GRIST & GRIST
[2019] FamCA 237
•17 April 2019
FAMILY COURT OF AUSTRALIA
| GRIST & GRIST | [2019] FamCA 237 |
| FAMILY LAW – CHILDREN – Residence – where the children are ordered to live with the mother – where the children are ordered to initially spend supervised time with the father progressing to alternate weekend unsupervised time – where each child has the opportunity to spend special one on one time with the father – where a gradual change to more time with the father will balance the risks and benefits of the united wish of the children to spend more time including overnight time – where all of the children have needs that require special consideration and management – where the children have been exposed to family violence particularly abusive language and aggression by the father – where the mother has been impaired by mental illness and the father by emotional absence due to alcohol dependence – where upon separation the children were taken into the care of the Department of Family and Community Services for a short period due to a serious incident involving the father and children – where this incident had powerfully adverse consequences for the children – where the mother’s mental health significantly deteriorated – where the children currently have meaningful relationships with both parents – where both parents are presently able to meet the emotional and intellectual needs of the children – where both parents have better moved to take care of themselves and thus are now better placed to care for and guide the children. FAMILY LAW – CHILDREN – Parental Responsibility – where the parties have equal shared parental responsibility – where there is evidence given of family violence that rebuts the presumption – where the Court is at large to make an order for sole parental responsibility if the evidence rebuts the presumption but is not compelled to do so – where there is a benefit for both parents to participate in the decision making of the children – where the turning point in allocating parental responsibility was the mental health of the mother – where the evidence supports a finding that the mother’s mental health has significantly improved to the extent that she will be able to tolerate making decisions jointly with the father. FAMILY LAW – PROPERTY SETTLEMENT – where it is just and equitable to make an alteration of property interests – where there is an adjustment of current interests to reflect past contributions and future needs – where the former matrimonial home will be sold – where a superannuation split is ordered in accordance with s 90K – where both parties are beneficiaries of a superannuation split – where both parties worked throughout the relationship and contributed to the asset pool – where a greater adjustment is made in favour of the wife taking into account the disparity of income and the need for the wife to work around the school and medical needs of the children. |
| Bevan & Bevan [2013] FamCAFC 116 Stanford & Stanford (2012) 247 CLR 108 |
| Family Law Act 1975 (Cth) Crimes Act 1900 (NSW) |
| APPLICANT: | Mr Grist |
| RESPONDENT: | Ms Grist |
| INDEPENDENT CHILDREN’S LAWYER: | Matthews Folbigg Pty Ltd |
| FILE NUMBER: | PAC | 4713 | of | 2016 |
| DATE DELIVERED: | 17 April 2019 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 10 - 13 September 2018; 23 November 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Reeve, advocate |
| SOLICITOR FOR THE APPLICANT: | Marsdens Law Group |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | Watkins Tapsell Solicitors & Barristers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Maddox |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Matthews Folbigg Pty Ltd |
Orders
Parenting
That all prior parenting orders made in this Court and in the Federal Circuit Court in relation to X born … 2006, Y born … 2007 and Z born … 2009 (“the children”) are discharged.
Residence
That the children shall live with the mother.
Parental Responsibility
Subject to Order (10) herein, the parties shall have equal shared parental responsibility for the long term care, welfare and development of the children.
A party who wishes to have a child examined or treated by a medical or psychological practitioner, [other than by a treating practitioner current at date of trial], shall, before arranging for the child to attend on that medical practitioner, advise the other party in writing of the medical practitioner’s name and reason for wishing to have the child attend on that medical practitioner, and give the other party a reasonable opportunity to consider the matter and respond.
Each of the parties is restrained from changing the enrolment at school, (current at date of these orders) of any of the children, without the prior written consent of the other parent.
That each parent have parental responsibility for the day to day care, welfare and development when the children or any of them are living with or spending time with that parent.
Time and Communication
That unless otherwise agreed between the parties the children shall spend time with the father as follows:
(a) In the presence of an agreed third party:
(i)Each alternate Sunday from 9.00 am to 5.00 pm on 4 occasions commencing Sunday 28 April 2019;
(ii)Thereafter for a period of 3 months, each alternate weekend from 5.00 pm Saturday to 5.00 pm Sunday, commencing 23 June 2019;
(iii)On Father’s Day 2019 from 5.00 pm on Saturday prior until 5.00 pm on Father’s Day.
(b) Thereafter, without the necessity of the presence of a third party:
(i)Commencing 12 October 2019;
(ii)Each alternate weekend from 5.00 pm Saturday to 5.00 pm Sunday continuing through the Christmas school holiday period in 2019/2020.
(c) Thereafter, commencing in Term 1 2020, during term time:
(i)Each alternate weekend from after school Friday to 5.00 pm Sunday commencing on the first weekend of each school term;
(ii)On the weekend of Father’s Day if not already with the father from 5.00 pm on the day prior, to 6.00pm on Father’s Day.
(d) During term holiday periods:
(i)For a period of 5 nights commencing at 10.00 am Sunday and concluding on 10.00 am the following Friday commencing in the holiday period at the end of Term 1 in 2020;
(ii)During the Christmas/Summer holiday each year commencing December 2020 for a period of 10 days, commencing at 10.00 am Christmas Eve in even numbered years and at 10.00 am on Boxing Day in odd numbered years.
(e) At such other and/or additional times as agreed between the parties.
(f)Until each child reaches the age of 14 years, time with the father:
For X, on one evening of each week, being Wednesday unless otherwise agreed, from after school to 7.30 pm; commencing Wednesday 24 April 2019;
For Y, on one evening each fortnight being each alternate Tuesday, unless otherwise agreed, from after school to 7.30 pm commencing 7 May 2019;
For Z, on one evening each fortnight being each other Tuesday, unless otherwise agreed from after school to 7.30 pm commencing 30 April 2019.
If Mother’s Day falls on a weekend when the children are with the father then time is suspended from 5.00 pm on the evening before Mother’s day for the balance of that period.
Subject to the direction of the school principal otherwise, each of the parents is entitled to attend all events at the children’s schools to which parents are invited and to receive all information regarding their progress and welfare at school including but not limited to:
(a) School reports and assessments;
(b) School newsletters;
(c) Applications for school photographs.
Subject to any requirements of the Department of Foreign Affairs and Trade, Australian travel documents (passports) be issued to the children X, Y and Z on the application of the mother, notwithstanding that the consent of the Applicant father has not been obtained and thereafter the mother shall retain the passports.
