 22 February 2018.
The orders sought are as follows:
a)That the parties do all acts and things and sign all necessary documents required to place the Property K property on the market and shall list the Property K property with [Real Estate] within 14 days.
b)That the reserve price shall be a price as agreed between the parties and in default of agreement within 14 days of the date of these orders at a price nominated by the real estate agent.
c)That upon sale of the Property K property, a contract of sale shall be executed by the parties, and the proceeds of sale be applied as follows:
i)To discharge any mortgage encumbering the Property K property;
ii)Payment of the agent’s commission and advertising expenses of the sale;
iii)Payment of conveyancing costs;
iv)Payment of any caveats encumbering the Property K Property;
v)The balance to be divided 50% to the Wife and 50% to the Husband.
d)That in accordance with s.90MT(1)(3) of the Act:
i)The Wife is entitled to be paid a specific percentage out of the Husband’s interest in the Super Fund 1;
ii)The Husband’s entitlement in the Super Fund 1 is correspondingly reduced by this order;
iii)The percentage specified for the purposes of this Order is 50%.
e)That the Trustee of the Super Fund 1 do all acts and things and sign all such documents as may be necessary to:
i)Calculate in accordance with the requirements of the Act and the Regulations, the entitlement awarded to the Wife in the immediately preceding paragraph;
ii)Pay the entitlement whenever the trustee makes a splittable payment from the Husband’s interest in the Super Fund 1.
f)That this order has effect from the operative time and the operative time is the beginning of the day on the date of valuation of the interest.
g)That after service of the payment split notice in accordance with the SIS Regulations, the Husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Wife’s request in accordance with the SIS Regulations, for the payment of the non-member spouse interest by way of a lump sum entitlement in accordance with the SIS Regulations.
h)That the Husband bear the Wife’s costs of these proceedings.
Documents relied upon by the Wife
The Wife relied upon the following documents:
a)Amended Response, filed 22 February 2018.
b)Wife’s Trial Affidavit, filed 20 February 2018.
c)Financial Statement, filed 12 October 2017.
d)Affidavit of Dr A, filed 15 February 2018.
The Second Respondent’s Proposals
Parenting
At the commencement of the trial, the Second Respondents agreed with the parenting orders sought by the Wife.
At the conclusion of the trial, the Second Respondents made no submissions in addition to those made by Counsel for the ICL or Counsel for the Wife.
Property
The Second Respondents made no submissions in relation to property.
Documents relied upon by the Second Respondents
The Second Respondents relied on one affidavit filed 19 October 2017 and jointly sworn by both the Second Respondents on that date.
Evidence
The standard of proof in this case is the balance of probabilities[7].
[7] Section 140 Evidence Act1995 (Cth).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The Wife and the Husband each relied upon their affidavits and financial statements. The evidence set out the history of their marriage and related to both parenting and financial matters.
Both the Husband and the Wife gave limited evidence and were cross examined. I therefore had the benefit of observing both parties in the witness box for a period of time and observing their demeanour in the Court throughout the proceeding.
The Wife clearly found being in the witness box a very tense and stressful situation for her and was under a great deal of pressure. The situation was compounded by being cross examined by the Husband. The Wife nevertheless maintained her composure, made concessions where appropriate and focussed on the best interests of the Children. Her demeanour was frank and forthcoming. She impressed me as a witness.
The Husband was dogmatic and self-opinionated. The Husband steadfastly refused to accept the evidence of the experts in this case. He had little insight into his own behaviour or insight as to how to parent in a separated family. He was overly critical of the Wife and displayed an unconcealed anger towards her and the Second Respondents.
Ms Wycomb, the maternal grandmother gave evidence and was cross examined. She was critical of the Husband’s attitude towards the Wife. Her evidence was supportive of the Wife’s application. I was satisfied that in giving her evidence, she was concerned for the best interests of her grandchildren [X] and [Y].
Mr M, the paternal grandfather, was cross examined. He was critical of the Wife’s behaviour. His evidence was supportive of the Husband’s application.
Mr Wycomb, the maternal grandfather, gave evidence and was cross examined. His evidence was supportive of the Wife’s application. I was satisfied that in giving his evidence he was concerned for the best interests of the Children.
Each of the professional witnesses were cross examined, Dr O gave evidence in person and Dr A gave evidence by telephone link. Each impressed as competent and truthful professional witnesses, who were prepared to make concessions where appropriate.
I will refer to the evidence of both Dr A and Dr O later in these reasons.
