HARSTEAD & HARSTEAD
[2019] FCCA 3583
•13 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARSTEAD & HARSTEAD | [2019] FCCA 3583 |
| Catchwords: FAMILY LAW – PROPERTY – 18 year relationship – interim property division leaving modest property remaining – debate about contributions – alleged debts to husband’s parents – just and equable outcomes. |
| Legislation: Family Law Act 1975 (Cth), Parts VII, VIII |
| Cases cited: Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS HARSTEAD |
| Respondent: | MR HARSTEAD |
| File Number: | NCC 1913 of 2016 |
| Judgment of: | Judge Betts |
| Hearing dates: | 12, 13, 14 & 15 November 2018, 2 May 2019 |
| Date of Last Submission: | 2 May 2019 |
| Delivered at: | Newcastle |
| Delivered on: | 13 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Rugendyke |
| Solicitors for the Applicant: | Powe & White Family Lawyers |
| Counsel for the Respondent: | Mr Tregilgas |
| Solicitors for the Respondent: | Umbrella Legal |
ORDERS
PARENTING:
All prior parenting orders made in relation to Y born … 2006 and Z born … 2009 (“the children”) be discharged.
The children shall live with the Mother.
The Mother shall have sole parental responsibility for the children.
Unless otherwise impractical, for the purpose of Order 3 the Mother shall, prior to making any major long-term decision for the children:
(a)Provide to the Father written notice of any major long-term decision she intends to make for either child at least 28 days in advance;
(b)Invite the Father to comment on or provide his view about her proposed decision that she intends to make;
(c)Take into account the Father’s input in relation to the major long-term decision; and
(d)Advise the Father in writing of what her decision is.
The Father shall spend time with the children as agreed between the parties, but failing agreement as follows:
(a)During school term, on each alternate week from the conclusion of school or otherwise 3:00pm Friday until the commencement of school or otherwise 9:00am the following Tuesday, commencing the first weekend of term where the children have spent the last week of the preceding school holidays with the Mother and commencing the second weekend of term when the children have spent the last week of the preceding school holidays with the Father.
(b)During school holidays that follow Terms 1, 2, 3 and 4 as follows:
(i)In odd numbered years, from after school on the last day of school term until 10:00am on the Saturday nearest the midpoint of the school holidays; and
(ii)In even numbered years from 10:00am on the Saturday nearest the midpoint of the school holidays until the commencement of school in the next school term.
(c)Notwithstanding order 5(b):
(i)By consent in odd years the children spend time with the Mother from 3:00pm Christmas Eve until 3:00pm Christmas Day.
(ii)By consent in even years the children spend time with the Father from 3:00pm Christmas Eve until 3:00pm Christmas Day.
(d)If the Father’s Day weekend does not fall during the Father’s time in accordance with order 5(a), then by consent the Father will spend time with the children from 5:00pm on the Saturday of the Father’s Day weekend until the commencement of school on the Monday following the Father’s Day weekend.
If the Mother’s Day weekend falls during the Father’s time with the children in accordance with order 5(a), then by consent the children’s time with the Father will be suspended that weekend from 5:00pm on the Saturday of the Mother’s Day weekend until the commencement of school on the Monday following the Mother’s Day weekend.
By consent the children’s time with the Father is to be implemented as follows:
(a)On school days, by the Father or his nominee collecting the children from school at the commencement of such time and returning the children to school at the conclusion of such time;
(b)On non-school days, by the Mother or her nominee delivering the children to the Father at the Father’s home at the commencement of such time, and the Father or his nominee delivering the children to the Mother at the Mother’s home at the conclusion of such time;
(c)As otherwise agreed between the parties in writing from time to time.
The Father be restrained from opening any internet account for or on behalf of either of the children without the consent in writing of the Mother.
The Father be restrained from:
(a)Consuming any illicit substance for a period of 12 hours prior to, or during, any period the children are with the Father;
(b)Permitting the children to be in the presence of any other person who is consuming, or who appears to be affected by, illicit drugs.
Each party is restrained by injunction from:
(a)Denigrating the other party, or members of the other party’s family or household, to or within the hearing of the children;
(b)Permitting the children to remain within the hearing of any other person who is engaging in the types of denigration referred to in Order 10(a);
(c)Discussing the Court proceedings with the children, showing the children any court documents or permitting any other person to do so save for the Independent Children’s Lawyer (“ICL”);
(d)Discussing with the children the perceived fairness or unfairness of the parenting orders made herein.
Notwithstanding any other Order, each party is at liberty to, and these orders are sufficient authority for them to, obtain (at that party’s expense) any and all information about the children or either of them from:
(a)Any place of education that the children attend; and
(b)Any medical professional or allied health professional who may from time to time be involved with the child or children; and
(c)Any other professional that the child may from time to time be involved with the child or children.