In the event that the parties agree that the father shall travel with the children overseas, the passports of the children shall be provided to him for that travel and returned by him to the mother at the conclusion of that travel.
Independent Children’s Lawyer
That the Independent Children’s Lawyer shall meet with the children as soon as practicable to explain these orders and to answer questions the children or any of them may have.
To that end, the mother shall arrange to bring the children to the office of the Independent Children’s Lawyer at a mutually convenient time.
The Independent Children’s Lawyer shall provide a copy of these orders to the principals of School C and School A.
The Independent Children’s Lawyer shall, with the assistance and input of the single expert, provide to the parties the names of family therapists experienced in Family Law matters suitable to undertake family therapy.
Property
That within 14 days of the date of these orders the parties forthwith do all things and sign all documents necessary to cause the property situate at and known as B Road, Suburb D, being the whole of the land contained in folio identifier …58 (Property D) to be sold by private treaty or public auction at the earliest possible date at a sale price or reserve price to be agreed upon between the parties, and failing such agreement at a sale price or reserve price to be determined by the president of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee and to disburse the said sale in the following manner and priority:
16.1Payment of agent’s commission and advertising expenses and legal expenses of the sale;
16.2Payment of costs incurred, if any, in relation to determination of value or selling price by the president of the Real Estate Institute of New South Wales or his/her nominee;
16.3Payment of all other outstanding rates and levies owed on the property;
16.4Payment to Ms G the amount of $100,000;
16.5The balance then remaining to be divided as follows:
16.5.168.5% to the wife; and
16.5.231.5% to the husband;
Subject to the overall intention of the reasons for judgment that the wife receive overall 65% of the net assets and the husband 35%.
In the event Property D is not sold by private treaty within a period of 3 months of being listed for sale in accordance with Order 16 above then the parties forthwith do all acts and things necessary including executing all documents necessary to cause the property to be sold by public auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing such agreement at a reserve price to be determined by the president of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in accordance with Order 16 above.
That in the event the parties are unable to agree on an agent to facilitate the sale of Property D in accordance with Orders 16 and 17 above, then within seven days of such disagreement the wife shall provide to the husband with three proposed agents, with the husband to then nominate one agent within a further seven days.
That in the event the parties are unable to agree on a conveyancer to facilitate the sale of Property D in accordance with Orders 16 and 17 above, then within seven days of such disagreement the husband shall provide to the wife with three proposed conveyancers, with the wife to then nominate one conveyancer within a further seven day period.
That simultaneous to the property split in Order 16 above, the wife shall pay to the husband the sum of $9,800 as directed by the husband in writing.
The wife shall be solely responsible for all mortgage repayments associated with Property D until the sale of the property is finalised.
That the husband shall receive the following items of personal property:
(a)The toys and equipment presently stored in the roof of Property D and his a large item from his grandfather;
(b) His collection or records, books and novels; and
(c) The teacup and saucer gifted to him by his grandmother.
That the parties otherwise retain all property in their individual possession, name or control, inclusive of superannuation.
That the parties otherwise be responsible for any debts held in their respective names.
That the parties shall do acts and things necessary and give all consents and execute all documents and writings to give effect to these orders in the time periods prescribed.
That:
26.1The Court allocates, as required by s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”), a base amount of $41,332 to the wife out of the husband’s interest in AB Investments (“the fund”);
26.2In accordance with s 90MT of the Act, the Court:
26.2.1Creates an entitlement on the part of the wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
26.2.2Makes a corresponding reduction in the entitlement to the husband, or such other person to whom a splittable payment may be made, would have had in the fund, but for these orders;
26.3Whenever the Trustee of the fund makes a splittable payment out of the husband’s interest in the fund, the trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in Order 26.1 of these orders in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001.
26.4These orders have effect from the operative time and the operative time is four days after service is effected upon the trustee.
That in the event that either party refuses or neglects to execute any deed, document or instrument to give effect to these orders, the registrar of the Court be appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the registrar being provided with verification of such refusal or failure by way of affidavit.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grist & Grist has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4713 of 2016
| Mr Grist |
Applicant
And
| Ms Grist |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
These are competing applications for orders in respect of parenting of three children, aged 12, 11 and nine by conclusion of trial, and for adjustment of interests in matrimonial property.
The parties began living together in 1998, married in 1999 and separated finally in January 2016. They are not divorced.
The Trial
Both parties were legally represented.
The matter was set down for trial for four days commencing 10 September 2018 but was not concluded within the allocated time.
An additional day on 23 November 2018 was allocated for submissions. There was some expectation that matters could resolve in the period of adjournment.
The trial resumed on the adjourned date and was concluded.
Judgment was thereafter reserved.
The Parties
The father
The applicant is Mr Grist (“the father”). The father is 46. He is employed as a manager for a company. He lives in Suburb E, a suburb of Sydney in a two bedroomed rental apartment. The father lives alone.
The mother
The respondent is Ms Grist (“the mother”). The mother is aged 43. She lives in Suburb D, a suburb of Sydney. The mother lives in the former family home with the three children of the marriage. The mother is not in paid employment.
The children
All of the children have needs which require special consideration and management.
The oldest child, X, was in Year Six. She suffers from Eczema and Asthma. She also experiences pain which has been diagnosed as psychosomatic as a result of social stressors. She has been diagnosed with Post-Traumatic Stress Disorder (“PTSD”) as a result of the events in January 2016 which were frightening and unsettling, and saw the children being removed from the care of both their parents for a week.
Y was in Year Five. He has been diagnosed with Autism, Attention Deficit Hyperactivity Disorder (“ADHD”) and Opposition Defiance Disorder (“ODD”) and PTSD arising from the same event that has affected his sister. He is currently medicated in order to modify his behaviour.
Z was in Year Three. He has been diagnosed with Autism, ODD and PTSD, again arising from the events of early 2016 which affected his older siblings. He has suffered from Eczema and intermittent Asthma. He too is currently medicated in order to modify his behaviour.
Both parties, but more particularly the mother, have worked with the children’s paediatrician Dr K.
Brief History of Relevant Events
In 1998 when the parties began living together they purchased a property in Suburb H. The purchase price was $230,000.00. The parties borrowed $212,000.00 from the ANZ Bank and the balance from the mother’s parents.
At that time the mother was working full-time as a professional and the father full-time as an employee in the building industry.