The Applicable Law
Part VII of the Act contains the relevant provisions concerning children. Section 60B of the Act sets out the objects of Part VII and the principles underlying it.
Section 60CA of the Act provides:
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.
Section 60CC of the Act sets out how the Court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in sub-s.(2) are primary considerations and the matters set out in sub-s.(3) are additional considerations.
Section 60CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will first consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
Dr O in his observations in the family report dated 5 September 2017[8] (Family Report) noted that both of the Children responded in a warm and affectionate manner towards each of their parents[9].
[8] Affidavit Mr O, filed 13.9.17, Annexure “A”.
[9] Family Report, pp.25-7 and 37.
There was no issue during the trial that ideally, and subject to the Wife’s mental health, the Children should have a meaningful relationship with both parents.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
A significant issue in this proceeding is the assessment of risk to the Children if they spend unsupervised time with the Wife.
I address the Wife’s mental health and the risk posed to the Children in these reasons under the heading “Unacceptable Risk”.
Additionally, the Wife refers in her Trial Affidavit to the family violence committed by the Husband which she says was physical, verbal, emotional and financial. Her evidence is that from early 2015 after the break down of their relationship the Husband would smash furniture. She details specific incidents in her Trial Affidavit[10], which were not challenged during cross examination. I accept the Wife’s evidence in this regard.
[10] Wife’s Trial Affidavit, filed 20 February 2018, at [37]-[40], [46].
In the Family Report, Dr O records that the Husband told Dr O that during arguments with the Wife he “occasionally broke things, including a guitar”[11]. Dr O was not challenged in relation to his evidence in cross examination.
[11] Family Report, p. 20.
Dr O recommended that the Court consider requiring the Husband to undertake an anger management programme to:
[…] help him deal with his problems with irritability with [the Wife] and the children[12].
[12] Family Report, p. 39.
On 15 November 2017 Judge Williams ordered that the Husband forthwith do all things necessary to enrol in a Men’s Behaviour Change Course as nominated by the ICL. As at the time of the trial the Husband had not enrolled in a Men’s Behaviour Change Course.
When cross examined by Counsel for the Wife the Husband said that he did not agree with Dr O’s recommendation[13]. He said that he was willing to do the course if the Court ordered him to do so.
[13] Transcript T 88:25.
I intend to require that the Husband participate in a Men’s Behaviour Change Course and I will include this requirement in the orders.
The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
At the time of the Family Report interviews on 9 January 2017, [X] was 8 years 8 months old and was about to commence grade 3 at Suburb D Primary School. [Y] was 2 years 7 months old.
When interviewed by Dr O, [X] was very reluctant to express a preference between living with her mother or father. Dr O records that [X] explicitly said that she did not wish to choose between her parents or express an opinion regarding the time spent with each[14].
[14] Family Report, pp. 27 and 37.
[Y] was too young to express a view at the time of the interview.
Section 60CC(3)(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);
Each of the child’s parents
After [X] was born on [date] 2008, the Wife returned to part time work in about [date] 2008 and worked until [date] 2011 when the family moved to Perth.
The Wife deposed that after the family moved to Perth, it was agreed between herself and the Husband that she would be the primary carer to [X] and support the Husband in his full time employment[15].
[15] Trial Affidavit of Wife, filed 20.2.18, at [95]-[98]
The Husband worked as a [occupation omitted] in the [employment] industry from 2011. His roster was mostly 23 days on and 10 days off. I find that from 2011 the Wife was the primary carer of [X] and then of both of the Children after [Y] was born.
After the Wife moved to Melbourne in early [date] 2016, the Wife remained the primary carer of the Children. She has been assisted by her parents during the periods that she was hospitalised on [date] 2016 and on [date] 2017. The Wife deposed that she has continued to be the primary carer of the Children whilst living with the Second Respondents[16]. She deposed that:
I am responsible for preparing meals for the children, getting the children ready for school and day care, helping [X] with her homework, putting the children to sleep and helping the children at shower time[17].
[16] Ibid., at [120(c)].
[17] Loc. cit.
Ms Wycomb deposed that the Wife had been Children’s primary carer since their birth[18]. Ms Wycomb gave evidence that the Wife and the Children have a very close relationship. She said that the Wife and the Children came to live with her and her husband in November 2016. When asked by Counsel for the ICL who had been the primary carer of the Children whilst they had been living with the Second Respondents, Ms Wycomb confirmed that it was the Wife.
[18] Affidavit Second Respondents, filed 19 October 2017.
