Gibson & Gibson
[2008] FMCAfam 759
•18 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GIBSON & GIBSON | [2008] FMCAfam 759 |
| FAMILY LAW – Parenting – competing proposals – issues of conflict – best interests of the children. FAMILY LAW – Property – agreed pool – contributions – just and equitable. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 61DAA, 75(2) |
| C & C (2005) FCAFC 429 Goode (2006) FamCA 1346 Gosper [1987] FLC 91-818 Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Kessey (1994) FLC 92-495 Lavender & Turner (2007) FamCA 182 |
| Applicant: | MR GIBSON |
| Respondent: | MS GIBSON |
| File Number: | BRC 11935 of 2007 |
| Judgment of: | Baumann FM |
| Hearing date: | 4 March 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 18 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Galloway |
| Solicitors for the Applicant: | MacDonald Law |
| Counsel for the Respondent: | Ms Harris |
| Solicitors for the Respondent: | Rhonda Sheehy & Associates |
ORDERS
That the children [B] born in 1996, [C] born in 1998 and [D] born in 2000 live with the mother.
That the mother and father have joint parental responsibility for the said children.
That without limiting the parental responsibility of either parent herein, each parent shall keep the other parent informed of and shall promptly consult with the other with respect to any significant parenting issues affecting the said children. For the purposes of these Orders, a “parenting issue” is:-
(a)Any medical or health matter concerning the said children and forthwith in the event of any medical or other emergency involving the said children;
(b)Any medical or health matter affecting either parent which may affect the ability of that parent to care for the said children whilst with him/her;
(c)Matters relating to the education of the said children, including but not limited to, the choice of School and curriculum together with the provision at the non-resident parent’s expense to the other parent of all School reports, School photographs and all communications/newsletters from the said children’s School other than with respect to routine or administrative matters;
(d)Disciplinary matters other than those of a trivial nature;
(e)Matters concerning the social development and sporting activities of the said children;
(f)Any changes of domicile or contact telephone numbers including landline and mobile of either parent including the said children within forty-eight (48) hours of any such change;
(g)Any intended change in the surname which the said children are commonly known to that which appears on the said children’s Birth Certificates;
(h)Generally, any matter regarding the said children in respect of which a parent should be informed or consulted with having regard to the provisions of Part VII of the Family Law Act 1975;
PROVIDED THAT these Orders are authority to all Medical and Educational Experts/Care Providers involved with the said children from time to time to liaise with each parent in relation to the health, welfare and progress of the said children AND each parent keep the other informed of the full name, address and contact telephone number of each such Medical and Educational Expert/Care Provider of the said children from time to time.
That during the time the said children are with either parent, that parent shall:-
(a)Respect the privacy of the other parent and not question the said children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the said children and use his/her best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the said children.
That the father spend meaningful time with and communicate with the said children at all times as may be mutually agreed and failing agreement as follows:-
(a)From 4.30 p.m. Friday to 4.30 p.m. Sunday each alternate weekend during School Terms to include long weekends where those weekends fall at such times and, in particular, to commence 4.30 p.m. Thursday if the Friday is a public holiday and to conclude 4.30 p.m. Monday if the Monday is a public holiday subject to paragraph 5. b. hereof.
(b)From 4.30 p.m. Friday to 4.30 p.m. Sunday on Father’s Day weekend PROVIDED THAT no time occur from 4.30 p.m. Friday to 4.30 p.m. Sunday on Mother’s Day weekend.
(c)From 4.30 p.m. Thursday Easter Eve to 4.30 p.m. Easter Monday and for the whole of the first Term School Holidays each alternate year commencing 2009 with no time to be spent from 4.30 p.m. Thursday Easter Eve to 4.30 p.m. Easter Monday and for the whole of the first Term School Holidays each even year.
(d)For one half of all the June/July, September/October and Christmas Queensland School Holidays each year including alternate Christmas Days and, in particular, for the first half in odd years including Christmas Day and the second half in even years excluding Christmas Day.
(e)By telephone communication each Wednesday (and on each of the said children’s birthdays, on Christmas morning and Easter Sunday morning if the said children are with the resident parent) with the father to instigate the telephone call to the mother’s landline telephone number between 7.00 p.m. and 8.00 p.m. with the mother to facilitate the telephone call by having the said children available to answer the telephone call at that time and ensure the said children have privacy during the telephone call PROVIDED THAT the mother have reciprocal telephone communication with the said children when they are with the father on the same bases aforesaid PROVIDED FURTHER THAT both parents permit the said children to telephone the other parent at any other reasonable time they express a specific wish to do so PROVIDED ALWAYS THAT the parents ensure a contact telephone number is available to each other during Easter and all School Holidays if not contactable on his/her home number during that period.
That the parents share the transportation of the said children with changeover to occur at [X] as agreed and, in the case of School Holidays, save as herein mentioned, changeover for:-
FIRST HALF OF SCHOOL HOLIDAYS
(a)Occur at commencement thereof at 4.30 p.m. after close of School on Friday when the School Term finishes and conclude at 4.30 p.m. on the second Saturday of the June/July and September/October School Holidays.
(b)Occur at commencement thereof at 4.30 p.m. after close of School on Friday when the School Term finishes for the Christmas School Holidays each year and conclude at 4.30 p.m. on the fourth Saturday thereof.
