Hanlon and Edgar
[2008] FamCA 194
•26 March 2008
FAMILY COURT OF AUSTRALIA
| HANLON & EDGAR | [2008] FamCA 194 |
| FAMILY LAW – CHILDREN – Best interests - with whom a child lives FAMILY LAW – PROPERTY – alteration of property interests – contributions – compensation monies |
| Family Law Act 1975 (Cth) Part VII; s 4; 60CA; 60CC(2), (3), (4) (4A); 60CG; 65DAA, (3); 75(2)(o); 79(4)(d) – (g); Family Law (Superannuation) Regulations |
| Edgehill & Edgehill (2007) Fam CA 1102 Jones & Dunkel (1959) 101 CLR 298 Gollins & Scott (2007) FLC 93-319 Griffiths v Kerkemeyer (1977) 139 CLR 161 Mowbray & Mowbray (2007) Fam CA 167 Robb & Robb (1995) FLC 92-555 West & Green (1993) FLC 92-395 |
| APPLICANT: | Mr Hanlon |
| RESPONDENT: | Ms Edgar |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Smithes |
| FILE NUMBER: | CAF | 468 | of | 2006 |
| DATE DELIVERED: | 26 March 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Canberra & Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 24.9.2007; 1.11.2007; 13.12.2007; 17.12.2007; 29-30.1.2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Rees |
| SOLICITOR FOR THE APPLICANT: | Campbell & Co |
| COUNSEL FOR THE RESPONDENT: | Ms Tonkin |
| SOLICITOR FOR THE RESPONDENT: | Hill & Rummery |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Office ACT |
Orders
Parenting
Each parent have equal shared parental responsibility in relation to the child … born … March 1996 (“the child”).
The child shall live with his father.
The child shall otherwise live with his mother as follows:-
3.1.During term times, commencing the first weekend of the school term, for 3 consecutive weekends from 5.00pm Friday until 8.00pm Sunday: the mother shall collect the child from the father’s residence on the Friday and the father shall collect the child from the mother’s residence at the conclusion of the weekend;
3.2.For half of all school holidays, providing that the mother is able to take holidays at the same time: being the first half of the holidays in years ending in even numbers and the second half of the holidays in years ending in odd numbers;
3.3.In the event that the mother is unable to be available for school holidays the weekend time shall continue in accordance with Order 3.1 for the period when the mother would otherwise have had holiday time with the child;
3.4.At other times as agreed between the parties.
Holiday period changeovers will occur at noon on the relevant Saturday if the holiday has an even number of weeks and, should the holiday have an uneven number of weeks, changeover shall occur at noon on the Wednesday in the middle of that holiday.
The party whom the child is living with on Mother’s Day and Father’s Day shall make the child available for contact with the relevant parent from 6.00pm Saturday, before the Mother’s or Father’s Day, until 4.00pm the following day.
On the child’s birthday and on the birthday of each parent (if the child is not with that parent on that parent’s birthday), the parent with whom the child is living shall have him available for contact with the other parent for a period of 3 hours from 4.00pm to 7.00pm, should the birthday fall on a weekday and for 6 hours from noon until 6.00pm, should the birthday fall on a weekend or holiday.
For Christmas Day, if the parties are living within 50km of each other, the parent with whom the child is not living shall make him available for contact with the other parent from 3.00pm Christmas Day until noon Boxing Day.
Neither party shall discuss these proceedings, nor denigrate the other, to or in front of the child nor cause anybody else to do so.
Neither party shall unduly question the child upon his return from visiting or living with the other parent.
Both parties shall provide to the other details of all medical, psychological and other professional personnel or organisations seen or visited by the child and in the event the child is seriously ill he or she shall contact the other parent immediately.
The mother shall be restrained from taking the child to any counsellor, therapist, psychologist, psychiatrist or other health care professional save for urgent medical requirements without the father’s consent.
The father [in consultation with the mother] will take all steps necessary to ensure that the child undertake therapy with a professional recommenced by Dr C and continue to attend such therapy at times as recommended by the therapist, until such time as the therapist recommends in writing that the child’s continued attendance is unnecessary. Each parent shall be at liberty to discuss with the therapist any aspect of the child’s welfare and the father is authorised to provide to the therapist, copies of the reports of Dr C and Dr S.
For the purposes of Order 12, both parties shall share the cost of all appointments and therapy.
The parties shall ensure that the child has a balanced diet when he is in his or her care and that any recommendations from experts are adhered to.
The parents shall ensure that the child attends swimming lessons at times as arranged with the swimming school and the father shall be responsible for the fees for such lessons.
The parents shall ensure the completion of the child’s homework and school assignments when the child is living with that parent.
Each parent will follow through with any recommendation and appointment made in relation to any treatment proposed by any of the child’s treating professionals.
The Independent Children's Lawyer make the necessary arrangements for the parties to attend an intake assessment at the ARCK and that thereafter the parties participate in the program in accordance with the directions from time to time of the providers of the program.
The Independent Children's Lawyer forward to the providers of the ARCK program a copy of the Reasons for Judgment and a copy of the reports by Dr S and the report by Dr C.
Each parent ensure that when the child is with them overnight the child sleeps in his own bed in his own room and does not sleep in the bed or in the bedroom of the parent with whom he is living.
Property
Pursuant to s.79 Family Law Act an order is made in the terms of paragraphs 22 to 32 below.
Within 60 days the husband sign all documents and do all things to transfer to the wife his right title and interest in the former matrimonial property located at F in the Australian Capital Territory (“the [F] property”).
Contemporaneously with the transfer of the F property referred to in Order 22 above, the wife do all things and sign all documents to discharge the mortgage with Westpac and refinance that mortgage in her sole name and discharge the liability to Defence Service Homes.
Contemporaneously with the husband and wife complying with Orders 22 and 23 above, the wife shall pay to the husband the sum of $127,535.
The husband be declared the sole owner of the Ford vehicle registration number … in his name.
The wife be declared the sole owner of the Toyota vehicle registered in her name.
In accordance with Section 90MT(1)(b) of the Family Law Act (1975) there be a splitting order in favour of the wife in respect of the interest in the Military Superannuation and Benefits Scheme (MSBS) entitlements of the husband whereby the Commonwealth Trustee shall, upon a splittable amount becoming payable, pay to the wife (the non-member spouse) 15% of the entitlements calculated in accordance with Part 6 of the Family Law Act (1975) Superannuation (Regulations 2001) and there shall be a corresponding reduction in the entitlement the husband would have had but for these orders.
Order 27 has effect from the operative time; being seven (7) business days after the date of service of these orders (“the operative time”) upon the Trustee of the MSBS.
Having been accorded procedural fairness in relation to the making of these orders, Orders 27 and 28 bind the trustee of the aforementioned superannuation scheme.
The wife indemnify the husband in relation to the debts to David Jones’ credit card, Grace Brothers’ credit card, Target credit card, ACTEW debt, AGL, ADECU loan and any liability outstanding to the wife’s parents.
Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any other subsequent orders:-
31.1.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.
31.2.Monies standing to the credit of the parties in any bank account is to become the property of the party in whose name it is deposited.
31.3.Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other.
31.4.All insurance policies to become the sole property of the owner named thereunder.
31.5.Each party be solely liable for and shall indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
In the event that the wife fails to pay to the husband the money referred to in paragraph 24 herein, the parties shall forthwith place the F property on the market for sale with an agent as agreed and at a price as agreed and by way of consequential orders:
32.1.The wife shall at her expense prepare the property for sale as directed by the Real Estate Agent;
32.2.Upon sale of the F property, the monies shall be distributed as follows:-
32.2.1.Pay the costs and commissions for the sale;
32.2.2.Pay out of the mortgage to Westpac and the Defence Service Home Loan;
32.2.3.Pay 56.15% of the balance to the wife and 43.85% of the balance to the husband.
That if either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to effect the terms of these orders, the Registrar of the Family Court Canberra is hereby appointed to execute all deeds and documents in the name of the husband and or wife pursuant to Section 106A of the Family law Act 1975 (as amended).
IT IS NOTED that publication of this judgment under the pseudonym Hanlon & Edgar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CAF 468 of 2006
| Mr Hanlon |
Applicant
And
| Ms Edgar |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This matter is about what time the parties’ child, born in March 1996 (“the child”) spends with each of his parents. The child is 12 years of age. The mother believes that the child was once sexually interfered with by his father. The father believes that the child’s problems are not being attended to and will not be attended to whilst the child continues to primarily live with his mother.
The child is directly expressing a view that nothing should change.
Dr S gives clear evidence about the child’s emotional attachment with his mother. There are risks involved in creating a very different pattern of the child spending time with his parents given the difficulty to predict consequences in most circumstances.
There are complex dynamics between the child and his mother. There is an issue as to whether the mother lacks insight and whether or not the emotional attachment that exists between the child and his mother can be seen as being unhealthy for the child’s long term emotional development.
There are concerns about the child’s diet, school attendance, and continuing sleeping with his mother. At the commencement of the hearing the child was also sleeping in his mother’s bed. The child told Dr S (at line 420 and 421 of his report dated 11 July 2007) “she has got used to cuddling into me”. Dr S comments that he has profound concerns about the child. Dr S considers to be highly inappropriate for a child approaching adolescence to be sleeping in his mother’s bed. In the last ten days prior to the final phase of the hearing, the child had commenced to sleep in a separate room (and bed) in his mother’s home.
The other matter for determination is what alteration should be made in respect of the property of the parties. There are two main assets. The first is the former matrimonial home. The mother and the child currently live in that home. The mother is currently paying the mortgage on the home. The other valuable asset is the husband’s military pension. The annual pension payment in the sum of $51,739 per annum. It has been valued in accordance with the Family Law Superannuation Regulations in a sum of $960,162 plus $12,705 (see exhibit I).
The mother asserts that the father’s primary motivation for bringing an application in relation to the child relates to the application for alteration of property.
THE CURRENT ORDERS IN RELATION TO THE CHILD
Consent orders were made in relation to the child spending time with his father in the Federal Magistrates Court on 1 August 2001.
1.That the child […] born […] March 1996 live with his mother.
2.That the parents will share responsibility for making decisions about the long term care, welfare and development of the child.
3.That the child will have contact with his father as follows:-
(a)Subject to order 3(d) below:
(i) From 9.00am – 5.00pm on Saturday 4 August 2001;
(ii) From 9.00am – 5.00pm on Saturday 11 and Sunday 12 August 2001;
(iii) From 9.00am Saturday 25 August 2001 to 5.00pm on Sunday 26 August 2001;
(iv) From after school on Friday 7 September 2001 until 5.00pm Sunday 9 September 2001;
(v) From after school on Friday 21 September 2001 to before school on Monday 24 September 2001 and each alternate weekend thereafter at the same times.