The Husband disputed the Wife’s evidence that she was the primary carer of the Children. When cross examined by Counsel for the Wife the Husband said that he didn’t believe that the Wife was capable of caring for the Children on her own. He said he believed that the majority of the care was done by Ms Wycomb.
I accept the evidence of the Wife and Ms Wycomb that the Wife has been the primary carer of the Children whilst they have been living with the Second Respondents.
The Children have been living with the Husband 5 nights in a fortnight pursuant to consent Orders made on 2 March 2017.
The Wife agreed when cross examined by the Counsel for the ICL that the Children had a good relationship with the Husband. She said that she made sure that the Children had a good relationship with their father[19]. When cross examined by Counsel for the ICL the Wife conceded that her offer of increasing the Children’s time with their father from 5 nights to 6 nights a fortnight was because she wanted it to seem fair to the Husband[20]. The Wife then said in response to further questioning by Counsel for the ICL:
He has admitted to wanting to punish me. I want it to seem fair[21].
[19] Transcript T162:16-20.
[20] Transcript T162:21-24.
[21] Transcript T162:26-27.
Counsel for the ICL then asked the Wife to reconsider the current arrangements and her proposed arrangements from the Children’s perspective. The Wife said that the current arrangements where the Children spent 5 nights a fortnight were working well for the Children[22].
[22] Transcript T163:45-46.
Other persons (including any grandparent or other relative of the child)
As noted above Ms Wycomb said that the Wife and the Children came to live with her and her husband in [date] 2016.
The Children have been living with the Husband 5 nights in a fortnight pursuant to Orders made on 2 March 2017. When the Children are living with the Husband they reside at the paternal grandparents home in Suburb E. Mr M, the paternal grandfather, has deposed that the paternal grandparents have a warm and loving relationship with [X] and [Y] [23].
[23] Affidavit Mr M, filed 23 February 2017, at [8].
Dr O in the Family Report noted that he had not interviewed either the maternal or the paternal grandparents both of whom he considered were likely to be important in supporting their grandchildren and respective children. Dr O records the following observation:
Unfortunately, considerable hostility seems to have developed between the paternal and maternal grandparents, to some extent mirroring the hostility between the parents. I have no doubt that it would be in the best interests of the children if Mr and Mrs Furlan and their parents could set aside their differences and find ways of working cooperatively to support children’s relationship with each other each of their parents and their parents’ extended families.
Mr Furlan’s parents are likely to be very important figures in the children during their time with Mr Furlan in a manner that will allow him to continue working to support his family. Ms Furlan’s parents are also likely to be very important figures in supporting Ms Furlan’s ongoing study and return to work, as well as providing support in the event Ms Furlan has any further relapses in her psychiatric illness, regardless of the actual diagnosis[24].
[24] Family Report, p. 38.
Section 60CC(3)(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;
Participation in making decisions about major long-term issues in relation to the children
The parenting orders made by the Family Court of Western Australia on 13 July 2016 provide for the parents to have equal shared parental responsibility for [X] and [Y].
The Husband gave evidence when cross examined by Counsel for the Wife that he did not trust the Wife: Not a single bit[25]. The Husband said further under cross examination by Counsel for the Wife:
I do not know the mother any more. I’ve got absolutely no idea. I’ve had basically no contact with her for over the last two and a half years. ..The person – the person that I knew I don’t believe still exists. The person over here – this Ms Furlan, I do not know her whatsoever[26].
[25] Transcript T65:30.
[26] Transcript T65:30-35.
Since early 2016, the Wife has not consulted with the Husband in relation to making decisions about long term issues concerning the Children. I find that the Husband and the Wife in the recent past have not been able to participate jointly in making decisions about the long term issues in relation to the Children.
Opportunity to spend time with and communicate with the children
The Wife and the Children live with the Second Respondents. The Husband disputes that the Wife has been the primary carer of the Children whilst living with the Second Respondents. I have found that the Wife has been the primary carer of the Children whilst living with the Second Respondents.
The Children live 5 nights a fortnight with the Husband. The Husband has consistently sought to spend as much time as possible with the Children. The Husband’s proposal is that the Children live with him and the Children spend 4 nights in a fortnight with the Wife. He therefore seeks additional time with the Children.
Section 60CC(3)(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;
Soon after the Husband and the Wife separated under the same roof on 4 September 2015, the Husband stopped depositing money into the shared transaction account. This left the Wife with no ability to pay for the needs of the Children or herself as she was not working. As a result she was forced to pay for the family’s living expenses by drawing down on the Mortgage[27].
[27] Wife’s Trial Affidavit, at [46].