After eight years together the parties’ three children were born in quick succession over a three year period, 2006-09. The mother took approximately 12 months maternity leave from work after the birth of each child returning to work two-three days per week on each of the three occasions. The father took a few weeks off after the birth of each child.
In early 2008 the father left the building industry and commenced working night shifts at another company.
In October 2009 the parties borrowed $100,000.00 from the mother’s aunt Ms G order to carry out home renovations on the Property H. Those funds were not repaid at the time of sale and remained unpaid at date of trial.
The parties lived in Property H until late 2011. They sold the property for about $560,000.00 and purchased the next family home in Suburb D where the mother and children still live. The purchase price was $670,000.00. It was financed by the sale proceeds of the Property H and a borrowing from the ANZ Bank of $370,000.00.
It is apparent that family life for the parties and their children was tense and stressful most of the time. Both parties described themselves as “walking on egg shells”. The children’s behaviour, particularly that of the two boys was challenging and difficult to manage.
A central difficulty was the father’s pattern of drinking which accelerated in 2014/2015 to drinking at the pub five days a week followed by many more drinks at home. The father was both physically absent by his attendance at the pub and emotionally absent at home because he was affected by alcohol on a regular basis. That left the mother to provide the majority of care for the children day and night.
In 2014 the mother was diagnosed with PTSD and anxiety. Early in that year the mother was taken to hospital after a friend became concerned about her emotional and distressed state. The mother then admitted herself to the mental health unit of the hospital for a couple of days of respite.
Mother leaves paid work
In January 2015 the mother resigned from employment to care for the children on a full-time basis. She consulted a doctor who prescribed a mood stabilizer. The mother also consulted a psychologist but became dependent on her. Most unfortunately this dependence led to an application by that treating therapist for an Apprehended Violence Order for protection from the mother. There was obsessive, but not violent, conduct involved.
Mother commences therapy with current psychologist October 2015
Ms J, psychologist, started treatment with the mother in October 2015. The mother was particularly vulnerable at that point.
As a result of prolonged sexual abuse in childhood the mother had long been suffering from an Anxiety Disorder. Most unfortunately she started therapy on three occasions with therapists, all of whom had promised to work longer with her than they did. Ms J considers that the mother began to “unravel” and was in emotional turmoil aggravated by differences between herself and the father over child rearing, particularly discipline. The inescapable conclusion is that she was emotionally fragile.
Traumatic Separation – January 2016
On 29 January 2016 the father collected the children from school having had three beers before he did so. He bought the children an ice-cream then took them to a mate’s place where he had at least one more beer. Driving home he became infuriated with the children’s conduct in the back seat and threatened to drive the children into the river. I am satisfied that the father did make that threat and that all or some of the children believed that he intended to act on it.
The father apologised to the children immediately but did not fully acknowledge his own misconduct in the matter to the mother or to the children. He underestimated the impact of his conduct and threat.
As a direct result of that episode the parties separated and have not lived together since.
On 29 January 2016 the mother was admitted to hospital overnight due to the state of her mental health. The admission to hospital was voluntary but initiated by police who were not satisfied that the mother was coping after the incident.
The police applied for a provisional Apprehended Domestic Violence Order (“ADVO”) against the father for the protection of the mother and children.
Children have emergency placement with family friends – 30 01/2016
In the very early hours of 30 January 2016 the children were placed by the Department of Family and Community Services (“FACS”) into the temporary care of family friends, Mr and Ms N. The children were puzzled and in the case of Z tearful. They were put to bed. They were all happy and settled the next day.[1]
[1] Affidavit of Ms N filed 10/11/2016, par 11
Although these friends were very well known to the children, they were not accredited foster carers. As a result on the afternoon of that day the children were removed into formal foster care with separate placements for the boys and for X. All three children cried and resisted leaving the home of the Mr and Ms N.[2]
[2] Affidavit of Ms N filed 10/11/2016, pars 16 & 17
On 31 January 2016 these same family friends were asked by a FACS social worker to assist the mother to collect her car, go to the family home for some of her possessions and to return to her temporary accommodation at a hotel. They did so.
Children return to family friends - 1/02/2016
On Monday 1 February 2016 caseworkers asked Ms N to take the children once again. Appropriate inquiries had been made by FACS workers about Mr and Ms N so the children could be returned.
The children came back that day and were reported to be extremely happy to be back, re-united in the home of their friends. They stayed for five days and during that time attended school and other activities. Apart from questions about when they would be going home “to see Mum and Dad” the children were reported as being in good spirits.[3]
[3] Affidavit of Ms N filed 10/11/2016, pars 19-22
On 3 February 2016 in Suburb T Local Court, a provisional order – ADVO - was made against the father for the protection of the mother and the children.
Children returned to care of mother - 5/02/2016
On Friday 5 February 2016 FACS returned the children into the mother’s care back in the family home.
Final ADVO - 10/02/2016
On 10 February 2016 the ADVO for the protection of the mother and children was made final for a period of one year but was subsequently varied to expire on 5 November 2017.
Both parents accept the diagnosis of the children’s paediatrician Dr K that all three children suffered PTSD as a result of these events.
I conclude that the children were very much affected by all the events set out above which followed on from the father’s threat in the car and the mother’s reaction to learning of it. Particularly the shock of being moved three times, with X and her brothers being separated for one period. The final event for the children to adjust to when they returned home would have been finding that the father was gone from the family home and would not be returning.
I also conclude that the impact of events on the mother was severe and that her reaction unintentionally also adversely affected the children.
The father began to see a psychologist, Ms L. His stated motivation to attend on the psychologist was to do whatever it took to ensure that he was able to maintain his relationship with his children.
Although the father acknowledged heavy drinking and gave up alcohol for a period of about 12 months, he did so to demonstrate that he could, rather than because he believed he was dependent on or addicted to alcohol. He attended meetings of Alcoholics Anonymous (“AA”) between February 2016 until March 2017 for the same reasons although his oral evidence was that he benefitted from that attendance without ever intending to aspire to long term abstinence.
By March 2016 X had been diagnosed with psychosomatic pain. It is hardly surprising given of the level of traumatic disruption to her family and to her life.
On 23 May 2016 the father breached the ADVO and was charged. He was placed on a bond for six months.
On 30 July 2016 the father again breached the ADVO and the offence was dismissed under s 10 of the Crimes Act 1900.[4]
[4]Crimes Act 1900 (NSW)
In 2016, 2017 and 2018 the father completed three programmes Keeping Kids in Mind, Parents Not Partners and Being A Father which the father found useful.[5]
[5] Affidavit of the father filed 20/06/2018, pars 146-148
Court proceedings commence - Application to Federal Circuit Court
On 5 October 2016 the father filed an Initiating Application for parenting and property orders in the Federal Circuit Court (“FCC”).
