Gillespie & Gillespie
[2023] FedCFamC1F 1128
•22 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gillespie & Gillespie [2023] FedCFamC1F 1128
File number: MLC 8068 of 2022 Judgment of: STRUM J Date of judgment: 22 December 2023 Catchwords: FAMILY LAW – PARENTING – RELOCATION – Where the wife seeks to relocate the children’s residence from one town in regional Victoria to another town in regional Victoria that is several hours away from the husband’s home – Where the children are aged 9 and 7 years – Where the wife alleges that the children and she were subject to family violence by the father – Where the wife alleges that the children are at risk of harm in the father’s care due to his alleged volatile nature – Where the husband makes similar allegations in relation to the wife and alleges the children are at risk of being alienated from him by her –Where both parents have not behaved in a child focussed manner - Where the mother wishes to relocate due to purported employment and education opportunities – Where there is no evidence of these opportunities – Where the mother has been secretive in her actions in the lead-up to her proposed relocation – Where the mother unilaterally enrolled the father’s daughter of a previous relationship in a school in vicinity to which she proposes to relocate to – Where the mother leased a house for the father’s daughter to live in and only provided the father with the lease at trial – Where the mother purchased a property in the vicinity of the town to which she proposes to relocate and only provided the father with the contract on the eve of the trial – Finding that the mother behaved in a manipulative manner in relation to the relocation – Unchallenged evidence of the Family Report Writer that the relocation is not in the best interests of the children – Where the mother did not seek to cross-examine the family report writer – Relocation not allowed – Orders made for the children to spend 5 nights per fortnight with the father, increasing to equal time.
FAMILY LAW – PROPERTY – Where the parties were married for approximately 10 years – Where there are children of the marriage and of the parents’ previous relationships – Contribution-based entitlements – Where the applicant husband made substantial initial financial contributions – Where that property continues to subsist and provided a springboard for the acquisition of other properties - Where the respondent wife made significant s 79(4)(c) contributions – Contributions assessed as 62.5 per cent in favour of the husband and 37.5 per cent in favour of the wife – No further adjudgment pursuant to s 79(4)(e) of the Family Law Act 1975 (Cth) on account of s 75(2) factors.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 60CC, 61DA, 64B, 65DAA, 75, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Baker v Towle (2008) 39 Fam LR 323; [2008] NSWCA 73
Bilous v Mudaliar (2006) 65 NSWLR 615; [2006] NSWCA 38
Dawes & Dawes (1990) FLC 92-108; [1989] FamCA 71
Ferraro & Ferraro (1993) FLC 92-335; [1992] FamCA 64
Goode v Goode [2006] FamCA 1346
Hall & Hall (1979) FLC 90-713; [1979] FamCA 73
Hoffman & Hoffman (2014) FLC 93-591; [2014] FamCAFC 92
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Kennedy v Kennedy [2010] FamCAFC 195
Lee Steere & Lee Steere (1985) FLC 91-626; [1985] FamCA 57
Love v Henderson (1996) FLC 92-653; [1995] FamCA 160
M v M (1998) 166 CLR 69; [1988] HCA 68
Mallory & Mallory [2019] FamCAFC 221; [2019] FamCAFC 221
Mazorski v Albright [2007] FamCA 520
Mehmet & Mehmet (1986) FLC 91-730; [1986] FamCA 24
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Mulrooney & Cooper [2023] FedCFamC1F 273
Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74
Robb & Robb (1995) FLC 92-555; [1994] FamCA 136
Sampson & Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Taylor & Barker [2007] FamCA 1246
Wagstaff & Wagstaff [2022] FedCFamC1A 119
Wallis & Manning (2017) FLC 93-759; [2017] FamCAFC 14
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Williams & Williams [2007] FamCA 313
Wordsworth & Wordsworth [2021] FedCFamC1A 28
Division: Division 1 First Instance Number of paragraphs: 207 Date of hearing: 21–22 August 2023 Place: Melbourne Counsel for the Applicant: Mr Sweeney Solicitor for the Applicant: Errard Legal Counsel for the Respondent: Mr Brown KC Solicitor for the Respondent: J A Middlemis Counsel for the Independent Children’s Lawyer: Ms Clark Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid ORDERS
MLC 8068 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GILLESPIE
Applicant
AND: MS GILLESPIE
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
STRUM J
DATE OF ORDER:
22 DECEMBER 2023
THE COURT ORDERS THAT:
Parenting
1.The applicant husband and the respondent wife have equal shared parental responsibility for the children of the marriage Y born 2014 and Z born 2016 (“children”).
2.The children live with the husband and wife during school terms as follows:
(a)Commencing at the start of Term 1, 2024:
(i)with the husband each alternate Thursday from the conclusion of school or 3:30 pm on a non-school day until the commencement of school the following Tuesday or 3:30 pm on a non-school day; and
(ii)with the wife the following nine nights;
(b)Commencing at the start of Term 3, 2024:
(i)with the husband each alternate Thursday from the conclusion of school or 3.30 pm on a non-school day until the commencement of school the following Wednesday or 3.30 pm on a non-school day; and
(ii)with the wife the following eight nights;
(c)Commencing at the start of Term 2, 2025, the children live with each parent on a week-about basis, as follows:
(i)with the husband each alternate Thursday from the conclusion of school or 3:30pm on a non-school day until the commencement of school the following Thursday; and
(ii)with the wife from the conclusion of school on the last-mentioned Thursday until the commencement of school the following Thursday.
3.The children’s term time with each parent continue on an uninterrupted cycle as though holiday periods had not occurred and remain on the same cycle as established at paragraph 2(a) as time progresses at paragraphs 2(b) and (c).
4.The children spend time with the husband and wife during the 2023 / 2024 long summer holidays on the following as follows:
(a)with the husband each alternate Thursday from 3:30 pm until the following Tuesday at 3:30 pm; and
(b)with the wife the following nine nights.
5.The children spend time with the husband and wife commencing in the Term 1, 2024 school holidays for half of all school holiday periods, including term and long summer holidays, with the first half with the wife and the second half with the husband in even numbered years and the first half with the husband and the second half with the wife in odd numbered years, unless otherwise agreed in writing between the husband and wife.
6.All other school term and holiday time provided for in these Orders be suspended and the children spend time with the husband and wife on special occasions as follows:
(a)From 4.00 pm on Christmas Eve until 3.00 pm on Christmas Day with the husband and from 3.00 pm on Christmas day until 4.00 pm on Boxing Day with the wife, in odd numbered years;
(b)From 4.00 pm on Christmas Eve until 3.00 pm on Christmas Day with the wife and from 3.00 pm on Christmas day until 4.00 pm on Boxing Day with the husband, in even numbered years;
(c)From 5.00 pm on the day prior to Mothers’ Day with the wife and from 5.00 pm on the day prior to Father’s Day with the husband, until the commencement of school on the Monday immediately thereafter; and
(d)From 10.00 am until 2.00 pm with the wife and 2.00 pm until 6.00 pm with the husband on each child’s birthday, if falling on a weekend or non-school day, and from after school until 7.00 pm with the parent in whose care they would not otherwise be on that day if falling on a school day.
7.Changeover occur at school when time commences or concludes with school times and otherwise occur at the husband’s home at the commencement of his time and at the wife’s home at the commencement of her time.
8.Each parent inform the other, as soon as practicable, in writing of any injury or illness suffered by the children or either of them when in their respective care, including the details of any treatment provided and the name and contact information and address of person from whom and/or the place at which they received treatment.
9.Each parent keep the other informed within 24 hours of any change to their mobile telephone number, email address and/or residential address.
10.Each of the husband and wife be restrained from cancelling the children’s or either child’s enrolment at their current school without the prior written consent of the other parent.
11.Each of the husband and wife be restrained from enrolling the children or either child in any school other than their current school without the prior written consent of the other parent.
12.The wife be restrained from relocating the children’s residence beyond a 50km radius of their school without the prior written consent of the husband.
13.The husband and wife, by themselves, their servants and agents, be restrained from:
(a)exposing the children or either child to family violence, whether directly or indirectly;
(b)using any form of physical discipline on the children or either child;
(c)abusing or denigrating the other party and/or a member of the other parent’s family and/or household, in the children’s or either child’s presence or hearing.
14.Within 28 days of the date of these Orders, the husband and wife sign all documents and do all things necessary to retain jointly Ms JJ as their parenting coordinator, or such other parenting coordinator agreed between them in writing, on the following terms and conditions:
(a)The parenting coordinator be retained for a period of not less than twelve months immediately after the making of these Orders;
(b)The husband and wife follow all reasonable recommendations of the parenting coordinator regarding their engagement and attendance;
(c)The husband and wife, forthwith upon his or her joint appointment, sign all documents and do all things necessary to enable the parenting coordinator to liaise with any and all practitioners, school staff and/or counsellors engaged with the children or either child, including requesting and receiving reports and information regarding the children or either child;
(d)The parenting coordinator’s communication with the husband, wife and children not be confidential and be reportable to the Court upon either parent’s written request, with such report to be paid for by the requesting parent; and
(e)All other costs of and incidental to the Parenting Coordinator be met in equal shares by the parents.
15.Within 28 days, the Independent Children’s Lawyer provide the Parenting Coordinator with:
(a)a copy of the Report of Dr J dated 16 August 2022;
(b)a sealed copy of paragraphs 1–17 of these parenting Orders; and
(c)the Reasons for Judgement delivered in this matter.
16.The husband and wife be at liberty to provide any counsellors, psychologists and related practitioners engaged with them and/or with the children or either child, with a copy of Dr J's Family Report dated 16 August 2022.
17.The appointment of the Independent Children’s Lawyer be discharged upon compliance paragraph 15 of these Orders.
Property
18.Within 30 days of the date of these orders (“the date”) the husband sign all documents and do all thing necessary to transfer to the wife at the expense of the wife all his right title and interest in the real property situate at and known as K Street, Suburb B, in the state of Victoria (Certificate of Title Vol … Fol … and Certificate of Title Vol … Fol …) (“the Suburb B property”) and the wife indemnify the husband against all rates, taxes, and outgoings of, or with respect to, the Suburb B property of whatsoever nature and kind.