Each party is to telephone the other as soon as practicable upon the happening of any of the following:
(a)The children or either of them becoming seriously ill;
(b)The children or either of them becoming hospitalised; or
(c)The children or either of them being involved in an accident or emergency.
The ICL is directed to meet with the children as soon as possible in order to explain these orders to them. Both parents are to comply with any reasonable request made by the ICL so as to facilitate this order, including bringing the children to any meeting with the ICL as requested.
Within thirty (30) days of the making of these orders:
(a)The Father is to pay one half of the ICL’s costs of and incidental to the proceedings, in an amount to be agreed or assessed, with such payment to be made out of the Father’s share of the funds presently held for the parties by Powe and White Family Lawyers;
(b)The Mother is to pay one half of the ICL’s costs of and incidental to the proceedings, in an amount to be agreed or assessed, with such payment to be made out of the Mother’s share of the funds presently held for the parties by Powe and White Family Lawyers.
The ICL is otherwise discharged upon the expiration of any applicable appeal period.
PROPERTY:
That the parties forthwith do all acts and things necessary to cause the moneys held on their behalf by Powe and White Family Lawyers to be paid as to $156,758 to the Wife and the balance to the Husband, NOTING THAT this is subject to the costs order made against both parties in favour of the ICL being order (14) in the parenting proceedings.
The Husband shall indemnify the Wife and keep her indemnified from any claim made by either or both of his parents in relation to any monies asserted or claimed to be owing to them by either the husband or the wife.
Subject to the above, each party shall :
(a)be solely entitled, to the exclusion of the other, to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders;
(b)indemnify the other in respect of any liability attaching to any property being retained by that party.
The Husband and Wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.
In the event that either party refuses or neglects to execute any Deed or instrument necessary to give effect to all or any of the Orders made herein, the Registrar of the Federal Circuit Court at Newcastle be appointed pursuant to Section 106A of the Family Law Act to execute such Deed or instrument in the name of defaulting party and to do all acts and things necessary to give validity to the operation to the said Deed or instrument. The Registrar’s jurisdiction is enlivened upon the Registrar being satisfied by the filing of affidavit evidence as to that neglect or default, as the case may be.
COSTS:
The Court will hear the parties on the question of costs of the substantive proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Harstead & Harstead is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1913 of 2016
| MS HARSTEAD |
Applicant
And
| MR HARSTEAD |
Respondent
REASONS FOR JUDGMENT
Introduction:
These are parenting and property proceedings arising out of the breakdown of the marriage between Ms Harstead (“the wife”) and Mr Harstead (“the husband”).
The parties were each born in 1974, commenced cohabiting in 1998, married in 2001 and finally separated in January 2016 having spent the better part of eighteen (18) years together.
There are three (3) children of the marriage:
(a)X born … 2002 (“X”);
(b)Y born … 2006 (“Y”); and
(c)Z born … 2009 (“Z”).
The parental separation has been, and continues to be, acrimonious.
In the course of the parenting proceedings, interim orders were made for the children to live with the wife and spend substantial and significant time with the husband; an Independent Children’s Lawyer (“ICL”) was appointed and a Family Report ordered. Notwithstanding the making of orders, the children continued to be exposed to chronic parental conflict, most notably the parents’ dispute as to whether they should be spending equal time with both parents (the husband’s position) or living primarily with the wife (her position).
X’s mental health was particularly impacted by the ongoing parental conflict. Torn between his parents and at an impressionable age, he began acting out at school and at home and his mental health suffered. Over time he became increasingly defiant towards the wife and rejecting of her more authoritarian parenting style. He gravitated towards the husband, who enabled and encouraged X in this respect. That said, the wife’s actions and attitudes also contributed.
Ultimately, some seven (7) weeks prior to trial, X ended up “voting with his feet” and moving to live with the husband.
At trial, the parties consented to final parenting orders for X formalising that arrangement. Pursuant to those orders, the husband has sole parental responsibility and X is to spend time with the wife as he wishes. In practical terms he has chosen to spend very limited time with her, occurring only when Y and Z are present.
Ironically, each parent pointed to X’s somewhat disastrous post-separation experiences in support of their respective positions concerning Y and Z. So although X was not the subject of the parenting trial per se, an exploration of how he got to where he is highlights the difficulties that exist for his younger siblings.
As for property issues, the parties agreed early on to an interim property division. The remaining property left to be divided is fairly modest in value - yet the parties nonetheless managed to take quite divergent positions factually and legally.