The father also filed a Notice of Risk alleging that the children were at risk as a result of the mother’s mental health.
At that time he proposed equal shared parental responsibility and shared residential care on a week about basis.
In respect of property the father proposed a sale of the former family home with equal division of the net proceeds.
This focus on equality and “fairness” for the adults was evident in the father’s evidence at trial. I conclude that he did not at that time give any real consideration to the impact on the children of moving in and out of the family home each alternate week to live with him, until ultimately it was sold.
On 11 November 2016 the mother filed her Response.
In her Notice of Risk filed at the same time, the mother identified the risks as follows:
·Father threatened to kill the children by driving them into the river;
·Father verbally abusive to the children;
·Father violent and aggressive towards the children;
·Father drove with the children after consuming more than the legal limit of alcohol;
·Father has difficulty coping with the children, two of whom have high needs and behavioural issues;
·Father belittles the children by calling them names, “dummy” and “mental case”;
·Father was charged with indecent assault on a three year girl in 1991;
·Father abuses alcohol.
The mother proposed sole parental responsibility for herself and that the children live with her. She did not propose any arrangements for the children to spend time with the father.
The mother proposed a property adjustment of the net asset pool, in a ratio of 70/30 in her favour.
Orders - 16/11/2016
On 16 November 2016 orders were made appointing an Independent Children’s Lawyer (“ICL”) and also that on an interim basis the children continue to live with the mother. The parties were directed to complete intake procedures for a contact centre. No orders were made for the children to see the father. The date for an interim hearing was given.
Children begin to spend time with father - January 2017
On 28 January 2017 the children began to spend supervised time with the father at a contact centre. By that date a period of 12 months had passed where the children had not seen their father at all.
On more than one occasion the middle child Y refused to see his father at the contact centre claiming that he felt too sick to go. To the credit of the mother she ensured that the other two children attended.
The father experienced deprivation of time with his children as a severe emotional blow. He felt resentful towards both the mother and the children’s paediatrician who had recommended that the children “not see their father as they were experiencing significant psycho-trauma.”[6]
[6] Affidavit of Dr K filed 19/12/2016, page 14, final paragraph
Father proposes change of residence
On 10 March 2017 the father filed an Amended Initiating Application. By this application the father proposed that the children live with him and that time with the mother be determined after the parties had the benefit of recommendations of a Court appointed single expert.
The father also proposed a division of matrimonial assets less favourable to the mother than his first proposal; 60 percent to him and 40 percent to the mother.
There does appear to have been a punitive element to the change in proposals, particularly in relation to residence, as there had been no further incident which could be described as a mental health problem for the mother since the father had filed his first application proposing equal time.
Interim hearing in FCC - 2017
On 30 March 2017 orders were made by consent on an interim basis that the children live with the mother and spend supervised time with the father at Interrelate. A single expert Child and Family Psychiatrist was appointed at that time.
X and Z, and sometimes Y, continued to see the father at a contact centre.
On 9 July 2017 all three children spent time with the father at the contact centre but on that occasion Y punched his brother and there was a fight. The children were all crying when they returned to their mother.
Single Expert Report - Dr M (Child and Family Psychiatrist)
On 15 September 2017 the Single Expert Report was released to the parties. The recommendations of the report were that the children continue to live with their mother and spend time with their father.
The single expert considered that there should be an incremental increase of time to three nights a fortnight. There was also a recommendation that the parents could agree to each child having “special time with Dad”.
There was a recommendation that family therapy be undertaken and that after engagement in that therapy, longer holiday time for the children could commence.
In November 2017 the parties suspended litigation in an attempt to mediate a resolution to their dispute.
Transfer to Family Court of Australia
On 1 March 2018 the matter came back before the FCC and on that day it was transferred to this Court.
On 19 March 2018 the matter was given direction for trial.
In March 2018 the father, with the paternal grandmother present, began spending time with the children outside a contact centre.
The father completed a further course, a workshop called “Being a Father”.
In June 2018 trial dates were allocated for September 2018.
Evidence
The documents relied on in respect of the application were as follows:
The Applicant Father - Mr Grist
(a)Applicant father’s Proposed Minute of Order in Case Outline of 10/09/2018;[7]
[7] Exhibit 2
(b)Affidavit of the father filed 20/06/2018;
(c)Financial Statement of the father filed 5/09/2017;
(d)Affidavit of the paternal grandmother – Ms P filed 8/11/2016;
(e)Affidavit of a friend of the parties – Ms N filed 10/11/2016;
The Respondent Mother - Ms Grist
(f)Respondent mother’s Proposed Minute of Order (Amended) of 12/09/2018;
(g)Notice of Risk filed in the FCC on 11/11/2016;
(h)Affidavit of the mother filed 27/10/2017;
(i)Financial Statement of the mother filed 6/09/2018;
(j)Affidavit of the maternal grandmother – Ms Q filed 10/03/2017;
(k)Affidavit of the mother’s psychologist – Ms R filed 15/12/2016;
(l)Affidavit of Dr K, paediatrician for the three children, filed 19/12/2016;
Reports
(m)Single Expert Report of Dr M, child and family psychiatrist dated 15/09/2017;
Oral Evidence
The Father - Mr Grist
The father was a responsive witness, often confining himself to “yes” or “no”.
With respect to questions about production of financial documents his answers were invariably “no” because he had not complied with his obligations in that regard. He had not produced any of the usual documents such as pay slips, PAYG slips, Tax Returns, bank statements or superannuation statements.
I concluded that he perceived himself as a victim of unfair actions by the mother and also Dr K, the children’s paediatrician, which deprived him of his proper relationship with his children.
It certainly must have been difficult for the father to lose his marriage and day-to-day contact with his children unexpectedly and immediately on 29 January 2016. However, he was inclined to minimise his own role in those outcomes. He conceded that he was a man who became angry when he had been drinking and that anger was expressed by yelling at his wife and the children. He swore at the mother and the children. He used threatening language to the mother expecting her to understand that he would not act on the threats he made. He conceded in the witness box that he may have intimidated her. I am confident he did.
The father told his psychologist Ms L that on five days a week, with more on a Saturday, he had four to five schooners at home, which would have been after a visit to the pub first. That went on for 12-18 months.