SECOND HALF OF SCHOOL HOLIDAYS
(c)Occur at commencement thereof at 4.30 p.m. on the second Saturday of the June/July and September/October School Holidays each year and conclude at 4.30 p.m. on the last Sunday thereof.
(d)Occur at commencement thereof at 4.30p.m. on the fourth Saturday of the Christmas School Holidays and conclude at 4.30p.m. on the last Sunday thereof.
That each parent forthwith contact the other on his/her contact telephone number in the event that either parent anticipates he/she will be in excess of 15 minutes late for changeover AND for that purpose each parent ensure his/her mobile telephone remains fully charged and is on for one hour leading up to and subsequently to the changeover times allocated herein.
That both parents be at liberty to attend all School functions to which parents are invited including, but not limited to, carnivals, sports days, fetes, concerts, plays and parent/teacher meetings.
That as and by way of property settlement:-
(a)Within sixty (60) days of the 25th July, 2008 the husband pay to the Trust Account of Rhonda Sheehy & Associates as Solicitors for the wife the sum of $422,000.00 in exchange for which the wife simultaneously transfer all her right, title and interest in and to the farm property at Property L, in the State of Queensland to the husband for his sole use and benefit absolutely AND for that purpose the husband take all steps necessary and sign all documents with a Banking or Lending institution of his choice to refinance the existing joint Mortgage indebtedness over the farm property at Property L, into his sole name.
(b)Not less than ten (10) business days prior to settlement of the transfer of the Property L, property, the husband and wife attend upon the National Australia Bank and sign all necessary documents to release the existing joint Mortgage indebtedness thereover in readiness for settlement.
(c)The husband otherwise retain for his sole use and benefit absolutely the following assets:-
(i)Property situated at Property W;
(ii)[G] Farm comprising property at Property J (a one-third share), Property F and Property S;
(iii)Plant, equipment and machinery;
(iv)Cattle;
(v)Cubby house and furniture and chattels therein;
(vi)Partnership account;
(vii)His Superannuation entitlements with Sunsuper;
(d)The wife otherwise retain for her sole use and benefit absolutely:-
(i)Her MLC Superannuation;
(ii)Furniture and chattels in her possession;
(e)Unless otherwise specified in these Orders, each party be solely entitled to the exclusion of the other, to all other property and resources in the possession of such party, including any liabilities attached thereto, as at the date hereof and indemnifies the other party against any responsibility therefor.
That for the purposes of effecting these Orders, each party sign as required all necessary documents and, in particular:-
(a)Release Authority/s to any mortgagee;
(b)Transfer documents;
(c)Settlement Authority/ies;
(d)Any other associated document pertaining to the transfer of real property.
That in the event that either party refuses or neglects to sign (within forty-eight (48) hours of a written request to do so) any documents or do any act necessary to effect the terms of these Orders, the Registrar of this Honourable Court is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act, to execute such documents on behalf of the defaulting party and the party in default is Ordered to pay all reasonable Solicitor/own client costs incurred by the non-defaulting party.
That either party have liberty to apply for any further consequential Orders and, in particular, if the sum of $422,000.00 is not paid as herein set out, upon giving SEVEN (7) days’ notice in writing to the other.
IT IS NOTED that publication of this judgment under the pseudonym Gibson & Gibson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 11935 of 2007
| MR GIBSON |
Applicant
And
| MS GIBSON |
Respondent
REASONS FOR JUDGMENT
Introduction
After a relationship spanning 12 years, Mr Gibson and his wife Ms Gibson are unable to agree on where their three daughters [B] (11), [C] (9) and [D] (8) are to live. They also are in dispute about how the assets they now have should be divided.
Both parties left school before the completion of secondary school and I have decided that these reasons should be drawn in a way that they are clearly understood by the parties. I have also decided it is not necessary to deal in detail with every difficult issue in their relationship, preferring to use these reasons as a platform for the hope of a better and more co-operative parenting relationship in the future. Dwelling too much in the past in this case seems to me to be entirely unhelpful.
My aim in what has become a chronic and toxic dispute which has engulfed these three girls, is to force the parents to reflect on their past unacceptable behaviour and encourage them to do better in the future.
Brief History
A brief, hopefully uncontroversial setting for this dispute follows:-
a)The Applicant father (now aged 42) and the Respondent mother (now aged 47) married in May 1995 after a short engagement. The parties until separation continued to reside in the [W] area.
b)The couple were blessed with three daughters (the mother having miscarried on a couple of occasions) namely [B] born in 1996, [C] born in 1998 and [D] born in 2000.
c)In 1999 the father suffered a serious neck injury and was hospitalised for some weeks and off work for some months.
d)The father and his brother operated a rural partnership and the father owned a farm, gifted to him in 2003. The father is a truck driver.
e)In about May 2003 Ms R, a single mother with the care of her daughter [E] (7) moved into a house next door to the Gibsons. [E], who has not seen her biological father since she was six months of age, has Downs Syndrome.
f)The mother and Ms R became friends and supportive neighbours. The four little girls played regularly with each other. Mr Gibson became more than just a neighbour to Ms R.
g)The parents’ relationship was deteriorating and, unbeknown initially to the mother; the father commenced an intimate relationship with Ms R. She became pregnant and Ms R gave birth to [F] in February 2007. The father denied strenuously to the mother that he was in a relationship with Ms R or that [F] was his child.