On [date] 2016 the Wife transferred some funds from the Mortgage into an account in her name. At trial there was a dispute between the Husband and the Wife as to whether this amount was $71,500 as contended by the Wife or $76,500 as contended by the Husband. In final submissions Counsel for the Wife conceded that the sum was $76,500.
On [date] 2016 the Husband and the Wife signed a handwritten agreement that the Husband would transfer $100,000 to the Wife. The sum of $100,000 was intended to be inclusive of the $76,500 already transferred to the Wife. No further moneys were subsequently transferred to the Wife by the Husband pursuant to this document.
The Wife has deposed that she spent the $76,500 on the costs of relocating to Melbourne, including airfares for herself and the Children, new furniture, school equipment and legal fees in the amount of $45,000.
The Wife is currently on a Newstart allowance of $496 a week and has nominal savings.
When cross examined by Counsel for the Wife, the Husband agreed that in 2012 his income was $171,000; 2013 - $156,000; 2014 - $136,000; and 2015 - $203,000[28]. The Husband said that he stopped working in [date] 2016. He said that he was ready for a rest and that he wanted to spend as much time with my children as possible[29].
[28] Transcript T97.
[29] Transcript T101:15-22.
When cross examined by Counsel for the Wife, the Husband agreed that he had returned to [occupation omitted] in [date] 2017. He gave evidence that in a six to seven week period between December 2017 and early February 2018 he had earned about $38,000. The Husband’s Financial Statement indicated that his income was nil[30] and had not been updated for the trial.
[30] Husband’s Financial Statement, filed 9 October 2017.
The Husband gave evidence when cross examined by Counsel for the Wife that he had a [occupation omitted] and that there is plenty of work available for his trade in the [employment] industry in Melbourne. He said that he no longer wanted to continue [occupation omitted] and he wanted to find work in Melbourne. The Husband anticipated that he would earn $36 -$38 an hour and would be working an eight hour day during the week, if the Court made the orders that he sought. He estimated his income would be possibly $80,000.
The Husband paid Child Support between 3 March 2016 and January 2017[31]. He said he had then been told by the Child Support Agency that he was not required to pay child support as the Children were not living with the Wife but with the Second Respondents. When asked by Counsel for the Wife if he thought that he should have paid the Second Respondents any money for looking after the Children the Husband said:
No, because they had taken my children away from me and were not letting me see them…this was all without my consent. I was spending a fortune just trying to see my own children [32].
[31] Husband’s Affidavit, filed 21 February 2018, at [33]-[35] and Annexure “H”.
[32] Transcript T45:9-12.
The Husband has fulfilled his obligations to maintain the Children whilst they have been in his care, however the primary financial burden of maintaining the Children has been on the Wife since January 2017.
Section 60CC(3)(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;
Either of his or her parents
Both Children have lived with the Wife since final separation in January 2016, apart from two periods when she has been hospitalised. These were from [dates omitted] to [date] 2017. The Wife has also been the Children’s primary carer since at least when the family moved to Perth in [date] 2011. For [Y] that has been all his life.
The Characterisation of the Sum of $76,500 Withdrawn by the Wife
The Husband seeks that the withdrawal of the sum of $76,500 by the Wife in early January 2016 be notionally added back into the asset pool. The Wife’s evidence was that of the $76,500 which she withdrew, $31,500 was spent on relocation costs and living expenses for herself and the Children. The balance of $45,000 has been spent on legal fees.
I accept that the Wife has been reliant upon Centrelink benefits since leaving Perth and has been unable to obtain employment due to the state of her health.
I find that the application of the balance of the funds withdrawn by her (excluding legal expenses of $45,000), being the sum of $31,500, was for reasonable relocation expenses and reasonable living expenses. I will therefore not add this back as a notional asset of property to the asset pool.
In relation to the legal fees, the Wife has had the benefit of the payment of her legal fees from the funds which were a joint asset. The Husband’s legal fees were not paid from the joint savings of the Husband and the Wife but rather from income earnt by the Husband after the parties separated.
The settled authorities clearly permit notional addback of funds disbursed by premature property settlement and applied to legal costs.
Accordingly the sum of $45,000 spent by the Wife on legal fees will be notionally added into the property pool.