The father had little insight into his impact on the household. He resented what he clearly perceived as his wife’s “carping” about his drinking. He perceived her motivation for complaint as her not liking alcohol herself and also that she did not want him out enjoying himself whilst she was at home with the children. He did not seem to understand the burden that the mother was struggling with every day. Not just because of the difficult behaviour of the children but because of his own equally difficult behaviour.
It is apparent that the father regularly became angry and called both the wife and the children disgracefully insulting names.
I find that that the father did deliberately frighten the children on 29 January 2016 telling them that he was driving them into the river and “will drive through the mud but will get to the water quickly.” He told the children he was locking the windows and doors. X described to the FACS caseworkers that “[Z] was crying and Daddy was smiling.”
When he had frightened them sufficiently in his own view the father drove home and directed the children not to tell their mother. Of course they did tell her. They were terribly upset and the father in a rather self-righteous and unreasonable way had sent the children to their rooms to “think about what they had done”. The father would have been well advised to sit in his room and think about what he had done to the children.
Despite his denial that he caused harm, “there was no seriousness in it”, there was harm. The father was affected by alcohol, he behaved irresponsibly, he frightened the children and the incident so alarmed the mother that she lost the ability to be able to provide care to the children, necessitating an admission to hospital. It is apparent that she was already at breaking point due to the unhealthy and unsupportive state of the relationship between herself and the father.
The father is a man who has both been sexually assaulted as a child and as an older teenager himself sexually assaulted a very young child. The consequences of those most serious matters have not been addressed. It seems probable that the father’s drinking has been a way of avoiding confronting his own conduct with the young child and his own trauma as a young child victim himself. He acknowledged that drinking made him angry. His evidence is that “now I don’t drink enough to get angry.”
The father properly conceded that the mother was “a loving mother”. However he otherwise considered that she was using trauma as an excuse and was working against him to deprive him of time with his children.
The father’s application for the children to come to live with him reflected his love for the children and his desire to restore relationships but it was not a realistic application.
The father works full-time and proposes to continue to do so.
He stated that his mother, who is in her early seventies, would be able to have the children in holiday time when he was working.
He did not appear to have a realistic appreciation of how much time was taken up by medical and therapeutic attendances for all of the children, nor did he have any plans other than relying on his mother, for what he would do if one of the children was sick and could not attend school.
It may be, although I cannot be certain about this that the father, by pursuing an application for residence was attempting to teach the mother what it felt like to at least fear the loss of the children.
I am supported in this conclusion by the proposal of the father for time with the mother. The proposal was for an equal sharing of school holiday time and four nights a fortnight with the mother. That represents a shared care arrangement of about 60 percent of their time with their father and 40 percent with their mother. I am satisfied that the father does not have a genuine fear that the children are at risk in their mother’s care.
It is to the credit of the father that he changed his position during the course of the trial and conceded that the children should continue to live with the mother. By doing so he acknowledged that the mother is able to care for the children and does so well.
Paternal Grandmother – Ms P
The paternal grandmother presented as a committed and loving parent and grandparent. Certainly the mother has confidence in her to care for the children and keep them safe.
I am confident that the paternal grandmother would comply with orders and do everything in her power to support and assist her grandchildren whether she was to any extent supervising or simply as a loving family member.
Family Friend – Ms N
Ms N was not required for cross-examination.
Her evidence of the supportive role she and her husband and children played in late January/early February 2016 was unchallenged.
I conclude that both parties and the children were greatly assisted by their efforts.
The Mother – Ms Grist
The mother had a profoundly difficult time managing the needs of her three children especially Y. That is not a criticism nor an adverse finding on her capacity. That the mother would be tested by the demands of three children so close together in age is inevitable. Two of her children having disabilities aggravated the demands on the mother.
Y’s behaviour has required all her attention and stretched her to the limit. On 28 August 2015 the mother called police to talk to the boy after a tantrum. She had felt unable to get any of the children then aged eight, seven and six to school. The police noted her “severely deteriorated mental state”.[8] Poignantly, the mother told police that she was “unable to engage with other parents and social events with or without the children as she constantly compares her troubles to the trouble free lives of other parents”.
[8] Exhibit 8
The other two children were assessed to be “polite, happy, educated, friendly with police”.
The mother described the father then as “supportive but has to work full-time”. In her oral evidence the mother said she did not disclose to police what else was happening in the house. I conclude that her primary focus was getting help with Y.
I formed the impression that the mother understands that the children want to see their father and has been pleased that they have been able to with the presence and assistance of the paternal grandmother.
The mother was asked whether she felt some compassion for the father not seeing the children for a year after the January 2016 incident. Her reply was “I’m horrified by why that happened”. I conclude from that response that the priority of the mother is the safety of the children and that the January 2016 incident destroyed her trust in the father as a responsible parent.
The mother has struggled in the past with suicidal feelings and abuse of prescription medicine. She would go out at night when the children and the father were asleep. She too represented a risk to the safety of the children at times without ever wanting to be.
There has been progress for the children with time with their father which is a credit to the mother. There was also an incident of hyper-vigilance in September 2018. The children were with their father and paternal grandmother. The children sat in the car with the father for five minutes while the paternal grandmother bought bread rolls. That incident became a cause for an exchange of letters between solicitors about a failure of supervision.
The Maternal Grandmother – Ms Q
The maternal grandmother was not required for cross-examination.
Her evidence was informative about how she was able to assist the mother to comply with orders. On a particular occasion in February 2017 Y was unwilling to go with his brother and sister to spend time with the father.
The maternal grandmother was present in the home when “Y [aged nine] flew into an absolute rage, throwing things and shouting ‘I’m not going’.”[9] The maternal grandmother stayed with him while the mother took the other children in the car.
[9] Affidavit of Ms Q filed 10/03/2017, par 7
The Single Expert – Dr M
The single expert expressed a strong view that family therapy should take place, preferably with a family therapist experienced in family law matters and therefore comfortable with contested views.
Whatever orders were ultimately made by the Court the single expert recommended to the parents that Y not going to see his father on occasions should not be a drama.
The evidence suggests that both parents have handled the matter of Y’s reactions in just that way.
On the topic of allocation of parental responsibility the single expert considered that equal shared responsibility would be preferable unless the mother was “very fragile and any hint of uncertainty causes her to de-compensate.”
The evidence supports a finding that the mother has improved mental health since separation and has coped with supporting the children’s time with the father despite reservations and concerns.