(b)Subject to order 3(d) below, each alternate Wednesday evening after school until the following morning, commencing Wednesday 29 August 2001.
(c)In the event that any contact weekend falls on a long weekend including a Monday, then contact will be extended to before school on Tuesday; if it falls on a long weekend including a Friday then contact shall commence after school on Thursday;
(d)For one half of all school holiday periods, being the first half in odd years and the second half in even years;
(e)For two hours on the child’s and father’s birthdays;
(f)The father shall not have the child on the weekend which includes Mother’s Day, but in substitution the father will have the child with him on the following weekend the same times as set out in order 3(a)(v);
(g)The mother shall not have the care of the child on the weekend which includes Father’s Day, but in substitution the mother will have the child with her on the following weekend at the same times as set out in order 3(a)(v) above; and
(h)Such further and other times as the parties may mutually agree.
4.The father may telephone the child on each Tuesday, and on the Thursday of the week that he does not have mid week contact with the child, such telephone calls to be made before 7.30pm and the mother may call the child once a week while the child is having school holiday contact with the father.
5.That the father is to collect the child at the commencement of contact from the mother’s home, and to re-deliver the child at the conclusion of contact to the same place, unless contact commences after, or concludes immediately before school.
6.That neither party will say unkind or unpleasant things about the other to the child, in the child’s presence, nor allow any other person to do so.
7.That neither party will discuss these proceedings or any allegations made during these proceedings with the child, or in his presence, or allow any other person to do so.
8.That neither party will change the child’s place of residence from the Australian Capital Territory without first obtaining the written consent of the other parent or an order of a court.
9.That neither party will remove the child from the Commonwealth of Australia without first obtaining the written consent of the other parent or an order of a court.
10.That the mother will authorise the child’s school to provide to the father copies of all school reports, any other reports on school progress and behavioural issues, and all school circulars in relation to the child.
11.That each party notify the other of any serious illness or injury affecting the child while he is in that parent’s care as soon as practicable and each party be at liberty to contact any doctor or hospital to obtain information.
12.That each parent will notify the other if the child is not to attend school whilst the child is in that parent’s care.
13.That each parent will advise the other if it is intended that the child spends more than three nights away from the ACT, and will provide the other parent with a telephone number and/or address at which the child will be staying during that time.
14.That without admission, neither party will consume marijuana nor other illicit drugs or painkillers beyond the recommended dose whilst the child is in that parent’s care.
15.That the parties will attend a parenting ‘After Separation Seminar’ at the Family Court as soon as practicable, and thereafter attend joint counselling sessions as recommended by a Family Court Counsellor.
On 23 November 2006 Faulks J in interim proceedings confirmed those orders, except that Order 3(d) was changed on an interim basis to provide that the child would spend the first half of the Christmas school holiday period with his father (including Christmas Day).
The interim proceedings that took place before Faulks DCJ on 23 November 2006 came about as a result of the mother unilaterally suspending the child’s time with the father pending examination of fresh sexual abuse allegations made by the mother against the father.
The father had not consistently spent time with the child in accordance with the orders between 2001 and 2006. That history will be dealt with in greater detail later.
APPLICATIONS
Mother
Parenting
The mother’s position at the commencement of the hearing was a little ambiguous. She originally indicated that she would be content to keep the current regime in place. That is, the child would see his father four nights a fortnight. A little later she said because the child is very tired when she picked him up from school at the end of Mondays and at the end of Thursdays she would like to eliminate the child being with his father on Sunday nights and on Wednesday nights as he is under the current orders.
The mother did not suggest that the child’s time with his father be supervised. This apparently was because she had been advised that there was insufficient grounds for her to be able to continue pressing her contention that the child had been sexually abused by his father. She did however in discussions with me indicate that “in her heart” she believed that the allegations were true. In those circumstances I said that I thought it was important to put the evidence that she relied upon to the test.
Property
The mother’s position in relation to alteration of property was that she wished to attempt to retain the former matrimonial home at F, so the child and she could continue to live there.
Her formal application was that the home be transferred to her subject to the mortgage. At the beginning of the hearing she sought an order that the husband pay to her an amount of $37,144.
The precise mathematics were never exactly explained but seemed to be worked out on the basis that the home was worth $380,000. The mortgage was $130,000. The net equity in the home was therefore $255,000 and one half of that amount was $127,500. The wife would take that equity, balanced against what the wife said should be an adjustment in her favour arising from that was the husband’s superannuation which was worth about $992,000. The wife asserted that she was entitled to one sixth of that amount (this calculation was done on a West & Green style basis). One sixth of the superannuation was $162,144. That would actually lead to a payment by the husband to the wife of $34,644 ($162,144 - $127,500). The application for monetary adjustment was abandoned by the end of the hearing.
At the final stage of the hearing the mother provided a minute of order (Exhibit Q) which set out the updated orders she was finally seeking. Those orders are in the following:-
1.All previous orders be discharged.
2.[The child] will live with his mother.
3.[The child] will spend time with his father as follows:-
(a)Each alternate weekend from after school Friday until before school Monday; and
(b)Each other week from after school Wednesday until before school Thursday;
during school terms.
(c)For half of all the school holidays being the first half in 2008 and each alternate year thereafter and the second half in 2009 and each alternate year thereafter.
(d)Notwithstanding the above orders [the child] will spend time with his mother on Mother’s Day from 9.00am to 5.00pm if it is the father’s scheduled weekend and with his father on Father’s Day from 9.00am to 5.00pm if it is the mother’s scheduled weekend.
Property
By way of adjustment of the property interests of the parties pursuant to section 79 of the Family Law Act in full and final satisfaction thereof:-
1.The husband shall transfer to the wife all his right, title and interest in the property situated at [F].
2.From the date of these orders, the wife indemnifies the husband and shall keep him indemnified in respect of any mortgage or other liability attaching to the [F] property.
3.Except as otherwise provided in these orders the wife transfers to the husband any right, title and interest she has in property in the possession of the husband including but not limited to real and personal property and any superannuation interests in his name; and
4.Except as otherwise provided in these orders the husband transfers to the wife any right, title and interest he has in property in the possession of the wife including but not limited to real and personal property and any superannuation interests in her name.
In final submissions the mother supported the application for parenting orders that had been made by the Independent Children's Lawyer (see below). The mother undertook to involve the child in a cognitive behaviour therapy program with one of the psychologists nominated by Dr C. The mother agreed to undergo psychological therapy herself and involve herself in the ARCK program. The orders proposed by the mother in her minute of order (Exhibit Q) were extended by her in final submissions so that the child would spend additional time with his father on Father’s Day, birthdays and Christmas, so that the order proposed by the mother would in a minimalist way comply with the definition of significant and substantial time contained in s.65DAA(3) Family Law Act (“FLA”).
Father
Parenting
Originally the father sought orders that the child live with him and spend time with his mother at the same times as the child currently spends time with the father (that is during school term an exact reversal of the current situation). This would mean that the child was with his mother four nights a fortnight during school term.
Property
The husband’s original application was that if the mother retained the matrimonial home then she should pay him an amount of $174,000. The exact method by which that amount was calculated was not made clear.
At the commencement of the trial, it was asserted by the husband that he should get fifty five to sixty percent of the non-superannuation assets based upon his contribution to them. The husband’s original position in relation to the superannuation assets was originally that they were not to be taken into account.
The husband indicated during discussion that he would entertain a splitting order of about five to ten percent of the military pension.
The formal orders that the husband sought at the commencement of the hearing on 25 September 2007 were set out in Minutes of Orders which I marked Exhibit L.
1.That the child […] born […] March 1996 shall live with his father.
2.The child, shall otherwise live with his mother as follows:-
a.During term times, every alternate weekend from after school on Thursday until the commencement of school the following Monday or Tuesday if the Monday is a public holiday;
b.For half of all school holidays, being the first half of the holidays in years ending in odd numbers and the second half of the holidays in years ending in even numbers;
c.At other times as agreed between the parties, including Wednesday on the ‘off week’ for a meal or overnight.
3.Holiday period changeovers will occur at noon on the relevant Saturday if the holiday has an even number of weeks and, should the holiday have an uneven number of weeks, changeover shall occur at noon on the Wednesday in the middle of that holiday.
4.That the party with whom the children are living with on Mother’s Day and Father’s Day shall make the children available for contact with the relevant parent from 6.00pm Saturday, before the Mother’s or Father’s Day, until 4.00pm the following day.
5.That on each child’s birthday and on the birthday of each parent, the parent with whom the children are living shall have them available for contact with the other parent for a period of 3 hours from 4.00pm to 7.00pm, should the birthday fall on a weekday and for 6 hours from noon until 6.00pm, should the birthday fall on a weekend or holiday.
6.That for Christmas Day, if the parties are living within 50km of each other, the parent with whom the children are not living shall make them available for contact with the other parent from 3.00pm Christmas Day until noon Boxing Day.
7.Neither party shall discuss these proceedings, nor denigrate the other, to or in front of the child nor cause anybody else to do so.
8.That neither party shall unduly question the child upon his return from visiting or living with the other parent.
9.Both parties shall provide to the other details of all medical, psychological and other professional personnel or organisations seen or visited by the child and in the event the child is seriously [sic] he or she shall contact the other parent immediately.
10.The mother shall ensure that the child is taught personal hygiene and baths/showers at least every second day.
11.The parties shall ensure that the child has a balanced diet when he is in his or her care and that any recommendations from experts are adhered to.
12.The parents shall ensure that the child attends swimming lessons at times as arranged with the swimming school and the father shall be responsible for the fees for such lessons.
13.The parents shall ensure the completion of the child’s homework and school assignments when the child is living with that parent.
PROPERTY ORDERS
14.That within 60 days the husband sign all documents and do all things to transfer to the wife his right title and interest in the former matrimonial property located at [F].
15.That upon transfer of the property referred to in Order 14 above, the wife do all things and sign all documents to discharge the mortgage with Westpac and refinance that mortgage in her sole name.
16.That simultaneously with the occurrence of Orders 14 and 15 above, the wife shall pay to the husband the sum of $174,000.
17.That the husband be declared the sole owner of the Ford vehicle registration number […] in his name.
18.That the wife be declared the sole owner of the Toyota hatchback registered in her name.
19.That within 14 days of the date of these orders, the wife make available to the husband the custom made stainless steel barbeque, shell collection and video recorder.
