Gingell & Oakes
[2023] FedCFamC2F 792
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gingell & Oakes [2023] FedCFamC2F 792
File number(s): MLC4904 of 2021 Judgment of: JUDGE HARLAND Date of judgment: 30 June 2023 Catchwords: FAMILY LAW – practice and procedure – self-represented litigant – non-compliance trial directions – adjournment refused – respondent permitted to rely on old affidavit
FAMILY LAW – parenting – whether or not the children should spend 4 or 5 nights a fortnight during school terms – property – disputes about property pool – percentage adjustment
Legislation: Family Law Act 1975 ss. 60B, 60CA, 60CC, 61DA, 62B, 65DA(2), 67Z, 79, 90SF, 90SF(3), 90SM(1), 90SM(3), 90SM(4), 90ST Cases cited: Morgan & Valverde [2022] FedCFamC1A 133
Saso & Saso [2023] FedCFamC1A 65
Stanford v Stanford (2012) 247 CLR 108
Watson & Ling (2013) 49 Fam LR 303
Division: Division 2 Family Law Number of paragraphs: 101 Date of last submission/s: 23 May 2023 Date of hearing: 22, 23 May 2023 Place: Melbourne Counsel for the Applicant Ms Nicola Bowen Solicitor for the Applicant Halcyon Legal The Respondent Self-represented litigant ORDERS
MLC4904 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GINGELL
Applicant
AND: MS OAKES
Respondent
order made by:
JUDGE HARLAND
DATE OF ORDER:
30 June 2023
THE COURT ORDERS THAT:
1.X born 2012 and Y born 2014 (collectively, the children), live with the mother and spend time with the father as follows:
(a)During the school term;
(i)Each second weekend from pick-up time at school on Friday until the commencement of school (or 4:00pm if a non-school day) on Monday;
(ii)Each alternate week, from school pick-up time Wednesday until school drop-off time Friday (or 4:00pm if a non-school day).
2.That within 90 days of the date of these Orders, the father pay to the mother the sum of $83,442 (the Payment).
3.That contemporaneously with the Payment, the parties do all acts and things and give all necessary instructions to cause the funds currently held in trust by K Lawyers to be distributed to the father.
4.That contemporaneously with the Payment:
(a)The mother do all acts and things and sign all such documents at her sole expense as may be required to discharge the mortgage registered number … to B Bank (Australia) Ltd (the C Street Mortgage) secured against the property situate at C Street, Suburb R (the C Street property), refinance the Mortgage into her sole name and indemnify the father in relation to the C Street Mortgage and all apportionable rates, taxes and outgoings and encumbrances relating to the C Street property of whatsoever nature and kind;
(b)The father do all acts and things and sign all such documents at his sole expense as may be required to discharge the mortgage registered number … to B Bank (Australia) Ltd (the D Street Mortgage) secured against the property situate at D Street, Suburb R (the D Street property), refinance the D Street Mortgage into his sole name and indemnify the mother in relation to the D Street Mortgage and all apportionable rates, taxes and outgoings and encumbrances relating to the D Street property of whatsoever nature and kind; and
5.That contemporaneously with the Payment and the father’s compliance with order 4(b) herein, the mother do all acts and things and sign all such documents as may be required to withdraw the caveat lodged on her behalf being instrument number … against the title of the D Street property.
6.That pending order 4 herein:
(a)The mother have the sole right to use and occupy the C Street property to the exclusion of the father;
(b)The father have the sole right to use and occupy the D Street property to the exclusion of the mother;
(c)The parties are hereby restrained from doing any acts or things which will have the effect of encumbering or further encumbering the C Street and D Street properties without the consent in writing of the other party;
(d)The mother pay, be solely responsible for and indemnify the father in respect of any principal and interest due or falling due pursuant to the C Street Mortgage and all other outgoings and costs in respect of the C Street property including but not limited to rates, levies, taxes, insurances and utilities as and when they fall due; and
(e)The father pay, be solely responsible for and indemnify the mother in respect of any principal and interest due or falling due pursuant to the D Street Mortgage and all other outgoings and costs in respect of the D Street property including but not limited to rates, levies, taxes, insurances and utilities as and when they fall due.
(f)The parties hold their respective interests in the C Street property and D Street property upon trust pursuant to these orders.
Default Clauses
7.That in the event that the encumbrance is not discharged pursuant to order 4(a) herein, the parties forthwith do all acts and sign all documents necessary to sell the C Street property (the C Street Sale) upon such terms and conditions (including reserve price) as are agreed and in default of agreement as to any matter then on terms, conditions, price and such real estate agent as shall be nominated by the President from time to time of the Real Estate Institute of Victoria and upon completion of the Sale, the proceeds of sale be applied in the following manner and priority:
(a)Firstly, to pay all costs, commissions and expenses of the C Street Sale;
(b)Secondly, to discharge the C Street Mortgage and any other encumbrance affecting the C Street property; and
(c)Thirdly, the balance to the mother.