The single expert also considered the perspective of the children and expressed the view that the children can become dismissive of, and less respectful to, a parent who does not have decision making authority
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Parental Responsibility
This issue is a contentious one for the parties.
The ICL ultimately submitted that the mother should have sole parental responsibility.
There is ample evidence of family violence perpetrated by the father that would rebut the presumption of equal shared parental responsibility being in the best interest of the children. The incident in January 2016 and all of the verbal abuse and aggressive behaviour by him, which preceded it.
The Court is therefore not compelled to make the order but is at large.
The mother has consistently proposed sole parental responsibility for herself. She does so on the basis of having been the primary carer of the children and also the decision maker and organiser for specialist medical appointments especially for the two younger children.
The father has consistently proposed that he and the mother equally share parental responsibility. He does so, not because he generally disagrees with decisions taken by the mother, he regards her as a sensible decision maker. Rather because he has felt excluded and unfairly judged by some of those providing treatment and therapy. One particular example is the children’s paediatrician Dr K.
The father was offended by Dr K having made a recommendation after the January 2016 incident that the children “not see their father as they were experiencing significant psycotrauma (sic).”[10] This recommendation was referred to in the report that was annexed to the doctor’s affidavit as a witness for the mother.
[10] Affidavit of Dr K filed 19/12/2016, page 14
In short, the father held the view that Dr K had become an advocate for the mother against him in these proceedings. He feared being permanently excluded in future.
There was some substance in those fears, to the extent that the doctor accepted without reservation what the mother told him about events and children’s wishes in an adversarial parental context.
Despite that, it appeared to me that the explanation for it was Dr K acting protectively of three children who had been in his professional care respectively all or most of their lives. He was also concerned to promote the mental health of the mother because the children needed her to be well.
The single expert saw benefit for the children in both parents participating in decision making.
The fundamental determinant from her medical perspective was that the mental health of the mother must be supported. If the Court concluded that the mother could not tolerate the contact with the father necessary for the consultation, discussion and compromise required for shared parental responsibility then the decision should be sole parental responsibility for the mother.
I conclude that the evidence supports a finding that the mental health of the mother steadily improved over the three years after separation. The evidence of the mother’s therapist is informative.[11]
[11] Affidavit of Ms R filed 15/12/2016, page 10, par 40.30
I have come to the conclusion that provided current arrangements for therapeutic and medical treatment and for school enrolments are confirmed and can go on as before, there is a benefit to the children in having the parents share decision making in future.
Accordingly, an order for equal shared parental responsibility is made.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
The children do all have meaningful relationships with each of their parents.
The primary source of day-to-day care and supervision is the mother.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
There is ample evidence of the children having been exposed to family violence particularly by abusive language and aggression from the father.
In this matter separation of the parents has proved to be protective for the children.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The children were observed with both parents, for a lesser period with the mother.
The children all related warmly and well with the father; chatting, telling him pieces of news; engaging in a drawing together.[12]
[12] Single Expert Report dated 15/09/2017, pages 3 & 4
It was a clear picture of how good relationships can and will be when the children and the father feel relaxed and calm.
X spoke openly about how hard it was not seeing her father and thought “everyone was missing him.” X was looking forward to sleepovers with her father particularly if it was just her and the father. That is not to say she wanted to exclude her brothers, rather she was scared of what might happen if Y misbehaved “sometimes Dad yells and hits.”
X was open and positive about her paternal grandmother and Mr AB [her grandmother’s partner] being present.
X spoke of trying to help her mother care for her brothers.
It would be fair to conclude that X feels safe and content living with her mother especially now that conflict levels have receded, but yearns for time alone with each of her parents.
Y expressed a wish to make a happy family with no fighting or arguing. He placed his father in an imagined house with himself and his brother, with his mother and sister in a house next door.
He wanted sleepovers with his father but “only if there’s a security camera… so nothing goes wrong.”[13] He was able to identify that not seeing his father made him sad.
[13] Single Expert Report dated 15/09/2017, page 8
I conclude that Y strongly wants time with his father and equally strongly wants that time to include strong rules and no fighting.
Z wants to spend time with his father. He wanted sleepovers “every Saturday”. He did not want to live with his father.[14]
[14] Single Expert Report dated 15/09/2017, page 24
In his imaginary house he placed himself with his mother and sister, his father and brother next door. He identified that his older brother was rough and rude to him and X.
I conclude that Z is content to be living with his mother and sister and would like regular relaxed fun time [Saturday nights] with his father.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
The children have close, affectionate, trusting relationships with the paternal grandmother and her partner.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The evidence of the mother is that the father pays child support as assessed of $272.41 per week. The father asserted $280 per week. The difference is negligible.
The significance is that the father contributes to the cost of raising the children.
The mother refers to having paid for all the extra-curricular activities, counselling, insurances, occupational therapy and day-to-day living for the children.
When the children are all in their teens and at high school the cost will of course escalate sharply.
Although not mandatory the father may be able to negotiate with the mother to assist with school expenses and extra-curricular activities.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The parties now agree that the children should live with the mother.
The parties also agree that the children should spend time with the father. The areas of disagreement are the pace at which periods of time increase and how long it is necessary for the paternal grandmother (or another third party agreed to by the parties) to be present when the children are with the father.
A gradual change to more time with the father will bring a benefit in terms of their united wish to spend more time including overnight time.
The presence of the paternal grandmother will assist the father to manage the children and reduce the risk of escalation into yelling and conflict which would derail the restoration of relationships.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
Both parents are presently capable of meeting the emotional and intellectual needs of the children. Each parent has been impaired at times, by mental ill-health in the case of the mother and, emotional absence through alcohol dependence in the case of the father.
It is important for the father, in addition to the mother, to have the ability to contact, attend appointments with and discuss the health behaviour and progress of the children with all doctors, psychologists and other therapeutic practitioners providing treatment to the children.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The children were separately assessed by the single expert.
X, the oldest child then aged 10, was assessed as having been given or taken on the role of “peace maker in the family” trying to control the behaviour of her brothers so they would not upset the parents.
This has very clearly been burdensome for her. The opinion of the single expert is that X has internalised her distress “expressing her upset somatically through various bodily pains”[15] thus becoming a more socially acceptable child than her brothers who have expressed their emotions through unruly behaviour.
[15] Single Expert Report dated 15/09/2017, page 23
X needed to become self-aware and feel able to express negative emotions to her parents and other adults, presumably grandparents and teachers.