19.On or before the date the sum of $970,802 (“the payment”) be released to the Wife from the funds held upon trust for the parties in the controlled monies account of her solicitor, Jim Middlemis and contemporaneously with the payment:
(a)The wife transfer to the husband at the expense of the husband any right, title and interest of hers in:
(i)The real property situate at and known as L Street, Suburb G, in the state of Victoria (Certificate of Title Volume … Folio … and Certificate of Title Volume … Folio …) (“the Suburb G property”); and
(ii)All of the plant, equipment and joint bank accounts of the parties (save for Motor Vehicle 1 motor vehicle which shall become the property of the wife, subject to the liability in relation thereto).
(b)The husband refinance (if the wife is liable) and indemnify the wife with respect to all mortgages and encumbrances and other liabilities relating to the Suburb G property being retained by/transferred to the husband, together with the plant and equipment and the finance or loans owing with respect to:
(i)DD Financial Services loan being the debt on Motor Vehicle 3; and
(ii)National Australia Bank loan being the debt on Motor Vehicle 3 and agricultural equipment; and
(c)the balance of the monies in the said controlled monies account be released to the husband.
20.Pending compliance with these Orders:
(a)The husband have the sole right to occupy the Suburb G property and, during such right of occupation, the husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)The wife have the sole right to occupy the Suburb B Property and during such right of occupation, the wife pay all rates and taxes and like apportionable outgoings of the real property as they fall due;
(c)The parties hold their respective interests in the said real properties upon trust pursuant to these orders; and
(d)Neither party encumber or further encumber the said real properties without the consent in writing of the other party.
21.The primary production partnership between the parties trading as “Gillespie and Gillespie Partnership” be dissolved as at 30 June 2023 and with respect to same:
(a)Financial statements and income tax returns for each of the years ended 30 June 2022 and 2023 be prepared by M & Associates accountants or as otherwise agreed between the parties and the net profit or loss for each of the years be divided equally between the parties;
(b)The preparation of financial statements and tax returns be jointly funded by the parties from partnership funds; and
(c)The plant and equipment of the partnership (save for the wife’s motor vehicle) be deemed to be and become the property of the husband, and he indemnify the wife with respect to any liabilities relating thereto.
22.The husband do all acts and things and sign all documents necessary to sell Motor Vehicle 2 at the best price reasonably possible and pay 37.5% of the net proceeds of sale thereof to the wife and he retain the balance thereof.
23.Unless otherwise specified in these orders and save for purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession or control of such party as the date of these orders.
(b)Monies standing to the credit of the parties (including in the name of the Gillespie and Gillespie Partnership) in any joint bank account are to become the property of the Husband.
(c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.
(d)Insurance policies remain the sole property of the life insured named therein.
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(f)Any joint tenancy of the parties in any real or personal estate be hereby expressly severed.
24.All extant applications be dismissed and removed from the docket of the Honourable Justice Strum.
AND THE COURT NOTES THAT:
A.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 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 fact sheet attached hereto and these particulars are included in these orders.
B.In accordance with s 81 of the Family Law Act 1975 these orders shall, as far as practicable, finally determine the financial relationships between the husband and the wife and avoid further proceedings between them.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gillespie & Gillespie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
The applicant husband, Mr Gillespie, and the respondent wife, Ms Gillespie, are unable to reach agreement with respect to parenting orders pursuant to Pt VII of the Family Law Act 1975 (Cth) (“Act”) for the children of their marriage, Y, born 2014 and presently aged nine years, and Z, born 2016 and presently aged seven years (the “children”). The parties further seek a just and equitable division of their assets pursuant to s 79 of the Act.
These proceedings were instituted by the husband, who filed an Initiating Application on 22 July 2022. The most recent iteration thereof, namely, his amended Initiating Application, was filed on 2 December 2022. The wife filed initially a Response to Initiating Application on 9 August 2022 and, most recently and relevantly, a further amended Response to Initiating Application on 6 June 2023.
Further, the wife provided a minute of orders sought in her Outline of Case filed on 6 June 2023, prior to the final hearing listed on 13 June 2023, which was adjourned to and commenced on 21 August 2023. The Independent Children’s Lawyer tendered a minute of orders sought at the conclusion of oral evidence on the second day of the trial, marked Exhibit ICL-2.
In relation to the property application, at the final hearing, the husband tendered an aide-memoire outlining his calculation of the parties’ proposed prospective entitlements, marked Exhibit H-1 and slightly amended and re-tendered and marked Exhibit H-9.
As already mentioned, the trial was initially set down to commence on 13 June 2023, with an estimated duration of 3 days. Due to circumstances outside of the parties’ control, namely, illness on the part of Senior Counsel then retained by the husband, the trial was adjourned to 21 August 2023. It proceeded then and concluded in two days. No further evidence was put before the Court during the adjourned period, and the parties relied on their trial material filed for the trial listed in June 2023.
In relation to parenting, the principal issue for determination by me is, in summary, whether the wife should be allowed to relocate the children to Town E, in the vicinity of City C in the state of Victoria, several hours away from where she currently resides with them in Suburb B, in the vicinity of Town F, also in the state of Victoria. The husband and the Independent Children’s Lawyer oppose this relocation. The husband currently resides in Suburb G, more than 50 kilometres away from Suburb B. The wife maintained throughout cross-examination that she was seeking sole parental responsibility; however, by the final day of the trial she changed her position and it was confirmed that all parties agree that the parents should have equal shared parental responsibility for the children.
In relation to property, the principal issue for determination by me, in summary, is the just and equitable division between the parties of their assets, net of liabilities. The husband contends for a 70 / 30 per cent division in his favour, on the basis only of s 79(4)(a)–(c) contributions, with no further adjustment pursuant to s 79(4)(e) on account of s 75(2) factors. The wife contends for an equal division in her favour, on the basis of contributions being assessed at 60 / 40 per cent in favour of the husband, with a further adjustment of 10 per cent in her favour pursuant to s 79(4)(e) on account of s 75(2) factors.
For the reasons that follow, I will order, in summary, as proposed by the Independent Children’s Lawyer, namely, that the parties have equal shared parental responsibility for the children; the wife be restrained from relocating them more than 50 kilometres from their current school in Town F; the children live with the parents, initially, for 9 nights with the wife and 5 nights with the husband each fortnight during school terms, progressing to a week-about arrangement by the commencement of Term 2 in 2025, as well equal time during school holiday periods and on special occasions.
In relation to property, I will order that the assets of the parties, such as I find them to be, be divided such that the husband retains 62.5 per cent of the net property pool and the wife retains 37.5 per cent thereof.
In addition to his amended Initiating Application and Outline of Case, the husband relied at trial upon his Financial Statement filed 10 May 2023, his trial affidavit filed 10 May 2023 and his affidavit in reply filed 29 May 2023. He also filed an affidavit of his friend, Mr N, in relation to a post-separation personal loan from him but, in the result, did not rely upon it.
In addition to her further amended Response to Initiating Application and Outline of Case, the wife relied at trial upon her Financial Statement filed 18 May 2022, her trial affidavit filed on 18 May 2023 and an affidavit of her mother filed 18 May 2023 (upon which she did not rely, in the result). The wife’s trial affidavit was redacted by agreement, due to objections taken by the husband, and the redacted affidavit was tendered and marked Exhibit W-4.
Each of the parties also filed affidavits of their adult children but sensibly, albeit very belatedly, did not rely upon them.
The Independent Children’s Lawyer filed, on 7 October 2023, an affidavit by Dr J, Clinical and Forensic Psychologist, annexing his Family Report dated 16 August 2022.
Only the husband and the wife, and none of their supporting witnesses nor Dr J, were required for cross-examination.
Case outlines were filed by the husband, the wife and the Independent Children’s Lawyer.
A joint agreed chronology was provided to the Court in accordance with my trial directions and, save where otherwise indicated, forms the basis of the relevant background to this matter.
BACKGROUND
The husband was born in 1962 and the wife was born in 1978.
The husband was previously married and has three children of that relationship, two adult children, Mr O and Mr P, now aged 24 and 22 years respectively, and X, born 2005 and now aged 18 years. X was still aged 17 at the time of trial. She completed Year 12 / VCE in 2023 and, whilst the parties agreed that she would not (and now cannot) be the subject of parenting orders, she was included as a child for the purposes of these proceedings, as she was under the age of 18 years at the time of trial. The husband’s first wife passed away in 2007.
The wife was also previously married, and has twin adult children of that relationship, Ms Q and Mr R, who are currently aged 22 years.
The parties commenced their relationship in 2012, commenced cohabitation in 2012 and married in 2013.
The husband’s three children lived with the wife and him at the commencement of cohabitation, although his eldest son, Mr O, was boarding at S School in City T. The wife’s two children lived also with the parents at the commencement of cohabitation; however, they left the matrimonial home in late 2015 to live with their father.
In late 2015, following an incident between Mr O and the wife, an Interim Intervention Order was made at the Children’s Court at City U against Mr O, listing the wife as a protected person, notwithstanding that he lived with his father and the wife. In his affidavit in reply filed 29 May 2023, the husband deposes that “the [I]ntervention [O]rder against Mr O was resolved, and no final order was made”.
The wife alleges that the husband was physically and verbally abusive and committed domestic violence towards her. At paragraph 79.40 of her trial affidavit filed 18 May 2023, she deposes that he “is volatile and threatening and abusive and violent”. Her evidence in this regard included that she has sought the assistance of a victims of domestic violence assistance service due to domestic violence by the husband. In her trial affidavit, at paragraph 32, she deposes that the service:
… had become increasingly concerned about the husband’s behaviour to the extent that last year I was provided with funding for security doors, CCTV, sensor lights and locks for my mail and power box and for a panic button to be installed at my home.
At paragraph 34 of her trial affidavit, the wife alleges an incident of domestic violence against her, as well as against X, and the children of the marriage, in mid-2021, by the husband and his older sons. She alleges that Mr O and Mr P behaved in an intimidating manner towards the children of their marriage, as well as X, and that they were physically aggressive with them. She alleges that Mr O and Mr P called her names such as a “a fucking cow”, whilst the husband was present but failed to intervene, as well as saying to her “your [sic] fucked in the head you stupid bitch” and “this bitch is mental and fucked in the head, a stupid fucking cow”. At paragraph 46 of his affidavit in reply filed 29 May 2023, the husband denies he was present for the altercation between the wife and Mr P and that when he overheard of the incident he made attempts to diffuse the tension.