8.That in the event that the whole or part of the Payment is not made within 90 days of the date of these orders and/or in the event that the encumbrance is not discharged pursuant to order 4(b) herein, the parties forthwith do all acts and sign all documents necessary to sell the D Street property (the D Street Sale) upon such terms and conditions (including reserve price) as are agreed and in default of agreement as to any matter then on terms, conditions, price and such real estate agent as shall be nominated by the President from time to time of the Real Estate Institute of Victoria and upon completion of the Sale, the proceeds of sale be applied in the following manner and priority:
(a)Firstly, to pay all costs, commissions and expenses of the D Street Sale;
(b)Secondly, to discharge the D Street Mortgage and any other encumbrance affecting the D Street property;
(c)Thirdly, so much of the Payment which is then outstanding, together with interest at the rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, to the Respondent; and
(d)Fourthly, the balance to the father.
9.That the parties have liberty to apply with respect to the terms and conditions of, and execution of, the sales of the C Street and D Street properties.
10.That within 14 days of the date of these Orders, the parties do all things and acts and sign all documents as may be required to:
(a)Close all bank accounts held in their joint names, with the balance of those accounts to be divided equally;
(b)Transfer the registration of the Motor Vehicle 1 motor vehicle (registration no. …) to the Respondent's sole name at her sole expense;
(c)Remove the father as a signatory from the bank account of X.
11.That the father continue to be solely responsible for the S Financial Services finance loan relating to Motor Vehicle 1 and indemnify the mother in relation to same.
The Father's assets
12.That the father retain for his sole use and benefit absolutely to the exclusion of the mother and the mother relinquish any interest in:
(a)The D Street property;
(b)All bank accounts and any other investment credits in his sole name;
(c)His shares in E Group; and
(d)His superannuation entitlements with Superannuation Fund 1.
The Mother's assets
13.That the mother retain for her sole use and benefit absolutely to the exclusion of the father and the father relinquish any interest in:
(a)The C Street property;
(b)All bank accounts and any other investment credits in her sole name;
(c)Motor Vehicle 2, registration number …;
(d)Her shares in F Limited;
(e)Her shares in G Limited;
(f)Her superannuation entitlements with Superannuation Fund 2;
(g)Her superannuation entitlements with Superannuation Fund 3; and
(h)Her superannuation entitlements with Superannuation Fund 4.
Ancillary orders
14.That the parties each be solely responsible for, and indemnify the other against, any personal loans and/or credit cards held in their name, and any liability encumbering any item of property in their possession or to which they are entitled to pursuant to these Orders.
15.That unless otherwise specified in these orders, and save for the purpose 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 property and financial resources (including chose-in-action and motor vehicles) in the name of or possession of such party as at the date of these orders with the furniture and contents of the C Street property deemed to be in the possession of the Respondent;
(b)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed;
(c)Monies standing to the credit of the parties in any bank account are to become the property of the party in whose name the account is registered;
(d)Insurance policies remain the sole property of the owner 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 and/or in that party's sole name;
(f)Each party releases the other from any and all personal debts owing or alleged to be owed from one to the other; and
(g)Each party be solely liable for and keep the other indemnified against any credit liability for which that party is the primary cardholder.
16.That the parties sign all documents and do all things necessary to give effect to the terms of these Orders.
17.That all extant applications be dismissed.
THE COURT ORDERS BY CONSENT THAT:
18.The parties have equal shared parental responsibility for the children:
19.The children live with the mother and spend time with the father as follows:
(a)During the Victorian school term holidays, for one half of the school holiday period as agreed between the parties and, failing agreement;
(i)With the father to have the first seven nights in even years and alternating between the parties every seven nights thereafter, and the balance of the nights split equally between the parties; and
(ii)With the mother to have the first seven nights in in odd years and alternating between the parties every seven nights thereafter, and the balance of the nights split equally between the parties.
(b)During the Victorian long summer school holidays, for one half of the school holiday period as agreed between the parties and, failing agreement;
(i)With the father to have the first seven nights in even years and alternating between the parties every seven nights thereafter, and the balance of the nights split equally between the parties; and
(ii)With the mother to have the first seven nights in in odd years and alternating between the parties every seven nights thereafter, and the balance of the nights split equally between the parties.
(iii)That each parent be at liberty to nominate one block period of a maximum of 2 weeks during January or June/July annually unless otherwise agreed (which must include at least seven nights that the children would already be in their care and must not include a child’s birthday unless otherwise agreed in writing between the parties).
(iv)During the time under Order 19(b)(iii), each parent may travel internationally with the children, provided that 60 days’ notice is provided to the other parent (unless in the case of a family emergency such as death or serious illness in the family).
(v)That during the time afforded under Order 19(b)(iii), the non-travelling parent’s time be suspended, with no make-up time provided for same.
(c)At such other times as agreed between the parties in writing.