X feared that her mother might be hurt when struggling with her brothers. She feared her father becoming annoyed and out of control. She has witnessed her father responding abusively within the family. She will need to see him responding very differently in a calm and well regulated way for the relationship to flourish. For that reason one-to-one time with the father, raised as a possibility by the single expert appears to be a beneficial way forward.
Y, then aged nine, presented as rather anxious and emotionally labile. He was assessed as needing to regain trust that “his father will not become scary and excessively reactive.”
This is a genuine challenge for the father, to become less reactive and calmly containing with Y so the child too can learn to be self-regulating.
Y was described as responding to the significant containment and assistance at school. At date of trial the parents had decided that Y would move to a new school where even greater assistance for him would be available. Both parents and particularly the father could be assisted by advice from the school in terms of achieving consistency of approach between home and school.
Z, then aged eight, was assessed to have a chronic history of emotional dysregulation.
The opinion of the single expert was that there may have been attachment issues between Z and his mother. Y was 18 months old when Z was born. Further, he has been affected by aggressive and reactive behaviour by both parents towards both Y and himself. He was distressed by ongoing conflict with his brother.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The father did not put forward evidence from his treating psychologist although he referred to attendance on and assistance from such a practitioner. There is an inference to be drawn that such evidence would not have assisted the father.
Given his painful history of abuse as a child, and of a child, the father has revealed a lack of responsibility in addressing such significant events in his life.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
On 3 February 2016 an interim ADVO was put in place for the protection of the mother and children from the father.
On 10 February 2016 that order was made final for a period of 12 months.
In mid 2016 the father sent flowers to the mother for her birthday. In the following month the father left a telephone message where he sang Happy Birthday for Z [turning seven].
The incidents have an innocent look. There was no physical contact, no-one was hurt. However the mother was affected. To use her own words the mother felt “upset and rattled as if the father was back in the house again”. I infer that to be a reference to the unpredictability of the father’s behaviour in the past which caused the mother to suffer nervous uncertainty.
These actions led to the father being dealt with for two separate breaches of ADVO.
On 12 October 2016 the father was found guilty of the breaches and put on a good behaviour bond.
I conclude that the mother was not so much fearful of the actions of the father, although she probably feared an escalation of such contacts. What is clear, by her contacting police about the breaches is that the mother was letting the father know that the ADVO was a boundary which she would not tolerate being tested.
The ADVO was varied and extended to 5 November 2017.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
The order for equal shared parental responsibility does not disrupt existing arrangements for the children with current treating doctors and others. In particular, Dr K has been the treating paediatrician for the two younger children since each was born.
The father was offended by what he saw as the doctor being biased against him in this litigation.
I am satisfied that although the doctor could have been more inclusive of the father, he was primarily involved as an advocate of the children and by default the mother because she is their primary carer.
Likewise the children can only be enrolled at another school if both parents agree in writing, so current enrolments are not disrupted.
The order was made in this way to balance the benefit for the children of having both parents engaged in decision making, against the risk of disrupting continuity of treatment.
Any other fact or circumstance that the court thinks is relevant
The parties by the last day of trial had both moved close to a common position although the matter did not resolve.
By date of trial almost three years had passed since the incident in January 2016 which had such powerful adverse consequences for the children.
Both parents have moved to take better care of themselves in order to be better placed to care for and guide the children.
The best outcome would be that the parents agreed to vary these parenting orders in whatever way they considered appropriate and continue to review and change them over time.
In the event that they cannot do that, the orders apply and must be strictly complied with.
The parents would also be well advised to engage in family therapy as recommended by the single expert. The relationships between the three children could be repaired now before the onset of adolescence. Family therapy is not something in my view that a Court should order. Only willingness of adults to engage would make such therapy effective.
An order has been made for the ICL through liaison with the single expert to recommend family therapist familiar with family law disputes. The parties are of course free to engage with whoever they can agree on.
Property
Approach to alteration of interests in property
In considering applications for alteration of property interests and transfer of property the Court must:
(i)Identify the existing legal and equitable interests of the parties in property;[16]
(ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;
(iii)
If an alteration should be made, to consider the matters contained in
ss 79(4) and 75(2) of the Act in coming to an adjustment; and
(iv)Analyse and consider whether the adjustment under consideration would be just and equitable.
[16] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FamCAFC 116
1. Identify the assets and liabilities of the parties
The parties’ assets are set out in the joint balance sheet:[17]
[17] Exhibit 30
| ASSETS | |||||||
| Ownership | Description | Applicant’s value | Respondent’s value | ||||
| 1 | Joint | B Road, suburb D | E 1,050,000 | E 1,050,000 | |||
| 2 | Joint | ANZ Bank Account Number …14 | 1 | 1 | |||
| 3 | Applicant | ANZ Bank Account Number …14 | 12 | 12 | |||
| 4 | Applicant | ANZ Bank Account Number …67 | 59 | 59 | |||
| 5 | Applicant | Vehicle 1 | 9,000 | 9,000 | |||
| 6 | Applicant | Vehicle 2 | 2,500 | 2,500 | |||
| 7 | Applicant | Vehicle 3 | 2,000 | 2,000 | |||
| 8 | Respondent | AA Bank Account Number …01 | 13 | 13 | |||
| 9 | Respondent | ANZ bank account …33 | 232 | 232 | |||
| 10 | Respondent | AMP Shares | 558 | 558 | |||
| 11 | Respondent | Vehicle 4 | 3,000 | 3,000 | |||
| 12 | Applicant | Household contents | 1,000 | 1,000 | |||
| 13 | Respondent | Household contents | 2,000 | 2,000 | |||
| Total | $ 1,070,375 | $ 1,070,375 | |||||
| ADDBACKS | |||||||
| Ownership | Description | Applicants value | Respondents value | ||||
| 14 | Respondent | Superannuation V Drawdown | 8,607 | 0 | |||
| Total | $ 8,607 | $ 0 | |||||
| LIABILITIES | |||||||
| Ownership | Description | Applicants value | Respondents value | ||||
| 15 | Joint | ANZ Home Mortgage | 372,444 | 372,444 | |||
| 16 | Joint | Personal Loan from Ms G | 100,000 | 100,000 | |||
| 17 | Applicant | ANZ Personal Loan | 1,161 | 1,161 | |||
| 18 | Applicant | ANZ Credit Card | 4,769 | 0 | |||
| 19 | Respondent | ANZ Credit Card | 4,701 | 4,701 | |||
| Total | $ 483,075 | $ 478,306 | |||||
| SUPERANNUATION | ||||||||
| Member | Name of Fund | Type of Interest | Applicants value | Respondents value | ||||
| 20 | Applicant | Superannuation O | Accumulation | 81,053 | 81,053 | |||
| 21 | Applicant | AB Investments – Superannuation | Accumulation | 77,674 | 77,674 | |||
| 22 | Respondent | Superannuation S | Accumulation | 72,016 | 72,016 | |||
| 23 | Respondent | Superannuation V | Accumulation | 4,047 | 4,047 | |||
| Total | $ 234,790 | $ 234,790 | ||||||
| FINANCIAL RESOURCES | |||||||
| Ownership | Description | Applicants value | Respondents value | ||||
| 24 | |||||||
| 25 | |||||||
| 26 | |||||||
| 27 | |||||||
| Total | $ 0 | $ 0 | |||||
| NETT TOTAL ASSETS (including Superannuation) | $ 830,697 | $ 826,859 |
The Balance Sheet is adjusted as follows:
1Notional equity in property at F Road, Suburb D (after
Deduction of items 15 and 16) $577,556
Less estimated costs of sale $25,000
$552,556
2Omitted – minimal ($1) $1
14Super draw down – no evidentiary basis for addback – omitted $8607
17-19Omitted – conceded as historical personal debt $10,631
$19,239
Accordingly, the Balance Sheet reflects a net total of $807,720.