h)When finally the true facts emerged, the mother found it difficult to control her feelings. She threatened self harm. She threw things at the father and Ms R. Both parents said extremely hurtful things about the other. The children were exposed to the conflict.
i)The parties separated in April 2007 and over the next few months emotions continued to boil over. The father and mother were unable to agree on the children spending consistent time with the father until a Legal Aid Conference in September. The father would stay often with his former neighbour Ms R and encouraged the girls to visit him there. The sense of betrayal felt deeply by the mother, caused the mother to move to the Caboolture area, some 250kms away, closer to her family. She did not tell the father she was going and did not tell him where she was then staying.
j)The father, quite understandably was upset by the mother’s actions. He immediately commenced an action in this Court seeking that the children live with him in [W]. The mother opposed the application and on 20 November 2007 FM Slack made an order, on an interim basis, that the children live with the mother with the father to spend time with them on alternate weekends and for holidays. Despite some difficulties (and confusion) about changeovers, this regime has essentially been maintained for the four months until trial. I am aware that the hearing of this matter took place on 4 March 2008 (and I apologise to the parties for the delay in providing these reasons), and neither party has sought to reopen. On this basis I assume the interim orders have continued to be complied with generally.
k)As a result of this Court’s orders, Robyn-Ann Mathews, an experienced independent social worker was appointed to prepare a family report. Interviews took place in January and February and a report dated 29 February 2008 was in evidence.
Competing Proposals and Households
Father
The father seeks that the children live with him in [W]. He proposes the children spend time with the mother, if she continues to live in Brisbane, each alternate weekend from 5:00p.m. Friday to 4:30p.m. Sunday with changeovers to be at [Z]. School holidays are to be shared equally.
The father lives now with Ms R in rented accommodation in [W].
He works as a truck driver. When property settlement issues are resolved, he hopes to build a new family home on a small parcel of land he owns. If the children live with him, he intends to try and modify his work hours to be more available. He acknowledges however that Ms R will be required, and is happy, to play a significant parenting role to assist and support him. Of course, the three children will be housed with their infant sibling [F] and Ms R’s child [E].
The father also has family support in the [W] region, particularly the paternal grandmother.
Mother
The mother proposes that the children remain living with her in the Morayfield/Caboolture area and spend alternate weekends (5:30p.m. Friday to 5:00p.m. Sunday) with the father. She proposes that changeovers occur at [Y]. She also agrees that the school holidays be shared equally.
The mother has the support of her family in the region, and desires to remain a full time mother to her three daughters, although getting some part time work (she has experience as a [omitted] is also contemplated. With the proceeds of her property settlement she is hopeful of securing some accommodation for herself and move from her current rented accommodation.
The competing proposals identify the real issue for determination – should the children live with the father in [W] or the mother in Caboolture. Neither party expresses any intention to move closer to the other party – and in fact this is a case where a geographical distance between the parents probably reduces the potential for conflict to arise.
As I analyse the situation below, it becomes apparent that neither proposal is perfect. Each of the parents, and their position, has advantages and disadvantages. Both parents have acted poorly in the past and the children can only hope, their parents may act more sensibly in the future.
The Children
As is usually the case, the observations and assessment of the report writer, who has had the advantage of seeing and observing the children, is of significant assistance to me.
[B] has been heavily involved in the dispute. As the oldest sibling she has taken on the role of “spokesperson”. She has felt the pressure of the events more keenly, and I accept the observations of Ms Mathews that the mother, in particular, has overly involved the child in the dispute. She feels a need, it seems, to “report” to the mother about issues in the father’s household. This must cease. [B], like [C], has been diagnosed with Auditory Sensory Programming Disorder, which creates difficulty in processing too much information at once. The child’s school is aware of the issue, and external therapy assists. [B] is progressing satisfactorily at school, although [B] presented to the report writer as “wistful and missing her friend” in [W].
[C] seems to accept the tag of being “the naughty one”. Her behaviour in both households can be confronting. She is often seeking attention. She has a temper and is quite determined. Wherever she lives, she will prove a cause of constant and strong parenting. She suffers from ASPD more significantly than [B], however, with the assistance at school, seems to be progressing satisfactorily considering her learning challenges.
[D] is the youngest and likes being so. Perhaps her age has to some degree shielded her from the same adverse impact of the parents’ behaviour; spiteful language and the conflict. [D] particularly enjoyed playing with the baby [F].
The observations made by Ms Mathews when observing the children’s interaction with [E] and [F] are set out at paragraph 179. The evidence confirms some sibling rivalry exists between [E] and the three children in a way that does not exist presently with the baby. Ms Mathews says that [E] “presents as enjoying the girls’ company more than they enjoy hers”. Some growing tensions between [B] and [E] emerged – probably due in part to [B]’s growing need for some independence. Her mother reported how much happier [B] seems to be with her own room and as she approaches the teenage stage of her life, it is likely that [E]’s exuberance might become more annoying to [B] (unfairly perhaps) with the younger siblings watching the interaction closely. [C] has already been in conflict with Ms R over disputes between [C] and [E].
Having said this, handled sensitively, the children developing a better understanding of [E]’s special needs presents as an opportunity to develop their characters and tolerance.
The Conflict
The relationship between the mother and father was not a consistently happy one even before the arrival of Ms R on the scene. The mother was in conflict with the father’s mother. She alleges she was punched in the stomach while pregnant by the paternal grandmother. Clearly the mother felt somewhat isolated in the [W] area where the father had a long connection and a strong family network. The father complains of the mother’s criticisms of his family, including his father, who died in 2003.