Special occasions
20.On the following special occasions, the ordinary time that the children spend with the parties in accordance with order19 herein be suspended and instead the children spend time as follows:
(a)For Christmas Eve, with the mother from 4.00pm on 23 December until 2.30pm on Christmas Day in odd-numbered years and with the father from 4.00pm on 23 December until 2.30pm on Christmas Day in even-numbered years;
(b)For Christmas Day, with the mother from 2.30pm on Christmas Day until 4.00pm on 27 December in even-numbered years and with the father from 2.30pm on Christmas Day until 4.00pm on 27 December in odd-numbered years;
(c)On Mother's Day, with the mother from 4.00pm the day prior to Mother's Day until 4.00pm on Mother's Day;
(d)On Father's Day, with the father from 4.00pm the day prior to Father's Day until 4.00pm on Father's Day;
(e)On the children's birthdays, with the party who would not otherwise be caring for the children, for time as agreed between the parties, and in default of agreement from 4.00pm on the children's birthdays until the commencement of school (or 4:00pm if a non-school day) the following day;
(f)On the parent's respective birthdays, with the parent who would not otherwise be caring for the children, as agreed between the parents, and in default of agreement from 4.00pm on the parent’s birthday until the commencement of school (or 4:00pm if a non-school day) the following day;
(g)At such other times as agreed between the parties in writing.
21.That for the purposes of changeover, unless otherwise agreed in writing between the parties, the father collect the children from the mother’s residence at the commencement of his time with the children, and the mother collect the children from the father’s residence at the commencement of her time with the children.
Ancillary orders
22.That the children communicate with each party at such times as the children or that party reasonably request, and the other party facilitate and encourage such communication by telephone, Facetime or such other appropriate electronic means, including by providing a private space for the children if it is reasonably practicable to do so.
23.That further and in addition to order 22 herein, the parties will permit the children to contact the other parent on request by Facetime or telephone when not in that parent’s care and will facilitate such contact at reasonable times.
24.That the parties promptly inform the other of any serious illness or injury suffered by the children whilst in their care, of any attendance upon medical professionals for serious illness and injury and provide particulars of any treatment given or medications prescribed for the children.
25.That parties forthwith authorise all medical, allied health and other professionals dealing with the children (or any of them) to liaise with and provide information about the children to the other party at that party's expense and further this order be deemed authoritative for the said professionals to liaise and provide information to both parties.
26.That each of the parties personally and by their servants and agents be and are hereby restrained from doing or saying anything to the children or in the presence or hearing of the children which is derogatory, detrimental, scornful or derisory to the other party or detrimental to the relationship each party has with the children.
27.That each of the parties personally and by their servants and agents be and are hereby restrained from discussing these Court proceedings or the contents of any documents filed with the Court in the presence of or hearing of the children.
Travel
28.That each party be at liberty to travel interstate with the children provided that:
(a)The time the children are travelling with the party is agreed between the parties in writing or during time the children already in the travelling party's care pursuant to these orders; and
(b)The travelling party gives the non-travelling party not less than 14 days written notice of such intention, save for in the event of a family emergency.
29.When travelling either internationally and/ or interstate with the child/children then both party’s shall, prior to the travel, provide the following to the other party;
(a)A copy of any return flight tickets;
(b)A written itinerary confirming the travel/accommodation arrangements for the child/children and the duration of the stay in relation to same; and
(c)Email and telephone numbers upon which the child/children and/or the other parent can be contacted.
30.The father shall ensure that the child/children are not left alone with the paternal grandfather if the child/children are spending time with the paternal grandfather.
31.The parties agree to maintain current and valid Australian passports for each of the children with the costs to be shared equally between them and both parties shall, within 28 days of the date of these Orders, do all acts and things and sign all documents necessary to renew the children’s Australian passports.
32.The Australian Passports are to be held by the Mother and provided to the Father upon request no less than 21 days prior to any overseas travel, and shall be returned to the Mother within 7 days of arrival home.
33.Within 28 days of the date of these orders, the Mother shall do all things and sign all such documents as are necessary to allow the children to obtain and maintain New Zealand passports, with these to be held by the Father, at sole cost to the Father.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 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 and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.
B.That pursuant to section 90ST of the Act, the parties intend that these Orders shall, as far as practicable, finally determine the financial relationship between the parties and avoid further proceedings between them.
C.The parties intend to give consideration to entering into a Binding Child Support Agreement which defines their respective financial support obligations for the children.
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 Gingell & Oakes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND
The parties have two children, X age 11 and Y age eight. X and Y’s parents have been able to negotiate most parenting issues. The scope of the property dispute was less clear.
The applicant father is 50 and the respondent mother is 53. The parties commenced a relationship in 2008 and separated in 2019.
The mother has been represented from the commencement of these proceedings until a Notice of Withdrawal was filed by her former lawyers on 23 November 2022. At the final hearing, the father was represented by Counsel, the mother was self-represented.