Findings as to Asset Pool for Distribution Between the Parties
As a result of the findings set out above, the net available asset pool for distribution between the parties is as follows:
| Asset | Valuation | Party |
| Property K, WA | E $350,000 | Joint |
| Motor vehicle 1 | $1,000 | Wife |
| Motor vehicle 2 | $8,000 | Husband |
| Motor vehicle 3 | $2,000 | Husband |
| Legal costs of Wife | $45,000 | Wife |
| Sub-total | E$406,000 |
| Liabilities | ||
| Mortgage to Bank 1 | $276,521 | Joint |
| Sub-total liabilities | $276,521 | |
| Nett total non-superannuation assets | $129,479 |
| Superannuation | ||
| Super Fund 2 | $16,335 | Wife |
| Super Fund 1 | $87,201 | Husband |
| Sub-total | $103,536 | |
| Nett Total Assets (Incl. Superannuation) | $233,015 |
Contributions
Financial Contributions section 79(4)(a)
Initial Contributions
The respective assets of each of the parties at the commencement of cohabitation are not controversial.
At the commencement of cohabitation, the Wife was employed as an [occupation omitted] and the Husband as a [occupation omitted]. The Wife’s income in 2003 was $23,847. Both parties contributed contents and bank funds of nominal value.
Contributions During the Marriage
The Wife continued to work until the birth of [X] when she took 4 months maternity leave. The Wife then returned to work part time as a [occupation omitted] until the family moved to Western Australia in 2011.
The Wife’s taxable income from 2008 to 2011 was as follows:
Year
Taxable Income
2008
$12,573
2009
$5,151
2010
$15,187
2011
$9,027
In 2012 the Property K property was purchased for the sum of $392,500. The purchase was funded with a deposit and the balance with moneys from the Mortgage.
The Husband’s taxable income from his time working in Western Australia was as follows:
Year
Taxable Income
2012
$171,434
2013
$156,471
2014
$136,427
2015
$203,653
Contributions post separation
Since separation the Husband has made minimal repayments on the mortgage of the Property K property.
Section 79(4)(c) Non-Financial Contributions;
The Wife ceased employment when the family moved to Western Australia. It was agreed between the Husband and the Wife that the Wife would not work in order to be the primary caregiver of the Children, as well as to support the Husband in his full time work.
Due to the nature of the Husband’s [occupation omitted] work, the Husband was away from the home for long periods at a time. The Wife therefore cared for the Children and undertook the home duties unaided, enabling the Husband to pursue his work away from the home for long periods as a [occupation omitted].
The Section 79(4)(d), (e), (f) and (g) and Section 75(2) factors
Section 79(4)(d) the effect of any proposed order upon the earning capacity of either party to the marriage;
The orders which I propose to make will have limited effect upon the earning capacity of the Husband. If the Wife remains in a good state of mental health she will be able to pursue employment.
The matters referred to in Section 75(2) so far as they are relevant
Section 75(2)(a) the age and state of health of each of the parties;
The Husband is aged 42. He was previously employed in the [employment] industry as a [occupation omitted]. He ceased this employment voluntarily in [date] 2017. He recommenced [occupation omitted] work in [date] 2017. He intends to find work in Melbourne in the [employment] industry and believes that he has good prospects of obtaining employment.
The Wife is aged 37 and is enrolled at [school] studying a [course omitted]. She has mental health problems that may impede her capacity to obtain employment in the future. The Wife’s Health is discussed under the heading “Unacceptable Risk”.
Section 75(2)(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The property and financial resources of the parties are referred to in these reasons. There was no dispute that the Husband has the physical and mental capacity to participate in appropriate gainful employment. The Wife has mental health issues that may affect her capacity to obtain employment in the future. The Wife’s Health is discussed under the heading “Unacceptable Risk”. The Wife is presently studying for a [qualifications omitted] in an attempt to re-engage with the workforce.
Section 75(2)(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The orders which I intend to make will provide that the Children will live with the Wife and will spend substantial and significant time with the Husband.
Section 75(2)(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
The commitments of each of the parties that are necessary to support himself/herself are set out in their respective financial statements.
Neither party was cross examined about the expenses claimed in their financial statements.
Section 75(2)(e) the responsibilities of either party to support any other person;
Each party has a responsibility to contribute towards the support of the Children. The Wife is responsible for the expenses of the Children whilst they are in her care.
The Husband has not paid any child support for the benefit of the Children since January 2017.
Apart from the Children there was no evidence that either party had responsibilities to support any other person.
Section 75(2)(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
The Wife in her Financial Statement filed on 12 October 2017 deposed that she receives a Newstart Allowance of $496 per week.
The Husband in his Financial Statement filed on 9 October 2017 deposes that he is unemployed and that he is not in receipt of a pension, allowance or benefit within the meaning of s.75(2)(f).
Section 75(2)(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
Due to the small asset pool, the orders which I intend to make will result in each party receiving a modest payment when the Property K property is sold.