At paragraph 45 of his affidavit in reply, the husband asserts that it was, in fact, the wife, who was abusive towards him “and all seven children”. He provides examples of this, including alleging that she abused her son, Mr R; that on one occasion, whilst in the car, she “launched into a personal attack on [the husband], abusing [him] and becoming completely erratic”, then attempted to get out of the car whilst he was driving; and he details an incident in late 2020 during which she began swearing at him and his adult sons in front of the children and slapped him on the face.
Each parent alleges that the other was an abusive step-parent towards the other’s children, being the wife’s twin children and the husband’s adult sons. The wife further alleges that the husband’s adult sons behave in a physically aggressive way towards the children (including X).
The parents separated in June 2022 when the husband moved out of the former matrimonial home.
In mid-2022, some two and a half weeks after separation, the wife applied for an interim Intervention Order against the husband, for the protection of the wife, the children of the marriage, and the husband’s daughter X. The wife’s evidence at paragraph 31(ii) of her trial affidavit is that the “presiding Magistrate asked [her] a number of questions about the circumstances of [the parents’] separation and the Magistrate decided upon the terms of the Orders which were ultimately made”. The husband’s asserts at paragraph 43 of his affidavit in reply that the Intervention Order application by the wife was in response to a letter from his solicitors seeking a shared care agreement. The husband’s case is that this Intervention Order is an example of the wife’s plan to distance him from the children and lay the groundwork to support her relocation to City C with them.
Notwithstanding the allegations and counter-allegations, by each of the parties, but principally the wife, unlike in their affidavits, the issue of domestic violence was not prominent at trial; indeed, the husband was not cross-examined about it by Senior Counsel for the wife.
Despite her case that the children of the marriage were at risk of harm in the husband’s care and that this was a part of her reasoning for seeking sole parental responsibility and to relocate to the City C region, the wife conceded in cross-examination that, if she were not permitted to relocate, the children should spend five nights per fortnight with the husband. It is difficult to reconcile her allegations with that concession. She was unable to explain that inconsistency. When asked if she persisted with her allegation of risk, notwithstanding her concession, she answered in the affirmative.
In cross-examination, the wife could not point to any independent corroborative evidence that the children of the marriage are scared of the husband. Whilst she referred to an interview of the child, Y, by the Sexual Offences and Child-abuse Investigation Team (“SOCIT”), that was following a report by her. She did not tender any of documents from SOCIT that would tend to substantiate her allegations.
In 2021, the year prior to separation, the wife attended upon a general medical practitioner in Town F, Dr V. Notes of Dr V were tendered on behalf of the husband and marked Exhibit H‑4. They record that, whilst the wife was observed to be teary and stressed, she reported that she had a supportive husband and that she would discuss her concerns with him.
In relation to her approach to the domestic violence service for assistance, the wife’s initial self-assessment, dated 18 July 2022, was tendered on behalf of the husband and marked Exhibit H-5. She reported that she did not have any immediate concerns for the safety of the children or anyone else in the family. She also reported that, whilst the husband had threatened to smack the children, he had only done so “once or twice”, contradicting her evidence that he did so many times. Her self-assessment also records that the wife’s “safety plan” was to sell the family home after X completed Year 12 in 2023 and then to move to City C. It is difficult to reconcile any safety concerns the wife may have had in mid-2022, with the 18 month delay in relocation that she then proposed.
A Family Report was prepared by Dr J dated 16 August 2022. The parties did not seek to update this report and relied upon it at trial. At paragraph 79.21 of her trial affidavit, the wife said: “[Dr J’s] report will be in issue before the Court and will be subject to cross examination. There have been significant changes since that report was prepared”. Notwithstanding this, the wife did not seek to update the Family Report nor to cross-examine Dr J, albeit that his observations and recommendations were, on the whole, adverse to her. His report is therefore unchallenged and I find it to be of assistance in deciding the parenting aspect of this case. It is the only independent, expert and objective evidence before me.
An incident that occurred at Dr J’s office on the day of the interviews, namely, 15 August 2022, was addressed by the wife in her trial affidavit, as well as by Dr J in his report. Dr J reports:
40It is relevant that the mother is highly reactive to the father. When the father arrived early for the family report to the reception area, reportedly because he believed he was needed all day at our offices, the mother was isolated in the family waiting room and was not confronted with him. The father left immediately when it was explained that his appointment times were later in the day. The mother was in floods of tears over a considerable time period and had to be assisted by our administration coordinator.
41My understanding is that the mother has subsequently reported the father to the [Town F] police for an alleged breach of intervention order, based on [Town F] police contacting our offices to attempt to obtain information from our administrative staff regarding the father’s attendance, details of which were not provided.
The wife deposes in her trial affidavit as follows:
79.17I deny many of the assertions in [Dr J’s] report which I understand will be before the Court and will be the subject of cross-examination.
…
This was a period when I was fearful for my safety at the hands of the husband. I had previously obtained an Intervention Order against him. I was fearful for my safety. I believe that the husband attended at 9:00 am was a deliberate attempt by him to upset me and cause me increased anxiety. It worked!
I was afraid for my safety. I was tearful and very upset and anxious. I could not believe that the husband had acted in such a manner.
I think my appearance was not what [Dr J] expected.
I felt that [Dr J] did not provide me with a safe environment for the interview process. He did not offer to re-schedule my appointment nor did he offer me any comfort. He simply said “come on – let’s get on with this.”
I made a report to Victoria Police about this incident because I felt that it was a breach of the Intervention Order.
…
Nevertheless, as I have already noted, the wife, perhaps surprisingly, did not seek to update or to challenge Dr J’s report.
EVIDENCE
Pursuant to s 140 of the Evidence Act 1995 (Cth), the standard of proof in this case is the balance of probabilities. That section 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 parents’ affidavits exhaustively set out their accounts of the history of their relationship and various parenting disputes. I have read that evidence, and considered it together with their viva voce evidence in cross-examination. I do not propose to repeat it at length in these reasons for judgment. It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard… Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
Rule 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) provides, inter alia, that annexures or exhibits to affidavits, although filed, “must not be accepted as evidence in the proceeding unless and until it is tendered in evidence at the hearing of the application and accepted into evidence by the court”. Accordingly, a bundle of documents annexed to the husband’s trial affidavit and affidavit in reply were tendered and marked Exhibit H-2.
CREDIT AND OTHER OBSERVATIONS
This is a case in which, save for specific issues which are addressed hereunder, credit did not loom large. Generally, I am able to determine the case issue by issue, on my assessment of the evidence of the parties and the Family Report of Dr J, without resorting to findings of credit. The principal exception is the wife’s evidence in relation to the timeline of her desired move to City C and her actions in relation to achieving this move. The evidence of the parents is, and my observations of each of them confirmed, that there is considerable conflict between them, and that each holds the other in very low regard. They seemingly have little insight into the impact their conflict may have on the children. Each parent was firmly of the view that the other parent was the one responsible for the conflict and who posed a risk to the children. The wife blamed the husband for his short temper and his alleged lack of patience and physical and verbal abuse of her and the children. The husband, in turn, blamed the wife for her volatility and mood swings and her desire to exclude him from a meaningful role in the children’s lives, evidenced (so he contended) by her application to relocate the children with her from the Town F region to the City C region.
Having heard their evidence tested in cross-examination, and observed them in the course thereof, I am satisfied that there is a degree of truth in each of their respective positions; however, they each approached this matter from a selfish and self-serving perspective, rather than in a child-focussed manner.
I found the husband to be a reliable historian in his evidence, which was not materially shaken in the limited cross-examination of him. However, as counsel for the Independent Children’s Lawyer fairly observed in her closing submissions, he presented as self-centred and focused more on himself than on the best interests of the children.
I found the wife to be defensive and combative in her evidence; she had to be reminded numerous times to answer the questions of counsel, and to address counsel and the Court in a courteous and respectful manner. The wife’s evidence in cross-examination in relation to the timeline of her proposed move to City C do not reflect well on her ability to encourage a relationship between the children and the husband. This is notwithstanding her belated concession, by the end of the trial, that the parents have equal shared parental responsibility for the children and that, if she was not successful in her primary position of seeking to relocate to City C, the children should spend five nights per fortnight with the husband.
Each of the parents’ affidavits is self-serving and shows little insight or ability to take responsibility for their respective roles in the lead-up to, and in the breakdown, of their relationship. Their affidavits are replete with emotive language and allegations about the other parent, most of which are denied by the other, and there is little independent evidence or evidence of significant weight to support many of their allegations.
In his Family Report, Dr J opined that positive impression management was likely in relation to both parents. In relation to the wife, he states:
63The pattern suggests that the individual tends to present themselves in a consistently favourable light and as being relatively free of common shortcomings to which most individuals will admit.
In relation to the husband, he similarly states:
153The individual is likely to be reluctant to admit minor faults. He may be blindly uncritical of his behaviour and possibly insensitive to negative consequences related to his own issues or problems. He may minimise the impact of his behaviour on others.
In my view, examples from the husband’s affidavits include:
(a)at paragraph 16 of his trial affidavit, he asserts that the wife “is responsible for the strained father-daughter relationship” between X and him;
(b)at paragraph 22 of his trial affidavit, he asserts: “I want to reconcile my relationship with [X], and I have attempted to. I continue to make efforts that will help us reconnect, however, this is hard to do with [Ms Gillespie’s] ongoing interference”;
(c)at paragraph 30 of his trial affidavit, as to his relationship with X, he asserts that “the only negative issue evident in our relationship is [Ms Gillespie’s] deliberate and determined efforts to turn [X] against me”;
(d)at paragraph 31 of his trial affidavit, he deposes that he was involved in the daily care of their children, Z and Y, including taking them to and collecting them from school, putting them to bed at night and helping them with schoolwork. His evidence is that when X was in his care, he extended what he describes as such “acts of love” to her too. He asserts he is “an attentive father, who tries to provide comfort and warmth to the children”. Further, he also deposes that “[a]lthough it pains [him] that [X] does not want to communicate with [him], [he has] respected her wishes because [he] understand[s] the importance of dealing with the children with care and sensitivity, respecting [X’s] age and her right to make decisions on matters involving her personally”;
(e)at paragraph 33 of his trial affidavit, he deposes:
[Ms Gillespie] is less present or available to the children while they are in her care. For example, she is constantly on the internet or Facebook, and she allows [Y] to play his Nintendo switch for extended periods of time. [Z] is generally left by [Ms Gillespie] to entertain herself. When the children are with me, I actively engage with them in activities – both inside and outdoors – and we have much to bond over.