Trial directions were made on 2 May 2022 for the parties to file and serve a consolidated trial affidavit and an updated financial statement by 24 April 2023. The father filed his material late, however the mother failed to file any material at all.
The mother sought an adjournment on the day of the final hearing and indicated a willingness to pay the father’s costs thrown away and sought to attend a further mediation. The father opposed this and referred to both parties struggling financially. I refused the adjournment noting the case management principles including the fact that no other trials were listed before me during the allocated days and therefore these days would go unutilised.
After outlining the various options available as to how the trial could proceed after the adjournment application was refused, the mother sought and was granted leave to rely on her affidavit filed 9 February 2022 and her financial statement filed 9 February 2022[1].
[1] Morgan & Valverde [2022] FedCFamC1A 133 and Saso & Saso [2023] FedCFamC1A 65.
ISSUES IN DISPUTE
The parties have resolved many of the parenting issues between them including overseas travel and time during the school holidays. Several of the parenting orders are made by consent as indicated.
The sole issue I must determine with respect to parenting matters is:
(1)Should the children’s time with the father during school terms be a 9/5, or 10/4 arrangement?
Whilst the parenting dispute is narrow in scope, the mother raised concerns about risk issues particularly with respect to the father’s alcohol and drug use which the father concedes was problematic during the relationship.
The mother did not agree with some of the father’s asset pool. The asset pool is valued at slightly more than $1,000,000 and is largely made up of real property. The father seeks a 62%/38% split in favour of the mother, while the mother seeks a 65%/35% in her favour. The mother asserted that her proposed percentage split would require the father to pay her between $100,000 to $150,000 referring to having various spreadsheets and being a “numbers person”. The mother referred to the greater value of the mortgage payments she made post-separation as her property was worth more than the investment property that she complained the father was renting out for less than market rent. She did not have any evidence and did not cross‑examine him on this point. The father’s Counsel submitted that the further cash payment does not add up to the percentage split that the mother seeks. The percentage difference between them was modest, but it was apparent from the outset that the mother in fact sought a greater payment in her favour.
The issues I must determine with respect to property are:
(2)What is the asset pool?;
(3)What are the parties contributions?;
(4)What are the relevant s 90SF(3) factors?; and
(5)What outcome is just and equitable?
PARENTING
The parties commenced a de facto relationship in 2008 with the father relocating to Melbourne from Sydney to live with the mother. The parties separated in 2019. There are no interim parenting orders in place as the parties agreed to an arrangement whereby the children spend alternate weekends and half the holidays with the father.
The competing parenting proposals
The father seeks to see the children from Friday to Monday in the first week, and Wednesday to Friday in the alternate week. In closing submissions, the father’s Counsel said that it was clear from the Family Report that the optimum arrangements for the children would be to spend time with the father in a 5/9 arrangement which would allow for consistency and would best serve the children’s long term needs.
The mother’s case is for the children to spend time with the father from Friday to Monday in the first week, and Wednesday in the alternate week in a 4/10 arrangement which is an increase of a further night from the current arrangement. The mother also disagrees with the father’s proposal due to the children spending time with the maternal grandmother on Thursdays. The mother stressed the importance of the time the children spend with the grandmother to maintain family connections and a sense of community. The mother’s affidavit does not address this issue.
RISK FACTORS
Father’s alcohol and substance use
The father deposes throughout their relationship that both parties drank heavily and used recreational drugs. The father says that he continued to use substances while the mother ceased the use of substances during the years she was pregnant with both children. The father further deposes that his alcohol and drug abuse worsened in 2016 which he says he disclosed to the mother and says that the mother thought that he needed to exercise more control. The father attended Q Support Service in 2018 and claims he has been sober since 2019. The father acknowledges that his parenting capacity was detrimentally affected by his drug and alcohol use.
In her affidavit filed 9 February 2022, the mother confirms that the father engaged in recreational substance use during the course of the relationship which she found distressing, however does not go into any further detail. The mother said that she had reason to believe that the father may continue to engage in behaviour which places the children at risk if they are in his care for extended periods of time. The mother does not address as to whether or not she too used recreational drugs during the relationship.
The mother stated that she had been unaware of the father’s alcohol addiction until 2018 as he “hid it for a long time” and was engaging in functional behaviour including caring for the children. Because of the father’s historical use of alcohol and substance abuse, the mother wanted the father to undergo a hair follicle test to provide proof of his claims of abstinence for assurance that the children were not at risk while in his care. The mother repeated this request at the trial. She appeared at least in part to base this on Dr H’s report, but testing was only recommended if there was current evidence of usage which there is none. However, on her own proposal, the mother seeks the children spend substantial and significant time with the father including seven day blocks during the holidays.
Dr H stated that the father had demonstrated insight into his previous behaviour of addiction, and that it was noteworthy that he was the one who identified the problem and sought professional support and assistance. Importantly, the children did not raise any concerns about their time with the father.