It is likely that this couple were prone to use colourful language.
The father worked hard on the farm which involved long hours as well as truck driving. The mother’s primary role was as the mother of the young family and homemaker.
Although Ms R moving next door initially provided the mother with a female friend to share her concerns (which I suspect she did), the mother became aware of the increasing closeness in the relationship between her husband and her neighbour. The mother alleges that by 2005, Ms R was asking her permission for the father to donate sperm so she could have another baby. The mother refused her permission, although Ms R and the father deny it was ever more than a light hearted suggestion.
By May 2006, tensions between the mother and Ms R became more obvious and quite public. It seems clear that the mother sensed a growing relationship between her husband and Ms R (which the father consistently denied) and she felt threatened by these events. By late 2006 Ms R claimed she was being harassed by the mother (see paragraph 43 of the Family Report). Ms R was pregnant at that time.
After the birth of [F], the suspicions of the mother intensified.
At Easter 2007 an ugly event took place during which the father confessed to fathering [F]. The mother reacted aggressively – throwing jars and then beer bottles at Ms R’s home. The children witnessed and heard most of this fracas, with the mother being arrested by police and charged with malicious damage. She was detained in the watch house and the father immediately arranged for the children to be taken out to his mother’s farm “to keep them away from any further scenes.”
Attempts to resolve the dispute about future arrangements degenerated into more arguments, which again the children witnessed with distressing effect. As far as the mother was concerned the father’s infidelity was an act that seriously broke the wedding vows. She was angry and continues to be very embittered, if her testimony during the trial is any indication.
The mother’s anger and hurt, in her mind justified her failure to facilitate the father seeing the children for some months after Easter and to leave the area without telling the father. I agree with
Ms Mathews that in so doing the mother put her own needs above those of the children to maintain a relationship with their father.
The father showed little insight into the effect of his deception.
This naivety was really astounding. He’s showed some obvious weakness, not in seeking a satisfying adult relationship outside the marriage as it was breaking down, but in his lack of honesty. It was a poor choice to involve the children as secretly as he did. It is hardly surprising that the girls, particularly [B], share some of their mother’s confusion and hurt.
Since moving to the Brisbane area, the level of personal abuse has continued. At least the girls no longer have to witness the conflict almost daily as was occurring when the mother and Ms R were neighbours. There have been some initial difficulties with changeovers – mostly over where, resulting in delays and missed opportunities (for example, [B]’s birthday).
[B], the spokesman really says it all, with her pleas, delivered to the parents via Ms Mathews that her parents:-
“stop fighting and turn up on time.”
I have formed the view, that some geographical separation in this matter between the parents is actually needed. The fact that the father and his new partner Ms R have a long association with the [W] area makes the prospect of the mother being comfortable in that environment very remote. Such is life in large rural communities. As I note shortly, the mother’s functioning is positively affected by her available emotional support from her own family where she lives now. The distance between the two homes does provide a challenge, but it is not insurmountable.
The Family Report
The report of Ms Mathews is in evidence. I generally accept the factual foundation set out in her report, and the opinions that she has expressed. The report writer was not required for cross examination. Although correctly, in my view, identifying the key aspects of this family dysfunction, Ms Mathews did not feel comfortable in recommending where the children should live. She says that is a matter for judicial determination.
No useful purpose is served by reciting in these written reasons large parts of the text of Ms Mathews’ very detailed 205 paragraph report. The parents have had it available to them now for some time. Whether either of them is capable of using the report as a tool for self reflection is doubtful. Both parents are really content to blame the other for the situation the children now find themselves in.
However, some general observations from the report I choose to specifically detail:-
a)The father and Ms R present “as a cohesive couple who enjoy each other’s company” and “who are committed to each other” (paragraph 98). I accept this to be true.
b)The mother presents as “bitter about the separation and angry about Mr Gibson and Ms R’s behaviour. She presents herself as the victim of their deceit” (paragraph 112).
c)It is evident that the father does not trust the mother and is unable to communicate with her, which “impedes their ability to co-parent”. Ms R is angry and frustrated with the mother and there was “an element of competition observed in Ms R’s comments” (see paragraphs 128, 129 and 178). I also agree.
d)
The mother focuses on Ms R as the cause of the problems. I am of the view, that the parents should be the only adults, at this stage, involved in discussions directly about the children.
The involvement of Ms R is counter-productive. Both parents would benefit from completing a post-separation parenting course, as recommended by Ms Mathews, to improve their capacity to communicate effectively.
e)The mother prevents “as strongly committed to parenting. She has remained at home with the children since [B]’s birth. She has viewed this as her role in life” (paragraph 148).
f)The girls’ physical presentation at interviews did not give rise to any concerns and the indicators are that their physical needs were appropriately met (paragraph 153).
g)“There is considerable concern as to the children’s emotional needs. They are clearly aware of the tension between the two households and they have clearly been exposed to confrontations between their parents” (paragraph 157). [B] presents as having been exposed to her mother’s perspective and “as having been encouraged to side with her mother’s viewpoint” (paragraph 158).
h)The mother seems “attuned to the children’s educational needs and committed to ensuring these are well met” (paragraph 166).