(f)At paragraph 35 of his trial affidavit, under the heading “The relationship and family violence by [Ms Gillespie]”, he deposes:
My relationship with [Ms Gillespie] was largely very difficult for me, nevertheless I chose to stay with [Ms Gillespie], as I am a peacekeeper, and I wanted the children to be safe and looked after in a family.
(g)at paragraph 40 of his trial affidavit, he asserts:
I am a calm and reasonable person. I do not like conflict and try to avoid any arguments with her in front of the children. It was usually a lot easier to give in to her demands.
(h)at paragraphs 48 and 49 of his trial affidavit, he alleges that “[the wife] has slowly tried to alienate me from my friends and family”, including his late mother; that “[s]he has also done this with the children and their half-siblings”; and that “[s]he does not allow [Mr O] or [Mr P] to collect or spend time with the children”;
(i)at paragraph 45(f) of his affidavit in reply, he deposes:
[Ms Gillespie’s] reactions to trivial matters – and often issues caused by her out of nothing – are extreme and unpredictable. The children are subject to [Ms Gillespie’s] harmful behaviours, especially [X], given that [X] is not her daughter, and she is using [X] to her advantage or to spite me.
Similarly, in my view, examples from the wife’s affidavit include:
(a)at paragraph 9 of her trial affidavit, the wife deposes that Y has told her “that he has bad dreams because he is concerned that he may have to live with his father and he would not be able to live with [her]”;
(b)at paragraph 24 of her trial affidavit the wife describes the husband as “a tall imposing man” and says that “[i]t has been commented to [her], which correlates with [her] observations of the Husband, that he may suffer from mental health condition”;
(c)at paragraph 27 of her trial affidavit, the wife asserts:
The husband is a poor housekeeper. His home is frequently dirty, and stinks of cat faeces and dishes are left lying around unwashed and the house is unkept. I say that he has very little insight into the needs of his children and that the three youngest children living with me are expressing strong views that they do not wish to live with him.
(d)at paragraph 40 of her trial affidavit, when describing the events on the day of separation, she asserts: “I did not know what I had done wrong but I am used to being blamed by the Husband for everything that goes wrong”;
(e)she includes in her trial affidavit alleged quotes of the children, such as (at paragraph 41) that Y said to her “I’m sorry my dad is always such an arsehole to you” and (at paragraph 42) that X said to her, “mum, please separate from that man, he is beyond impossible to live with and communicate with”;
(f)at paragraph 55 of her trial affidavit she asserts that “the husband lacks insight into the needs of our children to have a clean, healthy and comfortable home”;
(g)at paragraph 57 of her trial affidavit, she further asserts that “the husband lacks insight into the needs of our children and is unable to effectively care for them other than for relatively short periods”;
(h)at paragraph 59 of her trial affidavit, in relation to the husband’s financial responsibility for the children, she asserts:
He is a parsimonious man and even if I lodged an assessment or had an agreement that he pay a reasonable amount of child support I do not believe that he would do so.
I am of the view that it will be necessary for me to pay our children’s school fees and all of their school requirements.
I will willingly take on that responsibility for the sake of our children.
Each parent filed affidavits of their adult children in the course of the proceedings, as well as affidavits of other family members and friends. These affidavits were not relied upon at trial. I view this involvement of their adult children in the proceedings as that of claqueurs; it is nothing more than an unnecessary attempt by each parent to bolster their respective positions in the proceedings, rather than to adduce relevant and necessary evidence. It is, in my view, another example of the inability of each of the parents to make any unprompted, appropriate concessions as to both the role they each played in the demise of the relationship and the importance of the other in the lives of the children. They involved their adult children, the half-siblings of Y and Z, for no relevant forensic purpose, even though ultimately not relied upon.
The matter that caused most concern about the wife and her ability (or, rather, inability) to encourage a relationship with the husband, in circumstances where she belatedly agreed they should have equal shared parental responsibility, was her evidence in relation to her proposed move to City C with the children:
(a)The husband’s evidence is that he only became aware of the wife’s proposed move to City C through Dr J's Family Report, dated 16 August 2022. However, her evidence in cross-examination remained that she had formulated her plan to relocate to City C in late 2022. In cross-examination of the wife, it was put to her that she had plans to relocate to City C some months earlier in 2022, and that at an Interim Defended Hearing before a Senior Judicial Registrar of this Court on 14 October 2022, it was observed that the wife did not even have employment in City C. The husband’s case is that, from then, she began putting in place a plan to secure her relocation to City C. Indeed, as referred to above, as early as mid- 2022, the wife reported to the domestic violence service that she proposed to relocate to City C after the conclusion of X's VCE at her school in Town F, at the end of the 2023 academic year.
(b)The wife unilaterally enrolled the husband’s child, X, at D School, a school in City C, where she completed her Year 12 / VCE studies, despite it being necessarily conceded during the course of the trial that, at the time, the husband was the only person with parental responsibility for her, as his biological child and her mother being deceased. The husband’s evidence is that he did not consent to X’s change of schools and her move to City C. His evidence, as at the time of swearing his trial affidavit, was that X was residing in a flat in City C and that he was unsure what her supervision arrangements were, given that the wife was still residing with Y and Z at the Suburb B property. The wife’s evidence in cross-examination was that she signed a lease for a property in Suburb W, in the suburbs of City C, in late 2022. The lease, although relevant and accordingly discoverable, inexplicably was only provided to the husband in the course of the trial. Her evidence was that X had set her mind on going to D School and was going regardless. However, the husband’s case was that she had leased the property in Suburb W even before X had been enrolled at D School and that by late 2022, when the husband had organised a career counselling meeting at X’s school in Town F, the wife was determined and had already put into place plans to facilitate X’s enrolment at D School, including by leasing the Suburb W property. The wife was unable to provide the date of X’s enrolment at D School, or any documents evidencing same. The wife’s evidence is that X is supervised in Suburb W by her (namely the wife’s) father or aunt, and by the wife herself on weekends when the younger children and she travel to City C. The wife’s evidence was that the husband consented to X’s enrolment at D School in January 2023, just prior to the commencement of the 2023 school year. I do not accept that evidence; I find that the wife sought to present, and presented, the husband with a fait accompli, in furtherance of her proposed relocation to the City C region with the two children of their marriage. The wife had no parental responsibility at law for X; it was not for her either to change either X’s school or place of residence without her father’s consent.
(c)The wife purchased a property in Town E, in the vicinity of City C, with no meaningful prior disclosure of this to the husband and, all the more so, in circumstances where she would require another partial property settlement, by consent or by the Court, to complete the purchase. It became apparent, in the course of cross-examination of the wife, that she signed the contract to purchase the Town E property in mid-2023; that she only notified her solicitor of this one week prior to the trial; and that the husband only became aware of the purchase, and was provided with a copy of the contract, on Friday, 18 August 2023, the last working day before the commencement of the trial on Monday, 21 August 2023. The wife’s purported explanation, in the course cross‑examination, for this non-disclosure or, at best, grossly belated disclosure, was that she had received a “legal beating stick” that was “completely uncalled for”. It is not clear to me what she meant by this; it was not clarified in re-examination. I find that her pre-emptive purchase of, and subsequent non-disclosure of the contract for, the Town E property is another example of the fait accompli with which she sought to present the husband and the Court, in order to bolster her proposed relocation of the children to City C.
(d)The wife’s evidence that one of the reasons for which she seeks to relocate to City C is for employment opportunities; however, on her own evidence, she voluntarily left her employment in Town F, where the children attend school, to take up employment in City C, of all places, rather than with another employer in or in the vicinity of Town F. At the time of trial, she was working in City C and leaving the former matrimonial home in Suburb B between 4.30 am–6.30 am on her working days, and returning home between 7.30 pm–9.00 pm, due to the lengthy travel times. At her instigation, her parents, rather than the husband, care for Y and Z during the time she is at work in City C. She has not, more appropriately, offered the husband the opportunity to do so.
(e)The wife’s evidence in cross-examination was that the children were aware she had purchased the property in Town E and that they first saw it when she went for a second inspection in mid-2023. Her evidence was that she never told the children that she proposed they move to live there; however, her evidence also was that the children loved the house and that she showed it to them to demonstrate to them that they could move forward with their futures. Why they could not do so in Town F remained unexplained. She did this prior to any orders of the Court allowing any relocation and prior to the husband even being made aware of her purchase of the Town E property. It most inappropriately put the children, explicitly or implicitly, in a position whereby they knew something relevant that was unbeknown to their father.
THE HUSBAND’S PARENTING CASE
The husband submits that it is not in the children’s best interests to relocate to City C or the vicinity thereof with the wife, as he alleges that she is unable to support the children having a meaningful relationship with him and that he does not trust that she will not denigrate him to them whilst they are geographically distant from, and therefore spend less time with, him. He submits that a week-about arrangement is in the children’s best interests and will enable them to have a meaningful relationship with both parents. He alleges that the children are at risk of being alienated from him in the wife’s care and that they are “at risk of psychological and emotional harm from her, and possible physical harm given her inability to contain her anger” (paragraphs 104 and 106 of his trial affidavit).
Whilst his affidavit evidence concedes no flaws in his parenting, during cross-examination he conceded that he had, on occasion, physically disciplined the children; however, he said that he had not done so since the release of Dr J's Family Report and he conceded that it was wrong to physically discipline the children. It is apposite to recall that even the wife represented to the domestic violence service that he had “only smacked them once or twice”, despite threatening to do so at other times.
At paragraph 114 of his Family Report, Dr J observes that the husband’s view “is that the [wife] is simply vindicative and attempting to manipulate the situation via the children”. Aside from the concession (which accords with that of the wife) in relation to the rare occasions of smacking the children as a form of physical discipline, the husband makes no other concessions in relation to the alleged domestic violence. His view is that the Intervention Order for which the wife applied is an example of her attempt to alienate him from the children.
As noted above, the husband’s case is that the first time he became aware of the wife’s intention to relocate to City C was upon the release of Dr J's Family Report and that the wife went behind his back to facilitate X moving to City C in order to lay the foundations for her to relocate there with Y and Z. He asserts at paragraph 105 of his affidavit in reply that the wife, “despite [Dr J’s] recommendation has partially moved the younger children and herself to [City C], because [she] is also spending time in [Suburb W] at [X’s] residence”. In his closing submissions, counsel for the husband said the wife was “secretive” and “arrogant” about her actions to facilitate her plans to relocate to City C. Having heard and considered her evidence in cross-examination, I agree.