The father denied that he and his partner are a risk to the children and was forthcoming regarding the challenges he faced with his former addiction. The father acknowledged that he was “belligerent” towards the mother whilst under the influence. The father claims to have abstained from alcohol since 2019 and continues to attend Q Support Service as well as attending a psychologist.
Dr H recommended given the current care arrangements, to have ongoing restraints placed on each parent’s alcohol and illicit substance use while the children are in their care to ensure the children’s safety. If there was new information brought to light regarding the parent actively misusing or abusing substances, this would give rise to the need for a re-assessment and review of the care arrangements.
Other allegations of risk
The father deposes to there being one instance of family violence in 2010 where he grabbed the mother by the throat. He expresses remorse but says it was an isolated incident. The mother does not address this in her affidavit.
The mother put to the father that he struggled with parenting the children and that he was physical towards them and alleged that he would grab them by the neck. The father denied being physical, but conceded to grabbing the children on one occasion by the hoodie in order to stop them from hitting each other.
The mother raised concerns about X needing to use a “bunker” to hide when the father gets angry. Dr H writes that X had made clear that she was not scared of the father, and that the bunker was not used out of fear, rather avoidance, and that she had the use of a “treehouse” at the mother’s home for a similar purpose.
Dr H observed that the children share a strong, loving bond with both their mother and father. There was no fear, trepidation, or disinterest apparent when observing the children with the father. It was noted that the parents were also observed to be able to remain in the same room together and were able to engage with the children in this environment without obvious tension. Dr H concluded that in this interaction both parties were child-focussed and were observed leaving together with the children.
The children expressed a clear desire to spend more time with their father. Neither raised any concerns about either parent, except that the time with their father was insufficient.
The father denied having any current issues with his mental health.
The information provided to Dr H formed the conclusion that there does not seem to be any suggestion that the children are at significant risk in either party’s care, which is consistent with the s 67Z response and with the children spending regular overnight time with both parties since separation. Neither party adduced any evidence pointing to any current issues of risk; therefore testing is not required. It is also significant to note that the parties worked out parenting arrangements without any interim orders at all. This is to both of their credits. Those arrangements are for the children to spend time with the father alternate weekends from Friday to Monday, and week about arrangements during the school holidays.
THE PARTIES’ COMMUNICATION AND THE FAMILY REPORT
Despite saying that the parties needed guidance moving forward, the mother described a reasonably functional co-parenting dynamic. Similar to the concerns of the father, one of her concerns was the children’s extra-curricular activities, showing frustration that the father had reportedly enrolled the children in activities during his time with them without consulting her.
The father raised his concerns regarding the mother’s communication with him, and was concerned that the mother did not always respond to him. He claimed the mother reportedly fails to advise him of any upcoming events for the children, and that the children were signed up for extra-curricular activities without his consultation.
The parties attended upon Dr H for a short form family report on 30 November 2022 with the report being provided on 8 December 2022.
Dr H stressed the importance for the parties to have open dialogue with each other prior to decision making in the future.
Dr H notes that the parties demonstrated a relatively functional co-parenting dynamic and had the capacity to behave appropriately in each other’s presence for the sake of the children.
The father currently works night shift and works additional hours in overtime. The mother questioned the father’s capacity to care and pick up the children due to his work commitments. The mother put to the father that the father has been unable to change his working hours “since the children were born” and that he has been unable to change his hours in the past. The father responded that he often turned down overtime often at the request of the mother. When the mother pressed the issue of the father’s hours with respect to overtime and that he did not have capacity to pick up the children, the father confirmed that he would forego overtime and would be able to pick up the children due to being close to public transport and no longer working in Town T. I accept the father’s evidence. To date he has not had the children overnight during the week so there has been no reason for him to not work overtime particularly given the financial stress he has been under.
The mother put to the father whether or not he would be able to support their extra-curricular activities. The father confirmed that he would if needed to, and that as they have equal shared parental responsibility they would be able to discuss the relevant arrangements. The father stated that he understands that the children needs consistency. It will be important that the parties consult with each other about the children’s extra-curricular activities before committing the children to them.
Dr H was not required for cross-examination. Dr H proposed that the children’s time with the father be increased from three to five nights per fortnight split into two blocks of time. The father accepts her recommendations. The mother complained that she could not afford to cross‑examine her. As neither party called Dr H for cross-examination, her evidence is unchallenged.
Dr H identifies the allegations of risk posed by the father and his historical alcohol and illicit substance use and addiction which the father too acknowledges, but denies the use of alcohol and illicit substances since 2019. The abusive allegations of the father were also considered, as well as the allegations that the mother was unilaterally making decisions about the care arrangements of the children due to her perception of the father. The father told Dr H that he wanted to increase the children’s time with him, ideally to an equal shared care week about arrangement, however acknowledged there may be occasions when he would require the assistance of his partner with school pick-ups. He denied that this would be an everyday occurrence as his current role allows him some flexibility.