Before proceeding further I should record that any statements made by me in these reasons for judgment should be taken as findings of fact unless otherwise stated. I also make it clear that I do not intend to traverse every disputed fact in this case but only those matters that I consider to be relevant to the court’s determination.
Evidence and documents considered by the court:
At trial, the wife relied upon her Amended Initiating Application filed 3 October 2018, her substantial trial affidavit filed 3 October 2018, her Financial Statement filed 10 October 2018, her supplementary affidavit filed 9 November 2018, and the affidavit of Mr A (valuer) filed 9 November 2018.
The husband relied upon his Amended Response filed 3 October 2018, his trial affidavit filed 3 October 2018, his Financial Statement filed late on 9 November 2018, and the affidavit of his partner Ms B filed late on 2 November 2018. [1]
[1] The husband had filed an Application in a Case on 07/09/18 and supporting affidavit material specifically in relation to X. But upon the making of final consent orders for X, the husband no longer needed to rely upon those documents
The Independent Children’s Lawyer (“ICL”) relied upon the Family Report of 26 October 2007 which became exhibit “ICL-2”.
There were numerous other exhibits tendered by the parties in the court of the trial. These included Case Outline Documents, Balance Sheets, a schedule of drug test requests and results, bank statements and various other documents.
Regrettably, the trial did not finish despite having been allocated four (4) days. Accordingly it was adjourned over to 2 May 2019 for closing submissions following which the court formally reserved judgment.
In the course of preparing these Reasons, the court has regrettably discovered that exhibit “W-3” was misplaced. This is a consultation note from the husband’s attendance at a cannabis clinic. The court did however note the contents of the exhibit at the time it was tendered, as well as the husband’s evidence in relation to it. In the end result, not much turns on that document anyway and the court considers that no real prejudice arises.
Subject to that caveat concerning exhibit “W-3”, the court has taken into account all of the above material, as well as the oral submissions made by counsel.
By way of postscript, while judgment was reserved the husband held over the children during the September/October 2019 school holidays. The wife brought an urgent Application in a Case seeking a recovery order; the children were returned to her care and she then indicated her willingness to dismiss the Application in a Case on the basis that the husband paid her costs of it. The husband opposed same. The parties each filed affidavit material in support of their respective positions but it was agreed that the court was not to re-open the trial as such – rather it was only to take that further material into consideration in the context of determining costs of the wife’s Application in a Case. The court has adopted that approach and has not taken such updated material into account. Oral reasons will be delivered separately in respect of that discrete application.
THE PARENTING PROCEEDINGS:
Short relationship history:
During the relationship the wife was the primary homemaker and parent; the husband was the primary breadwinner.
The parties are very different people and these differences became more pronounced over time. One particular flashpoint in their relationship was the husband’s chronic cannabis use, including at work and at home. He enjoyed using it and considered that it added to his quality of life. The wife strongly disapproved.
This topic led to a destructive cycle of arguments. The husband would feel pressured to quit and would eventually promise to do so. But when he did quit, he would become agitated and resentful towards her as he really did not see cannabis use as a problem. He could become quite verbally abusive towards the wife and his temper “explosive”. But the wife would not relent - and at some point the husband would inevitably relapse, thus beginning the cycle all over again. [2]
[2] For a good illustration of the cycle, see annexure “M1” to the wife’s affidavit filed 03/10/18. Annexure “M2” shows the wife’s long-term concerns about the husband’s drug use
The husband is a self-employed tradesman, and very much used to being “his own boss”. He has a strong and somewhat self-righteous personality. He also has a bullying streak and on occasions spoke in a belittling way towards the wife. But relationships are rarely black and white; in this case post-separation events have revealed that the wife too has quite a strong and at times stubborn personality. Inferentially, while the husband could bully the wife at times, she was not “overborne” by him during the relationship.
The combination of their character traits made for some intense arguments. On a number of occasions the husband did become physical during arguments - throwing things at the wife and destroying some of her personal property such as (on one occasion) items the children had purchased for her at a Mother’s Day stall. Such actions constituted “family violence”. [3]
[3] As that term is defined in s 4AB of the Family Law Act 1975 (“the Act”)
But overall the court does not consider that the parental relationship could fairly be said to have been “characterised” by family violence. While their relationship featured situational family violence from the husband (primarily by way of verbal abuse), it did not feature the more insidious elements of coercion or control.
Towards the end of their relationship the husband’s cannabis use increased. His use likely contributed to him having two (2) minor motor vehicle accidents in 2014.[4]
[4] Paragraphs 22-24 of the wife’s affidavit filed 03/10/18
On 24 November 2015 the husband attended upon a cannabis clinic at the wife’s urging. He told them at that time that he was having four (4) or five (5) “sessions” of five (5) cones per day – being twenty (20) to twenty-five (25) cones per day. He said he had last used the day before.[5]
[5] Exhibit “W-3”, see paras 17 & 18 of these Reasons
In the witness box the husband claimed to have overstated his use of cannabis when speaking to the cannabis clinic at that time. The court rejects that evidence and considers his then-estimate to have been accurate, or substantially accurate.