i)In terms of a change of residence to the father, “it would be a significant change for the children to live away from their mother” and it would represent a totally foreign experience to them. Their ability to adjust is questioned. The children would also need to adapt to the quite different rules in their father’s household. This would require some work and commitment from the adults” (paragraph 168).
j)“These children all present as closely attached to their mother” (paragraph 175) and whilst the father did not, during the family report interviews “initiate interaction” with the children he responded when they came up to him. The father presents “as loving the children and enjoying their company but he is not a demonstrative person” (paragraph 177).
k)
Importantly Ms Mathews opines at paragraph 197 that “there are concerns as to Ms Gibson’s ability to facilitate and promote the children’s relationship with their father.” The evidence of the mother in the witness box supports a finding that this is a concern I must seriously take into account. The father says, in essence, he may only preserve his relationship with the children if they live with him, and this was identified by the report writer “to be a significant motivation behind his proposal that she have supervised visits with the children should they live with him.”
Ms Mathews does not support supervision and neither do I.
Principles
The children’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act 1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the additional considerations are set out in s.60CC.
The primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) will be analysed below to ensure that the order I propose will serve the best interests of the children.
In Goode (2006) FamCA 1346 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents” (see Lavender & Turner (2007) FamCA 182).
It follows that unless the presumption of equal shared parental responsibility is rebutted, the Court must consider whether equal time with each parent is in the children’s best interests and reasonably practicable. If the Court does not make an order for equal time, the Court must consider whether the children spending substantial and significant time (as defined by s.65DAA(3)), is in the best interests of the children and is reasonably practicable.
In circumstances where the parents live apart in the locations they do, equal time and even significant and substantial time is simply not practicable. It is necessary to have at least considered this, in circumstances where both parents seek equal shared parental responsibility. I would not support a sole parental responsibility order in favour of either parent, for the reasons reflected at paragraph 193 of the report.
The Parenting Decision and Why
Based on the findings already made (which I do not repeat), and those which follow in the analysis of the relevant primary and additional considerations under s.60CC, I have formed the view that it is in the best interests of [B], [C] and [D] to live with their mother in the Caboolture area. The mother’s current anger and presentation made this a more finely balanced decision than might have otherwise been the case, where the mother has been the undisputed primary carer exhibiting a generally acceptable standard of parenting attitude to separation.
I deal with the issue of the time the father should spend with the girls below, but complete the required assessment of the relevant considerations now.
Meaningful Relationship
Neither parent expresses an overall appreciation of the benefits to the children of having a meaningful relationship with both parents although both were so caught up in the events post separation, that they made comments which, if taken literally, would indicate that there is no hope at all for the girls to have a relationship with both. I deal with this concern below.
Need to Protect from Harm
Although the father raised issued about the mother’s mental stability, and although the evidence shows at times the mother has found it difficult to cope, I do not find the mother at this time presents as a risk to these children, save for her negative attitude and comments about the father.
Similarly, although the mother raises issues about the father’s drinking and Ms R’s character (describing her shamefully as a “slimy slut”), I do not assess the father’s household as exposing the children to risk, again save for the negative views of the mother held strongly by the father and his partner.
If the parents have learnt anything through these proceedings and the report of Ms Mathews, it should be that their involvement of the children in their adult conflict is likely to be emotionally destructive to the three girls. Some damage has been done already. The character assassination and denigration should have now ceased. At the hearing the lack of respect each parent has for the other was overwhelming and toxic. The mother, in my view, in particular has not moved on at all. She needs therapeutic intervention to assist her in keeping her negative views to herself.
The distance between the parents will go some way towards lessening the opportunity for conflict, however if it continues to boil over, as it has in both households the chance for these girls of reaching their potential is bleak indeed. In such an event, it matters little who is to blame.
Views
The children are too caught up in the dispute to enable me to attach any weight to what it is reported they tell their parents. Properly, in this case, Ms Mathews did not seek to elicit their views. Overall however, I did not get a sense that the children have a desire to live with the father instead of the mother. They seem to have adjusted to their new surroundings and have got on with their lives – much better in fact than either of their parents.
Relationships
I find that these children are primarily attached to their mother, as much a by-product of the history of their care as any other factor. They love and want a relationship with their father and the orders I will make seek to preserve that need. They are establishing a bond with [F] (despite what the mother says) which should be allowed to naturally develop. I think the girls’ relationship with Ms R is likely to develop over time – but not if Ms R continues to see herself as a competitor to the mother. If she is unable to take a supportive role, then there is a prospect that the children might shun the time with their father rather than having to confront Ms R. As the mother of their sibling [F], she does now form an important part of the family unit created by the father, and handled sensitively I think the children can develop a good relationship with her – but subsidiary to the mother’s relationship.
At the moment, perhaps understandably, the mother feels threatened but in time and with therapeutic assistance the mother’s feelings should subside. If they don’t, and the abuse and attitude of the mother prevails, there is as much a risk of the children rejecting as the mother as the other way around.
Willingness and Ability to Facilitate Relationships
In this case, coupled with the consideration of s.60CC(4) which I incorporate in this part of my reasons, the mother’s actions are of concern. In my view, the mother’s anger and attitude have directly contributed to; at least:-
a)Less time for the children with the father between separation and September 2007;
b)The mother deciding to relocate, thereby making it, in a practical sense, more difficult for the father to spend regular time with the girls;
c)The difficulties with handovers and telephone calls complained of by the father;
d)The heavy emotional burden the children carry (particularly [B]) of being exposed to this dispute.
e)The difficulties the father has experienced accessing school and medical information.