Dr H recorded that the mother recognised that the children wanted to spend more time with the father and described him as a “hands-on parent” who the children “adore”. However, the mother had reservations about increasing the spend time based on “the way the kids are telling me they’re reacting” when in his care and the potential for further generational harm given the father’s upbringing with an aggressive father.
The mother stated that she believes that the children need a level of consistency which would be facilitated with her proposal due to the children’s various activities that assist with their neurodiversity as well as the time they spend with their grandmother. Counsel for the father questioned the mother’s response and stated that certainty and consistency would ultimately be set out in a court order, and the mother responded that it would depend on whether the father could collect the children. When it was put to the mother that the father’s evidence is that he would change his current work arrangements she replied that this has previously not been the case and that he has not been able to change his working hours to suit the children.
The mother confirmed that on occasion she relies on her family to assist with the care arrangements of the children, and for the majority of the time her hours are adjusted around the children’s needs. The mother did not object the proposition for the father’s partner to assisting with the children provided that he was still the primary carer. It is reasonable for both parties to rely on family and their partners to assist with the children’s care from time to time. It is also reasonable for working parents to use before and after school care.
The mother confirmed during cross-examination that she had seen Dr H’s report and the proposal of the father which is supported by Dr H, and understood that the children have made clear that they wish to spend more time with the father.
The mother conceded that if Orders were made to the effect of the father’s proposal, it would not increase transitions between households, however would take away time from their grandmother. Counsel for the father put to the mother that her proposal puts the relationship of the children with the grandmother above the father, and she stated that she encourages the children to have a relationship with the father, and that the relationship between parents and children is the most important which she has facilitated. I challenged the mother with this proposition as to whether or not she accepts the importance of the relationship between children and their parents and their father. The mother said she believes that the children’s relationship with their father is important, however went on to say that their relationship with the maternal grandmother is important especially as their other grandparents are overseas. She referred to not knowing how long the maternal grandmother will be around and that the children are close to her. In the absence of any evidence about these matters, I am satisfied that the children will be able to maintain their relationship with the maternal grandmother which is an important one to the children, so too is their relationship with their grandparents and extended family in New Zealand which the mother also acknowledges.
CHILDREN AND PARENTING LEGAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
There are 13 additional considerations which are set out in s.60CC(3). These considerations include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
I must consider these factors, in the context of the scope of the dispute between the parties.
CONCLUSIONS WITH RESPECT TO PARENTING
There is no evidence to suggest that the children will have any difficulty adjusting to an additional two nights rather than one night a fortnight during school terms with the father.
The father states that he has remained sober since 2019 and has shown insight into the negative effects of his behaviour. There is no current evidence to suggest that the father and his partner poses a risk to the children whilst in his care despite his historical use of alcohol and drugs.
I am satisfied that it is in the children’s best interests for the father to spend an additional two night block with the children during school terms. The children have been clear in their wishes that they want more time with their father. The additional time will enable the father to be more meaningfully involved with the children during the school weeks including their extra-curricular activities and homework. I am satisfied that the father will make adjustments to his work schedule and not work overtime when the children are in his care during school terms. I am also satisfied that these arrangements will enable the children to continue to enjoy a rich relationship with their maternal grandmother.
PROPERTY
The parties’ de facto relationship lasted approximately 11 years. They did not marry.
WHAT IS THE ASSET POOL?
The net value of the asset pool is in dispute. Neither party sought a superannuation split.
The mother wanted to raise complaints about what she said should be added back to the asset pool. When pressed about these add-backs, she conceded that whilst she had prepared a spreadsheet, she had not provided any disclosure documents to support her assertions and has not complied with her disclosure obligations.
The asset pool largely consists of D Street, Suburb R, (“the D Street Property”), and C Street, Suburb R, (“C Street property”).
The mother sought for Motor Vehicle 3 and Motor Vehicle 4 purported to be owned by the father to be included into the asset pool. Exhibit 1 was tendered by the father showing correspondence from the father’s lawyers to the mother that the father sold Motor Vehicle 3 in 2021 and the confirmation of ownership of Motor Vehicle 4 to be in the sole name of the father. Further, the mother failed to include these Motor Vehicles in her 2022 financial statement which was conceded during cross-examination. I am not satisfied that the father has retained these assets and will not include them in the asset pool.
I accept the father’s evidence that he rearranged his finances so that the personal loan of $42,000 includes what was left of the car loan and paying out his credit card debt that he had at separation. The mother’s figures for the mortgages are from her affidavit and financial statement filed 9 February 2022. I will use the father’s figures which are more up to date.
Neither party adduced valuation evidence with respect to Motor Vehicle 1. As the father deposed to Motor Vehicle 1 having a value of $20,000 in his financial statement filed 28 April 2023, I will accept his value. In her financial statement filed 9 February 2022, the mother deposes to Motor Vehicle 2 being worth $1,000. As there is no evidence before me as to how the father has arrived at his conclusion that the motorcycle is worth $2,500, I will accept the mother’s value of $1,000.
