Hamilton and Catalano
[2011] FMCAfam 1454
•23 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAMILTON & CATALANO | [2011] FMCAfam 1454 |
| FAMILY LAW – Contested parenting application – father’s incapacity to parent children on a week on/week off basis – parties very poor communication – father’s deeply held resentment of the mother – father’s inability to accept broken wedding vows – father undermining children’s relationship with the mother – property matters – weight to be attributed to wife’s inheritance which crystalised two years prior to separation – no further adjustment for s.75(2) factors. |
| Family Law Act 1975, Part VII, ss.60 CC, 61DA, 65DAA, 79(4), 75(2) |
| C & C (2005) 33 FamLR 414 In the Marriage of Hickey (2003) FLC 91-143 Ferraro & Ferraro (1993) FLC 93-335 Pierce & Pierce (1998) FLC 92-844 Williams & Williams [2007] FamCA 313 Kessey & Kessey (1994) FLC 92-495 Aleksovski & Aleksovski (1996) FLC 92-705 Mazorski & Albright [2007] FamCA 520 MRR v GR [2010] FCA 4 Shimizu & Tanner [2011] FamCA 271 Kouper & Kouper (No 3) [2009] FamCA 1080 Norman & Norman [2010] FamCA 66 Teal & Teal [2010] FamCAFC 120 Chappel & Chappel (2008) FLC 93-382 |
| Applicant: | MS HAMILTON |
| Respondent: | MR CATALANO |
| File Number: | CSC 653 of 2008 |
| Judgment of: | Willis FM |
| Hearing dates: | 23, 24 & 25 February 2011 |
| Date of Last Submission: | 25 February 2011 |
| Delivered at: | Cairns |
| Delivered on: | 23 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Victoire |
| Solicitors for the Applicant: | Williams Graham Carman |
| Counsel for the Respondent: | Ms Benson |
| Solicitors for the Respondent: | Legal Aid Queensland |
| Counsel for the Independent Children’s Lawyer: | Mr Trevino |
| Independent Children’s Lawyer: | Vandeleur & Todd |
ORDERS
Children’s matters
The mother have sole parental responsibility for the children of the marriage [X] born [in] 1998 and [Y] born [in] 2001 (“the children”).
In exercising sole parental responsibility, the mother is to give written notice to the father in the communication book of any major long term decision she intends to make about the children’s education, religion or medical care at least 21 days prior to making such decision, and before making the decision, consider any view expressed by the father in writing received within 14 days of the notice given by the mother to the father.
The mother advise the father in writing of any major long term decision made within 7 days of making the decision.
For the purposes of these Orders, a major long term decision shall include but is not limited to, decisions about:
(a)The children’s education;
(b)The children’s religious and cultural upbringing;
(c)The children’s health;
(d)The children’s names;
(e)Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
The day to day decisions regarding the children’s care and welfare are the responsibility of the parent who has the care of the children at that time.
The children live with the father at all times as may be agreed between the parties, but failing agreement as follows:
(a)During each school term, four nights each fortnight commencing from the conclusion of school on Friday and concluding at the commencement of school on the following Tuesday;
(b)For one half of each school term holiday (not including Christmas), with the father to have the first half in odd numbered years and the second half in even numbered years subject to: either parent may elect to have the whole of a term school holiday on giving no less than 30 days written notice to the other parent with the other parent to have the whole of another term school holiday. The other parent shall advise the first parent, in writing within 14 days of receiving the notice, which term school holiday he or she has selected to have with the children;
(c)For three weeks in the Christmas school holidays, to be taken in 2 blocks (2 weeks and 1 week) subject to the following conditions:
(i)The mother is to give the father written notice no less than 30 days prior to the end of Term 4 of any travel plans the children have for the Christmas school holidays;
(ii)The father is to give the mother written notice 14 days prior to the end of Term 4 of the dates of the weeks he proposes to have the children in his care, and this time is to be taken so as not to interfere with the children’s plans notified to the father by the mother pursuant to Order 6c(i).
(iii)In the event that the father wishes to travel away with the children in the year following the mother exercising travel plans pursuant to Order 6c(i), provided the father gives the notice referred to in these Orders, the mother will ensure that the father’s travel plans are not interrupted by her proposed plans in each alternate year.
(d)Provided the children are in the same locality as the father:
(i)From 7:00pm Christmas Eve until 10:00am Boxing Day in even numbered years and each alternate year thereafter;
(ii)For mass on Christmas Day, provided the mass is conducted at a registered Church.
The children live with the mother at all other times.
Special days
If the children are living with the mother at the relevant times referred to herein, then the mother shall permit the children to spend time with the father as follows:
(a)For one half of each of the children’s birthday and if the birthday shall fall on a school day then from after school to 6:30pm on that day;
(b)For the whole of the father’s birthday if not a school day and otherwise from after school to 6:30pm;
(c)For the whole of Father’s Day.
If the children are living with the father at the relevant times referred to herein, then the father shall permit the children to spend time with the mother as follows:
(a)For one half of each of the children’s birthdays and if the birthday shall fall on a school day then from after school to 6:30pm on that day;
(b)For the whole of the mother’s birthday if not a school day and otherwise from after school to 6:30pm;
(c)For the whole of Mother’s Day.
Either parent may communicate with the children by telephone at any reasonable time before 8:00pm.
The children be permitted to telephone the parent who does not have the care of the children at all reasonable times before 8:00pm.
Each parent is to do all acts and things to ensure that the children continue to attend all extra curricular activities that they are enrolled in when spending time with either parent.
Changeovers will occur at school whenever possible and on non-school days, at such place as the parties may agree upon but failing agreement at the Food Court, [shopping centre omitted].
The mother is to forthwith authorise the children’s school to provide to the father the same information as the school provides to the mother.
If either party travels away with the children from his or her normal place of abode during any school holiday period, he or she shall provide the other no less than 14 days prior to the date of departure an itinerary including dates of departure and return, details of any air travel involved and contact details for the children.
The mother and father will do all acts and sign all things necessary as and when requested to do so to apply for passports for the children as and when their passports fall due for renewal. In the event that either party fails to sign the passport application when requested to do so by the other parent, the Registrar is authorised to sign the passport application pursuant to Order 38 herein and such passport is to issue notwithstanding that one parent has not signed the application.
The mother shall meet the costs of obtaining the children’s passports.
The mother shall retain possession of the children’s passport.
The children are permitted to travel from Australia either with the mother or as part of an excursion organised by their school subject to the following conditions:
(a)The mother shall provide to the father:
(i)Written notice of the proposed travel not less than 60 days before departure, including details of:
A.The purpose of the travel;
B.The approximate dates of travel;
C.Destinations;
D.The means of travel; and
E.Accommodation arrangements.
(ii)A copy of the following not less than 14 days before departure:
A.Travel itinerary;
B.Contact numbers for the children while travelling;
C.The return ticket for the children.
(b)The children shall not be absent from Australia for longer than 4 weeks on any occasion of international travel, without agreement of the father or Order of this Court.
(c)The mother, if travelling with the children, shall facilitate the children speaking to the father by phone at least once every 7 days the child is overseas.
The mother is to facilitate make up time between the travelling child and the father upon the child’s return to Australia, such make up time to commence the weekend following the child’s return and is to be taken in the form of adding 1 extra night to each regular block time.
Each parent is restrained and an injunction issue restraining each parent from denigrating the other parent in the presence or hearing of the children.
Each party shall notify the other of any significant medical treatment, hospitalisation or serious illness of the children, whilst in their care as soon as practicable, commensurate with the level of seriousness.
The parties shall keep each other advised at all times of their current residential address and telephone number.
Each parent shall forthwith enrol in and complete a “Focus on Kids” Course and provide a copy of the Certificate of completion to the other parent.
The Independent Children’s Lawyer is discharged.
Property matters
The property of the parties be divided as to 75% to the wife and 25% to the husband. To effect this division:
The Wife do all acts and things necessary to sell the family artwork comprising the following:-
(a)Painting by [omitted], titled “[1]”
(b)Painting by [omitted], titled “[2]”
(c)Untitled painting by [omitted] ([3])
Upon the sale of the artwork the net proceeds of sale after payment of all selling costs shall be divided and paid in the proportions of 75% to the Wife and 25% to the Husband.
Within forty five (45) days from the date of these orders the Wife pay the sum of $8,928.00 to Centrelink in part payment of the debt owed by the Husband to Centrelink whose Centrelink reference number is [omitted].
The Wife pay to the Husband within forty five (45) days from the date of these orders the sum of $13,880.00.
Upon payment of the sums referred to in Orders 29 and 30 above the Wife shall be entitled to retain, free from any right, title, interest or claim by the Husband all right, title and interest in the real property situated at Property E more particularly described as Lot [omitted] and the Wife shall indemnify the Husband against all payment and liability pursuant to the mortgage registered against the title being Mortgage No. [omitted] in favour of Westpac Banking Corporation together with all rates, taxes and outgoings of or with respect to the property of whatsoever nature and kind.
Default provisions
In default of payment of the amount referred to in Orders 29 and 30 above the Wife shall forthwith thereafter do all acts and things and sign all necessary documents to effect a sale of the property at Property E on the following basis:-
(a)The listing price for the real property shall be $360,000.00 unless as otherwise agreed.
(b)The real property shall be listed for sale by private treaty with such real estate agents as determined by the Wife.
(c)In the event that the real property has not been sold on or before a date three (3) months from the date of default of payment then the Wife will shall make all arrangements and do all acts and things and sign all documents necessary to cause the property to be sold by public auction upon the following terms:-
(i)The auctioneer shall be appointed by the Wife.
(ii)The auction shall take place by two (2) months after the deadline date for sale by private treaty.
(iii)The reserve price shall be, unless agreed to by the parties, as proposed by the auctioneer.
Upon completion of the sale of the property the proceeds of sale shall be applied as follows:-
(a)Firstly to pay all costs, commissions and expenses of the sale including auction fees and to pay council and water rates and maintenance levies outstanding with respect to the real property.
(b)Secondly to discharge the mortgage and any other encumbrances effecting the real property.
(c)Thirdly to pay to the Husband the sum calculated in accordance with the following formula:-
[($165,343.00 + a) x 25%] - $77,455.00
Where a = the net sale proceeds of the sale of the property at Property E after payment of the amounts referred to in paragraph subparagraphs (a) and (b) above.
(d)Fourthly to pay the balance to the Wife.
From the wife’s share of the net sale proceeds, the wife is to pay her share of the Centrelink debt forthwith of $8,928.00.