The father is also a contributor, but with the mother having the children in her care, she had the parental responsibility to take some clear positive actions to facilitate time. Her failure to do so, and her comments about the father, Ms R and even the baby [F] being of little value to “her” daughters, is a great concern to me.
Against this concern, is the fact that it seems the orders have been generally complied with and that with this issue of residence and financial issues now resolved, the mother is in a better position to rebuild her life without focussing entirely on the actions of the father and his new partner.
The father, in his Counsel’s submissions, believes the mother’s views are pathological and entrenched and her oral testimony was “astonishing” in its bitterness. The father might say I have been more generous in the assessment of the mother’s capacity to change her approach (even if her views do not soften), than is fair.
I take into consideration in being prepared to find the mother’s capacity to support the children’s relationship with the father will improve that:-
a)The mother has, since the beginning of these proceedings, had to face the prospect that a Court might order the children to live with the father. This has caused the mother, who regards herself as a competent and loving mother, a great deal of pain. That is now finished.
b)The mother’s financial position has been poor and cannot readily improve until this case is over.
c)It was less than 12 months between when the mother had to face the reality of the deceit of the father – almost right in her face and the trial. That pain cut deeply, and the length of time seems to have been insufficient to recover from her sense of loss.
d)The mother’s actions have not been without provocation, including the comments of Ms R in her oral testimony but also her Affidavit where, by example, she says the mother “does not know how to raise them properly”. The father has also made some very negative remarks and comments.
In giving the mother the benefit of this finding, I do so with this warning. If the mother does not modify her behaviour, then it is very possible that the Court may be asked to review these arrangements about where the children live. The Court, if asked to do so, would not lie idle and allow the children’s important relationship with their father and sister [F] to be sabotaged.
Effect of Change
I agree with the views expressed by the report writer, that a change of residence for these children would be difficult to adjust to, considering the strength of their primary attachment to their mother. I would not think moving back to the [W] area would be difficult. However, in circumstances where the mother cannot, in her mind, return the benefits of the children having more time with the father would be outweighed by the reduction in time with their mother. I accept the girls have lived in the [W] area all their life. They seem to enjoy farm life and the time they spend with their father will allow them to continue to experience that different environment as well as seeing their paternal grandmother. This however is not of itself sufficient to persuade me that they should live with their father.
Attitude and Capacity to Parent
I rely upon the findings and observations already made. Each parent, and Ms R, have some work to do to improve their child focus which is likely, then, to improve their parenting. Both have the capacity to parent. To exercise their full capacity co-operatively is the ideal in even family situation, post separation. There is some way to go for both parents.
Conclusion
It is in the best interest of these three children to live with the mother. Changeovers have worked well in [Y] and I would not change that, even though the mother has a little further to travel.
Both parents suggest fortnightly frequency. Although the travel time is significant, and I can predict in time this might interfere with the children’s increasing desire for weekend activities, sport and peer interaction, I am conscious of the need for them to see their father and sister [F] regularly. I will, as a result, maintain the frequency suggested by the parents. Holidays should be shared equally and the usual specific issues orders incorporated.
I will ask the solicitor for the mother to prepare a draft order consistent with these reasons and provide same to the father’s solicitors. As with the property orders, I propose to list this matter at 9:30 a.m. on 25 July 2008 to pronounce orders. At that time, I will consider any submissions about drafting points in dispute.
Property
The parties, with the assistance of their Counsel no doubt, reached agreement on the pool of assets available for division and the respective value of the assets in the pool. They cannot agree on what represents a fair and equitable division:-
·The husband contends the wife’s share overall should be in the region of 15-20%;
·The wife submits her share should be 50%.
The reasons which follow explain why I have not accepted either of the parties’ positions.
Principles
The preferred or usual approach to determining property proceedings under s.79 of the Act was the subject of a succinct summary by the Full Court in Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143) at [39] where the Court said:-
“39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions for the parties within the meaning of ss79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s79(4)(e), the matters referred to in s75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1085) FLC 92-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDR (2001) FLC 92-075 and Phillips and Phillips (2002) FLC 9.-104.”
Pool
The agreed pool is as follows:-
Assets
Estimated Value
Property W (husband)
$180,000
[L] Farm (husband and wife)
$225,000
[G] Farm:-
Property J
(one third share)Property F (husband)
Property S (husband)
$60,000
$425,000
$655,000
Plant and equipment and machinery
$156,875
Cattle
$28,370
Wife’s furniture and chattels
$2,275
Cubby house and furniture and chattels therein
$1,000
Partnership account (husband and his brother)
$10,232
Husband’s Sunsuper
$56,398
Wife’s MLC Superannuation
$11,366
$1,811,516
Less mortgage to National Australia Bank over [L] property
$227,858
TOTAL
$1,583,658
The parties agreed that in view of the relative modest superannuation entitlements, and despite the two pool approach preferred in C & C (2005) FCAFC 429, that I should deal with my assessment on a one pool approach.