Section 75(2)(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
This is not a relevant consideration.
Section 75(2)(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
This is not a relevant consideration.
Section 75(2)(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
This is not a relevant consideration.
Section 75(2)(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The parties cohabitated for a period of 12 years. They commenced cohabitation in 2003, married on [date] 2007 and separated on 4 September 2015. The earning capacity of the Wife has been affected by the duration of the marriage as she has been the primary caregiver of the Children and has been out of the workforce since the family moved to Perth in [date] 2011.
Section 75(2)(l) the need to protect a party who wishes to continue that party’s role as a parent;
Both the Husband and the Wife will be able to continue their roles as parents.
Section 75(2)(m) if either party is cohabitating with another person - the financial circumstances relating to the cohabitation;
This is not a relevant consideration.
Section 75(2)(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
I am satisfied that the orders that I intend to make under s.79 enable both parties to maintain themselves to the extent possible with the limited assets available in the asset pool.
Section 75(2)(naa) the terms of any order or declaration to be made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a defacto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
This is not a relevant consideration.
Section 75(2)(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
As previously referred to, the Husband does not pay child support and does not contribute to the costs of maintaining the children. When the Husband resumes employment, it is likely that he will be required to pay child support. There was no evidence as to what amount of child support the Husband might be liable to provide in the future.
Section 75(2)(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
All relevant considerations have been referred to in these reasons.
Section 75(2)(p) the terms of any financial agreement that is binding on the parties to the marriage;
This is not a relevant consideration.
Section 75(2)(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage;
This is not a relevant consideration.
Conclusion as to Contribution
Counsel for the Wife in his final submissions, urged me to determine that the Husband and the Wife’s contributions of the asset pool were 50% each.
The basis for this submission was that the assets of the parties are modest and so is the superannuation. It was submitted that the smaller the asset pool the more critical the adjustment of other factors beyond contribution becomes.
The Husband made no submissions in relation to contribution. The Husband argued that as the Wife had already received the sum of $76,500, she was not entitled to any further payment and should be removed from the title of the Property K property. I refer to the discussion of Notional Addback of Property to the Asset Pool above.
Having considered the matters referred to in this judgment and the submissions of Counsel for the Wife, I determine that the Wife’s contributions should be assessed at 50% and the Husband’s at 50%.
Conclusion as to Future Needs
I take into consideration the above matters, including but not limited to the following:
a)The Children will be living with the Wife;
b)The young age of the Children;
c)The Wife’s state of mental health;
d)The uncertainty about the Wife’s earning capacity;
e)The disparity in earning capacity of the parties;
Because the pool is small I must look at the reality of the parties financial positions rather than simply percentage amounts. The Wife has no assets other than her share in the matrimonial property. She has the ability to earn an income, however that is conditional upon her continuing to stay in a good state of mental health. Her ability to earn an income is modest compared to that of the Husband.
I am satisfied that that there should be an adjustment in favour of the Wife of 15% for s.75(2) factors.
Adjustment of Interests
As a result of the findings made to contributions and future needs, I am satisfied it is just and equitable to make orders adjusting property between the parties, so that the Wife is entitled to 65% of the non- superannuation property and the Husband should receive 35% of the non-superannuation property.
At the conclusion of the trial, counsel for the Wife sought orders that the combined superannuation entitlements should be divided equally between the Husband and the Wife.
After considering the evidence and in particular the relatively young ages of both parties, I have determined that the combined superannuation should be divided equally between the parties. This will result in a split of the Husband’s superannuation in favour of the Wife of $35,433.
Conclusion
I have determined that the division of the assets will be achieved by the sale of the Property K property and a division of the net proceeds of the sale. The Wife will receive a payment of 65% of the net proceeds of sale and the Husband will receive 35%.
During the course of final submissions, Counsel for the Wife submitted that due to the modest value of the motor vehicles in each party’s possession, the Wife did not seek an adjustment in relation to the motor vehicles.
As previously referred to, the combined superannuation entitlements will be divided equally between the parties.
I am satisfied the division of the property is just and equitable.
I intend to make orders accordingly.
The Husband’s Property Claims
The final property orders that are sought by the Husband are set out in his Application in a Case, filed on 23 October 2017.
At the conclusion of the hearing the Husband abandoned:
a)Each of the claims insofar as they were made against the Second Respondents other than an order for costs.
b)The claim that the Wife and the Second Respondents:
[…] repay [the Husband] the difference of the current market appraisal from $76,500 already removed from redraw on mortgage account on the [date] 2016. Current Market Appraisal as prepared by Mr N on the 19 September 2017, range starting $320,000[94].