The Husband shall be entitled to retain free from any claim by the Wife the following assets and superannuation interests and is solely responsible for making payments relevant to the following liabilities as and when they fall due and the husband will indemnify the Wife in relation to the following liabilities:-
Assets
(a)Commonwealth Bank of Australia Joint Account $15.00
(b)[T] and [M] shares $5,644.00
(c)HSBC UK Savings Account $1,683.00
(d)[G] Trust $2,017.00
Superannuation
(e)[A] Superannuation $61,018.00
(f)[M] Superannuation $9,529.00
Liabilities
(g)Balance of Family Tax Benefit overpayment to Centrelink $8,928.00
(h)Credit Union Australia Overdraft $2,024.00
(i)Commonwealth Bank of Australia MasterCard $3,868.00
(j)Accountant’s fees for pre-separation tax $3,251.00
(k)Higher Education Loan Program $4,222.00
The Wife shall be entitled to retain free from any claim by the Husband the following assets and superannuation interests and is solely responsible for making payments relevant to the following liabilities as and when they fall due and the Wife will indemnify the Husband in relation to the following liabilities:-
Assets
(a)Sale proceeds of the Ford Focus motor vehicle $9,500.00
Superannuation
(b)[R] Superannuation $9,463.00
(c)[A] Superannuation $23,953.00
Liabilities
(d)Nil (other than those specifically referred to elsewhere in these Orders).
That unless specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date.
(b)Money standing to the credit of the parties in any bank account is to be become the property of the person so named as the owner of the bank account.
(c)Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other.
(d)All insurance policies shall become the sole property of the owner named thereunder.
(e)Each party shall 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.
That pursuant to Section 106A of the Family Law Act 1975 the Registrar of the Federal Magistrates Court of Australia at Cairns is hereby appointed to execute all deeds and documents in the name of either party and do all acts and things necessary to give validity and operation to these Orders.
Liberty to apply is relation to the mechanics of these property orders is granted.
In the event that either party is seeking costs, such party should file submissions within 28 days of the date of this Order and the response to such submissions is to be filed within 28 days of being served with the Applicant’s submissions.
IT IS NOTED that publication of this judgment under the pseudonym Hamilton & Catalano is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
CSC 653 of 2008
| MS HAMILTON |
Applicant
And
| MR CATALANO |
Respondent
REASONS FOR JUDGMENT
Introduction
The dispute before me is in relation to the living arrangements of the children and division of property of the parties.
The parents in this matter have been married since [date omitted] 1992. They separated on 10 May 2007, having been married for just short of 15 years. At the time of their marriage, the mother (Ms Hamilton) was aged only 20, and the father (Mr Catalano) was aged 34. The mother and father are both intelligent individuals. At the time the parties met, the mother was attending [omitted] University in the second year of studies to become a [omitted]. The husband was studying and employed as a [omitted] in Melbourne. When the parties set out together in their married life, the father was to work as a [omitted] and the wife in the supporting role. The parties lived in various places throughout Australia. The husband worked hard, in fact, he now says too hard, often 60 hours a week. The wife performed part time work and studies, was primarily and at times solely responsible for raising their two much loved children, [Y] and [X]. [X] born [in] 1998, aged 13, and [Y] born [in] 2001, aged 10.
Throughout most of the marriage and his life, the father has suffered from depression, at times severe depression. He has been hospitalised twice for lengthy periods at private psychiatric clinics. He has attempted suicide. His treating psychiatrist refers to him suffering multiple conditions including Personality Disorder, Anxiety Disorder, Sleep Apnoea, Depression and Mood Swings. The father was first treated by a psychiatrist in his late teens.
The parties’ children have witnessed their parents’ relationship crumble under the significant pressures that beset them. They have witnessed, in my view, more than any child should have to, in watching their parents arguing in their presence, police being called in public places during arguments and generally being exposed to the difficulties that have arisen from the parents’ poor communication and the consequences of the father’s illness.
The mother seeks parenting orders that both children live primarily with her and spend four nights a fortnight with their father. This is a different configuration than has previously been sought or existed. The children were spending Thursday after school in week 1 through to Saturday and Friday after school to Sunday in week 2 of a post separation arrangement. The mother also seeks an order for sole parenting responsibility, given what she says is her and the father’s almost complete inability to speak with each other civilly and to agree upon matters. She says that in relation to parenting and the children’s arrangements, the father will not put up an idea of his own, he simply wants to criticise her ideas.
The father seeks Orders that move the current arrangements to a shared parenting arrangement of week on week off. He has amended his application on the morning of trial to include an introduction period building up to this arrangement. He asks for an order for equal shared parental responsibility. He says that the mother is controlling and is too intrusive in his life with the children.
Children’s matters
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).
In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated:
“The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).
When deciding what parenting Orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DAA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds it would be not in the best interests of the child for it to apply.
If the presumption applies, and there is an Order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interest (s.65DAA(1)) and if no such Order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).’
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal, significant and substantial time.
The Hearing - Evidence
The husband and wife each gave evidence and were cross examined. The wife’s partner, Mr D gave evidence and was cross examined.
Ms E prepared a report dated 12 February 2010, with a short updating report on 24 December 2010, and she gave evidence and was cross examined. A report and psychiatric assessment was prepared by Dr K and whilst that report was relied on, Dr K was not required for cross examination.
A report was prepared by the father’s treating psychiatrist, Dr T, and that was admitted as part of the evidence. However, Dr T was not required for cross examination.
The parties relied on their documents as read into the record and as shown in their Case Outlines. Closing outlines were provided by
Mr Victoire of Counsel for the mother and Ms Benson of Counsel for the father and also Mr Trevino of Counsel for the Independent Children's Lawyer. I have had regard to all of the evidence and the exhibits. I have read the written submissions of each Counsel and taken into account their oral submissions. I thank Counsel for their helpful written outlines.
Where a statement of fact is referred to in these reasons, it represents a finding of fact unless stated otherwise.
The Witnesses
The Wife
The wife gave evidence and was cross examined. I found the wife to be an impressive witness who gave her evidence openly and honestly and who was prepared to give evidence against her own interests. The mother exuded a quiet confidence as a parent. In my view, she gave answers that showed a very child-focussed attitude towards parenting, she knew the strengths and weaknesses, likes and dislikes of each of the children.
I have no doubt it was the mother’s energy, strength and focus that kept this family functioning throughout the marriage, and particularly so during the periods that the father was suffering the worst effects of his depression. She has shown herself to be resourceful, organised and a conscientious parent. She has stoically sustained all of the father’s insults including reference to her “going to hell” because she has broken her wedding vows, said to her in the presence of the children.
I was struck by the mother’s patience and understanding shown towards the father’s unfortunate illness and also of the position he found himself in professionally, essentially being ousted from his [workplace] and losing his profession.
The mother admitted that she was partly to blame for the ongoing dispute but that when the incident occurred in which the police became involved in a scene in a public place, she realised that the time had come to change her behaviour. She said it was a wakeup call. Routinely, she has given money for the children’s bus fares when the father has had none. Routinely, she has picked up the children if they have not been able to go somewhere due to no money whilst at the father’s, and she has offered to take and collect the children from all manner of venues and occasions to ensure that the children did not suffer or miss out as a result of the father’s lack of transport and finances.
I had the impression that the mother has moved on with her life, that she carries no malice about the disillusion or disappointments of their marriage and that she is trying to act as amicably and peacefully as possible to keep this family functioning now, albeit on a separated basis.
The mother’s account of the facts surrounding the breakdown of their marriage was candid and in my view more accurate than that of the father. The father has been subjected to years of treatment for his depression and other conditions and is the first to admit that it has affected his memory. Wherever the evidence conflicts between the mother and father, in the absence of any independent evidence, I prefer the evidence of the mother.
The Husband
The husband is, as Dr K says, an obviously intelligent, well educated man. He is a qualified [omitted] who was born in the United Kingdom, and who found the process of migration to Australia somewhat stressful, finding it difficult to fit in and who had psychiatric and psychological treatment for 18 months during his adolescent years. Whilst there have been some periods of time where the father has not required treatment, for most of his life and for very long periods of time through his life, he has required psychiatric or psychological treatment including group therapy and, more recently, anti-depressant medication. As I have already mentioned, the father has been hospitalised in 2007 for an overdose and hospitalised for a second period in 2007. Dr K says that notwithstanding all of his health issues (high blood pressure, obesity, sleep apnoea) and the father’s mental health issues, the father is endeavouring to improve himself through education and the father sees himself as coping reasonably well with his life.
The father gave evidence of being somewhat discriminated against in relation to his children as he relayed to Dr K, which he said was because of his depression. During one of his lengthy answers under cross examination, he gave a short lecture to all present on his understanding of the United Nations Rights of the Child and the injustices and inequities he perceived were occurring to he and his children. The father is a tall and imposing man and I have no doubt that in his capacity as a [occupation omitted], he would command the appropriate presence.
The father is a [occupation omitted] however, who currently does not have a licence but who can, according to the father, practice in a limited setting.
The father took the oath with great fanfare, loud voice, eyes shut, arm extended outwards holding the bible in his hand. I had the impression that during the father’s evidence, he was treating the courtroom and all in it as another [occupation details omitted]. The father gave answers that were more in the manner of persuasive arguments rather than answering questions factually. The father in one response gave possibly the longest answer I have ever heard a witness give. Most of his answers were monologues two or three minutes long, with some being much longer.
The father adopted a physical position of partially turning his back to the bar table throughout the hours of his cross examination. For a large part, he avoided eye contact with the entire bar table, who were left with the view of the back or side of his head when he answered questions. Even when documents were handed to him or he handed them back, he did not turn to face the Associate handing him the document. He handed the documents back over his shoulder, with the back of his head facing the Associate. By the second day, the father continued to give evidence in that same manner, and sat with an even more pronounced angle with his back to the bar table, so that the questioner was looking at almost the complete back of his head. When asked to look at documents being held up by Counsel, the father would not look.
Eventually, I spoke to him about how difficult it was to direct him to a certain document if he refused to even look at Counsel holding the document up. I had the impression that the father did not even realise the difficulties he was creating in his chosen seating position. He seemed oblivious to his surroundings. The father seemed pedantic with minor detail and precision in sentences and language. He had to properly articulate each sentence. It was most difficult to have the father give short, concise answers, though my impression was that when he realised that this would be more helpful, he did try. However, in my view, he failed in this regard. The father started, at a point, adding to most of his answers “Does that answer your question?”
The father carries many grievances. He has been removed as [occupation omitted] and obviously, professionally and with all of his studies completed many years ago, this was a debilitating blow. The husband studied [omitted] at the [omitted] and achieved a [qualification omitted]. The husband, whilst acknowledging that he no longer has a [workplace], says that he still [details of occupation omitted].
The husband explained that [details of occupation omitted].