Contributions
The parties commenced cohabitation shortly before their marriage in May 1995. At the time of marriage the husband was nearly 29, the wife was nearly 34. Although virtually no corroborative evidence was offered I am at least satisfied that the parties’ brought into the marriage the following assets:-
Husband
a)Property at Property W. This property had been purchased in early 1995 for $84,000. I accept that there was a small mortgage of around $20,000 – the balance of the purchase price was met from the husband’s savings and a gift from his parents. Although the wife says the husband was required to pay back $20,000 to his parents I do prefer the husband’s version that it was a gift, before the marriage.
b)Additionally, the husband owned a new Ford Longreach Utility ($21,000); a share in a herd of cattle; an interest in farm plant and equipment and about $20,000 in savings. The wife concedes these assets, although she disputes the husband’s estimates of value. The husband also had a small superannuation interest.
Wife
The wife claims that in addition to a small superannuation interest she owned a Mazda motor vehicle, some household items and $20,000 in investments. Although the husband disputes the value of the car, nothing turns on that issue. The wife says the husband “was aware of her $20,000 worth of investments”, but the wife had not mentioned the investments at the time of the marriage. If the wife did use her investments to purchase the Ford Futura in 1997 (as she alleges, but about which the husband denies knowledge), it is curious how (and why) she can provide no proof nor did she tell the husband about the investments. Although the wife may have had some savings I cannot be satisfied they were as much as $20,000.
It follows, that the husband’s initial contributions significantly exceeded those of the wife.
The parties commenced living in the Property W property on cohabitation. I am satisfied that the mortgage over Property W was discharged within two years. Although the wife was working as a qualified [omitted] she has essentially been out of the workforce for the entirety of the relationship save for a period of a few weeks.
The husband worked as a truck driver, as he does now. I was provided with no income tax returns or other verification of the husband’s income which I am prepared to accept was modest. At its highest the wife said he was earning $47,000 pa.
The husband at the commencement of cohabitation was also in a small family farming partnership with his brother and father. The husband worked on farms owned by his parents. There is no evidence to suggest that any net income from the farm partnership (raising cattle and growing grain) was other than modest.
Although the husband’s income as the sole breadwinner was modest, the asset pool now available for division was swelled by the gifts and inheritances which the husband received from his family as follows:-
a)In 1998, the husband’s parents gifted some of the property now comprising [G] Farms to the husband. The husband’s brother and sister also had some interest in some of the parcels of land.
b)Comprised with the farm was plant and equipment and, I infer, some stock.
c)
Subsequently, when the husband’s father died in 2003, the husband says control of the farm passed to him. I must say the details are very sketchy in the husband very brief affidavit.
No property office documents, transfers; wills; taxation returns or other verifying documents were produced by the parties.
d)It seems common ground that a partnership which existed between the husband and his brother was dissolved in July 2006. There was some significant plant and equipment in the partnership as Annexure “A” to the wife’s affidavit filed 19 February 2008 sets out.
Before turning to other significant financial transactions, I regard that the wife did not seriously challenge the husband’s brief chronology of his achieving ownership of the farm. There is no evidence to suggest the intentions of the husband’s father was to benefit the parties jointly. The wife produced no evidence or sought to contend that the presumption enunciated in decisions such as Gosper [1987] FLC 91-818 and Kessey (1994) FLC 92-495 has been rebutted.
It is impossible on the evidence offered to the Court to know how the value of these parcels of farm land have increased since formal ownership was assumed by the husband or how the long hours of continuous work undertaken by the husband (conceded by the wife at paragraph 1(i) of her affidavit filed 18 February 2008), is represented in any increase.
I detect a strong disagreement between what the wife says she did on the farms over the years and what the husband concedes she undertook. Again without a hint of corroboration either way it is difficult to be certain. The husband says the wife did little work on the [G] Farm.
I tend to accept the evidence on this issue of the husband. I accept the wife did not have a close relationship with her mother-in-law – who still resides there, as now, on part of the farm. That is not to say there were not occasions over the years that the wife visited with the children whilst the husband was working on the farm as I suspect she did. However the wife has not persuaded me that her contribution to the farm known as [G] was other than minimal.
I do accept that in respect of the jointly purchased Property L property the wife was more of an equal contributor. This 30 acre property was purchased for around $200,000, with the full purchase price borrowed together with other funds for improvements including repairs to the bore; two tanks and construction of a shed. This property was discussed as a site for a new family home.
The parties were also involved in an investment home at Property Y, [W] purchased for $60,000 in or about January 1997 and sold at a profit of around $45,000 three years later. The funds were, it seems now, used by the family.
The husband received a small compensation claim in about 1999 of $23,000 for a broken neck. I accept the wife supported the husband through his rehabilitation. The funds were contributed to the needs of the family at the time.
The husband had undertaken some improvements to the family home at Property W in the two years prior to separation. The husband says the wife did not assist.
Post separation, the Property W property has been rented, although the husband says the rental does not cover the mortgage raised to pay the [L] property. The husband’s financial statement shows a mortgage payment of $420 per week and rental on Property W of $220.
The absence of any consistent payment of child support and the mother’s care of the children post separation match the husband’s financial contribution in the post separation period.
Certainly I am satisfied the wife devoted herself to the role of mother and homekeeper. The husband would have me believe the wife was untidy, lazy and did nothing at all of value. He worked very hard and his casual truck driving gave him the opportunity to put plenty of hours into the farm and improvements to the [L] and Property W properties.
Although the husband does not attribute much value to the wife’s non-financial contributions, as binding authority makes clear, I must – and more than just a nominal or token allowance is required for the
12 years of caring for the three young children and the household.