The husband stubbornly refused to tell the wife what advice or treatment he had received from the cannabis clinic. He merely told her he was “done with drugs”.
Just a few weeks later their relationship completely broke down in January 2016. In an angry outburst, the husband told the wife that she was “nothing but an ungrateful, filthy mole, I am better off without you, good riddance”.
Co-parenting in the early post-separation period:
After separation the children remained in the wife’s primary care. The husband sought to spend as much time with them as possible.
On 19 February 2016, the parties entered into a Parenting Plan [6] whereby in school terms the children were to live with the wife for nine (9) nights per fortnight and the husband for five (5) nights. School holidays were to be shared equally.
[6] Exhibit “H-2”.
The husband only ever saw this arrangement as a holding pattern. His goal was always equal time.
I note here that, according to his partner Ms B, the two of them started a relationship around April 2016. According to her unchallenged affidavit they were both going through similar separation experiences and they knew early on that they had “something incredible” between them. Without doubt from her affidavit, she too is an avid believer in the benefits of equal time and her affidavit generally paints a saccharine-like picture of the relationship between the husband and the boys. I have little doubt from her affidavit that she was firmly “in the husband’s corner” in his quest for equal time.
On 26 July 2016 the wife filed these proceedings, but seeking property orders only. The husband filed his Response on 27 October 2016.
Unfortunately the property dispute markedly escalated the tension between the parties. The parties took widely divergent positions. Moreover, they were in furious debate as to whether or not various moneys provided to the parties by the husband’s parents over the years were loans that had to be repaid (husband’s position) or gifts not required to be repaid (wife’s position). This dispute had the unfortunate effect of “polarising” the parties and their extended family members.
The husband made clear to the children that they should be spending equal time with both parents and that the Parenting Plan was unfair to him and to them. He also told the children that the wife was seeking an unfair property settlement. X in particular took this on board. After a visit with the husband, he told the wife on 30 December 2016 that:
“Dad said that you are taking him to court to get all of his money, so he won’t be able to do anything with us”.
Apart from exposing the children to adult issues, the husband was also demonstrating dubious role modelling for the children, particularly via social media. The parties’ respective attitudes towards social media illustrates their vastly different parenting styles.
The wife provides a number of examples of social media messages in her affidavit of 3 October 2018. These include:
(a)messaging between the husband and X around New Years Eve 2016 where the husband tells him “2016 you were fucked….bring on 2017…” ;
(b)in early 2017 the husband and X speaking on Instagram wherein X addresses his father as “you fcn druggo”, and makes reference to a ‘slab of piss and pack of winnie blues’. The husband replies “that shits for gronks.” X then sends him a photo of a tattoo which reads “you are what you eat. I don’t remember eating any mad cunts” to which the husband responds “fucking lol! That’s the best love you bra”. [7]
At this time X was only fourteen and a half (14 ½) years old.
[7] To clarify, “bra” in this context appears to be a reference to “brother”
Other social media messages between the father and X from early 2017 include words (or allusions to words) such as “fuck”, “cunt” and “nigga”.
In short, these exchanges show the husband acting in the role of a “big brother” or a “mate” rather than as a father figure setting proper parental boundaries. This was not the first time he had shown a distinct lack of parental boundaries. [8]
[8] Shortly prior to separation, the husband had challenged some of X’s school friends to a fight; see paras 30 – 33 (inclusive) of the wife’s affidavit filed 03/10/18
Around this time, the husband also established an Instagram account for Y without reference to the wife. The subsequent request that he remove it was ignored.
In March 2017, the parents attended a parenting mediation. This was unsuccessful. Both parties felt aggrieved. The husband wanted equal time; the wife wanted to remain the children’s primary carer.
Shortly after the mediation the wife planned a short holiday to Country Q with the children. She offered the husband appropriate make-up time. But he declined to consent to the trip, citing the lack of any concluded parenting agreement at mediation.[9]
[9] Exhibit “H-3”.
Notwithstanding the lack of consent, the wife still went anyway – contacting the husband from the airport on the day she and the children were flying out. The husband was understandably angry and made no secret of that when he spoke to the wife and with X on the telephone. It was hardly an auspicious start to a holiday.