[94] Application in a Case, at [16].
The Husband sought an order that:
[…] the parties do all acts and sign all necessary documents required to have [the wife] removed from the title of the property and the mortgage”[95].
[95] Ibid., at [13].
For the reasons I have given in my decision in relation to the property adjustment pursuant to s.79 of the Act I do not propose to make this order.
The Husband sought an order that:
[the Wife] pay [the husband] 50% of all mortgage repayments since separation in September 2015. Totalling $38,750[96].
[96] Ibid., at [14].
The Husband when cross examined by Counsel for the ICL confirmed that he had not made an interim application to sell the Property K property because:
I didn’t wish to sell the house…I would like to keep the house[97].
[97] Transcript T132:9-11.
The Wife in her Trial Affidavit deposed that on 14 September 2017 she had agreed to the Property K property being rented out and said that she would sign all documents to facilitate this taking place. The Husband then claimed that there were repairs required to be undertaken to the Property K property before it could be rented. The Husband himself assessed that the repairs would cost $18,100. The Husband required the Wife to contribute equally to these repairs, which she was unable to afford. As a result the Property K property was not rented out[98].
[98] Wife’s Trial Affidavit, filed 20.2.18, at [120 e] and Annexures “F-01” and “F-03”.
The Husband did not produce evidence that demonstrated that the sum of $38,750 had in fact been paid on the Mortgage since separation under the same roof in September 2015.
For the reasons I have given in relation to my decision in property adjustment pursuant to s.79 of the Act, I do not propose to make the order sought by the Husband.
The Husband sought an order that:
[the Wife] pay 50% of all costs relating to [the Property K property] outlined in Financial Statement of [the Husband], dated Monday 9 October 2017. From date of separation 2015[99].
[99] Ibid., at [15].
In final submissions, the Husband was not able to clearly identify what costs relating to the Property K property he was claiming, apart from rates. The Husband produced a Rates Notice for the financial year 30 June 2018, in the sum of $1,930.23[100]. These rates had had not been paid. The Husband said that he had paid rates from previous years and he said that he wanted to also claim these payments. The Husband did not produce any documentary evidence to support these additional payments.
[100] Exhibit A2.
The only costs set out in the Financial Statement of the Husband, dated 9 October 2017 relating to the Property K property are:
a)Weekly mortgage payment of $357 to Bank 1.
b)Weekly home and contents insurance payments to Bank 1 of $16.
I propose to order the sale of the Property K property. At the time of the sale there will be an adjustment between the vendor and purchaser in relation to any municipal rates. This will ensure that the Husband and the Wife contribute to the payment of any unpaid municipal rates.
Otherwise for the reasons I have given in relation to my decision in relation to the property adjustment pursuant to s.79 of the Act, I do not propose to make the order sought by the Husband.
The Husband sought an order that:
At the conclusion of all payments of the [Wife] to the [Husband], the [Wife] to be removed from the mortgage by order of the court and the [Husband] to be the sole owner of the property[101].
[101] Application in a Case, at [17].
For the reasons I have given to my decision in relation to the property adjustment pursuant to s.79 of the Act, I do not propose to make the order sought.
The Husband sought an order that:
The [Wife] pay for all relocation costs of the [Husband] to Melbourne[102].
[102] Ibid., at [18].
The Husband said that the basis of the application was that the Wife:
“[…] ran away with our children to Melbourne. I was forced to relocate”[103].
[103] Transcript T222:1-2.
The Husband overlooked the fact that there was an interim hearing in Perth before Chief Justice Thackray on [date] 2016. At that time the Husband’s Amended Initiating Application, filed on 11 April 2016 sought orders that the Children be returned to Perth and reside in the former matrimonial home with the Husband. Chief Justice Thackray did not order the return of the Wife and Children to Perth but rather transferred the proceeding to the Family Court of Australia at the Melbourne Registry.
Further, the Husband has elected to return to Melbourne to live. It is a place where he grew up and where his parents live. No one has forced him to relocate. It is understandable that he has chosen to relocate now that his Children live here.
The Wife’s evidence is that she decided to stay in Melbourne in early 2016 so that she could receive assistance from the maternal family with the Children during a time that she was experiencing difficulties with her deteriorating mental health.
The Husband said that he had not as yet relocated everything from the Property K property to Melbourne, as he had not been able to afford to do so. He said “I haven’t the funds to do so”[104]. I note that the Husband elected to cease paid employment in early 2017. The Husband could have undertaken employment in Melbourne in 2017 and 2018 but has chosen not to do so. The Husband has recently returned to some limited [occupation omitted] employment.