When his marriage failed, he had to leave the family home. He considered that his financial difficulties were compounded by not having the children in his care for a set amount of time, which would otherwise have entitled him to receive some public housing benefit. The husband has therefore developed arguments and theories about the lack of justice and equity that he has been shown.
On the second day of trial, the husband was in a more relaxed mode, and the answers he gave and the information he revealed demonstrated to me that he tries to parent the children as best he can. Since separation, he has been doing this in what I would describe as in very difficult financial circumstances. Of his income of $315 per week, after paying rent, he had only a meagre amount left to provide for himself, entertain the children, feed them and pay their bus fares. His poverty was compounded by not having a car. However, by the end of his evidence, I was satisfied that the husband did not really wish to be driving around in a car and that he preferred to use public transport.
I have no doubt that the father loves his children dearly and that he has the ability to offer experiences and perspectives on the world that the children will find invaluable.
The father has no doubt suffered enormously through his mental illnesses during the marriage and since the marriage. The fact that he continued to keep working as best he could in his profession while suffering from his debilitating condition is evidence of his commitment to his position and to his [workplace]. There have been various crisis periods in the marriage such as when the father lost his [employment] and when he attempted suicide, being admitted to [omitted] Clinic for weeks. The father’s personality is described by his own treating psychiatrist, Dr T, in the following way:
It should be noted that Mr Catalano’s personality style is such that he is somewhat obsessive in his thinking (usually pertaining to his view of detail and correctness). He also has avoidant personality traits. The combination of these has complicated his capacity in conflict resolution and problem solving as well as influencing his communication style; though not to the extent of making him incoherent or incomprehensible but rather somewhat convoluted in his reasoning, negative and pessimistic in his outlook (as he ruminates over former losses and continuing hardships). There has further been a tendency to procrastinate. Mr Catalano is not impaired in reality testing, and knows the nature of his actions and the consequences.
Dr T has described the husband as suffering from a chronic depressive illness and set out extensively, in his report, the consultations and assessments that have been carried on up to this point. Dr T notes that this illness has been with the husband really for a lifetime. Dr T notes the difficulty that the husband has had in moving forward since his career loss as an [omitted], noting he has attempted to rebuild his life through studies at university in the [omitted] arena. Dr T says:
Unfortunately, Mr Catalano had difficulty in meeting the course requirements due to the impact of not only his fluctuating mixed anxiety and depressive illness, but also he is suffering from a serious gall bladder infection and there was the additional impact of further physical unwellness due to overweightness, hypertension and an obstructive sleep apnoea.
The medications which are currently taken by the husband are set out in the report. Dr T makes reference also to the husband having an array of obsessional avoidant and narcissistic personality traits which he says have impacted on his style of communication and conflict resolution as well as problem solving. Dr T notes there has been attention to the working through of significant psychosocial stressors and especially the loss of his career as an [omitted] as well as his inability to realise university studies and also the unfortunate breakdown of his marriage and the continuing tensions with his wife over property settlement and child contact arrangements. The husband is described as remaining motivated in his treatment and compliant with his medications and attending a clinic monthly to bi-monthly, subject to his limitations financially and with transport difficulties.
My observations of the father in the witness box were in accordance with the personality type described by Dr T. The husband continues to harbour serious resentment of the mother and her attempts to create a new life and future happiness for herself. I am sure that the husband finds himself lost without the driving force of his wife in his life as it was for 15 years. The manifestations of his illness have created significant difficulties during the marriage. The mother said, and I accept, that when the father was depressed, it was possible that the father would stay in bed all day. At other times, the father would get up only if he had something to get up to.
The view of Dr K, the independent psychiatrist, is that the husband has long term personality problems and difficulties resulting in him not interacting in a fulfilling, satisfactory way with his environment and ending up somewhat socially isolated[1]. Dr K also considered that as a result of his personality difficulties, the husband has developed chronic depression with exacerbations from time to time, depending on circumstances, and notes the father has had at least two periods of hospitalisation in the last several years. Dr K describes him as having chronic and fluctuating major depression, depending upon his underlying personality structure and style, his relationship with the environment and his social situation. Dr K says that he believes the father has a fair amount to offer his children and I agree with his assessment in this regard. Dr K observes that the husband must learn to cease criticising the mother to the children and keep his own frustrations to himself. In my view, the father is not able to do this.
Other witnesses
[1] Page 8 of Dr K’s report.
Mr D
Mr D was required for cross examination and waited all of one day and part of the next in order to be cross examined. Whilst I describe Mr D as the mother’s partner, their relationship is not one of living together and Mr D described in his affidavit that he is in a boyfriend/ girlfriend relationship with the wife. He set out at paragraph 15 that he currently spent three to four nights a week with the mother and what occurs during those evenings. Mr D set out that the parties choose to keep separate residences at this point as he is on call as a [occupation omitted] and, in that sense, his work could be quite disruptive to the mother’s household. Mr D said he also likes to have some space and after difficult days at work, he appreciates having his own place. He says that he and the mother seem to have a good future together and when the children are older, they will look at whether or not they would move in together.
Mr D’s cross examination consisted of questions directed to whether or not he sometimes stays overnight with the mother, to which he replied that he did not apart from the night of the cyclone and then some questions as to whether or not he rides a motor bike and does he ride a motor bike with the mother. On querying the relevance of this line of questioning, I was informed that the time that the mother spends with her partner is an issue in this matter. Presumably, these questions were asked on instructions from the father. The amount of time that the mother spends with her partner did not feature in any of the final submissions of Counsel for the father or either of the other Counsel.
As I have mentioned earlier, the father carries many grievances and one of them is a very strongly held view that the mother has broken her marriage vows. The father showed an intolerance towards the mother’s partner which I consider would be held by the father to any partner, not specifically Mr D. The relevance of whether or not he stayed overnight and the issue of whether or not what was keeping him in Cairns and the status of his application to remain was not explained. It has not been an issue in the material.
Questions posed to the doctor were unhelpful and did not appear to address any of the issues between the parties. The waste of time for Mr D in giving his evidence, waiting a day then some of the next day, particularly given his occupation, was in my view, a waste of the Court’s time and the witness’s time.
Mr D has acted carefully, avoiding being in the crossfire of the conflict between these parties, and his relationship with the children is entirely appropriate. There is no issue at all in relation to Mr D and his relationship with the children. The children have travelled to South Africa with the mother and Mr D following a contested Application as the father did not agree to their travel. The father did not agree that there was a contested hearing on this issue; he said he just left it to the Court to determine.
Dr K’s evidence – Independent Children’s Lawyer’s witness
In his report, Dr K said his first impression of the husband was of a rather sombre and intense man who he initially considered was somewhat emotionally constricted. However, as the interview progressed and he asked him about whether he had fun with the children, the father seemed to relax and became “really much more animated and emotionally responsive. Nevertheless, there remained an undertone of lowered mood and frustration”[2]. I have made reference to Dr K report throughout these reasons. Generally, I accept his evidence.
S.60CC(2) - Primary consideration –– meaningful relationship between the children and each of their parents – protecting children from physical and psychological harm
[2] Page 6 of Dr K’s report.
In determining the living arrangements for the children, I need to ensure that orders are made to enable them to both have a meaningful relationship with both parents whilst at the same time protecting them from the ongoing toxic relationship between the parties. When referring to the term ‘meaningful’, I am mindful of the description of Justice Brown in Mazorski & Albright[3] which is a relationship described as important, significant and valuable. To develop such a relationship requires the opportunity for children to spend sufficient periods of time with each party on a regular basis. In this matter, there is an abundance of evidence that the parties’ relationship is toxic, that they have a history of being unable to communicate sufficiently to make joint decisions and that the acrimony has been acted out in the presence of the children who are highly attuned to the ongoing conflict between the parents.
[3] Mazorski & Albright [2007] FamCA 520.
One of the risks in this matter is the exposure of children to the ongoing argument and conflict between their parents and the father’s continued denigration of the mother. The Orders that I intend to make will need to address these issues.
Section 60CC(3) – additional considerations
I will now turn to the relevant s.60CC factors.
S.60CC (3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The overwhelming views of the children in this matter are that they be spared from the ongoing conflict between their parents. When [Y] was describing one of his parent’s arguments, he said, quite insightfully, “If they were kids, they’d get into trouble from the teachers for behaving like that”[4]. Each of [X] and [Y] are described as being two distinctly different personalities, having a close sibling relationship as well as strong attachments to both parents. Each of them presented as age and stage appropriate. Each expressed clear views about the proposed arrangements and whilst they said they loved both parents, they rejected outright the idea of week about. Each enjoyed spending time with their father, but did not enjoy the difficulties of organising school and other activities and arrangements from their father’s home. Central to this is the father not having independent transport and as I have said, whilst the father’s position started out being that he did not have funds to buy a car, ultimately, the father said that he preferred public transport.
[4] First Family Report – paragraph 65.
[X] said of the difficulties of living with her father,
“I have to pack my stuff and lug it around and I have to catch the bus with my stuff. Dad doesn’t have a car. On Thursdays every two weeks, I have to get up really early and it’s very annoying. Then I have to go to [extracurricular activity omitted] as well. I do [omitted] once a week. I used to do four lessons a week. Thursday is my night with Dad and Dad does not have a car and some weeks I missed out or I have to catch an early bus.”
There are other practical issues for the children which will be referred to elsewhere in these reasons.
The children each love their parents and whilst the children did not wish to live week on week off, they were interested in spending a little more time with their father. The children appeared to me to be very insightful, though clearly stressed by their parents fighting about them, which is referred to at length in the report of Ms E.[5]
Section 60CC(3)(b) – The nature of the relationship of the child with each of the child’s parents and any other person including a grandparent or other relative of the child
[5] First Family Report dated 12 February 2010.
It emerged during interviews that [X] was, as the eldest child, protecting [Y] somewhat from the conflict which each child has described as being deeply troubled by. Also whilst trying to cope with the normal demands of adolescence, [X] is described as being worried by her father’s “vulnerability” as well as sandwiched in her parent’s conflict. As a result [X] feels “guilty, upset and over responsible.”[6] Ms E is quite concerned at this emerging role for [X] and set out in her Report[7] that an elevated level of responsibility for a child often creates a sense of hopelessness and helplessness in the child as they try to assist their parent cope emotionally, especially when that parent cannot find solutions themselves. Ms E continues “inevitably, the child will become disheartened and in some instances may even begin modelling their parents self defeating behaviours. [X] is in danger of compromising the development of her own independent personality”[8]
[6] Paragraph 97 of the first Family Report.
[7] Paragraph 98 of the first Family Report.
[8] Paragraph 98 of the first Family Report.