In the court’s view, neither party acted appropriately. In travelling overseas without the husband’s consent, the wife acted unlawfully. [10] But given that the wife was not a flight risk, and that the husband did not raise any particular issue about travelling to Country Q per se, the husband’s refusal to consent was really no more than an attempt to use the Country Q trip as “leverage” to try to attain his goal of equal time.
[10] Section 65Y of the Family Law Act
Upon the wife’s return, their conflict escalated further. The wife suddenly demanded that the husband undertake a drug test. The husband could have done so if he truly was “done with drugs” as he had told the wife shortly prior to separation. But he refused.
In response, the wife then suspended his time with the children pursuant to the Parenting Plan. This was high-handed on her part given she knew that the husband had been a long-term cannabis user when she consented to the Parenting Plan.
Within days of the wife and children’s return the husband attended at Y’s football game with the paternal grandfather. After the game, the husband physically tried to take Y away with him, over the wife’s objection. He was telling her that he wanted “private time with my son” while telling Y that “this will all be over soon Y am doing everything to get this fixed”. The husband also told the wife that he was not going to undertake the drug tests she had requested, while simultaneously assuring her that he had nothing to hide.
In the result, the parties literally ended up in a tug-of-war over Y who eventually left with the wife.
The sequence of events around that time reveals the parties’ capacity to escalate things – neither was going to answer to the other. By analogy, the “irresistible force” met the “immovable object”. Their dysfunctional co-parenting dynamic was becoming entrenched.
The parenting proceedings:
On 5 May 2017 the wife formally amended her Initiating Application to seek parenting orders. She proposed sole parental responsibility and that the children spend the same amount of time with the husband set out in the Parenting Plan – but only after he had provided six (6) clear drug urinalysis screens on a monthly basis. In the meantime the husband would only spend daytime visits with the children on weekends and after school. This was “overkill” on her part.
That same month, the wife started taking Y to see a psychologist, as he was beginning to show some (understandable) signs of anxiety.
On 17 May 2017, His Honour Judge Middleton ordered that the husband undertake two (2) drug urinalyses as requested on forty-eight (48) hours notice. His Honour restrained the parties from discussing the court proceedings, or denigrating each other, in the presence or hearing of the children.
The proceedings were otherwise adjourned to 23 June 2017 for a directions hearing.
There were however no substantive parenting orders made. Regrettably, this led to further disagreement. The husband’s view was that, absent substantive orders, the children could spend such time with them as they wished. Unsurprisingly the wife took a different view.
The husband requested time with the children the next day, 17 May 2017. The wife did not agree. In a sign of things to come, X did not catch the school bus home that day to the wife’s house as usual – instead going to the husband’s home. The wife also found handwritten notes from the husband to both Y and Z in their respective school bags when they arrived to her home from school.
That evening the parties argued over the telephone about X staying with the husband, the wife not having been given any prior notice. The husband said his solicitor’s advice was that X “can go wherever he wants. He is a free agent”. He also accused the wife of “stalking” by monitoring X’s mobile phone, notwithstanding that X was only 14 years old and in the court’s view required some parental monitoring. His accusation is a good example of their differing parenting styles.
X in fact stayed a number of nights with the husband over the ensuing weeks, on an “ad hoc” basis and without prior notice to the wife. The husband encouraged this. It was chaotic and disrespectful of the wife.
On the morning of Y’s birthday (… 2017) the parties had another unpleasant scene in front of the children. The husband was asking to take the children, the wife was refusing, and in the course of that altercation the husband told her that the court orders did not support her position, that she would regret her decision and that it was “ridiculous” and she was a “weirdo”.
In a further unhappy omen of things to come, X got into trouble for his behaviour at school within a day or so of this event. [11]
[11] Annexure “M14” to the wife’s affidavit filed 03/10/18
Two days later on the morning of Saturday 3 June 2017, X turned up unexpectedly at the wife’s home, telling Y and Z that “Dad’s out the front and wants to see you.” The wife went outside and spoke to the husband, who said he wanted to take the children to a skate park. The wife complained about him showing up unannounced but went back in and told Y and Z that they could go out and see their father. Shortly afterwards they came back into the house, getting dressed and saying they were going to the skate park. The wife told them they were not allowed to, but that they could go back outside with him. She stayed in the house while they went out. The husband then drove off with the children to the skate park, ignoring the wife’s subsequent phone calls. He returned Y and Z later that morning, although X stayed with the husband.
This is a clear example of the husband undermining the wife’s authority, and using X for that purpose. But to be fair, the backdrop to this is that the wife had recently “upped the ante” by suspending the husband’s time pursuant to the Parenting Plan.