20.That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any other 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.Monies standing to the credit of the parties in any bank account is to become the property of the party in whose name it is deposited.
c.Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other.
d.All insurance policies to become the sole property of the owner named thereunder.
e.Each party be solely liable for and shall indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
21.That if either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to effect the terms of these orders, the Registrar of the Family Court Canberra is hereby appointed to execute all deeds and documents in the name of the husband and or wife pursuant to Section 106A of the Family Law Act 1975 (as amended).
22.In the event that the wife fails to pay to the husband the money referred to in Order 16 herein, the parties shall forthwith place the [F] property on the market for sale with an agent as agreed and at a price as agreed and by way of consequential orders:
a.The wife shall at her expense prepare the property for sale as directed by the Real Estate Agent;
b.Upon sale of the [F] property, the monies shall be distributed as follows:-
(i)Pay the costs and commissions for the sale;
(ii)Pay out the mortgages attached to the property;
(iii)Pay to the husband the sum of $178,000 plus interest from the date of non-compliance with order 16, at the Family Court scale;
(iv)Pay the remaining monies to the wife.
The notable difference between the written minutes sought and what the husband told me orally was that his written document has the child being with his mother after school on Thursdays (that is five nights a fortnight, not four nights a fortnight).
By the time of the final phase of the hearing the father’s position had again changed. He sought an order that the child live with him during the whole of each school week but for more weekends during school term. The orders sought were as follows (the bold text indicates the changes made by the husband from the commencement of the hearing to the end of the hearing in relation to his position):
1That the child […] born […] March 1996 shall live with his father.
2That, both parents shall share the parental responsibility for the child.
3[The child] shall spend time with his mother as follows:-
a.During term times, commencing the first weekend of the school term, for 3 consecutive weekends from 5.00pm Friday until 8.00pm Sunday: the mother shall collect [the child] from the father’s residence on the Friday and the father shall collect [the child] from the mother’s residence at the conclusion of the weekend;
b.For half of all school holidays, providing that the mother is able to take holidays at the same time: being the first half of the holidays in years ending in even numbers and the second half of the holidays in years ending in odd numbers;
c.In the event that the mother is unable to be available for school holidays the weekend time shall continue in accordance with order 3a for the period when the mother would otherwise have had holiday time with [the child];
d.At other times as agreed between the parties.
4Holiday period changeovers will occur at noon on the relevant Saturday if the holiday has an even number of weeks and, should the holiday have an uneven number of weeks, changeover shall occur at noon on the Wednesday in the middle of that holiday.
5That the party with whom the children are living with on Mother’s Day and Father’s Day shall make the children available for contact with the relevant parent from 6.00pm Saturday, before the Mother’s or Father’s Day, until 4.00pm the following day.
6That on each child’s birthday and on the birthday of each parent, the parent with whom the children are [sic] living shall have them available for contact with the other parent for a period of 3 hours from 4.00pm to 7.00pm, should the birthday fall on a weekday and for 6 hours from noon until 6.00pm, should the birthday fall on a weekend or holiday.
7That for Christmas Day, if the parties are living within 50km of each other, the parent with whom the children are [sic] not living shall make them available for contact with the other parent from 3.00pm Christmas Day until noon Boxing Day.
8Neither party shall discuss these proceedings, nor denigrate the other, to or in front of the child nor cause anybody else to do so.
9That neither party shall unduly question the child upon his return from visiting or living with the other parent.
10Both parties shall provide to the other details of all medical, psychological and other professional personnel or organisations seen or visited by the child and in the event the child is seriously [sic] he or she shall contact the other parent immediately.
11The mother shall be restrained from taking the child to any counsellor, therapist, psychologist, psychiatrist or other health care professional save for urgent medical requirements without the father’s consent.
12That the father [in consultation with the mother] will take all steps necessary to ensure that [the child] undertake therapy with a professional recommenced by Dr [C] and continue to attend such therapy at times as recommended by the therapist, until such time as the therapist recommends in writing that [the child’s] continued attendance is unnecessary. Each parent shall be at liberty to discuss with the therapist any aspect of [the child’s] welfare and the father is authorised to provide to the therapist, copies of the reports of Dr [C] and Dr [S].
13 That for the purposes of Order 12, both parties shall share the cost of all appointments and therapy.
14The parents shall ensure that the child attends swimming lessons at times as arranged with the swimming school and the father shall be responsible for the fees for such lessons.
15The parents shall ensure the completion of the child’s homework and school assignments when the child is living with that parent.
PROPERTY ORDERS
16That within 60 days the husband sign all documents and do all things to transfer to the wife his right title and interest in the former matrimonial property located at [F].
17That upon transfer of the property referred to in Order 16 above, the wife do all things and sign all documents to discharge the mortgage with Westpac and refinance that mortgage in her sole name.
18That simultaneously with the occurrence of Orders 16 and 17 above, the wife shall pay to the husband the sum of $174,000.
19That the husband be declared the sole owner of the Ford vehicle registration number […] in his name.
20That the wife be declared the sole owner of the Toyota hatchback registered in her name.
21That within 14 days of the date of these orders, the wife make available to the husband the custom made stainless steel barbeque, shell collection and video recorder.
22 That in accordance with Section 90MT(1)(b) of the Family Law Act (1975) there be a splitting order in favour of […] (“the wife”) in respect of the interest in the Military Superannuation (MSBS) entitlements of […] (the husband) whereby the Commonwealth Trustee shall, upon a splittable amount becoming payable, pay to the wife (the non-member spouse) 15% of the entitlements calculated at the date of these orders, in accordance with Part 6 of the Family Law Act (1975) Superannuation (Regulations 2001) and there shall be a corresponding reduction in the entitlement the husband would have had but for these orders.
23That order 22 has effect from the operative time; being four (4) days after the date of service of these orders (“the operative time”) upon the Trustee of the husband’s military superannuation scheme.
The terms of the last application in relation to the splitting orders were again varied by the husband on 26 March 2008 so that they matched the terms of the letter from Military Super dated 20 March 2008 (Exhibit II).
24That, having been accorded procedural fairness in relation to the making of this order, this order binds the trustee of the Public Sector Superannuation Scheme.
25That, having been accorded procedural fairness in relation to the making of these orders, Orders 22 and 23 bind the trustee of the aforementioned superannuation scheme.
26That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any other 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.Monies standing to the credit of the parties in any bank account is to become the property of the party in whose name it is deposited.
c.Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other.
d.All insurance policies to become the sole property of the owner named thereunder.
e.Each party be solely liable for and shall indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
27.In the event that the wife fails to pay to the husband the money referred to in order 16 herein, the parties shall forthwith place the [F] property on the market for sale with an agent as agreed and at a price as agreed and by way of consequential orders:
a.The wife shall at her expense prepare the property for sale as directed by the Real Estate Agent;
b.Upon sale of the [F] property, the monies shall be distributed as follows:-
(j)Pay the costs and commissions for the sale;
(ii)Pay out the mortgages attached to the property;
(iii)Pay to the husband the sum of $178,000 plus interest from the date of non-compliance with order 16, at the Family Court scale;
(iv)Pay the remaining monies to the wife.
28.That if either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to effect the terms of these orders, the Registrar of the Family Court Canberra is hereby appointed to execute all deeds and documents in the name of the husband and or wife pursuant to Section 106A of the Family law Act 1975 (as amended).
29.That these orders bind the assigns and executors of each party.
Independent Children's Lawyer’s application
In submissions the Independent Children's Lawyer sought orders to the following effect:-
1.That [the child] continue to reside with his mother.
2.That [the child] attend cognitive behaviour therapy (CBT) by either Ms […] or Ms […].
3.That the mother attend a psychologist.
4.That the parties attend the ARCK program.
5.That the hearing be adjourned for a period of 6 to 12 months at which time a further report would be prepared by Dr [S]. The Independent Children's Lawyer asks that no final decision be made at this point but the mother be given a further opportunity to improve her parenting skills and her attitudes to the responsibility of parenting. In the meantime the current arrangements would continue in accordance with the current interim orders. It was the final position of the Independent Children's Lawyer during submissions that the period should be 12 months.
6.An order be made for equal shared parental responsibility.
DOCUMENTS READ
The following documents were read by me:-
27.1.Affidavit of the husband sworn 21 November 2006;
27.2.Affidavit of the husband sworn 22 December 2007;
27.3.Financial Statement of the husband filed 11 September 2007;
27.4.Affidavit of the wife sworn 16 November 2006;
27.5.Affidavit of the wife sworn 17 December 2007;
27.6.Financial Statement of the wife filed 18 September 2007;
27.7.Family Report of Ms W dated 1 November 2007 with addendum dated 13 November 2007;
27.8.Report of Dr C dated 21 January 2008;
27.9.Family Assessments of Dr S dated 16 May 2001 and 10 July 2007;
27.10.The mother’s parenting questionnaire;
27.11.The father’s parenting questionnaire;
27.12.Material tendered as exhibits, including the report prepared by Mr R in relation to the value of the husband’s superannuation interest (Exhibit I) and supplementary letter by Mr R dated 7 December 2007 in respect of circumstances in which the husband’s pension might be reclassified;
27.13.Various other documents tendered as exhibits in the proceedings.
CREDIT
Counsel for the mother made the submission that the parties’ conflicting versions of the father’s involvement with the child in the early years after the separation should be resolved by finding that the truth lies somewhere in between. I take it that the reason for that submission might be that the level of conflict between the parties is such that one might expect that both parties are colouring their view of the history of the matter.
The main issue to which credit is relevant is the different versions given by the parties of the history of the child’s care and particularly the father’s involvement in the child’s care. That particular issue is not of central relevance looking forward given the more weighty other considerations in this matter and so issues which turn on credit do not loom large in this matter.
There are some areas however whether the mother’s credit has been called into question. Those matters include:-
30.1.At paragraph 11 of her affidavit sworn 17 December 2007 the mother says that she used the amount of $40,000 that she brought into the marriage to pay the husband’s debts. That statement is misleading in that the husband’s debts were only $4,000 plus he had a mess bill.
30.2.The mother conceded in cross examination that she told Dr H in June 2005 that the child was attending school regularly while he was not.
30.3.She made a similar statement to ACT Health in August 2005. The number of days that the child missed school in 2005 was 83 in number.
30.4.The mother also gave incorrect instructions to her counsel as to when it was she received Dr S’s second report. The mother initially gave instructions to counsel to put to me that Dr S’s report was not received by her until shortly before 24 September 2007. The court records show that the report was released to the mother’s solicitor on 11 July 2007. When the records of the mother’s solicitors were checked, counsel for the mother conceded that the report was sent to the mother on 17 July 2007.
The father on the other hand inaccurately recorded how a property was initially acquired but corrected that evidence voluntarily.
If forced to choose between the accuracy of the mother and the father as historians, based on the matters that I have just referred to and the overall impressions that I gained of the parties when observing them give evidence, I consider the father to be more objective.