Ms E has also given evidence in relation to the effect of [X] and her relationship with her own mother, when a person such as her father, being an authority figure that she loves and respects, continues to denigrate the mother. This can be very destructive in terms of undermining her relationship with her mother.
As she continues to develop into a young woman, Ms E’s professional view is that [X] needs to develop independence. [X] has been undergoing counselling to address strengthening her personal resources given her increased anxiety. Ms E says that the anxiety can arise from what she observed was a shift in the level of responsibility towards [X] that can weigh a child down and cause a child to become preoccupied with the adults state of mind and the adults wellbeing. Children then implement strategies to help the adult. With that, Ms E says, goes a lot of anxieties especially as children are becoming an adolescent and they have their own challenges to deal with.
The strategies that can be developed by children include attempting to involve themselves with a dampening down or being selective in what they tell each parent. [X] told Ms E during the second assessment that she is coping by not telling either of her parents everything. Ms E said that that represents an erosion of trust; it means that [X] is keeping things to herself and that there is a very large danger factor because as [X] is becoming an adolescent, if there are things that are worrying to her that means that she is not going to confide in either of her parents.
In particular, Ms E considered that the father placed [X] in a very vulnerable position, especially with regard to her elevated feelings of responsibility towards him. These elevated feeling of responsibility are occurring in the context of [X] also being manipulated by the father in relation to her ongoing mother-daughter relationship with the mother. Ms E found it difficult to accept that despite the recommendations made earlier in the year that the mother start enjoying a weekend with the children, that the father had not facilitated arrangements for this to occur. The opportunity for [X] to spend significant and quality time her mother on the weekends, when the mother is not working, is crucial for [X]’s development, particularly at this stage where she is transitioning into being a teenager.
[X] is now taking up a care giving role for the father, in Ms E’s view. Ms E noted that both of the children are concerned about the father’s lack of money, his preoccupation with poverty, the property settlement and the division of property which the father perceives as inequitable. Ms E continued, “that can generate in [X] a sense of responsibility which is inappropriate to her age and stage of development”[9]. I accept Ms E’s view.
[9] 252 of the Transcript of 25 February 2011.
Overall I found the evidence regarding the nature of the relationship between the children and the father as very troubling and that was particularly so in relation to [X], who it seems is more sensitive to these issues that [Y], who is a little bit more robust. I saw no evidence that the father has developed an insight into the effect of his criticisms of the mother or his speech making about the injustice of the situation, which I witnessed in Court and which it seems the children are also being subjected to. It is perhaps part of the father’s convoluted reasoning, or pessimistic outlook, ruminating over his former losses and continuing hardships, as indentified by Dr T that prevents that father from developing an insight into his destructive behaviour. I am satisfied that there is significant cause for alarm in relation to the nature of the interaction between the father and the children, largely due to the resentment he holds for the mother and his strongly held beliefs of his injustice of the mother leaving him and the subsequent fallout of the splitting of their family household in both economic and emotional terms. Whilst I have every sympathy for the father in relation to his ongoing mental illness, as does the mother, orders need to be made for the best interests of the children to allow them achieve their full potential in life. Developing an unhealthy relationship with her father by taking on responsibility for him and assuming sympathy for him, will ultimately undermine [X]’s relationship with her own father and effect her own development. A similar outcome is possible for [Y]. The children’s relationship with their mother is entirely appropriate and the evidence supports that they both feel secure and loved in the care of the mother.
The children have clearly been exposed to far too much of the parties’ conflict. I had a strong impression that the children were secure in their day to day arrangements with their mother. They felt confident that they would get to and from school, confident that they would get to and from their sporting and extracurricular activities. They were most uncertain about whether this would happen in the presence of their father and the physical difficulties for the children in lugging their clothes and musical instruments and other equipment to and from the father’s home from the bus stop to school, from school to [activity omitted], from [omitted] back to the father’s were alluded to by the children.
This is all being done in the tropical heat of Cairns and in some ways, it seems, that the father’s preference for using public transport directly takes its toll on the children’s day to day existence and routine when they live with him. [Y] referred to often running out of clothes at the father’s and sometimes having to wear his school uniform over the weekend. Both children were puzzled about this as they perceive that they have plenty of clothes at their mother’s house. However, they seem to be caught in a bind as the mother did not wish to send all their clothes over to their father’s and the father telling him that he could not afford to buy clothes as he is too poor. Both children, understandably, continue to perceive their parents as being immature and behaving in a childish fashion about this issue.
Section 60CC(3)(c) – The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
I am very troubled by the father’s inability to promote a relationship between the children and their mother. There is an abundance of evidence to this effect, including the father inviting [X] in the presence of Ms E to make derogatory comments about the mother. The father seems to have a blind spot in his parenting in relation to understanding the long term harmful effects of denigrating the mother to the children. He seems to disguise his willingness to demean the mother to the children as the children having a need for transparency. I consider it is quite disingenuous of the father to describe his desire to tell the children and include the children in conflict and adult matters by describing it as their need for transparency. It indicates, in my view, a lack of understanding as a parent ought to about the effects upon the children of engaging in this sustained discourse being critical of the mother and blaming many of the father’s difficulties on the mother. The father’s denigration has continued to the point where the children are highly attuned to the issues alive between the parties, including property matters and the number of nights they are spending with each parent. The children are being made to feel sorry for the father when they ought to simply be able to spend time with their father and not be burdened with such responsibility.
In terms of the mother, I am satisfied that she has unfailingly promoted a relationship between the children and their father, both during the difficult times during their marriage, during the lengthy periods in which the father has been unwell and post-separation. The mother has commenced a relationship with Mr D, however, this has in no way impacted upon the children’s relationship with the father and the mother has continued to acknowledge the children’s love and enjoyment of the time they spend with the father, not withstanding the practical difficulties that have been encountered. The father’s shortcomings in his parenting which seem to have been evident during the marriage as well, and which no doubt were in large part due to the father’s chronic mental illnesses, difficult personality and his devotion to his career have not affected the strength of their relationship with their father. I consider that the mother deserves credit for this and for promoting an ongoing and loving relationship with their father.
I am not sure if it is the father’s functioning which prevents him from being able to forgive the mother for breaking her vows, but regretfully there is no sign at this stage that the father will ever forgive the mother, nor is there any evidence that suggests that he will be able to desist or resist any opportunity to portray himself as being the party who has lost the most out of this marriage failure.
This makes any communication between the mother and father very difficult and in my view their interactions most unhealthy in nature. I accept the description of Ms E who has described their ongoing dialogue as toxic.
As [X] said of her father when talking about him saying bad things about her mother “Yes. He jokes, mean jokes (about mum) and it’s hard to decide what’s right. When I’m over at dad’s I feel I’m on his side and with mum on mum’s. It’s like schizophrenia. It’s crazy thinking. When I’m at dad’s I laugh at dad’s jokes (about mum) but if I told mum the same joke, then she thinks it’s bad. For example, when mum dyed her hair, he thought she looked like a devil and I laughed at it and I told mum and I acted like I didn’t laugh.” [X] said, “I feel guilty, confused, annoyed and angry. It’s annoying being asked about it too”.[10] [X] proceeded to tell Ms E that in her view the mother, “gets at her father”, and described that the father does not get many nights and when her mother has to work she gives the children to the father and “that annoys dad because he does not have much notice. If he had something on, he doesn’t go so he can look after us and he tells us if it’s really important and I feel guilty even though he says its mum’s fault and not our fault. I don’t really know if she does that on purpose.”
[10] Paragraph 54 & 55 of the first Family Report
Ms E considers that what [X] is describing is being emotionally manipulated by her father and that he is not only attempting to undermine her esteem for her mother but he is eliciting uncertainty, guilt and confusion in her. Ms E notes that [X] is emotionally distressed about it and if what she describes is accurate then her father is also destabilising her level of adjustment with his comments about her mother’s motives. Ms E notes, a little later in the report, that during the home visit the father tried to engage [X] in saying derogatory things about the mother’s parenting of her.[11] I accept Ms E’s evidence.
Section 60CC(3)(d) – The likely effect of any changes in the children’s circumstances including the likely effect on the children of any separation from either of his or her parents or any other child or person with whom he/she has been living
[11] Paragraph 61 of the first Report
The orders sought by the father for week on week off (albeit that he proposes gradually moving to that position) represent a significant change for the children. It is evident from what the children have told Ms E that there is no confidence on their part in relation to their father being able to get them to their appointments or commitments on time or without a great degree of difficulty including a physical difficulty in walking or catching buses to and from all locations. The father himself does not to me seem to have the commitment or drive to be able to ensure that there is certainty about the children’s schooling and other commitments. I have a strong impression that the father is struggling with issues such as getting the children to school and that he has a very relaxed attitude, perhaps affected by his own functioning about the importance of the children even getting to school. I note the evidence of [Y] remaining home the day after his birthday. This is one such occasion and there were other unexplained absences in the school records which suggest that the children’s own observations of having difficulties when with the father of getting to and from their own commitments was a reality. I accept that the father is probably trying his hardest in this respect; however, I do not have confidence that he has the requisite capacity to properly parent these children in terms of their day to day arrangements. In the event the children were living with the father in a week on week off I consider that their current problems would be compounded.
The practical difficulties of living with their father were also expressed by [Y] who stated that sometimes at his father’s, he gets frightened and worried because they don’t get up in time to do things – “like last Thursday, we went to sleep at 4am in the morning”.
Each of the children were reportedly critical of the level of disorganisation at their father’s house. They described not having their own beds or space and finding it difficult to do their homework. This was as reported in the first family report. By the time of the second report in December, 2010, the father had made arrangements for the children to at least have a desk. At the time of the first report, the children were not spending any weekend time with their mother and they expressed a strong wish to do so. The mother tried to organise this, but received no co-operation from the father.
I note that it is the father’s evidence that at the time of trial [Y] still does not have his own bed and it is difficult not to form the view that the father really does not put the children’s interests as a priority in his life. I understand he has an abundance of furniture, however, he has not be able to, one way or another, make arrangements for [Y] to have his own bed. It was only at the suggestion of Ms E that desks were organised for the children as they did not even have any space of their own at the father’s home.
I consider that the effect to moving to a week on week off will leave the children vulnerable and anxious about their day to day arrangements. A move to week on week off represents quite a significant change from the current time the children spend with their father as set out in the interim orders of 19 October 2009, being from Thursday after school until Saturday in week one and from Friday after school until 5.00pm Sunday in week 2.
Even during these periods there has been, in my view significant chaos and difficulty for the children in moving around from home to home and from home to school on the days they are with their father and from their extra curricular activities to the father’s home.