The current value of the father’s superannuation is $212,000. The mother in her 2022 financial statement lists her superannuation at a total of $186,702. The mother conceded during cross‑examination that her superannuation has increased in value just as the father’s has, however she has not disclosed the current value of her superannuation. Neither party seeks a split of their superannuation entitlements.
The mother also seeks to include loans she says she owes to her parents. There is no evidence as to the circumstances of these loans and whether she is taking any steps repay them. In the circumstances I decline to include them.
I have determined the asset pool to be as follows:
Asset Father’s Value Mother’s Value Value Used D Street, Suburb R $783,000 $783,000 $783,000 C Street, Suburb R $970,000 $970,000 $970,000 Funds held on trust for sale of J Street by K Lawyers $17,504 $17,504 $17,504 Motor Vehicle 1 $20,000 $19,000 $20,000 Mother’s Motor Vehicle 2 $2,500 $1,000 $1,000 Total $1,791,504
Liabilities Father’s Value Mother’s Value Value Used Mortgage of D Street property $314,317 $315,992 $314,317 Mortgage of C Street property $389,488 $393,295 $389,488 Personal Loan in father’s name $42,000 $11,344 $42,000 NAB Card in mother’s name $15,000 $15,000 $15,000 Total $760,805
Net total non-superannuation pool $1,030,699 CONTRIBUTIONS
Initial Contributions
Prior to cohabitation in mid-2008, both parties separately owned property and motor vehicles:
(1)The mother purchased the C Street property in 1999 with an approximate equity at $160,000, a motor vehicle which has since been sold, and a motor vehicle which the mother retains.
(2)The father owned shares in two properties in New Zealand which he subsequently sold in 2010 and 2019, two motor vehicles, and a vehicle which have since been sold.
The father says his shares were sold in 2010 and 2019 respectively. He says the funds were deposited into his account and thereafter used for the benefit of the family. The father says he received about $45,000 for his shares in total. The mother was shown documents showing transfers from funds in New Zealand during cross-examination. I am satisfied that the father has utilised the funds towards the relationship.
Further property purchases
The parties jointly purchased two properties, namely:
(1)D Street property in 2009 for $347,000; and
(2)J Street, Suburb N, (“J Street property”) in 2011 or 2012 for $660,000.
The D Street property was purchased in the father’s name. The mother refinanced the mortgage secured over the C Street property in order to pay the deposit with the balance funded by way of the mortgage. The father deposes that the deposit was gifted by the mother. The mother challenged the father on this point and the father conceded that the property was purchased in his sole name to obtain the first home owner’s grant. It is clear that the mother refinancing the C Street property in order to finance the purchase of the J Street property is a contribution by her which must be recognised.
Contributions during the relationship
The parties lived in the C Street property as the former matrimonial home. The mother accepted during cross-examination that the father contributed to the mortgage and day to day expenses whilst they lived together at that property.
The mother states that the father had full access to her bank accounts as well as a credit card on her credit account. The parties held separate bank accounts and only formally had one joint account when they remortgaged with B Bank in 2018.
In the mother’s affidavit, she stated that the parties’ income was paid into their joint account which was applied towards general living expenses. This was challenged by the father’s Counsel where although the account was jointly used, the account was in the mother’s name. The mother’s Westpac account from February to August 2018 was tendered as Exhibit 2 which shows the father paying part of his salary into this account as well as various deposits as financial contributions.
The D Street property was rented for the majority of the relationship with the income being applied towards the mortgage repayments associated with that property. Both parties contributed to renovations on the D Street property.
The J Street property was rented out during the relationship and the income received was applied towards the mortgage repayments with the property. The father says that monies were taken out of the shared account for the upkeep of the property such as body corporate fees.
Both parties also contributed to renovations of the C Street property.
Both parties were made redundant during the course of the relationship and received redundancy payments which were put towards general living expenses. The father deposes that he was made redundant in 2020 and received $67,000. The mother in her 9 February 2022 affidavit deposes that she was made redundant in 2010 and received approximately $22,000.
The mother says that during the relationship she was primarily responsible for the children’s care. She says when Y was younger he had various medical issues and she was primarily responsible for attending his appointments and managing his care. She acknowledges that the father assisted with the children’s care and was responsible for the children’s schooling and looked after them in the evening when she was working.
Post-separation contributions
The J Street property was sold in mid-2022 for $710,000. The father says the tenants vacated that property in late 2020. For the next six months until the property was sold, the father made up the shortfalls from his own funds. The father deposes that he paid the taxes on the property in the amount of $12,500 as well as further payments for the various bills which the mother did not contribute. The remains of the proceeds of sale being $17,504 remain held on trust at K Lawyers.