The husband, in the course of cross-examination, said that whilst he could sell the Suburb G property, at which he currently resides, and that it was not impossible for him to relocate to City C area, should the wife and children be permitted to do so, he would have no realistic employment prospects there and that he wishes to continue living and working on his family property. Nevertheless, his evidence also was that if orders are made for him to spend more time with the children, as he seeks, he would employ assistance on the property and could reduce his working hours, or even retire early, to enable him to spend time with and care for them.
In cross-examination by the Independent Children’s Lawyer, the husband said that, whilst he can work up to 14 hours per day, his work is cyclical; he works such long hours for 2–3 weeks per year. The husband’s evidence was that his exact work hours as depend on the weather, namely, whether it is a wet or dry year during seasons. If it is a good, that is, dry year, his evidence is that the work period lasts from late April until mid-May and the other period lasts from mid-December until mid-January. He further said that, even during periods of long hours, he can spend time with the children and has the ability to arrange a way for the children to get to and from school. He said he would be able to do this as he intends to employ labour to assist, which would enable him to spend time with the children before and after school.
In his trial affidavit at paragraph 26, in relation to a proposed discussion between the husband and X, on the condition that the wife was present, the husband deposed:
I cannot trust that [Ms Gillespie] will treat me with respect in front of [X]. That is why I declined her offer… [Ms Gillespie] knew that I would turn down her offer, as she knows my sentiments around her being present with me and the children.
Given the wife’s unilateral and furtive actions and her evidence in cross-examination, as well as my assessment of her informed thereby, I find that the husband’s concerns regarding alienation of the children from him by her are not unfounded or unreasonable.
THE WIFE’S PARENTING CASE
The wife’s case is that it is in the best interests of the children to relocate with her to City C and for the husband to spend alternate weekends with them, with him collecting them from their school in City C on a Friday afternoon and the wife collecting them from the husband’s house on Sunday afternoon. They would therefore only spend two nights per fortnight with him; a parsimonious proposal, contrary to the expert recommendations of Dr J.
At the time of trial, the wife’s parents lived in regional Victoria. Her evidence in cross-examination was that a part of her reason for wishing to relocate to City C is that her parents are relocating there as well; however, no other evidence was adduced to support this claim.
The wife was cross-examined regarding her assertion that a primary reason for her desire to relocate was financial. It was suggested to her that she had an income in Suburb B; however, she maintained throughout cross-examination that her income in Suburb B was not sufficient. She was unable to produce payslips from her employment in Suburb B or her employment in City C to support her comparative claims. She was further unable to produce her recent tax returns as evidence of her income. Her evidence was that she was unable to demonstrate to the Court what her income in Suburb B was as she had not yet completed her tax returns.
The wife’s case is that the husband’s home in Suburb G is unfit for the children. She says at paragraph 27 of her trial affidavit:
The Husband is a poor housekeeper. His home is frequently dirty, and stinks of cat faeces and dishes are left lying around unwashed and the house is unkept.
She further says (at paragraph 43 of her trial affidavit) that the children did not wish to spend time at the husband’s home as they “said it was cold in the house and it was always dirty”. The husband denies her claims.
In cross-examination, the wife maintained that the husband’s home was in an appalling condition. Photographs of the exterior of the house were tendered and marked Exhibit H-6. The wife confirmed that they were photographs of the husband’s home, but denied they were an accurate representation of the condition thereof. She maintained that the photographs were of the dwelling from deliberately selected angles. Notwithstanding her case that the husband’s home is not in a fit and proper condition for the children to live in, she concedes that if she is restrained from relocating them to City C, they should spend five nights per fortnight with him. It is difficult to understand why the children can live there five nights, but not seven nights, per fortnight.
In the course of her cross-examination, the wife agreed that an order for sole parental responsibility would mean that one parent would be excluded from making decisions in respect of the children and that an order to that effect would “sideline” one parent. Despite this concession, she maintained that, in seeking an order for sole parental responsibility, she was not trying to sideline the husband. Further, she conceded, and necessarily so, that her proposed relocation of the children to City C which would inevitably reduce the time the husband is able to spend with them. She confirmed that she wanted both to relocate and to have sole parental responsibility. Her position in relation to parental responsibility subsequently changed and Senior Counsel appearing on her behalf confirmed that she would consent to an order for equal shared parental responsibility.
She submits in her Outline of Case that her proposal will:
… provide a safer environment for the children in that they will be living with the wife in [City C] and spending time with the husband in circumstances where the wife is hopeful that because of a reduction in conflict as between the parties and the shorter periods of time the husband will need to care for the children will provide a safe environment for the children.
In her Outline of Case document, it is submitted that the wife:
… has tried to communicate with the husband about parenting matters and in particular in an endeavour to improve the presently non-existent relationship between the husband and [X] but the husband has rejected every suggestion.
The husband has been invited but has not attended at [D School] in [City C] to inspect the school and speak with [X’s] teachers.
The wife further submitted therein that “[Z] and [Y] would be shattered if they were separated from the primary care of their mother”. This contradicts Dr J’s expert observations of the children’s interaction with the husband.
She disagrees with the opinion of Dr J, asserting that his “views were substantially influenced by... [her] demeanour in the interview caused by the husband attending at the same time as [her] when he was not supposed to and causing [her] to become very fearful for [her] safety…”. Nevertheless, possibly inexplicably, she did not require Dr J for cross-examination and his unchallenged report forms a part (and, in the circumstances, an important part) of the evidence to which I have regard.
EVIDENCE OF THE FAMILY REPORT WRITER
In Hall & Hall (1979) FLC 90-713 at 78,819 - 78, 820, the Full Court said:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c)While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d)Hence, the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e)Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child’s welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f)Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court’s investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g)It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h)Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation. We draw attention to an article by Mrs. A. Marshall, Director of Court Counselling Sydney Registry – “Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia”. The article appears in the March 1977 edition of Australian Social Work, vol. 30 No. 1, p. 9 and at p. 11 appears the passage:
“Family Law reg. 117 provides for the cross-examination of a counsellor in relation to the Report. It is seen as an advantage by counsellors that they can in this way be held accountable for the Report.”
(i)Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied. In the case of Harris (supra) Fogarty J. said at FLC p. 76,474; F.L.R. p. 289:
“It is in my view inimical to the proper workings of the Court and in particular to the proper carrying out of the functions of a welfare officer that it might be thought by practitioners or litigants that welfare officers or their reports occupy some special or privileged position before the Court unchallenged or unchallengeable but yet perhaps decisive of the issue. Custodial proceedings still basically fall to be determined by the Court in accordance with the traditional system of determining cases. Where a welfare report is delivered which contains either factual matters or matters of opinion which a party desires to challenge but is not permitted to do so that party may be pardoned for feeling that justice has not been seen to be done.”
Similarly, in M. and M. (1978) FLC 90-429 at p. 77,182; (1978) 30 F.L.R. (Notes) at p. 562, Marshall S.J., in adopting the views of Fogarty J. set out above, stated:
“If the contents of such a report are not open to challenge by cross-examination the Court would leave itself open to the criticism of conducting a trial ‘by report’ rather than on the whole of the evidence.”
This Court is in full agreement with the views set out above.
More recently, in Kennedy v Kennedy [2010] FamCAFC 195 at [77], the Full Court stated:
It must be remembered that while the recommendations of a report writer are of considerable weight ultimately it is the role of the judicial officer, who has the advantage of hearing all the evidence, and assessing the demeanour of parties and their witnesses, to determine what is in the best interests of a child. The role of the report writer was discussed by the Full Court in Hall & Hall (1979) FLC 90-713 at 78,819, and approved by subsequent Full Courts (see D & P [2006] FamCA 170 and Andrew & Delaine [2009] FamCAFC 182; Friscioni & Friscioni [2010] FamCAFC 108; Malak & Mairie [2010] FamCAFC 170).
The Family Report writer, Dr J, was not required for cross-examination by any of the parties. That this was so, in the case of the husband and the Independent Children’s Lawyer, is not surprising; they each accept his recommendations. In the case of the wife, it is possibly more surprising; she disagrees with, but did not seek to challenge, his recommendations. I find the unchallenged independent, objective and expert evidence of Dr J to be of great assistance. His observations of each parent and, in particular, the wife, were consistent overall with the evidence and demeanour of each of them in the course of cross-examination. Whilst his views coincide with mine, it is not because they have been accepted axiomatically but because I have found them consistent with the body of the other evidence before me.
At paragraph 9, Dr J observed that the wife:
… was anxious, anticipated questions and interrupted questions. She was marginally less anxious at the end of the assessment. There was a tendency for her to be black and white about the complex family issues. She presented with a clear plan for the future. It is likely, from a clinical perspective, that there was positive impression management.
At paragraph 18, he reports:
The mother’s account was somewhat contradictory considering her other statements of significant problems in the relationship. She stated that she was unaware that there were issues in the relationship, and that separation was imminent in June 2022, reporting however in contrast that over the last 9½ years there had been empty threats from the father about separation.
This observation of the wife’s contradictory account of the extent of the domestic violence she experienced throughout the relationship accords with her inability to answer questions in cross-examination, including about the notes of Dr V (addressed at [32] herein).
At paragraphs 23–26, in relation to the wife’s proposed relocation, he recounts:
23[Ms Gillespie] reported that she wishes to relocate. She asked the examiner whether information about where she plans to live would be conveyed to the father.
24It was indicated to her that if the mother wished to raise issues of relocation, the place where she plans to move to would be a relevant part of the report, she understood this issue, gave her consent for the information to be in the report, and conveyed this information.
25[Ms Gillespie] reported that she wants to move to [City C]. She believes education, employment and health are all better for the children there. [City C] to the father’s home in [Suburb G] is [over 150km], estimated at [more than] 2 hours. The mother’s account is that they could meet half way at changeovers.
26In terms of school [Ms Gillespie] considered [D School] as a possibility for the children in the future. Her account is that her parents are planning to move to [City C]. She believes the father would be able to negotiate the trip. She described having a small circle of friends there. The children have no other obvious connection in area.