This is particularly so in relation to the history both parties give in respect of the father’s involvement in the child’s upbringing and the reason from time to time for his lack of involvement. The mother to the date of hearing retained the belief “in her heart” that the child had been sexually abused by his father. It is my view that that has coloured her ability (certainly since the allegations were made), to happily facilitate the child’s involvement with his father. There is no doubt that the continued agitation of the sexual abuse allegations has created a climate of poison, bitterness and certainly from the father’s part, anger.
CHRONOLOGY
The parties have agreed on the following chronology (Exhibit K) which I now record.
The mother was born in January 1962 (currently aged 44).
The father was born in November 1964 (currently aged 42).
In January 1983 the father commenced as a member of the Australian Defence Force and commenced contribution to superannuation.
In June 1986 A (the wife’s child from her first marriage), was born.
In October 1987 M (the wife’s child from her first marriage) was born.
The parties commenced cohabitation in February 1995.
The parties married in April 1995.
In 1996 the parties moved to Victoria.
In March 1996 the child of the marriage, (the child), was born (aged 12 years).
On 4 December 1997 the father was diagnosed with a renal disease. He had 12 months of dialysis.
In 1998 the parties purchased F property for $189,000. The parties borrowed approximately $153,000 to assist in the purchase.
In August 1999 the father cared full time for the child for three weeks while the mother travelled with her other children to the USA for a holiday.
On 11 February 2000 the father retired from the Defence Force and became eligible to receive a pension from the Defence Force.
On 23 May 2000 the parties separated.
Between May 2000 to January 2001 the father resided on the South Coast of New South Wales with his parents. The child’s time with his father during this time was a three week period during August or thereabouts. The father asked for Christmas holiday contact but the wife took the child overseas without the husband’s knowledge during the Christmas period.
In January 2001 the father returned to enrol in University to change his career. The mother sought reconciliation.
In March 2001 the father sought orders in relation to the child as he was not having contact at all. The mother made an allegation of sexual abuse against the father.
Between March and August 2001 the father has supervised contact due to the allegations.
In August 2001 Dr S’s report was released.
In August 2001 consent orders were made by the Federal Magistrates Court in relation to the child’s parenting.
In December 2001 the wife received $75,000 by way of compensation for an accident in 1991.
Between Christmas 2001 and January 2002 orders were complied with for three weeks Christmas holiday contact.
In 2002 the father commenced a new career. The father had only day contact at the mother’s insistence despite Court orders.
In November 2002 the father became ill. The mother took child overseas.
In mid 2003 the father suffered renal failure and commenced dialysis. He stopped working.
On 12 May 2004 the father had hospital treatment.
In October 2004 the father resumed limited work.
In December 2004 the father attempted to have contact with his son. The mother refused.
In 2005 the father consistently attempted to resume contact as per the orders but was unsuccessful. The father was given three days holiday contact at the end of term 1 of the school year.
The father engaged a lawyer in 2006. The orders sought were made known to the mother’s lawyers. Limited daily contact resumed each fortnight with one weekend in September 2006.
In October 2006 the mother raised sexual abuse allegations again. A report was made to Family Services by a Mr F.
On 23 November 2006 an interim hearing was held in relation to the mother’s allegations before Deputy Chief Justice Faulks.
PARENTING ISSUES
The issues identified in relation to parenting at the commencement of the hearing were as follows:-
67.1.Sexual abuse allegations against the father in 2001 and in 2006;
67.2.Sleeping patterns at the mother’s home;
67.3.The child’s unusual eating patterns;
67.4.Whether the child has Aspergers Syndrome;
67.5.The child’s performance at school including socialisation, attending to homework and contact with teachers;
67.6.The child’s hygiene;
67.7.The child’s views;
67.8.The conflict that currently exists between the parents;
67.9.The risk of change in the child’s current arrangements;
67.10.The father’s attitude to the payment of child support.
The recommendations in Dr S’s report dated 10 July 2007 and released to the parties on 11 July 2007 were in the following terms:-
“I have profound concerns about [the child]. I am unclear about the best way to proceed given the complex dynamics, lack of insight of the mother, his emotional attachment to her and the direct expression of wishes. What I would suggest is the following:
1.That [the child] have an assessment for Asperger’s Disorder or Autism Spectrum as planned by the mother. I would ask that the unit be given a copy of this report to outline my concerns and what I think needs to be addressed.
2.That the doctor/assessor be asked for a very specific treatment plan for [the child] and that this plan address my concerns with diet, school attendance, and especially the continuing sleeping with his mother which I consider to be highly inappropriate for a child approaching adolescence.
3.[The child’s] treating psychologist to continue to see him regularly, at least every fortnight and have oversight of implementing the plan and explaining what is required to [the child] and his parents.
4.If [the mother] does not fully co-operate with the recommended plan over the next six months, I would recommend a brief reassessment and consideration given to the father’s proposed change in residence and reversal of contact.
PARAMOUNT CONSIDERATION
In deciding what parenting orders to make for the child I must regard his best interests as my paramount consideration (Section 60CA FLA).
PRIMARY CONSIDERATIONS
In determining those best interests I must primarily consider Section 60CC(2) FLA:
The benefit to the child of having a meaningful relationship with both of his parents
The Independent Children's Lawyer submitted that on her proposal, the child would continue to have the benefit of having a meaningful relationship with both his parents.
The mother should be given some credit for the fact that despite the poisonous conflict between the two parties, the child has managed to develop a good relationship with his father. The mother conceded in cross examination that in hindsight she may have done better in making opportunities available for the child to see his father in the earlier years. That, however, was an ambivalent concession when compared with other things that she said during her oral evidence.
In October 2006 Mr F had invited the father to see him along with the child (see page 26 of Exhibit GG). Mr F records and the father concedes that that meeting did not take place. The father’s explanation, which I accept, is that the time for that meeting conflicted with a pre-existing commitment he had at his school which he was unable to get out of.
The child’s relationship with his father was affected in the early years by his father’s serious illness. The father commenced dialysis in mid 2003 and had lengthy hospital treatment in June 2004. Whilst he should have convalesced for longer, he got back to work in October 2004.
The father during his evidence said that he wanted to avoid litigation, if at all possible, because he had an insight as to the effect that litigation would have on the child. In the early years he attempted to negotiate with the mother for increasing time with the child.
Since August 2006 apart from a short period, the child has spent regular time with his father whilst being in the primary care of his mother.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence
The Independent Children's Lawyer submitted that I could make no finding of sexual abuse within the definition contained in s.4 FLA, nor could I make any finding of unacceptable risk.
Sexual abuse
The mother believes “in her heart” that the child was sexually abused by his father when he was about 4 years of age.
The evidence in relation to his allegation is contained in earlier affidavits and is conveniently summarised by Dr C at page 17 of her report in the following terms:-
“[The mother] reported that she had held concerns about [the father’s] behaviour following an incident in 2000, just after she and [the father] had separated. When she was playing a ‘chasey’ game with [the child], on catching and tickling him, [the child] had stated, ‘Kiss my willy’. [The mother] had refused, and [the child] had responded, ‘But just the very end – Daddy says it tickles and it makes him happy’. [the mother] reported that she reported this at the time. [The father has denied the occurrence of this incident – and this has been reported in previous reports and affidavits].
[The mother] reported that the above incident made her re-think a previous incident she had witnessed during their marriage. She explained that [the child] had been having a shower with his father, and as she had entered the bedroom, she had heard [the] father state, “put it in your mouth’. [The child] had responded, ‘No it’s yucky’. [The mother] reported that [the father] had stated again (this time sternly), ‘Put it in your mouth!’ On entering the room and hearing this, [the mother] had asked [the father] what it was that he was expecting [the child] to put in his mouth, and [the father] had said, “Oh, we are just being silly’ and had explained that it was the shaving cream. [The mother] reported that, at the time, she had chided herself for being suspicious. However, she explained that, as new concerns appeared, her original suspicions were revived. [The father has denied this incident, which has also been reported in previous reports and affidavits].
[The mother] reported that in 2001, [the child] was seeing counsellor, [Ms N] for assistance with his eating problems. [The child] explained that, during this period, [Ms N] called her in and informed [the mother] that she believed [the child] had been sexually abused by his father.”
During the final part of the mother’s oral evidence I asked her how she currently felt about these allegations. She initially seemed torn as to whether or not to directly answer that question. I inferred this was because she perceived the answer wasn’t going to assist her case. But she did answer, I think genuinely, about how she felt.
The answer was that she believed that the father had sexually abused the child when he was about 4 years of age. She is now employed in child welfare. She said that if somebody had reported to her what she had heard the child say then she would accept that there were grounds for serious concerns. There is no other evidence of a corroborative nature before me that would verify the allegations. Ms N has never been asked to give evidence. There is evidence that the mother’s two adult children witnessed some of the child’s behaviour eight years ago (when they themselves were in their teens) but they have not been called as witnesses. The father has denied the allegations. There is no corroboration from the child at the time or since (although I am mindful that he was only 4 years old at the time the allegations were made). The initial allegation was raised in circumstances where the mother became aware that the father intended to engage in a litigation process if some resolution could not be found to the mother’s resistance to the father spending time with the child.
Dr S opines in his second report (page 9 at line 404):
“There has been no evidence of any sexual abuse by the father but the mother continues to suspect this noting what she termed sexualised play as recently as October 2006, and making the comment reportedly by [the child], ‘that way I will know you really trust me’. That freaked me, wanting to see my boobs. We had this years before’. She does not appear to have the capacity to have [sic] generate a range of hypotheses about what causes the behaviour, for example suspecting abuse because it was ‘after he started to see his father again’.”
It was clear to me during the hearing that the mother was unable psychologically to accept alternate hypotheses about what she might have heard the child say.
The mother’s final position was that although she is still convinced that the child was sexually abused by his father at about the age of 4, she didn’t think there was any risk of anything untoward happening today. She seemed to think things she saw as recently as October 2006 were still connected to the original abuse. Her stated view that there is no risk today was because there had been no repeat of the statements made by the child in the last eight years whilst the child has had increasing time with his father and because the child has been taught protective behaviours in relation to possible sexual abuse.
The mother’s view that this sexual abuse had occurred was reinforced by the instructions she gave to her counsel to direct some cross examination to the father. That cross examination however fell short of putting to the father that he had perpetrated the alleged abuse.
In final submissions however Counsel for the mother submitted that there was no basis upon which I could determine that there was an unacceptable risk of the child being with his father.
In final submissions, the Independent Children's Lawyer submitted that there was no issue arising from the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
Having reviewed the available evidence on this topic, including the affidavit the mother filed at the time, and heard the parties on it, I am comfortably satisfied that the child was not sexually abused by his father in 2000.