Within days of this event, it was Y’s turn to get into trouble at school. According to the school, Y’s:
“negative behaviours represent a significant departure from what we normally expect of him and over the course of this term have become more frequent. In addition to the behaviour concerns his response to correction and the respect he shows teachers has also deteriorated. Ms C also reports that his application in class and his attitude towards his school work has declined over the course of this term.
Y has the potential to be a very good student and I am confident that if we can work together that he will be able to get ‘back on track”. [12]
[12] Annexure “M15” to the wife’s affidavit filed 03/10/18
It is unsurprising that both X and Y were misbehaving at school given their exposure to the parental conflict and given that both parents were challenging the other’s authority in their presence.
There was further parental conflict on 17 June 2017 when, it having been agreed that the paternal grandmother would collect the children from the wife to take them to a funeral (of a paternal family member), the husband then attended to collect them instead. The wife refused to hand them over and the parties had another argument. The husband verbally abused the wife and she in turn lectured him about not being a responsible parent. (The children were later collected by the paternal grandmother as originally agreed.)
Interim hearing before Judge Middleton on 23 June 2017:
By this time, the competing positions of the parties had become quite stark. In response to the wife’s “overkill” orders, the husband was now seeking that the children live primarily with him and that they spend alternate weekends and half school holidays with the wife.[13]
[13] The wife’s position is set out in para 52 of these reasons.
In the result, His Honour determined that the children should stay living with the wife and spend alternate weekend time with the husband from after school Friday to before school Monday, extending to the Tuesday on public holidays and during school holidays. Effectively, this was three (3) nights per fortnight during school terms, a reduction from the five (5) nights agreed to in the Parenting Plan. His Honour restrained the parties from discussing with the children the court proceedings, or any issues in relation to each other. Each parent was also restrained from communicating with the children at times when the children were not in that parent’s care.
The husband did not consider the interim orders to be “fair” either to himself or to the children; he actively undermined them.
Notwithstanding the express injunction prohibiting discussion of the proceedings with the children, the husband told them that the orders were unfair. In turn, no doubt partly out of loyalty to him, the children told him they agreed. In his oral evidence the husband admitted that the children were aware of their “rights” as they may have seen a Human Rights Commission document he had in his home. He said in the witness box that “any intelligent child” would have shared his view that the orders were unfair.
Y was impacted by the husband’s actions. In July 2017, Y told his psychologist that he wanted a “50/50” arrangement.
When the children were in the wife’s care on 22 July 2017, the husband approached Y after a rugby union game, contrary to the injunction restraining communication when the children were in the other parent’s care. This was not only a breach of the orders; it was also highly manipulative. [14]
[14] As Y would likely see the wife as the “bad guy” in shooing the husband away
In August 2017, the husband held a party for X. Social media posts annexed to the wife’s affidavit show that there were seemingly drugs and alcohol at the party. [15]
[15] Annexure “M17” to wife’s affidavit filed 03/10/18
X’s behaviour continued to deteriorate. He was increasingly belligerent towards the wife and towards his brothers. By this time the husband had provided clean urine drug screens to the wife, telling X he had done so. In turn X raised this with the wife, telling her that “she could make it stop”. When the wife told X that she had to follow the interim orders, X accused her of lying.
Family Report (exhibit “ICL-2”):
The Family Consultant conducted the Family Report interviews on 17 October 2017. By then an alarming picture had emerged.
X was suggesting that he was old enough to decide for himself where he wanted to live; he didn’t want the mother’s ongoing parental supervision. Y was becoming angry about the “unfairness” of the co-parenting arrangement, saying that it should be “50/50”. Z was becoming sad and despondent.
According to the Family Consultant, the children’s responses to the situations they found themselves in were “fairly typical” of children experiencing parental conflict having regard to their ages and stages of development.
The Family Consultant was concerned about the husband disregarding the wife’s objections to the children’s use of social media, his inappropriate language choices and casual references to sex, drugs, alcohol and cigarettes particularly in conversations with X. She was concerned that the husband was deliberately setting out to present himself as the “fun parent” or the children’s “mate” thus enabling him to align the children - as well as presenting him with an abundance of opportunities to undermine the wife’s parental authority.
Alarmingly, the husband conceded to the Family Consultant that the children “just want 50/50” saying that “it is hard to be fair and equal when things just aren’t fair and equal”. When the Family Consultant observed that there appeared to be different rules in each household, the husband was dismissive. He also dismissed any criticism of his communication with X, saying that it meant “nothing” and was no more than “friendly banter”.
The Family Consultant was concerned that the husband was aligning the children to him, undermining the wife’s parenting authority and portraying her in a negative light in order to achieve his own agenda.
Both parents complained to the Family Consultant about coercive and controlling violence[16] but I see their complaints as being more a reflection of each parent’s frustration at that time and their sense that the other was trying to control them. Respectfully, the court does not share the Family Consultant’s concerns about that particular issue.