These observations again accord with the wife’s answers in cross-examination, as well as with and the husband’s case that she had behaved in a secretive way in relation to her proposed relocation and had been planning it, including by the enrolment of X at D School in City C, as early as Dr J’s report in August 2022.
Dr J reports at paragraph 29 that the wife’s account is that “[Y] is negative regarding the father” and “has been seeing a welfare officer at school” and is “reactive to the father’s yelling”. This description of Y’s views of and attitude towards the husband do not accord with Dr J’s observations of the interaction between the husband and the children. Rather, he observed on page 25 that “[Y] and [Z] greeted the father affectionately…”; that “[Y] [was] engaged in the game with the father”; that “[t]he mood [was] positive”; and that “[t]here was no evidence of negative interaction between the children and the father”. In the absence of any cross-examination of [Dr J] by Senior Counsel for the wife, presumably on instructions from her, it is difficult to reconcile her allegations and his observations, other than to find that she has exaggerated, if not been untruthful about, those allegations.
Dr J further reports, in relation to the wife, at paragraphs 38 and 39, as follows:
38She presented with a clear plan regarding the future, to relocate herself and the children. While her stated rationale is to improve the circumstances for the children, based on this evaluation, it is highly likely there is mixed motivation.
39She presented with little support for the children’s relationship with their father. She presents as having partial motivation to move on from the relationship, and also to move away from the father. Generally, this issue represents a pattern in this marriage. The evaluation pointed to black and white emotional processing as a personality vulnerability factor.
In his observations of the child, Y, Dr J opines (at paragraph 69) that there “was evidence of influence from his mother” and he reports (at paragraph 70) that Y identified the reason for the evaluation to be “so that my dad doesn’t live with me …”.
Dr J opines (at paragraph 78) that Y’s descriptions of Suburb G as “not an environment for the children … there is too much farming … there are not a lot of hospitals or anywhere for groceries” presented as adult-like. He reports (at paragraph 80) that Y is aware of the wife’s feelings towards the husband and (at paragraph 81) that Y “acknowledged that his mother would be upset if he wanted to spend a lot of time with his father”.
In relation to Z, Dr J similarly opines (at paragraph 82) that “it is likely that there was direct influence from the mother”. He reports at paragraph 83:
[Z’s] understanding of why she was at the evaluation was “because daddy is trying to take us…he wants us…if he takes us, she’ll never see us ever again…she really wants me to stay with her”, referring to her mother. She continued to state “dad, he wants us forever…he really wants us to be with him…mum doesn’t want that”.
At paragraph 88, Dr J states:
[Z] reported that sometimes they get a smack on the butt, and that the father does it hard and says things like “I’ll put you in time out for the rest of weekend”. She went onto say “he belts us” but then added “I don’t know what that means”. [X] yells at the father a lot and gets into trouble.
In relation to X, Dr J’s report suggests that her accounts of the husband are similar to those of the wife. He reports at paragraph 98 that she “described her father using an authoritarian approach, whereas she has asked him to be civil but he has not been so”. At paragraph 99, Dr J reports that “she described the house as ‘disgusting… freezing… a mess with mould, etc’, and the father is always angry”. He opines at paragraph 96 that it “is clear that [X] confided in her mother [sic] about the separation and vice versa”.
At paragraph 116, Dr J recounts that the husband reported:
… that the mother does her best to drive a wedge between himself and [X]. He spoke fondly of her and believes she is being groomed by the mother. His account is that she also did the same with [Mr O] and [Mr P].
At paragraph 119, Dr J reports in relation to the husband:
He acknowledged that the parents have dichotomous views of each other and effectively mirror each other’s positions. His view is that she needs to reduce her violent temper, that there needs to be less stress and that she should not go over the top with the children, and he believes that he should have full custody of the children (referring to parental responsibility).
Dr J continues:
120His report is that the mother’s proposition is for him to have fortnightly time, whereas he believes that a half time arrangement is “fair and reasonable”. [Mr Gillespie] came at the matter of time arrangements in these comments, from a parent-focused perspective rather than a child-focused perspective.
121[Mr Gillespie] reported that [Suburb B] to [Suburb G] is 45 minutes, although he acknowledged that living elsewhere is possible. He reported that it may be possible for [X] to return to [City T] [S School] to assist her with getting into [university]. He also indicated that he cannot [work] forever and could be a stay at home parent if need be.
122In addressing the allegations of verbal and physical abuse, [Mr Gillespie] acknowledged raising his voice with the children, but denied shouting, and indicated that the mother also raised her voice with the children.
123In terms of verbal abuse, the father reported that this behaviour occurred on a seldom basis, but acknowledged that he slipped up and made negative statements towards the end of the relationship with the mother. He reported that he did not verbally abuse the children. He denied physical abuse of the mother or the children and indicated that he would smack the children no more than once every six months, and denied that such discipline occurred in an abuse manner.
…
130It has been described by the children that the father shouts on a regular basis in parenting. There was acknowledgement of shouting by the father in his parenting. He denied the allegations of verbal abuse. It is likely that this tendency towards emotionality in parenting represents a personality vulnerability factor.
Dr J reports at paragraph 205 that:
The nature of the parent-child relationships in this matter is complicated by influence of the children by the mother based specifically on the children’s accounts to the clinician on the day of this evaluation.
He continues:
207In the family evaluation, the younger children, [Y], [Z] and [X], have clearly identified that they have been influenced by the mother in the context of this evaluation. It is less obvious whether [X] has had direct influence by the mother. Nevertheless, the statements by the children, [Y], [Z] and [X], have been reported in this assessment. The weight that can be allocated to these reports needs to be considered carefully due to the issues of influence.
208Additionally, the interaction between the younger children and the father in particular, did not reflect the negative statements made by the children. In contrast, the interactions were generally positive. There were established relationships that were both affectionate and positive. The discrepancy between reported and observed relationships points to self-reports not being able to be considered at face value. The relationship between [X] and the father presented as less obviously positive, but did not similarly present as negative. This issue may be explained by her being restrained and respectful in the assessment context, but she is reported as more vocal with the father when in the father’s home.
(Emphasis added)
The reference to the judgment of the Full Court in Lee Steere & Lee Steere (1985) FLC 91-626 at 80,078 was to the following passage:
In the case of a farm, as we have remarked earlier, the idea of a partnership between the farmer and his wife applies all the more strongly, especially where as often is the case, the parties actually operate the farm in the form of a partnership between them, although it might be argued that the partnership is a “paper one” entered into for taxation purposes only (if that argument is open at all: see the remarks of Goldstein J. in Elias and Elias (1977) FLC ¶90-267 at pp. 76,423-76,424; (1977) 29 F.L.R. at pp. 400, 401). But it cannot be denied that the splitting of income tax is of direct and immediate financial benefit to the husband and to that extent a direct financial contribution on the part of the wife.
The husband owned the real property situate at L Street, Suburb G (the “Suburb G property”). It was unencumbered at the time. There is no retrospective valuation of it and it is now valued in the sum of $5,450,000. The husband deposes to owning extensive machinery and equipment. He exhibits to his trial affidavit what he contends to be a schedule of all his equipment “at the commencement of the relationship”, which commenced some five months prior to the commencement of cohabitation. That is manifestly not so, in circumstances where the schedule includes machinery and equipment purchased in January 2013 and March 2019. In respect of the machinery and equipment which the husband owned in 2012, he lists (at best) the purchase price thereof, which in some instances was several years prior thereto, and the value thereof for the purposes of the trial. However, there is no admissible evidence of value at the commencement of cohabitation. He also deposes to cash at bank “of around $61,766.30” (emphasis added). Given the precision of the amount to which he deposes, the qualification which precedes it is strange. Although he did not tender any bank statements to prove that amount, it is not disputed by the wife; she merely does not admit it. I have no reason not to accept the husband’s evidence and I do so.
For her part, at the commencement of cohabitation, the wife owned two motor vehicles, subject to finance totalling $10,000, and she had some superannuation and savings. She contends that her savings were in the order of $12,000 and the husband contends that they were “nominal” in amount. Those contentions are not necessarily in conflict and, in the circumstances of this case, including the value of the net asset pool at trial, little turns upon the extent of the wife’s or, indeed, the husband’s savings at the commencement of cohabitation. In respect of the wife’s two vehicles, they were sold shortly thereafter. After the commencement of cohabitation, the wife’s motor vehicles were sold; she deposes for a total of approximately $16,500 and the husband deposes for a total of $14,500. There is no independent evidence thereof and, given the very modest disparity in their estimates, nothing turns on it. After repayment of the finance in respect thereof, the net amount retained was negligible. In the circumstances, the net proceeds of sale whether retained by the wife (as the husband contends) or by the husband (as the wife contends), is similarly of negligible relevance to the outcome of this case.
On any view of the evidence, the husband made the greater and, indeed, substantially greater initial contribution. This is conceded by the wife, who contends that her contributions over the course of the parties’ marriage should be assessed at 20 per cent less than those of the husband.
Between 2012–2018, the parties lived on and, in partnership, worked on the Suburb G property, during which time improvements were undertaken to it. Their partnership remains extant and it is agreed that it will be wound up.
In early 2015, the parties purchased the real property situate at and known as BB Street, Region CC, (the “BB Street property”) from the husband’s father for a sum in the order of $800,000, with bank borrowings secured by mortgage thereover. It was an agricultural property, which formed part of the husband’s property and, in turn, that of the husband’s grandfather and great-grandfather. As with the Suburb G property, the BB Street property was also used for agriculture and improvements were undertaken to it. It was sold in 2023 for $3,808,000 and the balance remaining of the proceeds of sale, after the wife’s further partial property settlement, is held in the controlled monies account in the name of the wife’s solicitor on trust for the parties. The mortgage over the BB Street property was not discharged from the proceeds of sale thereof but was transferred to the Suburb G property.
In late 2018, the parties purchased the real property situate at and known as GG Street, Town HH (the “Town HH property”) for $615,000, again with bank borrowings secured by mortgage thereover. The family then moved from the Suburb G property to live there. It too was a rural property, to which improvements were undertaken. It was sold in mid-2022 for approximately $1,220,000. The mortgage over the Town HH property, in the order of $650,000, was not discharged from the proceeds of sale thereof, but was similarly transferred to the Suburb G property.