The mother holds a genuine view that it did happen. That view is part of the underlying matrix of factors which has led to the position of intense interpersonal conflict between the mother and the father in relation to matters concerning the child. The father feels understandable anger that baseless allegations have been made by the mother. The mother maintains her belief in them to this day.
One advantage of the proposal made by the father for a change is that, in some small way, the ability of this corrosive issue to continue to fuel the interpersonal parental conflict is reduced.
ADDITIONAL CONSIDERATIONS
In addition I must consider those matters set out in Section 60CC(3) and (4) FLA.
Expressed views and their weight
Dr S deals with the child’s views at pages 4 to 7 of his second report.
In Dr S’s second report he says this about the child’s views on page 6 starting at line 259:-
“To the direct question about his wishes he said he wanted the situation to remain the same. This is currently: Living with his mother, contact with his dad, Friday from after school care to school Monday (second weekend) and Wednesday from after school care and overnight and half holidays. He said, ‘I just like things the way they are. It is pretty convenient for me. A bit of a pain to have week with dad and mum, a pain to move my stuff every week. Although I am mostly with mum, I get to see dad a good bit. Times give me a pretty equal time with each of them’.”
Other relevant extracts are as follows:
“I asked [the child] why he had come to see me and he replied, ‘To give my voice on the custody matter’. I asked what his parents disagree about and [the child] replied, ‘A few things. They still argue a couple of times on the phone (in memory). Some choices mum has made in the last couple of weeks that dad doesn’t agree with’. I asked about custody arrangements and he said, ‘Mum wants for me to be happy, but I wouldn’t be happy with being with dad. I want things to be the way they are. I don’t want to always live with dad’….”
“….I asked [the child] what he likes about staying [sic] his mother’s house and he replied, ‘Mum has the internet, dad doesn’t. Nintendo and majority of my stuff. Big backyard’….”
[The child] said he likes staying at his father’s house because, ‘I like the feel of the whole house. Location close to a park. Dad lets me go for a walk to the park and come back’.
[The child] complained though that given it was rental accommodation he couldn’t put up posters and the backyard was small.
Relationships with other people
[The child] has a good relationship with [A] who was born […] June 1986 and is currently 21 and [M] born […] October 1987 and currently 20.
Views (continued)
I asked [the child] if his mother speaks badly of his father and he said, ‘not bad names. She doesn’t like him. She said she would regret marrying him except for me being born’. I asked if his father speaks badly about his mother and he said, ‘he makes a bit less obvious, but he doesn’t like mum’.
I asked which parent talks more about court matters and [the child] said, ‘Mum’. He estimated the proportion to be 80% of the time his mother talks about court and 20% his father.
Dr S at page 10 of his second report refers to what the child expressed to him as his clear wishes and comments:-
“….this view and expression of wishes is influenced by the mother, but she is his primary attachment figure. Unfortunately he lacks the maturity to see that her parenting is undermining his autonomy and ultimately his psychological development.”
Dr C doesn’t say anything in her report about the child’s wishes.
Dr C agreed in cross examination that the child is emotionally enmeshed with his mother and in those circumstances is unlikely to express a view that is contrary to his mother’s view. In addition, Dr C agreed that the child was in control in the relationship between he and his mother and it was a situation that the child who is just entering adolescence is unlikely to want to relinquish.
The child’s clearly expressed wishes are a strong feature of the mother’s case and form the basis upon which the Independent Children's Lawyer makes submissions for the orders sought by her. But the Independent Children's Lawyer conceded that there was a need to be cautious about the views expressed by the child.
I find however that notwithstanding the child’s intelligence and the fact that he is about to enter high school, I have to be very cautious about the weight that I place upon the child’s expressed views given the influence his mother has upon him and how that influence undermines his autonomy.
Relationships
It is Dr S’s evidence that the child is emotionally bonded and attached to both his parents. He expresses the opinion that the attachment is slightly closer to his mother.
There was no issue that the mother has been the child’s primary carer since he was born but he has a good relationship with both his parents. There is evidence that whilst with his father the child enjoys time with his cousins.
Counsel for the mother submitted that the child’s primary attachment is with the mother but conceded that the child had a good relationship with his father.
On the question of relationships and attachments, in 2001 Dr S involved the child in some displacement discussion (at page 8 of Dr S’s first report.) The child reported to Dr S that his friend would be happiest living with “his daddy”. Dr S was not asked any questions about that passage of his report or what meaning or conclusion should be drawn from it but I infer even in May 2001 the attachment between the child and his father was strong.
It is clear from page 55 of Dr C’s report that the child has a good relationship with his step brother and step sister. He describes his sister as “kind and someone who does things for me”. The child told Dr C that he sees A and M about once per week.
Willingness to encourage and attitude to relationship between child and other parent; attitude to the responsibilities of parenthood
Section 60CC(4A) FLA requires me in particular to focus upon events that have happened, and circumstances that have existed, since the separation occurred and look at the parties’ willingness and ability to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
Reference was made by both opposing counsel and the Independent Children's Lawyer to pages 8 to 10 of Dr C’s report which included.
“However there are several other areas for concern – all of which may be important contributing factors. First, [the child] expressed several times during our interviews his extreme unhappiness and anger at his parents for their ongoing hostility and conflict. It seems to be very prominent in his thoughts during our interview. I believe that [the child] has been strongly affected by this ongoing parental conflict. It is highly probable that the lack of personal control he experiences in his life over where he lives – does not live, who he sees, how his parents undertake their parenting role – is a major factor in his presentation....
For [the child] to develop as a healthy individual, it is important for several things to happen. First, it is of high importance, and in [the child’s] best interest, that [the mother] and [the father] are able to put aside their personal difficulties with one another, and resolve their differences, so that they can take on the parenting of [the child] together – and with regular negotiations and discussions. It would appear that they will need specialist and ongoing assistance with this as this has been suggested previously and still has not been achieved. There may need to be court direction to achieve this. Given [the child’s] strong expressions that this was the aspect of his life he most disliked, I would see this as a priority. I predict that, were a more respectful and civil relationship to develop between his parents, [the child’s] anxieties may reduce. It may also be important to include [the child] in some family sessions and this may assist with some of his feelings of lack of personal control in his life.”
At the commencement of the final phase of the hearing I directed both parties’ attention to the second part of the passage of Dr C’s report quoted above (that commences at the bottom of page 9). I asked them whether or not when they read that part of the report and whether it gave them pause to reflect on what the two of them were doing to the child.
Both of their responses focused on the past. They both essentially blamed the other for the current level of conflict. Both of them thought that the ARCK program may be of some assistance for the future but at the end of the hearing I was less than confident that the parental conflict in this matter given its intensity and its longevity is likely to be significantly improved by the promise of each party that they will participate in future therapeutic intervention.
Of course, part of the parental conflict is their investment in this litigation including their dispute in respect of property.
The mother when asked why the child was in vacation care whilst he was with her (rather than spending time with his father who has time off during school holidays) responded “if I was getting on with the father I might”. She went on to give more plausible reasons (the child’s wishes and the stimulation he got from being involved in vacation activities with other children) but I place some weight on the initial response as an indicator as the level of parental conflict between the parties.
At the current time the parental conflict is destroying the child.
Counsel for the mother emphasised the point that given the disrupted history of the child spending time with his father it is remarkable that there is such a good relationship between the child and his father and that the mother should get some credit for that. Whilst there is merit in that submission, the mother was very willing to criticise the father and that is some indication of her lack of a willingness to facilitate and encourage a positive relationship between the child and his father.
I find that in the future it is more likely that the father would show a greater willingness to facilitate and encourage a close relationship with the child and his mother, if the child was to come and live with him, than the mother would encourage and facilitate the child’s relationship with his father, if the child stayed with her.
The father’s compliance with his obligation to maintain the child was not the focus of any cross examination and I do not consider that a matter upon which I can make findings or upon which I place weight.
Effect of change
The positive versus negative effects of a change in the pattern of the child’s caring is an essential feature of the decision that I have to make in this case.
Counsel for the mother submitted that there could be dire consequences for the child if a change was made in his circumstances and for that reason the mother should be given one last opportunity to improve her capacity as parent and her attitude to the responsibilities of parenthood.
Counsel for the mother submitted that the child has expressed concern that he has no personal control over his life.
Dr C in her oral evidence referred to the child’s score on the separation anxiety scale. She said that the child was four standard deviations away from the medium score. This separation anxiety however was not referrable only to the mother. Dr C said that what it meant was that the child needed to be closely with a parental figure at all reasonable times.
Dr C made it clear that there would be some short term pain for the child if the decision was made to move him from his mother and said that inflicting that pain might be described as being “cruel” to the child.
Counsel for the father conceded that in the short term the child would suffer distress as a result of the father’s proposal. It was put however that it was in the child’s best interests because of the long term benefits that may flow.
In relation to the issue of distress, Dr S was far more sanguine in his oral evidence than in his report about the possible effect on the child of a move to his father.
At page 9, paragraph 6.3, when speaking about the effect of change, Dr S said the following:-
“On this point I am unclear. I would not recommend a total separation from either parent, since this would be an extreme action and clearly not in the interest of a child with emotional attachment to both parents. I am very concerned that [the child] is vulnerable in psychological terms and I am not able to predict the consequences if he were to have a very different pattern of residence and contact – say a reversing of the pattern of contact such as proposed by the father.”
Dr S in oral evidence said that he had now read Dr C’s report. His remarks in paragraph 6.3 were made in the context of him being unsure as to whether or not the child had Asperger’s Disorder or some other diagnosable disorder. Given that Dr C had excluded those possibilities and had concluded that the child’s distress is caused by anxiety, he had less ambivalence about a reversal of the pattern of time as proposed by the father. This was because the distress caused by short term anxiety can be addressed by therapy.
Counsel for the father put to the mother in cross examination that given the history of her care giving and the position that it has led to with the child, it is time for a change. The mother argued in her answers against that proposition. Counsel for the father pointed to the following as things that might be improved by change:-
124.1.The child’s school attendances;
124.2.The child’s sleeping arrangements;
124.3.The child’s eating patterns;
124.4.The child’s hygiene;
124.5.The information flow between the parents about the child’s wellbeing.
The negative effect of change on the child in this case has to be weighed against the potential positive advantage for the child of that change. Those potential positive effects have to be assed by looking at the history of the capacity of the mother to provide for the child’s needs and comparing it with the untested but uncriticised alternative the father proposes. I will now discuss those matters.
The capacity of parents and others to provide for needs of the child (including emotional and intellectual needs)
Schooling
Exhibit H are records from F Primary School. They show a consistent pattern.