The impression I gained from hearing the evidence and in particular having the advantage of a Family Reports being prepared after two visits to each of the parent’s homes, is that the father has been living in a quite disorganised and non child centred home. The children were critical of the level of disorganisation at the father’s house and in the first report they described not having their own beds or space and finding it difficult to do their homework. Until the end of 2009, the children said that they all slept in one large double bed. Finally space was made in the other bedroom for [X] and she now had her own bed. There was however, no bed for [Y] and there were no desks or drawers in which the children could put their things while they were staying with their father; they lived out of a bag which they packed every time to take to and from their other home. Whilst it is acknowledged that the father has been living in very restricted financial circumstances, Ms E considered that the father did not need to live in such disarray. Whilst the children love their father and enjoyed spending time with him, they did not appreciate the chaos in which they lived, nor did they feel secure with the uncertainty of being to rely on their father to get them to any particular destination, including school or their commitments.
As to what is going on inside the father’s home I am equally troubled by the nature of the relationship between the children and the father as I have already alluded to in these reasons. Moving to a week on week off arrangement in my view will expose the children to more opportunity for the emotional manipulation that has been occurring to the children from the father spending time with the children.
Turning to the mother’s proposal and the likely effect of the change, the mother is proposing that the children live with her and spend time with the father in a more ordered way and which will enable her to have a weekend with the children. This is something that the children have been asking for since their first meeting with Ms E and in fact on the mother’s evidence long before that. In the mother’s household the children have appropriate space, routine, structure and confidence in their mother to then organise their lives.
The mother seeks to have the children spend four days per fortnight with the father from Thursday through until Monday morning. In the event that Thursday is a swimming class or some other extra curricular activity then the mother is content to collect the children after they have concluded their activity and deliver them to the father’s home at 5.30pm, or the conclusion of their extra curricular activity. That would leave the father having to get the children to school on Monday morning.
The father has been living in very tightened financial circumstances since separation. The children have been regularly involved in the difficulties associated with this. It has resulted in the children being partly responsible for their financial wellbeing in that the father has regularly engaged and involved them in the budgeting for groceries, and family outings. [X] has been put upon to donate or lend money that she was given to buy a gift for her mother on a holiday towards their family budget to use for a morning tea while they were out. The father gave evidence in a very clinical fashion that he would pay the money back when he ultimately had a chance but that for the good of the family [X] needed to donate that money.
The father’s evidence about the manner in which he had engaged the children in being responsible financially in part for their day to day outings and holidays left me uneasy about the over involvement of the children in what were financial issues really of the father’s. It is clear in the evidence that the father has informed the children that he has very little money and they feel sorry for him and have been left with the impression that this is in part the mother’s fault. Asking for [X]’s holiday money to spend towards the family unit instead of its proposed purchase would have in my view left [X] feeling somewhat pressured to agree to the suggestions of her father and in a situation of divided loyalties as between her father and mother, her mother having given her the money in the first place. I am troubled as to their direct ongoing involvement by the father in the financial security of the family. Whilst it is admirable to attempt to teach children the value of money, I consider that the father shows little insight and has gone too far in asking for donations for his suggested purposes, which included buying a more expensive morning tea for all of them, including the father, rather than the gift for the mother, which was the intended purpose. I am not satisfied that the father was not undermining or challenging [X]’s relationship with her mother in this conduct.
Section 60CC(e) – the practical difficulty and expense of children spending time with and communication with a parent.
Whilst these parties are each living in Cairns there has been quite a difficulty for the children in going to and from the mother’s home to the father’s home. I was left with the impression that the father was not keen to acquire a vehicle. The difficulties for the children have been significant in what is otherwise a fairly simple task of moving from extra curricular activity to a parent’s home or to school. Because these trips have occurred for the children on public transport, it has involved waiting for buses after swimming concludes at 5.30pm, catching a bus to the father’s home, walking from the bus stop to his home or the reverse in getting to the bus stop early to get to school, which is on the south side of Cairns. Generally, getting around to their commitments has been difficult when at the father’s home.
Difficulties for the children spending time with the father occurs at a very basic level in relation to his acknowledgement of their need for a personal space, their own beds and a homework place. I understand, as I have said, that the father has been living with difficult financial circumstances however it was not my impression that the father had turned his mind to these and other practical matters. I had a strong impression that while the father had a lot to offer the children in many respects, organising their day to day lives to occur as efficiently and painlessly as possible was not one of them.
The father is described by Dr K, Dr T and Ms E as an intelligent man who can be articulate and witty. I suspect that this is so when he can move away from the topics of his former wife, anger, resentment and family finances. If the children are properly cared for and spend time with their father in an appropriate setting, they will be able to draw on his strengths rather than suffer from the failings in his practical parenting. I am sure that the father will be assisted by attending both a Triple P Parenting Course and a Focus on Kids Course, which will hopefully assist him tune into the age of his children and to the appropriate needs of parenting children in a separated family. When the father was able to focus purely on the children in his discussions with Dr K, rather than on his ruminations about his wife, Dr K described him as becoming a lot more relaxed and much more animated and emotionally responsive. Dr K considers that the father has much to offer the children and the father will be able to offer the children experiences, stories, knowledge and a perspective on life that will be unique to their father.
The parties’ inability to communicate is also in evidence by a reading of the communication book. Questions were asked of the husband about the use of the communication book and the appropriateness of his own entries. The father stated, “I quite happily agree that many times in communicating with Ms Hamilton I have quite often been very frustrated, very angered and sometimes find some of the comments made quite unhelpful and so I have adopted an unhelpful position in myself of replying in what I would described as an absurdist fashion.” Mr Victoire of Counsel then asked the father, “so do you see the communication from Ms Hamilton saying Happy Birthday as unhelpful?” The father replied, “I think Ms Hamilton should be well aware that for me a person who has really had to struggle with wanting to stay alive after what happened with my life. The fact that my professional tasks were stripped from me and then my marital identity was stripped away from me and over the last four years, has been this Damocles sword that my parenting and paternal identity would be stripped away from me has meant that in many ways I think that living another year is a good thing is unfortunately for me, not the case. In fact I find it quite anxiety producing and in fact I would say that if I don’t find Birthdays very happy because I am in a position that I really don’t want to be in and I wish I would be able to turn the clock back or be in another place. Does that answer your question?” The father had written in response to the mother’s message to have a Happy Birthday “since you have wrecked our family no birthdays can be happy.”
The mother asked questions in the Communication Book of the father as she did in relation to [X] graduation for year 7 in 2010 and in which the father replied that the mother would be gate crashing the event if she went because it was during his parenting time. In the communication book of September 2010 the father wrote to the mother, “Will you and your significant other be gate crashing [X]’s dinner? I think it wiser for me not to attend and remind the children of your broken vows.”[12] The mother responded to the father that, “There are going to be occasions and events throughout [X]’s and [Y]’s lives where they will want both parents there. It is up to us as the adults to rise above our difficulties for these events and ensure the children are able to observe and celebrate them appropriately. [13]
[12] Page 87 of 23/02/2011 transcript at line 40-45.
[13] Page 88 23/02/2011 transcript at line 5-15.
The mother also wrote on 14 December 2010 a message which ended with, “Happy Christmas”. The husband replied, “Unlikely as I have to be separated by children at 5:00 pm on Christmas Day you home wrecker.”[14] In similar vein the mother wished the father a “Happy Birthday” through the communication book to which the reply was, “no birthday can ever be happy”. The mother says that whilst the communication book has not been effective it is probably the most effective tool that they had at the present time. When the mother attempts to speak to the father by phone she says that the conversations end up with the husband just yelling at her. In that conversation the mother was trying to re-organise the children’s arrangements so they could conform with the recommendation in the updated Family Report to get the arrangement into place so that it could be trialled and see if it works for the children. The mother used the communication book as all other forms of communication are not possible. At the time of trial, the mother had last spoken to the father face to face some time in 2010 at the surgery of their local GP. That conversation ended up in an argument in the doctor’s surgery in the reception area. The mother says she tried to suggest to the father that they step outside if they were to have an argument and that she didn’t want to argue in front of everyone, that all she wanted to do was pay her bill and go outside however the father wasn’t interested in that.
[14] Page 88 23/02/2011 transcript at line 30-35.
In terms of the arrangements between households the mother gave evidence which I accept, that some of the day to day issues involved in moving between homes have been difficult for her to resolve. A simple issue such as [Y] forgetting his shoes or leaving them at his father’s house has attempted to be resolved by the mother driving over to the father’s home to collect the shoes. However, despite the mother driving over there on 2 or 3 occasions the father was never at home and she subsequently left a note under the door. There was no communication made by the father with the mother in relation to this simple exercise nor were the shoes returned. In my view these are the sorts of issues which will continue to arise in the event that the children spend significant and substantial time or equal time with the father and which ultimately through the inability of the father to properly engage and communicate with the mother result in hardship for the children. The mother gave evidence of various issues that have arisen and her efforts to try to attempt to resolve an impasse with the father in the most practical way however, the father has steadfastly in my view refused to cooperate properly with the mother. The parties have different views about the treatment of health issues even down to how to deal with [Y]’s warts. I had the impression that the father was looking for issues about which to have conflict about with the mother and about which he is then keen to make an issue or cause a scene as happened in the doctor’s surgery. It was apparent to me that the father holds the mother in a degree of contempt and that he finds her breaking of the wedding vows an issue which needs to be ventilated at any given time and consistently.
The father was asked about when he was going to forgive the mother in relation to her breaking the marriage vows and said initially that he had forgiven her. When taken to his entry’s in the communication book in the end of 2010 in which the father is still reminding the mother that she has broken her wedding vows, the father finally admitted what seems very apparent in many of his other attitudes and conduct and that is, “If you are asking me to give you a frank and honest response (to when he sees himself getting over the fact that the mother has broken her vows) the answer is I will never get over it. No I will never get over it.”[15]
[15] Page 200 transcript 24/02/2011.
Trip to Japan
The father gave evidence that it was correct that he had told [X] that she can go to Japan on an overseas excursion trip provided that she learns the Lord’s Prayer in Japanese.[16]
[16] Page 144 transcript 24/02/2011 Line 30-35.
He has been saying that for the last two or three years whilst she has been studying Japanese and said that he suggested that [X] do this as being able to say the Lords Prayer in Japanese would show, in his view, the fact that her Christian faith crosses, “not just barriers in the English speaking world but also can cross barriers between very vastly different cultures.” The father considered if she came across a Christian Japanese person or a Japanese person of the Christian faith she would be able to share the Lords Prayer with them.
When questioning the father about his agreement for [X] to go to Japan the father was somewhat evasive about actually agreeing that [X] could travel. He suggested that it would be a good idea for [X] to go and that the only reason he would oppose the trip if it was in any way detrimental to her welfare.