The proceeds of sale of the Town HH property were applied, in part, towards the purchase, also in mid-2022, of the Suburb B property for $655,750, leaving approximately $615,000 from the proceeds of sale of the former property. The deposit for the purchase of the Suburb B property, in the sum of $65,575, was briefly lent to the parties, interest-free, by the wife’s parents, pending settlement of the sale of the Town HH property, whereupon the short-term loan was repaid. The parties and their children lived in the Suburb B property briefly as family, until separation, after which the husband moved out and resumed residence at the Suburb G property, whilst the wife and the children remained.
Thus, the Suburb G property, which was contributed by the husband at the commencement of cohabitation, and which was then unencumbered, has since been encumbered by the borrowings for the acquisition of the BB Street property and the Town HH property, without which the mortgages would have been required to be discharged from the proceeds of sale of those properties, thereby freeing the proceeds of sale of those properties for the benefit of the parties.
I also take into account, although again de minimis in the context of this case, that in 2018 or 2019, the husband received an inheritance of approximately $30,000, upon his mother’s death, from her estate.
The husband deposes that he often had to work 14 hour days, seven days per week, during the busy seasons. This is not denied by the wife; however, she contends and I accept that, during such times, she necessarily primarily cared for their children. She also contends and, despite the husband’s denial that she did so in “any meaningful way”, I accept that the wife assisted him in the operation of the family business “to the extent that [she] was able”.
There is no suggestion that either of them applied their respective, even if differing, incomes otherwise than towards the acquisition, conservation and improvement of the property of the parties within s 79(4)(a) of the Act or to the welfare of the family constituted by the parties and the children of their marriage within s 79(4)(c) or, for example, as a matter to be taken into account under s 75(2)(o), pursuant to s 79(4)(e).
Over the course of the parties’ cohabitation, the wife was engaged in paid employment from time to time. The husband asserts that her employment history was unstable, as she was fired or retrenched on occasions, due to personality difficulties. Aside from the inadmissibility of that latter assertion, its relevance is, at least, limited.
The wife contends that she was, effectively, the primary homemaker and parent. The husband’s evidence that he was involved, together with her, in the day-to-day care of the children, was not shaken in cross-examination. However, in circumstances where he was primarily engaged in the agricultural operations, albeit that they were seasonal in nature; he complains about the wife’s frequent changes of employment; some of her employment was self-employment or part-time employment, I find that, on the balance of probabilities, she was the primary homemaker and parent.
In respect of the parties’ respective children from their prior relationships, the wife’s twin children, who were aged 11 years at the commencement of cohabitation, lived with the parties until late 2015, when they moved to live with their father. Of the husband’s children, who were aged 13, 11 and 7 years respectively at the commencement of cohabitation, the two older children similarly lived with them for a while, whilst the youngest child, X, continued to live with them. Of the husband and the wife, X has a closer relationship with the wife and, indeed, remained living with her upon separation.
The husband deposes that, in 2014-2015, he paid for the wife’s twin children from her prior marriage to attend S School, where his children attended. He deposes to having paid approximately $32,000 “from [work] proceeds”, albeit that, by then, the wife was a member of the partnership, as well as from savings in the order of $12,000 that his late wife and he had earmarked for the education of their children. The wife deposes that her children’s school fees were paid from their “joint funds”, whatever that means. However, that overlooks the fact her children are not relevant for the purposes of s 79(4)(c) and that, whilst she cannot claim a contribution for her care or financial support of them, any such care or financial support by the husband can be taken into account in his favour under s 79(4)(e), by reason of s 75(2)(o). Of course, similar observations can be made in favour of the wife in respect of the husband’s children and, in particular, X. See Mehmet & Mehmet (1986) FLC 91-730 and Robb & Robb (1995) FLC 92-555.
Without in any way denigrating the wife’s contributions, primarily, but not limited to, in the role of primary homemaker and parent, even she concedes, and properly so, that the husband’s s 79(4)(a)–(c) contributions, considered globally, should be assessed as being greater than hers. In submitting that they should be assessed as 60 / 40 per cent in his favour, she concedes that his contributions should be assessed as being (at least) 20 per cent greater than hers. The husband, in submitting that contributions should be assessed as 70 / 30 per cent in his favour, seeks that his contributions should be assessed as being (up to) 40 per cent greater than hers. In dollar terms, that is a disparity of between them of about $1,844,000 and $3,689,000.
The gravamen of the assessment of the parties’ contributions is, indubitably, the husband’s initial contribution of the Suburb G property, which he owned unencumbered at the commencement of cohabitation in 2012 and which he retained at the time of separation and which he continues to retain. The Suburb G property enabled the parties to retain the proceeds of sale of the Town HH property in 2022 and the BB Street property in 2023, without repayment of the liabilities secured over those properties when the sales thereof were settled; rather, the liabilities were transferred to and secured by the Suburb G property, freeing the sale proceeds for the parties’ benefit.
In Jabour & Jabour (2019) FLC 93-898 at [43], referring to Baker v Towle (2008) 39 Fam LR 323, Bilous v Mudaliar (2006) 65 NSWLR 615 and Williams & Williams [2007] FamCA 313, the Full Court said:
We consider that the decisions in Baker and Bilous indicate that the Court in Williams somewhat overstated the importance of the increase in value of a piece of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship” (Williams at [26]).
The Full Court further said, at [55], that:
… the weight to be attached to an initial contribution must be assessed against the rubric of all of the contributions, both financial and non-financial, made by the parties over the course of their relationship.
In allowing the wife’s appeal in that case, the Full Court said at [71] that:
It is apparent from these passages that the approach of the primary judge was to search for a nexus between the contributions by the parties to Property A and its present value. The only contribution of that kind she could identify was on the part of the husband bringing the property to the relationship.
The Full Court continued at [73] that:
… the primary judge weighed the myriad of contributions made by the parties against the contribution made by the husband by bringing in Property A rather than treating Property A as one of the myriad of the contributions made.
The Full Court said at [82] that “[t]he approach of the primary judge had the effect of these considerations being overlooked” and continued at [83]:
Importantly, it also had the effect of minimising the myriad of other contributions that were made in the course of a long marriage during which both parties worked very hard and raised a family. In this case, those contributions were made over a very long period and the parties regarded them as being equal.
The Full Court concluded in this respect at [85]–[86] as follows:
85.It is difficult to see adequate recognition of this principle in the reasons. Indeed, the husband appears to have been given credit for the serendipitous revaluation of Property A by her Honour’s recognition of the husband’s contribution by having regard to its value at the time of the hearing, rather than it being merely the springboard for its later value.
86.Further, we consider that by quarantining Property A from the “myriad of other contributions made by both parties throughout the course of the relationship” (Williams at [26]) her Honour fell into the difficulty set out in Hurst, as described earlier. This is because those contributions were isolated from and weighed against the contribution of that property, rather than it being one of the myriad of contributions taken into account. The evidence established that, throughout the relationship, the parties’ contributions to Property A “were of precisely the same nature and extent that each made in their respective agreed roles and spheres” (Hurst at [25]).
The Full Court relevantly concluded its reasons for judgment at [139]–[140], saying:
139.The only contributions that point away from a finding of equality of contributions where both parties worked very hard to support and maintain their family over 27 years, are the initial contributions made by the husband of the former matrimonial home and Suburb A properties. Although the former was not the subject of the final division, it nonetheless was a contribution of some utility as it served as the family home for many years.
140.Giving the appropriate weight to these contributions, we consider that they are properly reflected by finding that the contributions favour the husband by 53 per cent and the wife 47 per cent. As there are no other matters to be taken into account, this will be the division of their non-superannuation property. This leads to a differential of $542,035 which appropriately reflects the various contributions.
The facts in the present case are somewhat distinguishable from those in Jabour. In that case, the parties cohabited for nearly a quarter of a decade whereas, in the present case, they cohabited for only about a decade.
In Jabour at [51], the Full Court said that the decision in Pierce v Pierce (1999) FLC 92-844 “represents the culmination of a line of authorities bearing on the issue of how to weigh an initial contribution against other contributions made by the parties over the course of their relationship”.
In Pierce, the Full Court said at [28]:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: See also Campo and Campo (unreported, Full Court (Ellis, Lindenmayer and Finn JJ), Sydney, delivered 19 May 1995 at pages 21 and 22 of the joint judgment) and Zahra and Zahra (unreported, Full Court Sydney, delivered 3 October 1996, per Ellis J at page 10).
The Full Court in Jabour also referred at [56]–[60] to Wallis & Manning (2017) FLC 93-759, involving a marriage of nearly 30 years, where a differently constituted Full Court said at [19]–[20]:
19.… the parties approached the assessment of contributions by suggesting that “an adjustment” should be made to a result reached otherwise by reference to a miscellany of other contributions. Her Honour adopted a similar approach. Such an approach is by no means uncommon to both the presentation of cases and the structure of judgments. It is convenient in this case, as it is more broadly, so as to describe a contribution or contributions of a particular type said to have particular importance and to distinguish it or them from other contributions.
20.Yet, that approach must also ensure that the “myriad of other contributions” and the duration over which, and circumstances in which, the miscellany of other s 79(4) contributions were made is not accorded a subsidiary role. The essential s 79(4) task is for “trial Judges [to] weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation”.
(Footnotes omitted)
The Full Court in Wallis & Manning further said at [116]–[117]:
116.The parties were married for 27 years. Their marriage occupied virtually the entirety of their adult lives. Judicial debate has surrounded the so-called “erosion principle” but that debate has centred primarily on the question of whether early capital contributions are eroded only by “an imbalance” in later contributions. In our view, talk of “erosion” of the early capital contribution obscures the issue rather than illuminates it. However, it can be taken as well settled that the length of the relationship has a significant impact on how early significant capital contributions should be viewed in assessing the totality of the parties’ contributions. …
117.The length of a marriage is important, then, in assessing the respective contributions of the parties, particularly when it is said that significant capital contributions made early in the marriage are a dominant feature of that assessment. It is, accordingly, an important consideration in seeking decisions that might assist in the assessment of contributions by reason of being “more or less similar” to the present.
The Full Court continued at [120]–[123]:
120.The gifts made by the husband’s father were made early in a long marriage. The use to which those gifts were put rendered them of fundamental importance to the parties throughout the marriage. They provided the foundation for a farming business, operated as a partnership between the husband and the wife, from which the marriage derived income during its duration. They provided land upon which the parties’ home was situated and, thus, a place to live.