2. Would it be just and equitable to make an adjustment to interests in property
The parties have jointly owned property and wish to put an end to the financial connection between them.
An adjustment of current interests to reflect past contribution and future needs would be just and equitable.
3. Consideration of ss 79(4) and 75(2) of the Act in order to come to a just and equitable adjustment
Contributions under section 79(4)
The parties began their relationship in 1998 with neither property nor debt.
The parties have both worked to capacity. Until the birth of the first child in 2006 both parties worked full-time, the mother as a professional, the father as an employee in the building industry.
Thereafter the mother took on the majority of care for each of the three children as they were born and also worked part-time until 2015 when she left the paid work force.
The parties were assisted by interest free loans from the maternal family.
They have otherwise acquired assets by their own financial efforts.
The mother has had the benefit of living in the family home with the children since separation in January 2016. She has met the cost of domestic bills. She has paid $15,570 towards the mortgage. The father has paid $1073. The parties have otherwise drawn on the mortgage offset account.
The contributions which would otherwise have been considered equal, should favour the wife in the ratio 55/45 percent for two main reasons. On account of the benefit of interest free loans from maternal family which will be finally repaid from the proceeds of sale of the home. Next, for the contribution to the full-time care of the children for almost four years post separation.
The relevant matters to be taken into account are as follows.
Relevant factors under section 75(2)
The age and state of health of each of the parties
The parties are in their early to mid-forties and both are in good physical health.
The mother has had severe mental health and psychological problems. The father has suffered depression and been affected by dependence on alcohol. Both have sought professional help.
The mother is engaging with appropriate therapeutic help for long standing mental health problems. The mother is addressing issues of past abuse of her as a child. The mother has overcome past dependence on prescription drugs,
The father has moderated his dependence on alcohol. The father has unaddressed issues of abuse of him, and by him, from his past.
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The mother is not in paid work. The father is in full-time work.
The parties have net assets of about $625,000 including equity in the former family home.
Both presently have a capacity to work consistent with the needs of the children.
The mother is hopeful of returning to paid work after this litigation has been concluded and presumably until after she has settled the children into a new home. The parties agreed to the sale of the former matrimonial home.
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
The mother will have the majority of time with and care of the children until each turns 18 years. She will need suitable accommodation in reasonable proximity to the schools of the children.
The father will also spend time with the children at weekends and for holidays and will need suitable accommodation.
Subject to s 75(2)(3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
The mother is presently in receipt of Commonwealth benefits of approximately $873 per week.
The mother has interests in superannuation of about $80,000 but has not been contributing for the past four years whilst out of the work force.
The father has wages of approximately $1425 gross before tax and child support.
The father has interests in superannuation of about $150,000.
Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
The parties are maintaining a standard of living reasonable in the circumstances which will improve if the mother is able to return to work.
The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The marriage endured for about 16 years. The special needs of the children required the mother to cease paid work four years ago. She may need to refresh her skills to return to work in her profession.
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
The father pays approximately $280 per week to the mother for the benefit of the children pursuant to child support assessment.
Adjustment
Taking those factors into account and in particular the disparity in income between the parties and the obligation of the wife to work around the school and medical needs of the children there should be an adjustment in favour of the wife bringing the division of assets to a ratio of 65/35 percent.
The husband shall retain items from the Balance Sheet (amended) as follows:
3ANZ account number …14 $12.00
4ANZ account number …67 $59.00
5Vehicle 1 $9,000
6Vehicle 2 $2,500
7Vehicle 3 $2,000
12Household contents $1,000
20Superannuation O superannuation $81,053
21AB Investments – Superannuation $77,674
Total value$173,298
Less superannuation split $41,332
$131,966
The wife shall retain items from the Balance Sheet (amended) as follows:
8AA Bank account number …01 $13
9ANZ bank account number …33 $232
10AMP shares $558
11Vehicle 4 $3,000
13Household contents $2,000
22Superannuation S $72,016
23Superannuation V $4,047
Total value$81,866
Plus superannuation split $41,332
$123,198
Division of net assets ($807,720) in the ratio:
65 percent - wife
35 percent - husband
Requires a payment from net proceeds of sale:
To the wife $525,018 (65 percent)
Less items retained $123,198
$401,820
To the husband $282,702 (35 percent)
Less items retained $131,966
$150,736
Of course the actual net proceeds of sale will be determined by the sale price of the matrimonial home. The payments from net proceeds of sale to each party should be adjusted to conform with an overall division 65 percent to the wife and 35 percent to the husband.
4. Analysis of whether the adjustment contemplated is just and equitable
The adjustment of interest in property and superannuation provides a proper acknowledgement of contributions during the marriage, and the period after separation, together with an adjustment to reflect the needs of the wife. She has been out of the paid work force since 2015 and has the majority care of the children until the youngest of the three children turns 18 in 2027.
On that basis I consider that the adjustment is just and equitable.
Orders are made accordingly.
I certify that the preceding two hundred and thirty-eight (238) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 17 April 2019.
Associate:
Date: 17 April 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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