An August 2000 report notes that the child needs to develop his social skills by regularly attending school and making more connections with his class mates.
A letter written by the principal of F School to the mother dated 22 July 2003 expresses her concern as to the attendance rates in term 1 (32 out of 50 days,) and term 2 (20 out of 50 days). The child had missed 48 days school in two terms. The principal says in the letter “we are very concerned that his lack of attendance is inhibiting his ability to form stable friendships and making it difficult for him to engage in his academic program at [F] Primary School”. This letter in effect is a warning letter under the Education Act to the mother informing her of her legal duties as a parent to make sure the child attends school. The letter notes that the mother had only forwarded seven pieces of written correspondence in relation to the 48 days of absenteeism in the first two terms of 2003.
Counsel for the father submits that despite the 31 attendances for therapy as detailed in Exhibit CC, the mother had not been able to modify her behaviour or the child’s to any successful degree.
A June 2004 learning assistance report notes that the child’s high absentee rate and the requirement for continued monitoring to help him remain on task meant that the child missed a great deal of work and, as a consequence, the child required learning assistance.
The mid year report in June 2004 says that low marks in some sections of English indicate the unavailability of work from the child for the teacher to assess. Although he is an intelligent student he ‘does not give himself a fair go by attending school more often”. His mathematics teacher also noted “his poor attendance does not permit his extra help in mathematics to be consistent”.
A December 2004 learning assistance report from the principal notes his high level of absentee rate has an affect on his achievement level.
The child’s 2005 mid year report says that the child’s many unexplained absences have improved in term 2 (as at June 2005) but are still an area of concern.
A note on 22 June 2006 in the half year school report says of the child:-
“His poor time management skills means he often does not complete tasks. He becomes easily distracted and his lack of focus results in a lot of unfinished work. His many unexplained absences are an area of concern. His social skills are improving and he is contributing more to class discussion.”
The mother accepted that since May 2001 it was her primary responsibility to ensure that the child got to school. Counsel for the husband put the child’s schooling record to the wife during cross examination. The history was not contentious. It is as follows:-
Year
Days absent
2003
94
2004
67
2005
83
2006
51
2007
45
The mother said that the child was off school in 2003 for a few weeks with glandular fever. She also said that he had 10 days off from school during 2006 for the purposes of travelling overseas with her.
The mother conceded that there were no medical certificates or letters on the school files between 2003 and 2006. She also conceded that reports would often record that the child’s attendance at school was a problem. The mother responded by saying that she knew that and had worked closely with the school principal. She said during term 3 of last year the child reported to her that he had a conflict with his home teacher who kept the role and the mother believed the child often hid in the toilet during role call. He had been to the dentist a couple of days and had been to M School for an intake day as well. When a statement by the child to Dr S to the effect that “mummy got up late” and it was put to the mother that the child was often late for school, the mother didn’t directly deny that but indirectly denied that by saying “Mummy holds down a job”.
When Dr S asked the child about why he had time off school when he interviewed him in June 2007 the child said:
“I am not sure. It just happens. It is usually sickness. I think my immune system is down from my eating disorder. I don’t know why it happens’.”
The child told Dr C at page 53 of her report which was a statement in the following terms (from the Doctor’s notes of interview with the child):-
“I asked [the child] is [sic] he knew whey [sic] his father might want custody, and [the child] responded, ‘He thinks Mum isn’t taking care of me properly. He just thinks Mum isn’t a good parent. He thinks Mum doesn’t make me go to school’.
I asked, ‘Do you think that too?’ and [the child] responded, ‘Yes’. I asked [the child] why he didn’t go to school regularly and he responded, ‘It’s usually when I’m sick. But Dad would be a bit stricter about whether I am sick or not’.”
The mother explained that in her view the child stayed home from school so much because his eating patterns left him vulnerable to contracting illness on a more regular basis than would be normal. She says that she often keeps the child home one day in order to avoid him being home for longer periods. The effect of this evidence was that she kept the child home as a preventative measure to nip potentially more serious illnesses in the bud.
Counsel for the mother in submissions emphasised what was contained in Exhibit V which was a breakdown of the child’s school attendance for 2007:
Term 1 14 days
Term 2 12 days
Term 3 12 daysTerm 4 7 days
Counsel for the mother submitted that seven days absence in Term 4 should be seen as a significant improvement in what had gone before and an indication that the mother was heeding advice and making improvements.
Dr C made it clear that the need to set routine and boundaries for the child coupled with his separation anxiety meant that it was important for the child to be with a parent as much as possible.
The father at paragraph 3 of his affidavit sets out that the proximity of the father’s workplace and M School (where the child has commenced year 7) will enable the child to walk next door to the father’s school and meet him after school each day. His father will then drive him home and otherwise attend to the child after school.
Counsel for the father indicated that the father would consent to an order that would require the father to take the child to his school and be with the child from after conclusion of his school and also an order that the father would follow through with any recommendations and appointments made in relation to any treatment given to the child.
Counsel for the mother submitted that the mother had in fact been successful in adequately catering for the child’s intellectual needs. She referred to Exhibit FF which is an assessment report for year ended 2006 in relation to the child. That report indicates that the child is an intelligent boy who has been able to achieve a proficiency in the middle 60% of students in the same year. That performance was higher than the ACT average.
Counsel for the father however rightly points out that Exhibit FF does not tell the court where the child might be had he gone to school regularly. Dr S’s commented that the child’s schooling had been like Swiss cheese and as he moves into high school, teachers will have expectation that the child would have had incremental learning built on previous learning but that there are whole patches in that learning patterning which are not there because the child simply did not go to school.
Conclusion on schooling
I accept that there has been some small improvement in the child’s absenteeism whilst this case has been pending, particularly in the fourth term of last year when the hearing had already commenced. However, the history of the child’s attendances at school when viewed over the long term has been lamentable. I have little confidence that once this case is over that any improvement in the pattern will be sustained if there is no change made.
Sleeping arrangements
Counsel for the mother referred to Exhibit V which was a note by Mr F, psychologist, of an interview he had had with the child in October 2006. It was in the following terms:-
“I asked [the child] to talk about some positives with dad and he stated that they played games together, played on the computer and watched movies. [The child] did also mention that he had to share a bed with his dad. I asked [the child] if this was ok with him? [The child’s] reply was ‘yeh’.
In Dr S’s second report he asked the child about his sleeping arrangements. The child responded:
“’Sleep with my mum. My brother slept with my mum until he was 13.’ I asked who told him and he said, ‘My mum. In a mattress in the room. I remember it, he would sleep with his Super Ted. I can sleep in my own bed, but I choose not to’. I asked if his mother gives him the option and he said, ‘Yes’. I asked if he sees any long range problems and [the child] replied, ‘No. I could fix it easily. She has gotten used to cuddling into me’. He continued, ‘I sleep on my own at dads.’ I asked if this is a problem and he said, ‘No’.”
Item 6 – husband’s claim for $27,135 add back against the wife
Exhibit Z shows that the sum of $51,000 was deposited into an account in the name of the wife from monies received by the husband ($56,000) in March 2000 by way of interim payment to the husband of his benefits under the Military Superannuation and Benefits Scheme (“MSBS”; see page 45 husband’s affidavit sworn 22 December 2007). The wife provided in Exhibit Z an explanation as to the amounts that were expended from an account in her name between 1 January 2000 and 31 May 2000. Counsel for the husband submitted that the wife’s explanation as to what the wife did with the $51,000 that was transferred into her account is such that an amount of $27,135 should be added back against the wife. That submission is based on the following argument:-
204.1.The payment by the wife to Defence Health on 9 May 2005 in the sum of $1,601 was a payment of health insurance in advance after the date of separation and related to the wife, the child of the marriage but also the two children of her previous marriage.
204.2.The amount of $3,801 paid by the wife for airfares on 15 May 2000 and 23 May 2000 related to a journey the wife decided to go on at the time of the separation with herself and the two children of her previous marriage and a holiday to Melbourne. Counsel for the husband submits they should be added back.
204.3.The amount paid by the wife on 29 May 2000 in the sum of $15,000 to her parents was not a necessary expenditure by her given that the original advance by her parents was by way of gift and consequently the amount therefore should be added back onto the balance sheet.
204.4.Counsel for the husband refers to the fact that the handwritten proof of evidence by the wife in Exhibit Z accounts for $44,267 out of the $51,000 but that leaves a balance of $6,733 unexplained.
These amounts total $27,135 ($1,601 + $3,801 + $15,000 + $6,733). Counsel for the wife argued that none of these amounts should be added back.
I will deal with each of these arguments in turn:
206.1.The health insurance payment, whilst a payment in advance, included health insurance for the child. There is no evidence as to how much the health insurance would have been reduced had A and M not been included. I do not intend to add back against the wife any of the $1,601 that had been paid for health insurance in advance.
206.2.The wife’s evidence in relation to the first payment on 15 May 2000 was that that was to Qantas and it was to take advantage of cheap air fares that were available at the time of the Sydney Olympic Games for persons leaving Australia to go overseas. The wife’s evidence was that 3 people spent 10 days in the USA and another $1,000 spending money. They lived at Youth Hostels. That is a very frugal exercise. She doesn’t think that the air fares to Melbourne ($1,000) paid on 23 May 2000 related to that overseas trip. As part of ordinary living expenses the wife is entitled to spend money on holidays. The expenditure is not overly extravagant and I do not intend to add it back against the wife.
206.3.Given what I have accepted above, the original advance of $50,000 by the wife’s parent was a gift then it follows that the $15,000 that the wife repaid to her parents on 29 May 2002 should be added back against the wife on the balance sheet.
206.4.The wife provided in Exhibit Z an explanation as to the amounts that were expended from an account in her name between 1 January 2000 and 31 May 2000. There was no precise accounting for a balance amount of $6,733. Counsel for the wife submitted that the schedule attached to Exhibit Z sets out entries including entries with the reference “R” included in this balance amount. It is a reasonable inference to make that “R” refers to the husband’s name, that is a reference to payments to or on behalf of the husband. The Full Court in Edgehill & Edgehill (2007) Fam CA 1102 said that they did not consider it was incumbent upon a party to provide a precise audit of every item of expenditure post separation nor for a trial judge to embark upon the conduct of such an audit process. Bearing that in mind and the fact that it appears some payments from this amount have been made to or on behalf of the husband, I do not intend to add any of the $6,733 back against the wife.
It follows therefore that the only adjustment to be made form item 6 against the wife is the sum of $15,000.
Item 8
No issue was taken in the final stage of the hearing in relation to any money retained by the wife in the sale of the jointly owned Ford vehicle.