When being asked to how it would be detrimental the father said that to impose an onerous debt on the household would be one consideration that would militate against her having over-seas travel. The father’s caveats extended to saying that he considered the overseas travel was a luxury and that she doesn’t have appropriate accommodation here in Australia and that he considered that the expenditure of the money on an overseas trip would place an unreasonable debt on the family.
Even when it was suggested that the mother would pay for the trip it was difficult for the father to actually give a straight and concise answer as to whether or not he would agree. He gave evidence that he might have to admit to [X] that circumstances were beyond his control and that they would have to find other ways of achieving the experience to being exposed to Japanese culture. I was left with the impression that [X] had been encouraged to learn the Lords Prayer in Japanese (which the father said was difficult, liturgical language) however, the father really had no intention to agreeing to her travelling overseas, notwithstanding that [X] had complied with her part of the bargain in learning the Lords Prayer in Japanese. There was no sign that the father was aware of his mixed messages or the likely disappointment and confusion for [X] caused by the father instilling false hope of going on the trip.
In terms of the father’s capacity to parent, I am also equally troubled about the inability of the father and the mother to agree about things such as medical treatment and I refer to the evidence in relation to [Y]’s warts and the difference of view as to the appropriate treatment and the difficult position that [Y] was placed in.
Section 60CC(f) – The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
I have already made reference to some of the issues which have troubled me about the children’s relationship with their father and in relation to his inability to provide for their emotional needs, given the dynamic and interactions he has with the children in relation to their mother.
The father has shown a lack of capacity in providing for the children’s very basic needs of their own beds and their own space. The father seems to show a lack of capacity in relation to understanding appropriate boundaries for the children and in this regard Ms E was concerned as to the father’s inability to appreciate that the children needed their own beds long before [X] finally had a bed purchased for her and continued failure to provide [Y] a bed shows a continued lack of understanding of what’s appropriate for children of the ages of [X] and [Y]. I am troubled by the evidence of issues the father asked the children to pray prior to their trip to South Africa about things that might happen to them, including being eaten by lions, virgin rape and the risk of HIV. It seemed to me to be instilling fear in children unnecessarily about issues which were clearly not issues raised by the children.
A further example of the father’s inability to appreciate boundaries and understand the responsibility of parenting was in his failure to understand the inappropriateness of the arrangement that he facilitated at the time of his nephew coming to stay in his two bedroom apartment with the children. It was the father’s idea that his 18 year old male nephew share [X]’s room. Ms E was most critical of the father for failing to understand that [X] is moving towards being a young woman and that she has a significant need for her own privacy. The father has failed to acknowledge or understand that even though the 18 year old man was a family member that in having him share [X]’s bedroom, it placed [X] in a most inappropriate and vulnerable situation. In my view the father was particularly naïve in suggesting this arrangement however much he wished to help out his own brother.
It is also troubling that whilst the father considered it was appropriate for [X] to be sleeping in the same bedroom as her 18 year old male cousin, the father continued to sleep in his bed with [Y]. All of these arrangements appear to me to be entirely inappropriate and I am satisfied that he has shown very poor decision making in coming to these arrangements.
I have considered the other cases referred to in each of the outlines prepared by Mr Victoire and Ms Benson.
Step 1 – Determine the value of the assets – Including non superannuation assets and liabilities
The first step in the four step approach it is necessary for me to determine the asset pool. In this matter there is no quarrel between the parties as to the value of the assets and I set out below the agreed asset pool.
Agreed schedule of Assets and Liabilities as at February 2011
| Assets | Title | Value | Subtotal |
| Property E | Wife | $360, 000 | |
| Artworks | Joint | $20, 000. | |
| CBA Acc | Joint | $15 | |
| Shares – [T], [M] | Husband | $5, 644 | |
| HBSC UK savings account | Husband | $1, 683 | |
| [G] Trust | Husband | $2, 017 | $389, 359 |
| Addbacks | |||
| [A] Superannuation Fund 2 payments on 18.12.07 & 25.02.08 ($10, 000 + $7, 389.63) – (Tax $2, 150 + $1, 589) = $13, 650.63 | Husband | $13, 651 | |
| Taxation refund for years 2004 & 2005, received 17.07.07 | Husband | $3, 591 | |
| Taxation refund for year ending 30.06.06, received approx Mar 2009 | Husband | $2, 600 | |
| Sale proceeds, Ford Focus | Wife | $9, 500 | |
| From Mortgage of $150, 000: Legal Fees $14, 000 Purchase of Suzuki bike $5, 500 Trip to South Africa $15, 000 Garden maintenance $2, 500 Personal use $6, 900 Total: $43, 900 | Wife | $49, 900 | |
| Mortgage extension $10, 000 Used for legal fees & rates arrears post separation | Wife | $10, 000 | $83, 242 |
| Total non-Super Assets | $472, 604 | ||
| Liabilities | |||
| Family tax Benefit overpayment | Husband | $17, 856 | |
| CUA overdraft | Husband | $2, 024 | |
| CBA MasterCard | Husband | $3, 868 | |
| Accountant Fees pre-separation tax | Husband | $3, 251 | |
| Higher Education Loan Programme as at separation | Husband | $4, 222 | |
| Mortgage on home | Wife | $160, 000 | |
| Total Liabilities | $191, 221 | ||
| NETT non-Super Assets | $281, 380 | ||
| Superannuation | |||
| [A] Super | Husband | $61, 018 | |
| [M] Super | Husband | $9, 529 | $70, 547 |
| [R] | Wife | $9, 463 | |
| [A] Super | Wife | $23, 953 | $33, 416 |
| Total Superannuation Assets | $103, 963 | ||
| Total Super and non-Super Assets (inclusive of artwork) | $385, 434 | ||
| Total Assets Super and non-Super Assets (exclusive of artwork) | $365, 434 | ||
Post separation the Wife paid the following matrimonial debts from the mortgage of $150, 000:
| Accountant Fees for pre-separation tax work | $6, 000 |
| Rates arrears pre-separation | $6, 500 |
| Coles MasterCard pre-separation | $3, 500 |
| ANZ Visa | $6, 500 |
| Higher Education Loan Programme | $10, 000 |
| Centrelink debt pre-separation | $2, 000 |
| Tax Office – Capital Gains tax | $71, 600 |
| Total | $106, 100 |
Step 2 – The financial and non-financial contributions of each of the parties
Husband – Financial Contributions
It seems that at the commencement of the marriage, the husband had a bank account with a value of $14,000.00 and superannuation, the combined total of which was around $44,000.00[30].
[30] Transcript, page 357, 25/2/11 – lines 35-45 Submissions of Ms Benson of Counsel.
The husband says he was a member of the [A] superannuation fund (now [A] Super) and his interest at that time was nominal because he had only been contributing for about a year. He also was a member of a superannuation fund with [omitted], where he worked for 10 years before becoming an [omitted].
The husband says that in 1997 which is 5 years after the parties married on the 14th of November 1992, he had an interest of approximately $30,000.00 in the [C] Superannuation[31]. That is to say that the Wife through her financial or non-financial contributions had been assisting in the increase in value of that fund to $30,000.00 some 5 years after marriage.
[31] (as per Ms Benson’s summary of case filed on 23 February 2011 NOTING Mr Victiore of Counsel $20,000.00 in the supplementary submissions)
The husband’s [omitted] savings plan had a value as at the 1st of July 1999 of $22,361.96.[32] This savings plan was an investment in managed units as shown on the document attached to the husband’s Affidavit and required a regular contribution of $161.65 per month which was made throughout the marriage. This is also an asset contributed to by both parties.
[32] Paragraph 14 of the husband’s Affidavit filed by leave on 23 February 2011.
The financial contributions of the husband apart from the initial contributions were his earnings as [occupation omitted]. The husband says he had no other debts. During the course of the marriage in 1993 the husband commenced an [M] Investment link personal superannuation plan which he says ends on 12 May 2024 and has a current value of $9,028.72. This withdrawal value as at the date of trial was $7,986.57. This plan has an annual payment into it of $1,491.00 per year which amounts to $124.25 each month. The payments made from 12 May 1993 which is about a year after marriage up until 14 May 2009 which is two years after the parties’ separation on 10 May 2007. Most of the payments therefore have been made when the parties lived together as a married couple and two years post separation. The superannuation policies standing in the husband’s name, [M] Investment link Superannuation plan valued at $9,163.92 as at March 2010 and an [A] Super Fund as $59,472.16 as at January 2010[33] are shown on the agreed asset pool.
[33] Annexure ‘WEC18’ Affidavit of 15 February 2011 of the husband.
During the course of the marriage in the year 2000, which is 8 years after marriage the husband cashed in his [C] Superannuation which had a minimal value at the commencement of the marriage and which by that stage was worth $30,000.00. The family benefited from that and the husband bought some shares. I do not regard this contribution as being that solely of the husband but rather the husband and wife.
A couple of weeks after being married the parties moved to [omitted] where the husband took up a position of [omitted] and at this stage the wife ceased her university studies and did volunteer work. The parties stayed at [omitted] for 18 months and then moved to [omitted] for 5 years where the husband was a [occupation omitted]. In 1998 their first child was born and the mother worked one day a week at [omitted] but otherwise stayed home to care for [X].
In the following year the parties moved to Adelaide where the mother’s own mother purchased a property for the parties solely so that the husband and the wife and their young family could live rent free. This saving on rental accommodation is a contribution indirectly by the wife. The parties lived in this home for almost 4 years before the home was sold. After this time the husband returned to university and obtained an honours degree in [omitted]. He does not appear to have been earning an income at this time. The mother also returned to study for a further 2 years in a [omitted] course. When they were both studying their living expenses were supplemented by dividends payable on the shares and sale proceeds of some of the shares that were sold from time to time which shares came from the mother’s inherited estate. In early 2003 the parties moved to Cairns where the husband took up a position as [omitted] whilst the wife continued to study for her [omitted] degree at [omitted] University. Two years later in 2005 the husband’s position was terminated after [omitted] held an inquiry after a number of complaints were received regarding the husband’s behaviour and the direction in which he was taking the [omitted].
At the termination of the husband’s position as [omitted] the husband became depressed and was on sick leave for 12 months before he received two thirds of his stipend which was about $750.00 per fortnight. The money was used jointly for living expenses. After the sick leave period the husband then started studying [omitted], however in 2007 at the time of separation, he attempted suicide and was then hospitalised for some weeks in Brisbane.