The father currently rents a property in Suburb M. The D Street property is currently tenanted and the father pays for all the costs associated with that property which are not covered by the rent.
In the mother’s February 2022 affidavit, she states that the father is renting the D Street property to a friend for less than market rate. As the mother did not cross-examine the father about this and adduce evidence as to the market rate for rent, I do not accept this contention.
The mother resides in the C Street property and pays for all the costs associated with that property. The mother wanted some recognition that her mortgage payments on the C Street property are higher than the D Street mortgage. What she ignores however, is the fact that she lives in that property with the children while the father rents a property.
The mother agreed that the father had paid half of the children’s school fees until June 2022 and that he has continued to pay the loan associated with her car and informal child support.
The father acknowledges that the mother’s family has been covering the school fees since he has been unable to.
Due to the father’s financial constraints, he currently pays the mother a combined amount of $250.00 per week which he says was calculated by completing an online assessment. This figure includes car repayments and informal child support. There is no formal Child Support Assessment. When the father was made redundant in 2020, the mother accepted that the father did not cease his weekly informal payments as well as contributing to school fees. The father did not say when he started his new job. He agreed that his income is higher but says this is because of overtime and is not secure.
The children currently reside with the mother and spend time with the father on alternate weekends from Friday to Monday as well as supporting them through their various extracurricular activities.
After the relationship, the C Street property was in arrears of approximately $5,700 and the parties advised of a potential foreclosure. As a result, the father contacted the bank and advised that he was under financial distress and requested to stop payments for three months in order to catch up with the payments. The mother complained during cross-examination that the father had unilaterally contacted the bank and did not discuss his action with her. She further complained that he solely received the benefit of the delay in payment as she continued to pay the mortgage for the D Street property. I questioned the mother as to whether the D Street property was also in arrears at the time, she confirmed that she was not sure but that she continued paying the mortgage over that property regardless. It is clear that the parties’ communication has been limited at times. It was reasonable for the father to be concerned about his credit rating. In addition to the mortgage arrears, the father complains that the mother has regularly incurred parking fines which he has to forward to her as the vehicle was in his name.
RELEVANT SECTION 90SF(3) FACTORS
Both parties are employed on a full time basis. The father is employed as a tradesperson earning $120,974.00 as disclosed in his tax return income assessment for the 2020-2021 financial year which was tendered as Exhibit 5. The mother’s affidavit states that she is employed in IT with a salary of $118,752 however her current salary is unknown.
The mother will continue to care for the children for the majority of the time, with the father to have further time with the children. Both parties however will have the support of their respective family circles such as the maternal grandmother and the father’s current partner.
The father has repartnered. His partner earns $90,000 a year. The mother has not repartnered.
There are no other relevant s 90SF factors.
LEGAL PROPERTY PRINCIPLES
Part VIIIA is the part of the Family Law Act dealing with property, spousal maintenance and maintenance agreement between de facto partners. The major provisions relating to de facto property division are contained in ss.90SM(1); 90SM(3), 90SM(4); and 90SF(3) of the Family Law Act.
The High Court considered the operation of s.79 of the Family Law Act (which has almost identical terms to s.90SM) in the matter of Stanford v Stanford (2012) 247 CLR 108. In this case, the majority stated at [35]-[36] that:
35. “It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.”
36. The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
1. Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
2. Secondly, although s.79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
3. Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation.
The High Court also pointed out that what is just and equitable is different in every case.
The principles referred to in Stanford & Stanford are equally applicable to de facto property matters.[2]
[2] See Watson & Ling (2013) 49 Fam LR 303.
CONCLUSION – WHAT OUTCOME IS JUST AND EQUITABLE?
I am satisfied that it is just and equitable to make property adjustment orders.
The parties will keep their superannuation entitlements.
The father did not break down the percentage he seeks into contributions and s 90SF(3) factors, nor did the mother given she was not legally represented. Nevertheless, it was clear from the evidence and submissions that the father acknowledged the mother’s greater initial contributions. He also acknowledged the fact that she will have the greater care of the children.
The net non-superannuation pool is $1,030,699. The father will retain the D Street property subject to the mortgage, the net proceeds of sale from the sale of the J Street property, and his personal loan. This equals $444,187, or approximately 43%.
The mother will retain the C Street property subject to the mortgage, her motor vehicle, her other motor vehicle and the credit card debt. This equals $586,512, or approximately 57%.
Considering the myriad of contributions the parties have made, I find that the mother’s contributions should be amended to 60% and the father’s at 40%.
With respect to the s90SF(3) adjustments that should be an adjustment acknowledging the fact that the mother will continue to have the greater care of the children. The parties’ incomes are similar. I find there should be a further adjustment of 5% in the mother’s favour, so that the mother will receive 65% of the net non-superannuation pool and the father 35%. This requires the father to make a payment of $83,442 to the mother.
For these reasons I make these orders appearing at the beginning of this judgment.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 30 June 2023
0
3
0