Having said this, the initial contribution of the Property W home is still owned and represents more than 10% of the current net pool. The [L] farm has virtually no equity at all.
The pool significantly comprises the [G] Farm, plant, equipment and cattle – totalling $1,265,245, or 80% of the net pool.
If the husband had chosen to provide some better evidence of the:-
a)Value of properties at the time of transfer to the husband
b)Income tax returns or financials for the farms
c)So as to enable me to better understand how any profits were distributed or were, as is often the case, “put back” into the farms, I might have been able to explain more fully how I have determined that on a contribution based assessment I have assessed the proper apportionment as 82.5% to the husband and 17.5% to the wife. Put another way, I have made an allowance for the husband to receive the first 65% of the current net pool (or just over $1 million) for the overwhelming direct financial windfalls contributed by the husband and initial disparity in contributions. I believe such an allowance properly allows for the wife’s contributions through her non-financial efforts.
Section 75(2) Factors
Although the farms have a significant value, the best evidence of the income they derive (in fact the only evidence) is the husband’s financial statement sworn 31 January 2008 where he claims a net income of $80 a week. It is impossible to verify this claim, however Counsel for the wife did not strenuously challenge the husband on that evidence.
Both parties claim a range of ailments, conditions or effects of injuries – without any attempt to provide probative evidence from a qualified health professional. This is not to say I do not accept that:-
a)The husband has arthritis in his neck and knee problems (as he claims); or that
b)The wife suffers chronic asthma as well as “inactive Paget’s disease”.
Simply I have no evidence to assist me in knowing how, if at all, these conditions are likely to affect the parties’ current employment opportunities or their future working life.
Leaving these matters, it seems however clear that an adjustment in the wife’s favour is justified as a result of the following s75(2) factors:-
a)The husband does, at least have a current income, of $40,000 pa (which he says has reduced with less hours, to about $37,000 pa), whilst the wife relies totally on Newstart Allowance.
b)
The husband has skills which he has maintained throughout the marriage – driving a truck and working on the farm, with all the diverse skills such farm life creates. The wife, whilst a qualified [omitted], has not worked in the industry for over 12 years.
The husband says the wife can use a computer, but here is nothing to suggest the wife’s computer skills are commercially attractive. She has not worked in an office environment and says she merely did a computer course so that she could assist the children with their homework. Although no evidence was lead by the wife, it seems logical that for the wife to be able to secure some employment she will need to be retrained or secure job specific training. The wife conceded she has not actively looked for jobs.
c)Part of the wife’s reasons for not looking for employment is her desire to dedicate herself to the needs of the children. This is a factor which the Court is specifically required to protect. This is the role the wife has undertaken, I infer without objection at least from the husband, since she first became pregnant. There is no doubt the wife is genuine in her desire to maintain this role. In so doing, her skills for employment have diminished, an effect of the roles adopted in the marriage. Whilst it would not be unreasonable to expect that, in the Caboolture area, some part time work (around school hours might be obtained) on the evidence this is mere speculation.
d)
The husband pays minimal child support for the three children, who as a result of my parenting orders, shall reside primarily with the wife. Not only does her commitment to the children impede her work availability, but the modest child support being paid means the wife (with some government support) bears the brunt of the financial (as well as emotional) needs of the three girls.
As [D] is only eight, these responsibilities are likely to exist for many more years.
e)I do not ignore the disparity in the value of the share of the pool which arises in the husband’s favour, from the contribution based assessment already made. However that is not a major contribution to the overall adjustment for these factors.
I have come to the conclusion that an adjustment of 10% of the pool in the wife’s favour is appropriate. This means, in effect, that the husband will pay to the wife a sum of 10% of the pool (reducing his share by the same sum) which is a figure of $158,000 approximately.
I accept this is a large amount of money when one considers the income the parties have generated, but it must also be seen in the context of the size of the pool; the age of these children; the minimal child support payable and the lack of income and current earning capacity of the wife. I regard the adjustments as proper.
Just and Equitable
The wife receiving a 27.5% share of the agreed pool of $1,583,658 would mean the husband should pay the wife the sum of $422,000, calculated as follows:-
27.5% of the pool
$435,505
Less
- MLC Superannuation
- Furniture
$11,366
$2,275
PAYMENTS BY HUSBAND
$421,864
I would round the figure UP to $422,000.
In his evidence at the hearing, the husband (of course not knowing how much he might have to pay), had given little thought to his preference for which order of sale of the various properties he owns he would undertake.
I am conscious that it is now some four months since the hearing, I would regard it as proper to give the husband an opportunity to consider, and therefore make submissions about he form of order and any timetable for payment. I will allow the parties to have some discussions about this. It seems inevitable that one or more of the properties will need to be sold to avoid the husband raising significant funds. For example a sale of the Property W property (currently rented) and the Property F, land might cause sufficient funds to pay the wife her adjudged entitlement whilst also providing the husband with some funds to reduce his borrowings, or to contribute to the construction of a new home. Capital gains tax implications may arise.
Of course, the payment to the wife would probably allow her to achieve home ownership for the family – a security which is likely to be beneficial to the three children.
I will invite the solicitors for the husband to take his further instructions and then provide a draft minute of order to the wife solicitors before 25 July 2008 when I will consider the form of order to be satisfied it does justice and equity to both parties, before pronouncing it.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate: L Parke
Date: 18 July 2008
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