The husband says that whilst he worked as a [omitted] in 2002 he was receiving a full salary in appointment of [omitted]. He says also that he worked on a part-time basis at two [workplaces omitted]. The husband says that whilst he received a salary other household utilities were paid for by the [workplace] which included rent for the home that the parties lived in, electricity and telephone. The house in which they lived was part of the salary package and owned by the [workplace].
The husband says and it does not seem to be contested, that the parties operated on an overdraft facility and that the overdraft facility was repaid from time to time when the wife received her dividends from her share portfolio inherited in April and October each year. The husband sets out at paragraph 274, the details of what he says was his taxable income as best as he can recall. He says that in June 1998 he had a taxable income of $53,153.00; that his taxable income in June 2009 was $15,704.00 and that his taxable income for the year 30 June 2007 was $8,939.00.
It seems from the evidence available that the husband derived a fairly modest and fluctuating income to support the family of four. He admits that the income from the wife’s inherited estate provided for holidays and was a significant part of their financial security. The husband accepts that the wife’s initial contribution was in the range of $230,000.00 - $250,000.00 from her inheritance and that the regular contributions by way of dividends was significant. The husband said of the wife’s inheritance, “Oh, there is no doubt that Ms Hamilton’s contribution in 1992 was immense.”[34]
[34] Page 169 Transcript 24/02/2011 Line 25-30.
Similarly in relation to the dividends that were received over the years, the husband concedes that they were significant and added that he did not have any direct say over their distribution. The distributions and dividends were used to meet credit card debts as they came and were paid out along with the funding for various trips. The husband says that he was able to benefit from these dividends on what he described as, “by grace and favour rather than because I had a distribution control over those dividends”. The husband says categorically that he had no management over any of the portfolio. It is not contested that the Wife took responsibility for and acting upon the advice of her share broker, bought and sold shares during the course of the marriage. The husband accepts that the wife supported him in his role at the [omitted] over the years and said, “Just as I have supported her in her roles.”
Wife – Financial Contributions
There is agreement that the wife received an inheritance of a share portfolio held on trust for her to the value of about $230,000.00 at the commencement of their marriage. The wife became the owner of that share portfolio at aged 25, the wife being aged 20 when she was married.
I accept that the dividends from the share portfolio were used for the benefit of the family including paying of the husband’s overdraft and credit cards belonging to either or both of the parties. During the course of the marriage it is not in contest that the parties benefited when the purchase of a Ford Focus motor vehicle and several overseas holiday trips and interstate trips to Sydney, Canberra, Melbourne and a Cruise. The wife sold some of the shares whilst each of the parties were studying in Adelaide between 1999 and 2002. Significantly the balance of share portfolio was sold in 2005 only 2 years prior to separation for a sum of $380,000.00. These funds were directed into the family finances. At that time the wife purchased what is now the former matrimonial home at Property E for the sum of $335,000.00. The selling of those shares resulted in a significant capital gains tax of $71,600.00 which was realised in 2009 and paid by the wife from borrowings against the former matrimonial home which the wife made in 2009. There was no other source of funds with which to pay this debt. The proceeds from the wife’s inheritance now represent the most significant asset in this asset pool.
At the time of separation the wife remained in the matrimonial home with the children. She had sole care of the children at this stage given that the husband was hospitalised at the [omitted] Clinic for about 3 weeks and after that period was recovering from his depressive illness.
Post separation the wife has maintained the mortgage repayments on the home and she has paid the rate and insurance. The wife and children have occupied the home. Post separation the wife also as I have referred to, took out borrowings primarily to pay the significant capital gains tax however, further funds were borrowed for a trip overseas to South Africa with the Mr D. The other funds used by the wife remain as her sole debt. During the course of the marriage the wife worked part-time at two jobs in 1993 and 1994: One day a week in 1994 – 1998: A casual [occupation omitted] in 2006 – 2009 and post separation from 2009 onwards as a [occupation omitted]. Post separation the wife also used the additional borrowings to pay out her HECS debt of $15,000.00 which was accumulated pre-separation.[35] I see also note Annexure D of the Affidavit of the Father filed 23 February 2011 which states Higher Education Loan Debt of $10,000.00. The wife sets out in her material the extent of her borrowings and the explanations.
[35] Paragraph 229 and 230.
Post separation the wife has also been almost fully responsible for financially supporting the children. The husband has been either unwell or studying and is not in a position to earn an income at this point in time to financially support the children. He is struggling to support himself.
In terms of the value of the wife’s superannuation, at the date of separation her superannuation was worth $1,000.00. It is valued at $24,000.00 at the time of trial. Post separation the wife sold the Ford Focus as she was provided with a car by her employer and the wife used the proceeds from the sale, some $9,500.00, to pay for her legal fees. These issues have been taken up in the agreed property pool which provides for various add-backs as can be seen on a perusal of the table.
In my view the wife whilst she has been earning a higher income than the husband post separation, she has been struggling to support herself and the two children and maintain all of the day to day costs relating to the children. The wife deposes to using her credit cards as a means of paying off bills as referred to her in her affidavit[36] and some of these credit card debts include payments for utilities, cleaning, food and dental expenses. The mother’s brother has been paying the school fees for both children post separation.
[36] Paragraph 240.
Centrelink Debt
The parties unwittingly incurred a Centrelink debt which was a result of income of dividends being accurately declared but an oversight by the parties in relation to the capital gains from the sale of the shares which is resulted in an income for tax purposes. Centrelink re-assessed the benefits provided to the husband and determined that the husband had been overpaid. At the time of trial the debt stood at $17,856.00 and it was proposed by Mr Victoire of Counsel for the wife that the debt be divided equally between the parties with effectively each party retaining $8,928.00 as debt. The interest rate is fairly low with Centrelink and it seems that it has gradually been reduced over the past few years with repayments as low as $15.00 per week.
Likewise, the husband has been in a very difficult situation post separation. In addition to the Centrelink debt, the husband has other debts standing in his name. The total amount of the Centrelink benefit overpayment which includes Family Tax Benefit and child care benefits and Austudy is some $20,793.00. In the affidavit filed by leave on the morning of trial, the husband sets out more particularly the correct details in relation to many of the inaccuracies contained in other affidavits and he includes in that other liabilities which he says he retains but which have not been previously mentioned in his earlier affidavit. At paragraph 15 the husband sets out the liabilities which he now understands he and the wife had.
I note in the supplementary submissions of Counsel for the husband on the final page that the assertion is made that the husband is left with the accountant’s fees for the pre-separation tax debt of $3,250.00. This is at odds with the husband’s evidence at paragraph 17 of the affidavit filed by leave on 23 February 2011 in which the husband says that the BDO Kendalls fees of $3,250.50 were deducted from his refund and subsequently the husband received a reduced refund of $340.40 as shown in BDO Kendall’s letter of 17 July 2007.[37] The amount appears to be agreed as an “add back” on the agreed list of assets and liabilities.
[37] Annexure C, Affidavit filed by leave 23/02/2011.
In regard to the mortgage taken out by the wife of $150,000.00, the wife paid $106,100.00 of agreed joint debts which included accountant’s fee, rates arrears and joint credit card debt, as shown on page 2 of the agreed assets and liabilities table to exhibit M1.
In relation to the Higher Education Loan Program of accumulated HELP Debt the husband’s fees as at the time of separation were $4,222.00. The husband’s counsel submits that the husband’s Higher Education Loan Program is now $22,632.00 and though I am not readily able to see evidence of that specific figure in the husband’s material, I accept that he has been at university for the 4 years post separation and the fees must have gone up. As I understand the HECS system, the fees are not repayable until the husband re-enters the workforce and to that extent this is not a pressing debt.
Non-Financial Contributions
At the commencement of the marriage each of the husband and wife worked in their respective roles. The wife gave up her studies to follow the husband in pursuing his calling and became the wife of the [occupation omitted]. Assistance with housing for four years was provided by the wife’s mother at no cost to the parties. The husband has worked tirelessly during the periods that he was not unwell, albeit, that ultimately complaints were made by [omitted] in relation to the husband’s conduct as a [occupation omitted] which ultimately lead to him losing his position. The husband worked as he said up to 60 hours in some weeks and had no time for the family. In my view the wife assumed the primary for the raising of the children throughout the marriage and also sole responsibility at other times. There were some years (1999 to 2002) it seems that each of the parties were studying and they had the assistance of childcare during the day. The husband says that at those times of studying he was able to be more involved with the children. That period seems to have lasted for about 3 or 4 years.
I accept the submission that the husband’s chronic illness has made the wife’s participation in her role as wife and mother a more difficult task. Post separation the wife has been the primary carer of the children. At separation the husband was hospitalised and again, the wife was the sole carer of the children.
Evaluation
Ms Benson of Counsel for the husband contends that the division should allow a 5% uplift for the wife bringing her contributions to 55%. I do not consider that 5% uplift properly recognises the significance of the wife’s direct financial contribution and her non-financial contributions. It is only through the wife’s work and her post-separation contributions to the mortgage that the house has been able to be retained. This has been done in difficult financial circumstances for the wife who has, as I have said, solely had to provide for the children at the same time. I also do not accept that the value of the wife’s direct financial contribution through the inheritance, ought to be pinned at the point of the parties marriage as submitted by Ms Benson. I consider that to do so, does not properly acknowledge the significance of the inheritance and the purpose for which the inheritance has been used either during the marriage or at the time it crystallised fully. Without the wife’s inheritance the single biggest asset of the parties, the matrimonial home, would not have been purchased. The dividends throughout the marriage have enabled the parties to enjoy a more financially comfortable marriage and enjoy opportunities such as interstate and overseas holidays and continued study.
It is contended on behalf of the wife that the financial and non-financial contributions should be based on an 80:20 split noting that the sum of $380,000.00 crystallised in the year 2005, 2 years prior to the end of the marriage. I accept the submission of Mr Victoire, Counsel for the wife that I need to take note of the value of the inheritance not only at the commencement of the marriage, but significantly at the point that it crystallised in 2005 in accordance with authorities such as Williams & Williams.
It is submitted by Mr Victoire that the husband made no contributions at all to the inheritance and that it was simply an investment that sat being managed by the wife. I consider that the husband has made limited indirect offsetting contributions however, these need to be seen in the context of the husband’s interrupted career and chronic poor health.
I have had regard to the husband’s initial contributions. The husband asserts that he received free housing as part of his salary package for a period of time. I do not regard this as a sole contribution by the husband given that at the same time the wife was supporting him in his role as [omitted], raising children and from time to time working in casual employment. In any event, the wife’s own mother provided free accommodation to the parties for a period of some 4 years.
In looking at the asset pool, the total non superannuation assets prior to the add-backs are $389,359.00 and the total superannuation is $103,963.00. In terms of the wife’s superannuation of $23,953.00, that has been earned post separation at a time when I consider the husband’s financial contribution were nil and his non-financial contributions in terms of caring for the children have been minimal.