121.The husband conceded in cross-examination that the current state of the properties and their current value was due to the very significant efforts of both parties in roles that both differed and overlapped throughout the marriage. Her Honour found in that respect that the wife “performed more of the parenting and the husband performed more of the work outside the home”. We adopt that uncontroversial finding.
122.There can be little doubt on the evidence that each party contributed to the maximum of their respective capacities and abilities within these various roles. There was a genuine mutuality to their relationship and it, and the financial decisions and arrangements within it, were subject to the “unstated assumptions” that devolve from that mutuality. Contributions on this farming property involved hard work outside of what might be described as “normal working hours”, often seven days a week and often without holidays. Life and the derivation of income were subject to factors outside of the efforts of the parties (for example natural disasters, natural climatic conditions and the like). The parties’ roles were performed in an area relatively remote from urban facilities and interests.
123.We see no reason to attribute to the role of either party any predominance or any greater “value”.
Having allowed the appeal and re-exercising the discretion, the Full Court concluded at [126] that the contributions of the husband in that case should be assessed as being greater than those of the wife and concluded at [155]–[156] that contributions should be assessed in the proportions of 57.5 per cent to the husband and 42.5 per cent to the wife; that is, that contributions should be assessed as having a disparity of 15per cent, which in that case, equated to about $294,500.
In the present case, the period of the parties’ cohabitation is substantially shorter than that in Wallis & Manning and Jabour. Further, of the net asset pool totalling $9,222,265, the Suburb G property, which is valued at $5,450,000, comprises approximately 60 per cent thereof. That property was unencumbered at the commencement of the relationship. Insofar as it is now encumbered to secure a bank debt of $1,601,440, that is only because the mortgages encumbering the BB Street property and the Town HH property were transferred to it, rather than being discharged from the proceeds of sale of each of those properties respectively, thereby enabling the parties to benefit from the whole of each of those sale proceeds. There is no admissible expert retrospective valuation of the Suburb G property as at the commencement of cohabitation in 2012. In his Outline of Case, the husband inadmissibly asserted that the estimated value of that property was then $1,617,000, based upon an asserted price of $2,700–$2,800 per acre for 588 acres. I do not and cannot find that to have been the value of the Suburb G property at that time. However, I can take it as an admission against interests by him for the purpose of noting that, on his case, he considers the property to have increased nearly 3.5-fold since then. The husband asserts, and the wife does not deny, that substantial improvements have been made over the years since then, including silos, a machinery shed and “other general improvements”. There is no evidence that would enable me to unscramble, even if I could, the proverbial “omelette” that constitutes the present value of the Suburb G property, the ingredients of which include improvements to the property and increases in the value of land. However, with regard to the latter, the Full Court in Jabour said at [84], albeit in relation to a sudden increase in the value of an asset unrelated to the efforts of the parties, such as a rezoning by the council or a lottery win, that “the authorities point to that increase being a contribution by both parties (or neither – it matters not which it is) …”.
Notwithstanding the subsequent (and, with respect, overdue) criticism of the decision of the Full Court in Ferraro & Ferraro (1993) FLC 92-335 and overruling of the jurisprudential heresy of so-called ‘special skills’ or ‘special contributions’ (for example, in Hoffman & Hoffman (2014) FLC 93-591), consigning it to the judicial dustbin, the concepts of evaluation and then comparison of the parties’ myriad contributions, to which the Full Court referred at 79,569 et passim remain good law, in my view. I have endeavoured to do this above.
How then to assess all of the parties’ various and differing contributions, to which I have referred above, in quantitative terms? In an oft cited passage from Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234], Coleman J said:
Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.
Accordingly, I now take the proverbial “leap” from words to figures. Taking into account the myriad and differing contributions made by each of the parties over the decade of their cohabitation, of which the initial contribution by the husband of the unencumbered Suburb G property was but one contribution, albeit a very substantial one, which was thereafter encumbered so as to allow the parties to retain the benefit of the whole of the proceeds of sale of the BB Street property and the Town HH property, I find that an assessment of their contributions in the proportions of 62.5 per cent to the husband 37.5 per cent to the wife gives due recognition thereto. He will, therefore, receive 25 per cent or, in dollar terms, slightly more than $2.25 million, than the wife, on account of s 79(4)(a)–(c) contributions.
In relation to whether any further adjustment should be made, pursuant to s 79(4)(e), on account of the matters in s 75(2) of the Act, the wife sought an adjustment of 10 per cent (in addition to an asserted contribution-based assessment on 40 per cent in her favour). The husband contended that, if her contribution-based assessment were assessed at 30 per cent, as he contended, even then, there should be no further adjustment pursuant to s 79(4)(e). As will be apparent by now, neither party has been successful in the contribution-based assessments contended by them.
The parties identified and/or I take into account the following matters in s 75(2).
As to the age and state of health of each of the parties, referred to in paragraph (a), the husband is 61 years of age and the wife is 45 years of age. He is therefore more than 1.5 decades closer to the end of his working life than is the wife. She therefore has a longer period of income earning capacity ahead of her than him. Whilst each of the parties asserts they suffer from some, apparently minor, health difficulties, neither party has adduced any expert medical evidence in relation thereto.
As to 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, referred to in paragraph (b), the husband, in his Financial Statement filed prior to trial, asserts that is income is nil. However, his evidence is that, for the next few years, he wishes to continue his work; there would be no reason to do so, and to incur expenses in so doing, if he did not expect to generate some profits, even if only modest. The wife has held a number of jobs of the course of the parties’ period of cohabitation. In her Financial Statement filed prior to trial, she discloses a taxable income of $1,221 per week (or $63,492 per annum) from her current employment in City C. However, her Outline of Case states that she “anticipates generating an income of around $70,000 per annum”. Whether or not she remains in that employment, notwithstanding the dismissal of her Application to relocate there, remains to be seen. Even if she does not do so, she has a considerable employment history in recent years. By reason of their respective contribution-based entitlements, the husband will retain and/or receive net assets totalling $5,763,915 and the wife will retain and/or receive net assets totalling $3,458,349.
In the case of the husband, that will include, in summary, the Suburb G property, subject to the mortgage thereover securing the sum of $1,601,440, by reason of the transfer thereto of the liabilities previous secured by the Town HH property and the BB Street property; the balance of the monies in the controlled monies account, after the required payment to the wife; the plant, equipment and chattels; the National Australia Bank accounts in the parties’ joint names; his bank account; and his partial property settlements, together with all the liabilities other than in relation to Motor Vehicle 1 to be retained by the wife. He will be able to continue to live upon and to work on the Suburb G property.
In the case of the wife, that will include, in summary, the Suburb B property, which was able to be acquired unencumbered with the proceeds of sale of the Town HH property; Motor Vehicle 1, subject to the liability in relation thereto; her partial property settlements totalling $1,800,000; a cash payment to her (prior to any further adjustment in her favour, if any, pursuant to s 79(4)(e)) of $970,802 from the controlled monies account.
That will leave the husband with the balance of that account, in the order of $751,345, as well as the bank accounts to be retained by him (totalling $209,734) to apply, if he so wishes, to reduce the liability of $1,601,440 secured by mortgage over the Suburb G property.
Each of the parties has post-separation, personal liabilities including, in the case of the wife, a debt to her parents, said to be in the order of $153,000. Given the monetary extent of their contribution-based entitlements, whilst I have regard to the fact of post-separation liabilities, I do not find that a further alteration, on account of these liabilities, is warranted.
As to whether either party has the care or control of a child of the marriage who has not attained the age of 18 years, referred to in paragraph (c), by reason of the parenting orders I shall make, they will progress over the next 15 months or so to have equal shared care of their children, who are aged nine and seven years.
As to the commitments of each of the parties that are necessary to enable the party to support himself or herself and a child or another person that the party has a duty to maintain, referred to in paragraph (d), for the reasons to which I have referred in my consideration of s 75(2)(b), I am satisfied that each of the parties will be able to support themselves and the children when in their respective care.
As to a standard of living that in all the circumstances is reasonable, referred to in paragraph (g), again, for the reasons to which I have referred in my consideration of s 75(2)(b), I am satisfied that each of the parties will be able to enjoy a standard of living that is, in all the circumstances, reasonable.
As to the need to protect a party who wishes to continue that party’s role as a parent, referred to in paragraph (l), yet again, for the reasons to which I have referred in my consideration of s 75(2)(b), I am satisfied that the parties, who will come to have equal shared care of children, will each be able to continue in that parenting role.
As to 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, referred to in paragraph (na), the wife submits that the husband “does not pay child support and never will”. However, his income was not successfully impugned in cross-examination and, as I have stated above, by reason of the parenting orders I shall make, they will progress over the next 15 months or so to have equal shared care of their children.
As to any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account, referred to in paragraph (o), each party made some contributions, financial or otherwise, towards the children of the other party’s prior relationships; however, neither party pressed a further adjustment under s 79(4)(e) on this account.
Having considered the matters in s 75(2) relevant to this case, I conclude that no further adjustment is warranted pursuant to s 79(4)(e).
In the circumstances, I am satisfied that, not only is it just and equitable to make an order under s 79(1), but that the order I propose to make, adjusting the net property of the parties in the proportions of 62.5 per cent to the husband and 37.5 per cent to the wife is just and equitable.
The husband did not provide a minute of the orders, including as to property adjustment, sought by him, whether in his Outline of Case or otherwise. Accordingly, I turn to the property relief sought in his amended Initiating Application, filed on 2 December 2022. It merely seeks that “there be a property settlement pursuant to section 79 of the Family Law Act 1975 (Cth) so that the husband holds and receives property representing 70% of the total value of the property that the parties legally and beneficially own”. Such a proposed order is meaningless.
The wife annexed to her Outline of Case a minute of orders, including as to property adjustment, which is more detailed than the order sought by the husband, and properly so. However, some of orders therein sought are otiose, in particular, the order for the sale of the BB Street property, which has already occurred. The husband did not make any submissions in relation to the form of the orders sought by the wife. The orders sought by her appropriately provide, inter alia, for the winding up of the parties’ partnership. I propose to make orders generally in accordance therewith. I shall also make an order for the sale of the husband’s Motor Vehicle 2 and the division of the net proceeds thereof in accordance with their proportionate shares fixed by me.
I certify that the preceding two hundred and seven (207) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 22 December 2023
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