[16] Exhibit “ICL-2”, paras 118-119
The children’s interviews did reveal alignment with the husband, the children clearly having been exposed to his views.
X was recorded as being well aligned with the husband, but also experiencing “cognitive dissonance”. That is, X wanted to support his father and assist him to achieve his goals, but was finding it hard to sustain his attitude and behaviour around his mother. The impact on him was that, in order to resolve his own inner conflict and mental turmoil, X was rejecting his mother altogether. The Family Consultant was concerned that the husband had:
“deliberately set out to empower X in this way, suggesting that there will be no consequences to his behaviour. While this may have some short term gains for the father in terms of aligning the child, it is bound to cause some long term problems when X decides to apply the same rules to other areas of his life, including in his relationship with the father”.
The Family Consultant was concerned about the implications for X’s long term psychological and emotional development if he rejected the wife, strongly advocating that the parents work together as much as possible to ensure that X had safe and secure boundaries and rules that were consistently enforced.
The Family Consultant was concerned about the husband’s attitude to parenting, his lack of boundaries, his willingness to use the children to achieve his goals, the lack of insight into his own behaviour. It was the Family Consultant’s view:
“that for him, it is all about winning or taking advantage of the situation. However, in family law matters, there is usually no winners, with everyone involved becoming worse off as a result of the conflict”. [17]
[17] Exhibit “ICL-2”, paras 173-174
The Family Consultant also noted that if X reached a point where he was mature enough to have a voice in regard to his care arrangements, that the wife should be in a position to make such decisions and that any orders made by the court needed to be “designed to empower the mother to carry out that responsibility in a positive and constructive way without any interference by the father”. [18]
[18] Exhibit “ICL-2”, para 181
The Family Consultant’s ultimate recommendations were that the wife have sole parental responsibility, that the children live with her, and that the husband spend substantial and significant time with them – but only after a three (3) month moratorium on his time and communication with them, which was designed to allow the children to have a break from the conflict and pressure. She also recommended that the children and the husband all have access to some counselling or therapeutic support.
In November / December 2017, Z raised both property settlement issues and parenting issues with the wife following a weekend visit with the husband. Both X and Y were in trouble at school, with X being suspended. [19]
[19] Wife’s affidavit filed 03/10/18, paras 178 – 179.
Drug testing orders made / proceedings set down for trial:
On 20 December 2017 his Honour Judge Middleton set the matter down for trial in November 2018. His Honour also ordered the husband to undertake a hair follicle test for the presence of illicit drugs by 14 January 2018, with three (3) centimetres of hair to be provided and in the interim the husband was restrained from doing anything to interfere with the test result.
Despite having told the Family Consultant that he would comply with and pass a drug testing order, [20] in fact the husband did not comply with the order. He undertook the test late. Worse, he had also had a haircut in the intervening period, with the result that the testing authority had to take underarm hair, leg hair and body hair.
[20] Exhibit “ICL-2”, para 101
The husband’s excuse for non-compliance was unconvincing. He claimed he might have been “away” by the testing deadline. His solicitor sought to accept some responsibility as well, by saying that his own notes from court were “cryptic”, that the husband had been contacting his office after court to see what was required of him and that the solicitor could not confirm exactly until he received the sealed orders. There was some delay in this occurring, noting that the order was made just prior to Christmas.
But I do not fully accept those explanations. The husband and his solicitor were both present in court when the orders were made and I do not consider that the orders were complex or difficult to understand. But even if the husband was confused and uncertain about what was required, he must have known that getting a short haircut was not a good idea if in doubt. His hair had been quite long when he was at court – what was the rush to get a short haircut in his situation?
The court considers that the husband’s attitude towards the court, and the wife, was at best laissez faire if not actively obstructive.
Events in 2018:
In January the husband moved in with Ms B.
The parties’ co-parenting remained dysfunctional.
In February, X was caught smoking cannabis with one of his friends. The wife told the husband. While he said he would support her, he criticised her for allowing X to spend time with this particular friend – whom he had warned the wife about in December 2018. [21] While the husband had some right to complain, his own undermining of the wife’s parental authority made it extremely challenging for her to parent X by this stage. In December 2017 for example, she had sought the husband’s permission for X to have his nose pierced – against school rules. He refused. (That the wife even made such an “out of character” request in the first place shows her increasing level of desperation. Though I do not criticise the husband per se for refusing, it is ironic that her attempt to be the “permissive” parent on this occasion was rebuffed.)
[21] See husband’s affidavit filed 03/10/18, paras 15 & 17
The parents attended another mediation – this was unsuccessful.