Whilst I consider that the husband has contributed indirectly to the inheritance during marriage on a limited basis, I consider that the overwhelming direct financial contribution of the wife which crystallised in 2005 is a most significant factor and one which I must properly acknowledge. This inheritance is accompanied by the wife’s contributions to the welfare of the family post separation which in my view has also been significant together with her sole financial support of the children.
In evaluating the parties’ respective contributions, both financial and non-financial, I consider that given the length of the marriage and the wife’s greater contributions, that a division of 75% to the wife and 25% to the husband recognises their respective contributions.
Step 3 – Is an adjustment required after consideration of the factor in s.79 (4) (d) – (g) including the section 75(2) Factors
The husband was born [in] 1959 and turns 52 this year. The wife was born [in] 1972 and turns 39 this year.
The wife is in good health. The husband however has had chronic depression and health problems since he was in his late teens. His mental health conditions have presented as a chronic illness throughout the marriage as referred to elsewhere in these reasons.
The husband’s income at present consists of social security benefits and rental assistance. At the time of trial he received $16,536.00 per annum.[38] The wife’s current income at the trial was $52,000.00.
[38] Transcript 25/02/2011 page 350 Line 35.
Turning to the husband’s income earning capacity I note the evidence of his progress as described by the employment consultant at Centacare Employment.[39] The husband has earned a one off amount of $800.00 in [omitted].
[39] Exhibit ICL 5.
A vocational assessment has been conducted by Ms K who states as follows:
“The husband migrated to Tasmania at the age of 11. After his first psychiatric interventions occurred at around 1974 in his late teens. The husband worked at [omitted] for 10 years prior to becoming an [omitted]. He studied full-time and obtained a [omitted] degree in 1991 ([omitted], Melbourne). The husband has commenced studies in [omitted] and appears to have changed to a [omitted] degree in which he has 2 more full-time years to complete. The husband has also completed training in [omitted].”[40]
[40] Affidavit filed on 18/02/2011 of Ms K also known as Ms K.
At the time of the trial the husband was a volunteer [omitted] and a volunteer [omitted].
Ms K concludes that there are positions available that are in line with the husband’s skills qualifications and experience and she cites employment with [omitted] as an example of appropriate employment. The assessment by Ms K acknowledges though, that one of the biggest barriers for the husband obtaining employment is his lack of confidence and notes that the husband has been on unemployment benefits essentially for the past six years. Further specific field training is recommended. Having observed the husband over 2 days in the witness box and being mindful of his psychiatrist’s opinion as to the husband’s personality disorder described by his own psychiatrist,
Dr T[41] I consider that whilst the husband’s experience may suggest that he will obtain employment in the future, in my view this needs to be seen in the context of the husband’s functioning as described by Dr T and Dr K.
[41] Page 5 of 5 of the Affidavit of Dr T.
I am not overly confident that the husband will obtain full-time employment in the short term, though it seems likely that he may be able undertake some kind of part time work from time to time. His psychiatric condition is managed whilst the husband is on medication, however it is a chronic illness and in my view is somewhat of an impediment to retaining full-time employment. This view is supported by Dr K in his supplementary report where he noted that: the husband is required to take large doses of medication; he is overweight and is chronically depressed. Dr K noted:
“This is a man, obviously an intelligent person. Well educated and has been a [occupation omitted] with appropriate university training and qualifications, at least until the [omitted] where he was working in Cairns decided that they no longer wanted him. He has not worked effectively since that time apart from doing some little amount of probation work.
I note too that he does have a long psychiatric history of depression, fluctuating depending upon circumstances and I note that he’s very obese, has high blood pressure, sleep apnoea and requires to take antidepressant medication on a long term basis.”[42]
[42] Affidavit of Dr K filed on 29 October 2010, supplementary report dated 30 September 2010.
Ms Benson of Counsel for the husband submits that the disparity in income between the husband and wife results in a 10% uplift in favour of the husband and on her case, his percentage split then increases to 55%.
Ms Benson further submits that:
(a)if the children live equally with each party, the wife’s financial commitment to the children will be lessened and the father’s increased; and
(b)given the disparity in their earning capacity which favours the wife, the father is entitled to a 10% uplift, bringing his entitlement from 45% up to 55%, [43]
Ms Benson’s overall submission was that if the children lived primarily with the wife the section 75(2) factors is 5% in favour of the wife[44], bringing her total entitlement to 60% and the husband’s to 40%.
[43] Page 363, transcript 25/2/11 – lines 15-25.
[44] Page 365 transcript, 25/2/11 – lines 25-30.
The wife’s income is described as $1,000.00 per week gross[45] and as $1,000.00 net per week.[46] Her financial statement states that total salary before tax is $1,230.00.[47] Mr Victoire of Counsel submits that the wife earns $52,000.00 per year.[48] I note from her income that the wife’s current expenses per week are shown as $955.00[49] and that the wife receives assistance from her brother to pay for the school fees for the children and school expenses and her mother pays for the children’s [extracurricular activities omitted] fees. Additional day to day living costs are paid for by credit card as the wife is not able to pay out of her income. I accept that whilst the wife earns more than the husband she is receiving a still modest income from which she supports herself and the two children. The wife’s weekly costs are in fact greater than the amount she is earning.
[45] Paragraph 232 Affidavit of 25/01/2011.
[46] Paragraph 245 Affidavit of 25/01/2011.
[47] Financial Statement, Part D, 25/01/2011.
[48] Page 345 transcript 25/02/2011 Line 27.
[49] Paragraph 241 Affidavit of 25/01/2011.
At present the husband pays no child support and he has not been in the position to assist in the cost of raising the children since separation, some four years ago. I consider it is unlikely that the wife will get any financial support from the husband in relation to the costs associated with housing and raising the children in the foreseeable future.
I note also that each of the husband and wife have debts as indicated on the table of assets and liabilities together with legal fees incurred by each. I have already noted that the HECS debt of the husband is not pressing.
In assessing the relevant s.75(2) factors, I consider that it is difficult to make an adjustment either way. Whilst the wife is younger than the husband, the wife has a modest income on which to support herself and the children. Her expenses exceed her weekly income. It is unlikely that she is going to receive any assistance from the husband in the future in terms of support for the children. The children’s schooling and extra curricular activities are paid for by the wife’s family. The wife has the financial obligation to service the mortgage, a significant portion of which was incurred in paying what amount to joint debts such as the capital gains tax and accountant’s fees. In my view the disparity in income between the husband and wife is offset by the wife’s sole responsibility for financially supporting the children for at least a further 9 years into the future. The husband’s poor health both medically and mentally suggests to me together with all the other evidence that he will likely not return to full-time employment, he will continue to develop difficulties with his chronic mental health, so any income earned by him will be negligible. I therefore do not propose to make any further adjustment in regard to s.75(2) factors.
Step 4 – Determining if the division proposed is just and equitable
In having regard as to how a division of 75:25 would effect each party, I am mindful of the add backs in the asset pool. I note that the value of the agreed non-superannuation assets increases from $389,359.00 by $83,242.00 to allow for add-backs distributed between the husband and wife. The add-backs attributed to the wife total $63,400.00 and for the husband the add-backs total $19,842.00. In reality the add-backs for the wife represents primarily further debt apart from the purchase of a Suzuki motor bike at $5,500.00. Looking at the husband’s add-back, those amounts also represent funds that have already been expended by the husband.[50]
[50] Agreed assets and liabilities table Exhibit M1.
In reality and actual dollars on a 75:25 split, the husband will retain the following assets:-
Assets
a)Commonwealth Bank of Australia Joint Account $15.00
b)[T] and [M] shares $5,644.00
c)HBSC UK Savings Account $1,683.00
d)[G] Trust $2,017.00
Liabilities
e)Balance of Family Tax Benefit overpayment to Centrelink $8,928.00
f)Credit Union Australia Overdraft $2,024.00
g)Commonwealth Bank of Australia MasterCard $3,868.00
h)Accountant’s fees for pre-separation tax $3,251.00
i)Higher Education Loan Program $4,222.00
Superannuation
j)[A] Superannuation $61,018.00
k)[M] Superannuation $9,529.00
Based on the agreed value of $360,000.00 for the matrimonial home, the wife is to pay the husband the sum of $91,335.00. Of the $91,335.00, $19,842.00 is represented by add-backs. As to the balance, and the balance the wife proposes dividing the joint liabilities between herself and the husband on the basis that she takes responsibility for $168,928.00 (of which $106,100.00 are agreed joint debts)[51] and the husband assumes responsibility for $22,293.00.
[51] Agreed assets and liabilities table Exhibit M1 page 2.
Of the $22,293.00, it seems that $3,251.00 for accountant’s fees pre-separation has already been paid as already referred to earlier. The Higher Education Loan program as at separation is generally not payable until the husband earns an income. The Centrelink debt is being repaid at $15.00 per week by the husband at present. The wife proposes that this debt be divided in half with each party paying $8,928.00.
In order for the husband to receive his 25% totalling $91,335.00, $70,547.00 represents superannuation already held in the husband’s name. I consider that this asset is best left with the husband as he is closer to retirement and the wife needs funds to pay for daily child rearing expenses and her own expenses, rather than have superannuation.
Allowing for the husband to retain the superannuation standing in his own name, the balance owed to the husband on the wife’s proposal is to be paid by way of the wife paying the husband the sum of $13,880.00 with the husband retaining the debts already referred to. The wife is hopeful of being able to facilitate this cash payment also at the same time retaining her and the children’s home and paying her legal fees. The wife has a balance of approximately $30,000.00 owing in legal fees and the husband has a sum to be determined by Legal Aid Queensland as referred to in the submissions. In the event that the wife is unable to raise the additional finance the matrimonial home will need to be sold.
The total asset pool which does not include the art work is $365,343.00.[52] The proposed Orders by the wife for a 75:25 split does not include a sum attributable to the art work and it is agreed between the parties that the art work should be sold and divided on a percentage split as determined by the Court. Both the husband and the wife will receive additional funds from the sale of the art work which each can direct towards their respective debts. If the art work sells for the anticipated values, 25% may result in $5,000.00 for the husband which he can attribute to his debts as he sees fit.
[52] Agreed assets and liabilities table Exhibit M1 page 2.
In the event that Centrelink was to intercept either of the proposed payments by the wife to the husband, a further adjustment would be required in favour of the husband.
Having considered the division of 75% to the wife and 25% to the husband and the parties respective contributions and obligations, I am satisfied that this division represents a just and equitable outcome and I intend to make Orders accordingly.
I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of Willis FM
Date: 23 December 2011
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