[104] Transcript T222:8-9.
No documentary evidence was produced of any relocation costs incurred to date by the Husband. No documents were produced by way of a quotation of what the estimated relocation costs would be. The Husband gave no evidence as to what he estimated the costs would be. Accordingly, having considered the foregoing I do not propose to make the order sought by the Husband.
The Husband also sought an order that:
[the Wife] reimburse the [Husband] of all travel costs between Perth and Melbourne to see his children in 2016[105].
[105] Application in a Case, at [19].
The Husband said that the basis of his application was that:
“I had to fly back and forward to Melbourne every break at my own cost to see my own children”[106].
[106] Transcript T222:22-23.
I refer to and repeat the matters in paragraphs 361 above.
No receipts were produced or other proof of payment was produced by the Husband. The claim was not quantified or otherwise articulated in any manner by the Husband.
As noted above, the Wife’s evidence is that she decided to stay in Melbourne in 2016 so that she could receive assistance with the Children from the maternal family during a time that she was experiencing difficulties with her deteriorating mental health. The nature of the Husband’s employment as a [occupation omitted] worker meant that she had previously been left for extended periods of time without his assistance in caring for the Children.
Having considered the foregoing matters, I do not propose to make the order sought by the Husband.
Costs
The Wife in her Amended Response sought an order that the Husband bear the Wife’s costs of the proceeding[107].
[107] Wife’s Amended Response, filed 22.2.18, at [17].
The Wife’s counsel made no submissions in support of this order.
The Husband has sought an order that the Wife and the Second Respondents pay all of his costs of the proceeding[108].
[108] Application in a Case, at [Final Orders 3]
In final submissions the Husband produced a receipt from the Federal Circuit Court and Family Court of Australia, dated 28 February 2018 for the sum of $2,195, together with a credit card payment receipt[109]. The receipt was for payment of the mediation fee ($380), setting down fee ($605) and the hearing fee for two days (at $650 a day). The Husband did not otherwise produce any other documents in support of his claim for costs.
[109] Exhibit A3.
Section 117(1) of the Act. Section 117(1) of the Act provides:
Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC each party to proceedings under this Act shall bear his or her own costs.
Section 117(2) of the Act provides:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Section 117(2A) of the Act provides:
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The Husband said that he had paid for the mediation fee, setting down fee and the hearing fees of every day of the trial. He also had to pay for psychiatric evaluations. He argued that the Wife had not had to pay for anything.
The Wife’s counsel in his closing submission noted that of the $76,500 received by the wife in January 2016, $45,000 was spent on her legal costs.
The Husband said that the basis of his submission for costs was that:
I’ve done nothing to deserve any of this at all. My wife took our children without out my consent, accused me of all sorts of horrible things, including rape of my own children. I’ve had to enter into court proceedings just to see my children again, pay for psychiatric evaluations. It’s been of great cost to me mentally and financially, and I don’t believe that I deserve this or should have to pay these costs in any way[110].
[110] Transcript T224:34-39.
This submission ignores the fact that the Wife, through no fault of her own, has recently suffered from a significant mental illness. The onset of the Wife’s mental illness and her consequent behavior has no doubt been very upsetting for the Wife, the Husband and the Second Respondents. In my opinion however, the Husband is now seeking to punish the Wife for the pain that she has caused him during her illness, in making this application for costs. The Wife has not worked for many years, is on a Newstart allowance and has no assets apart from her modest equity in the former matrimonial home. It must be quite obvious to the Husband that the Wife has no capacity to pay his legal expenses of this proceeding.
The orders I have made in relation to parenting and property are substantially in accordance with the Wife’s proposals in her Amended Response, filed 22 February 2017. Significantly, the orders are substantially not in accordance with the Husband’s Application in a Case or his final proposals at the conclusion of the trial. The Husband has failed to a significant extent in prosecuting his case and there is no reasonable basis upon which, in the exercise of my discretion an order for costs could be made against the Wife pursuant to s.117(2) of the Act, taking into account the matters in s.117(3).
In my opinion, having regard to all the circumstances, the usual position under s.117(1) of the Act should apply and each party shall bear their own costs.
I therefore do not propose to make the order for costs sought by Husband.
I certify that the preceding three hundred and eighty-five (385) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Date: 16 November 2018
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Injunction
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Costs
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Procedural Fairness
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Constructive Trust
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Remedies
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Standing
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