Item 9
Counsel for the wife submitted that the amounts of $13,000 to the wife’s parents and $20,000 for payment of outstanding school fees which the wife paid from her compensation payment, should be added back.
The wife had an accident before the marriage. After the separation (in December 2001) the wife received a compensation payment of $75,000. The husband argues that because he made some contribution in domestic assistance for the wife during the marriage, which was occasioned by the wife’s incapacity as a result of her injuries, and because part of the settlement involved an unspecified Griffiths v Kerkemeyer (1977) 139 CLR 161 damages amount, then these monies should be added back into the pool.
The wife says no amount from these funds should be added back.
Annexure C to the wife’s affidavit sets out the following:-
212.1.the wife received a compensation payment of $75,000 in December 2001;
212.2.the money was spent in the following way:-
payment of debts left outstanding at date of separation (as detailed in annexure E to the wife’s affidavit) $30,216.35
money put towards purchase price of Toyota motor vehicle 12,000.00
Payback some of loan to parents 13,000.00
Payment of outstanding school fees 20,000.00
$75,216.35
In relation to the payment of debt left outstanding at the date of separation, there is nothing untoward in the wife paying that amount. In fact I have accepted the wife’s submissions that those amounts should be added onto the balance sheet as liabilities existing at the date of separation which the wife paid from her compensation monies after separation (see items 16 to 21 above).
The motor vehicle which is on the balance sheet in the wife’s name currently worth $5,000 was purchased for $12,000 from the wife’s compensation monies received by the wife in December 2001.
The husband’s motor vehicle on the balance sheet was purchased by him from post separation monies. The evidence that the husband’s motor vehicle was purchased by him after separation (item 3 on the balance sheet) is at paragraph 32 of his affidavit.
As discussed above, I have found that the monies paid back to the wife’s parents were not a repayment of a loan and that the original monies were gifted.
The question is whether or not a party should be free to use monies received after separation as they choose if they have otherwise fulfilled financial responsibilities flowing from the past marriage. The Full Court in Gollins & Scott (2007) FLC 93-319 referred to the general rule that once parties were separated, each party would be entitled to get on with his or her life independently of the other. In this case the Full Court held that the husband was free to go about spending money he earned post separation and furtherance of his relationship with a new partner and a gift to her did not need to be added back. The facts in this case are slightly more complex because the compensation monies of $75,000 were in part contributed to by the husband during the marriage. I think the best course is to acknowledge the husband’s contribution to those funds at the second step and not add back the $13,000 that the wife provided to her parents from those funds.
Similarly in relation to school fees for A and M, the wife was entitled to get on with her life and to expend monies on the education of the two children from her previous marriage.
As a result no amount should be added back against item 9.
Items 10 to 13
It has been agreed that items 10 to 13 be eliminated from the balance sheet.
The parties agreed that apart from the husband’s entitlement to his pension with CSS (see Pool 2), other superannuation held by the parties in their respective names would not be included in the balance sheet. I will be mindful however when dealing with matters under s.79(40(d) – (g) that both parties agreed that they had a minor amount of superannuation which was of similar value (somewhere in the order of $13,500 - $15,500 each).
Items 16 through to 20
Paragraph 3(j) of the wife’s primary affidavit contains an assertion by the wife that at the end of cohabitation the wife was left responsible for a large number of debts, including:
David Jones $6,248
Grace Brothers $884
Target $367
ACTEW (AGL) $1,469.12
ADCU loan $21,219Total approximately $30,187.12
Although the wife was cross examined about these debts and although the supporting documentation in Exhibit E is not entirely satisfactory, I accept the wife’s evidence that these debts did exist at the conclusion of the cohabitation.
In annexure E to the wife’s affidavit there is some correlation between some of the amounts claimed and the supporting documentation. Although some of them don’t match up exactly. The most significant item is the ADCU loan which amounts to $21,219. Although this claim is not supported by statements that existed at the date of separation, there is some documentation there that seems to relate to the initial borrowing of that amount in October 1999.
The husband was unable to challenge these amounts when they were put to him in cross examination and consequently these debts should be included.
These figures are slightly different to the debts asserted by the wife as liabilities that should be added back in her favour as liabilities onto the balance sheet and in that regard I adopt the figures in the wife’s affidavit and will add them back.
I note that given those liabilities are added back then it would be a double counting to consider the payment of these liabilities from the wife’s superannuation monies as a contribution made on her behalf.
Item 21
The wife made a claim in relation to a debt that she alleged was still outstanding to her parents. This has been discussed earlier. I have found that this was a gift not a loan. Consequently no amount should be added back on the balance sheet as a debt to the wife’s parents.
CONTRIBUTIONS
Pool 1
The wife says there should be a 60/40 division in her favour based on contributions to non superannuation assets.
The husband says that there should be a 60/40 division in his favour in relation to non superannuation assets.
Initial contributions
The husband concedes the wife had $40,000 at the commencement of the cohabitation. He concedes that an amount of $50,000 was received from the wife’s parents. I have found this to be a gift.
I have already found how the amounts of $15,000 and $13,000 that have been given to the wife’s parents by the wife are to be dealt with ($15,000 to be added back to the balance sheet; $13,000 should not be).
In addition, there is an argument as to how much of the $13,000 has been given back to the wife’s parents should be treated solely as money to which the wife is entitled (and I deal with that argument below). So, using a pseudo mathematical approach the contribution by the wife at the commencement of cohabitation is $90,000 ($40,000 + $50,000).
Counsel for the husband claimed the husband brought $96,465 into the marriage. That calculation was based on the following evidence:-
234.1.Initial contribution of $9,500 (see paragraph 48 of the husband’s affidavit). The husband sold a Toyota Landcruiser for $13,000 and received $9,500 in net funds.
234.2.The receipt of $56,577 on 14 March 2000 (see paragraph 56 of the husband’s affidavit). The amount received by the husband in March 2000 by way of benefits under the Military Superannuation and Benefit Scheme (MSBS) is evidenced by a letter dated 3 March 2000 annexed to the husband’s affidavit at pages 45 and 46 of his affidavit (part of annexure I). That annexure shows that on 8 March 2000 the husband deposited into his account an amount of $56,577.99.
234.3.The husband at paragraph 52 of his affidavit asserts that “in 1999 I received a compensation payout due to my kidney failure. The sum of $30,386.99 was received. I believe that the document indicating this payment has been tendered to the court and a bank statement is available to show the deposit of this amount”.
So, counsel for the husband has calculated the amount of $96,464 as follows:
$9,500 + $56,577 + $30,386
However, in final submissions counsel for the husband said “it was put to my client that he was in error in relation to the assertion that he got $30,000 odd in 1999. I was called on to produce a document. I can’t produce a document. I can’t maintain the assertion and I don’t”.
Having conceded that the husband’s evidence in relation to the $30,386 in 1999 was not supportable it follows that the husband’s initial contribution is $66,077 ($9,500 + $56,577).
So, the wife brought in $90,000 and the husband brought in $66,077.
Other financial contributions
The wife was not in paid employment in February 1995 when the parties commenced cohabitation.
Neither party complains about the other’s efforts in paid employment during the marriage.
During the period of the marriage the wife was receiving child support from the father of her two elder children.
Restrictions on the wife’s role as homemaker
Exhibit DD are tagged pages in a bundle of documents that have been produced in relation to a compensation claim that the wife made in respect of a motor vehicle accident that took place in September 1991. The document dated 18 December 2001 indicates that the wife on that day received a sum of $70,724.93. A letter written on her instructions by Maliganis Edwards Johnson on 2 May 1995 connected with this compensation claim has the following entry:-
“Domestic restrictions
The Plaintiff alleges that as a result of her injuries, that she is unable to regularly perform her normal domestic household activities. In particular, it is alleged that the Plaintiff has difficulty with any form of cleaning which involves stretching (such as cleaning the wet areas of the house); she suffers aggravation of neck pain when she attempts to engage in ironing other than for a limited periods of 10 to 15 minutes; aggravation of neck pain if she engages in, or attempts to engage in gardening activities; and it is alleged that there are occasional periods when the Plaintiff is unable to perform any household duties during periods of acute pain.”
Under the heading social restrictions the letter asserts:-
“The Plaintiff intends to remarry in April 1995 and she will marry [a defence force member]. The Plaintiff, it is alleged, will not be able to engage in the normal and expected social activities of the wife of [a defence force member] because of her propensity to suffer acute neck and shoulder pain.”
The letter mentions the inability of the wife on occasion to hug her children then aged 7 and 8.
A further letter written by the wife’s solicitors on 11 March 1999 records the Plaintiff’s heavy levels of consumption of Mersyndol as a pain killer and Mersyndol Forte, and the consumption of the anti-inflammatory medication Feldene. It was said that in March 1999 the wife was still suffering chronic pain.
In a letter setting out particulars of the wife’s claim written by her solicitors on 11 January 2001 the following entry occurs:-
“The Plaintiff married [the husband] in April 1995. [The husband] provided eight hours of domestic assistance per week with tasks which the Plaintiff would normally have performed, but for her injuries. This assistance, continued, supplement [sic] by the Plaintiff’s eldest child, [A], until [the husband and the wife] separated in May 2000.
260 weeks x 8 hours/ week = 2808 hours.
Those hours were then costed at $15 per hour and a claim was made in relation to the husband’s efforts “for past Griffiths v Kerkemeyer damages”. The claim calculates to $42,120 ($15 x $2,808).
The amount of $70,724 which the wife received after separation is in part referrable to her disability sustained prior to cohabitation and experienced by her, including during the period of the marriage and in part referrable to the husband’s contributions during the period of the marriage. I am not able to make a precise calculation as to how much of that $42,120 was actually received when the wife’s claim is ultimately.
Post separation contributions
The wife has been the primary carer of the child after the separation.
Whilst the husband paid child support on a regular basis after separation some of these payments were on a reduced basis due to reduced income during some of that period.
Monies received by husband post separation
The husband received a payment in relation to the husband’s kidney disease which was received by him in 2002 and was in the sum of $20,000. The recording of the fact that the husband received $20,000 in 2002 is in exhibits W and Y. Exhibit W is a letter from the Department of Veteran Affairs dated 21 August 2002 accepting the husband’s claim under the Safety, Rehabilitation and Compensation Act 1988 and proposing to pay to the husband compensation by way of lump sum payment in the sum of $20,012.69. A letter dated 10 December 2002 evidences the husband receiving that amount. $12,706 of that amount related to a whole person impairment of 10% and the balance related to the non economic loss component. Annexure Y is a further document from the Veterans Review Board dated April 2002. It seems that the original claim by the husband in relation to this loss was dealt with in January 2000 by a delegate of the Repatriation Commission and the claim was refused.
The husband was originally diagnosed with renal disease in 1997. He went onto dialysis. I infer at this time the husband was restricted in the assistance he could give to the wife in caring for the household.
The husband offered no explanation as to what happened to these funds. Counsel for the husband simply submitted that because they were received after separation they should not be taken into account. That is somewhat inconsistent with the submission in relation to the wife’s post-separation injury compensation.
Conclusions in relation to contributions
Neither party criticises the other for the personal exertion efforts that they made both in relation to the production of income during the marriage and the provision of non-financial contributions and I find that both parties did these things to the best of their abilities from time to time. The matters that would alter that equality of contribution have been referred to in the above discussion. There is an imbalance of initial financial provision by the wife, the husband has made some contributions towards the acquisition by the wife after the separation of compensation monies, the husband has not adequately explained the receipt by him of monies in 2002 of about $20,000, the wife has had up until this time the primary responsibility of looking after the child for a period of over seven years after the separation. The net value of Pool 1 is $304,077. I conclude that Pool 1 should be divided between the parties based on their contributions as to 60 percent to the wife and 40 percent to the husband.
Pool 2
The solicitors for the husband have now provided a letter from Military Super dated 20 March 2008 indicating that the trustee of the husband’s MSBS interest has no objection to the splitting order sought by the husband, subject to some minor amendments to the form of the orders. The husband commenced to contribute to his superannuation fund in 1983. His entitlement to that fund arises out of his illness. The wife has made no contributions to the fund, although contributions were made by the husband to that fund during the period of the marriage. The husband seeks a splitting order so that the wife would receive a 15 percent of the income stream from time to time. The husband points to the fact that Mr R’s evidence would indicate that the stability of the income stream could change from time to time depending on reassessment. The husband’s entitlement to a pension is not fixed, it is variable, if there is a subsequent review.
The calculation of 15 percent is based on a rough calculation that the parties were together about 5.25 years and the husband had been in the superannuation scheme 17 years at the time he retired. That would give on a ‘West & Green” style adjustment an adjustment of a bit over 15 percent. In Mowbray & Mowbray (2007) Fam CA 167 the Full Court expressed the view that the West & Green approach was “simply against the overwhelming weight of authority”. The parties in this case however have used it as a pseudo mathematical approach and both have accepted a calculation of 15 percent as being an appropriate adjustment in respect of Pool 2.
The difference is that the wife wants the equivalent of 15 percent of the valuation of the income stream as capital so that she would take the whole of the husband’s interest in the matrimonial home.
Counsel for the husband submitted that the husband needs money to pay legal fees. Neither party during the evidence complied with the rule in relation to the tender of a memo of fees. I do not have any other evidence as to what legal fees are. Counsel for the husband submits that the husband also needs to re-establish himself and he can’t reaccommodate himself unless he receives some capital from a sale of the home. He has been renting since separation. Since separation the wife has been paying the mortgage on the matrimonial home but the mortgage it is submitted by counsel for the husband is a smaller monthly payment than the amount the husband is paying on rent on a monthly basis. Given the uncertainties in relation to the husband’s income stream, the fact that he will now be responsible for the accommodation of the child during the weeks of school term and the husband’s consequent need to re-establish himself, it is not appropriate that the wife receive the whole of the equity in the matrimonial home based on the valuation of the husband’s income stream under the Family Law (Superannuation) Regulations.
I therefore provisionally conclude that it is appropriate to make a splitting order in the terms requested by the husband
SECTION 79(4)(d) - (g) FLA MATTERS
Robb & Robb
It was agreed that an allowance needed to be made under the principals set out in Robb & Robb (1995) FLC 92-555 pursuant to s.75(2)(o) of the Family Law Act. The husband in paragraph 40 of his primary affidavit sets out the types of contributions he made in relation to A (born in June 1986, currently aged 21) and M (born in October 1987, currently aged 20).
Both parties agree that a 5 percent adjustment should be made in the husband’s favour as a result of his contributions in relation to the raising of A and M.
The husband submits that if he receives an adjustment of 60/40 on non superannuation assets and a splitting order so that he retains 85% of the income stream in relation to his superannuation then there should be no s.75(2) adjustment even if the child comes to live with him. The wife also says there should be no other s.79(4)(d) - (g) FLA adjustment.
The husband was diagnosed with a serious illness in 1997, retired from the Defence Force in February 2000 and had a lengthy hospital stay in May 2004.
To his credit he has retrained and is currently in full-time employment.
The wife is currently in full-time employment and the parties have similar earning capacities.
The husband’s current stated income is $1,173 gross per week.
The wife’s stated current income is in the sum of $1,049 gross per week.
The wife has a small amount of superannuation.
The husband has a significantly larger entitlement to the income stream from the CSS pension as a result of my findings in relation to contributions to Pool 2 above.
In 2006 the husband paid child support in the sum of $4,200.
I find there should only be the agreed 5 percent adjustment for s.79(4)(d) - (g) factors in the husband’s favour.
JUST AND EQUITABLE
As mentioned, the husband’s position is that he should get 60/40 of Pool 1 and 85 percent of the income from Pool 2.
As I understood counsel for the wife’s final submission, once post separation contributions have been taken into account the wife says there should be a 65/35 division in favour of the wife. Counsel for the wife acknowledged that there should be a 5 percent adjustment for s.75(2)(o) matters relating to contributions by the husband to the welfare of A and M and there should be a 5 percent adjustment to whichever parent had the primary responsibility for caring for the child in the future. On the mother’s case therefore she would receive a 60/40 adjustment from non-superannuation assets on an overall basis if the child is with her or 55/45 if the child is with his father.
In relation to pool 2, the wife submitted that there should be a 15 percent adjustment based on the valuation of the husband’s superannuation fund. The agreed value of the husband’s interest in his superannuation income stream was $961,062. Therefore, 15 percent of that value is $144,024.30.
Counsel for the wife’s basic submission based upon the child being with her, was that 40 percent of the non superannuation assets was a figure less than that, so the wife got to keep the house without having to pay the husband anything and on the mathematics the husband would have to pay her something but she would forego that payment.
Taking into account the findings I have made in relation to contributions and s.79(4)(d) - (g) factors I find that the wife should receive 55 percent of Pool 1 and the husband should receive 45 percent of Pool 1.
Standing back I find that the distribution of the net assets in Pool 1 in that way is a just and equitable outcome. I also confirm my view as to how Pool 2 should be distributed.
PROPOSED ORDERS
The wife proposes that she retain the F property. The husband agrees that she may retain the F property if he is paid a sum of money.
Based on a 55/45 distribution to the wife of Pool 1, the assets and liabilities would be distributed as follows:-
| H gets - 45.0% | ||||
| Assets | ||||
| Item No. | Description | Percentage | Value | |
| 3 | Motor vehicle | 100% | $4,000 | |
| 5 | Furniture in husband's possession | 100% | $1,500 | |
| 7 | Money in bank account at separation | 100% | $3,800 | |
| H receives from wife | $127,535 | |||
| Net Assets $136,835 | ||||
| W gets - 55.0% | ||||
| Assets | ||||
| Item No. | Description | Percentage | Value | |
| 1 | Former matrimonial home in F | 100% | $430,000 | |
| 2 | Motor vehicle in wife's care | 100% | $5,000 | |
| 4 | Furniture in wife's possession | 100% | $5,000 | |
| 6 | Money in bank account at separation | 100% | $15,000 | |
| 8 | Money retained by wife from sale of jointly owned Ford vehicle | 100% | $0 | |
| 9 | Money received by wife from accident compensation claim | 100% | $0 | |
| Liabilities | ||||
| Item No. | Description | Percentage | Value | |
| 14 | Mortgage on F property | 100% | $111,000 | |
| 15 | Defence Service Home loan | 100% | $19,000 | |
| 16 | DJ credit card | 100% | $6,284 | |
| 17 | GB credit card | 100% | $884 | |
| 18 | Target credit card | 100% | $367 | |
| 19 | ACTEW debt (AGL) | 100% | $1,469 | |
| 20 | ADCU loan | 100% | $21,219 | |
| W pays H | $127,535 | |||
| Net Assets | $167,242 | |||
Accordingly in order for the wife to obtain the husband’s interest in the F property she would need to pay him an amount of $127,535 and discharge the mortgage on the F property and the Defence Service Home loan. Otherwise there would need to be a sale.
In the event there is a sale then the distribution would be as follows:-
| H gets - 45.0% | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 1 | Former matrimonial home in F | 50% | $215,000 |
| 3 | Motor vehicle | 100% | $4,000 |
| 5 | Furniture in husband's possession | 100% | $1,500 |
| 7 | Money in bank account at separation | 100% | $3,800 |
| Liabilities | |||
| Item No. | Description | Percentage | Value |
| 14 | Mortgage on F property | 50% | $55,500 |
| 15 | Defence Service Home loan | 50% | $9,500 |
| H pays W | $22,465 | ||
| Net Assets | $136,835 | ||
| W gets - 55.0% | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 1 | Former matrimonial home in F | 50% | $215,000 |
| 2 | Motor vehicle in wife's care | 100% | $5,000 |
| 4 | Furniture in wife's possession | 100% | $5,000 |
| 6 | Money in bank account at separation | 100% | $15,000 |
| 8 | Money retained by wife from sale of jointly owned Ford vehicle | 100% | $0 |
| 9 | Money received by wife from accident compensation claim | 100% | $0 |
| Liabilities | |||
| Item No. | Description | Percentage | Value |
| 14 | Mortgage on F property | 50% | $55,500 |
| 15 | Defence Service Home loan | 50% | $9,500 |
| 16 | DJ credit card | 100% | $6,284 |
| 17 | GB credit card | 100% | $884 |
| 18 | Target credit card | 100% | $367 |
| 19 | ACTEW debt (AGL) | 100% | $1,469 |
| 20 | ADCU loan | 100% | $21,219 |
| W receives | $22,465 | ||
| Net Assets | $167,242 | ||
The current value of the matrimonial home is $430,000. The mortgage is $65,000. Disregarding sale expenses the net proceeds of sale are likely to be in the order of $365,000. This means that both parties would receive $182,500. The husband has to pay $22,465 to the wife from his share of the proceeds of the sale.
This would mean that of the $365,000, the wife would receive $204,965 ($182,500 + $22,465). The husband would receive $160,035 ($182,500 - $22,465). Consequently the wife would receive 56.15 percent (204,965/365,000) of the net proceeds of the sale and the husband would receive 43.85 (160,035/365,000) percent of the net proceeds of sale.
I certify that the preceding two hundred and eighty-three (283) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts
Associate:
Date: 26 March 2008
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Costs
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Remedies
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Procedural Fairness
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Jurisdiction
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