A week later, X ended up being suspended from school again as a result of his behaviour. The husband’s response to the wife was: “I feel we can manage his behaviour better with a more balanced parenting plan”.
The wife was also finding Y increasingly difficult to manage. For instance he and X would both cover their ears when she tried to discipline them. The parties had another altercation at Easter 2018 in which the husband denigrated the wife in front of the children. (On this occasion the husband introduced Ms B to the wife.)
X’s behaviour towards the wife continued to worsen. He would occasionally behave violently and was generally defiant.
In May 2018 the husband attended a rugby game for Z while the children were in the wife’s care, approaching the children contrary to the orders. When the wife tried to stop him, he disingenuously told her that he didn’t know what she was talking about and said that “the orders are ridiculous.” In the face of the husband’s provocation and breach of orders, the wife verbally abused him. [22] Oblivious to his own contribution in this scene, the husband’s affidavit blithely deposed that “All of this bad behaviour by Ms Harstead was sadly witnessed by the children.”
[22] See husband’s affidavit filed 03/10/18, para 35
When the wife confiscated X’s electronic devices as punishment, the husband disagreed, saying that X needed them in order to do his homework.
On 19 June 2018 the parents jointly met with X’s school after he had expressed thoughts of self-harm to one of his teachers. After a while, the husband “spoke up”, saying that everyone was “tiptoeing around the real issue” which he said was X’s frustration at living with the wife. He said that “the foundations were crumbling at her place” and was generally disparaging of her as primary carer. He suggested that everything would be fine once X’s living arrangements changed. [23]
[23] The husband’s version of events essentially confirms the wife’s version. See particularly the last sentence of para 27 of the husband’s affidavit filed 03/10/18
Whether the husband realised it or not, his own chronic undermining of the wife’s parenting was a part of the reason why the “foundations were crumbling” at her home. Having seen the husband give evidence in the witness box, I have little doubt that he would have said these things in a self-assured and self-righteous manner. It is unsurprising that the school ended the meeting at that point, given that they did not want to become involved in family law issues.
X was really struggling by this time. From X’s perspective, the wife was blaming both he and the husband for the difficulties and in that sense the wife was also exposing X to adult issues. That said, she was likely saying such things out of frustration given his by then extremely challenging and defiant behaviours. [24]
[24] Husband’s affidavit filed 03/10/18, paras 31 & 32
In desperation the wife finally agreed to X spending an extra night with the Husband per fortnight on the recommendation of X’s psychologist Ms D. But from the husband’s perspective this would not do. His response to her was that her proposal showed “little empathy and respect for X and falls short of meeting his needs of settlement and building good foundations for him”. [25]
[25] Exhibit “M21” to the Wife’s Affidavit field 3 October 2018.
Through his Solicitors, the husband wrote to Ms D, and to X’s school, expressing “grave concerns at X’s welfare” and seeking a report for the Federal Circuit Court and a supporting Affidavit in relation to an urgent Application in a Case that X live with the husband.
In August 2018, following Ms D expressing concerns about X’s state of mental health, X was referred back to his GP. In turn, the wife obtained a referral for X to see a psychiatrist, who then prescribed anti-depressants.
The husband disagreed, saying that the anti-depressants had been “loosely prescribed”. He told the wife that: “I don’t feel medication is the solution to X’s underlying issue which is clearly his unhappiness of the current parenting arrangement. We have the power to make positive changes that will help X immensely. If you ask X what he needs I am sure he will express to you that he needs change more than medication, a band aid solution for the real problem.” (The remainder of his message to her goes on in a similar vein.)
Over the next week or so the wife found that the anti-depressants assisted X’s mood. That said, she discovered that he had purchased a “vaping” kit which she had to confiscate.
The husband discouraged X from taking the anti-depressant medication when he came into his care. His case is that X did not like taking it and that he took X to a different doctor after X complained that his previous GP was “on his mother’s side”. His new GP suggested discontinuing anti-depressants. The husband followed that advice. He pressed ahead with filing his urgent Application in a Case that X live with him.
Shortly after this, X “voted with his feet” and stayed with the husband as set out earlier in these reasons.
Having regard to the emails annexed to the husband’s trial affidavit [26] it is very clear that the husband had the very strong view that the wife’s parenting was X’s problem; there are numerous instances where he does not separate X’s needs from his own (referring to he and X as “us” for example in the context of X’s plight). He clearly empowered X. Based on what X says it is also equally clear that he was genuinely emotionally struggling in the wife’s home and that, at least from his perspective, he felt he was being “scapegoated” by the wife. He felt that his emotional difficulties were being “weaponised” by her in the parental dispute with the husband. Frankly his email in particular makes for rather grim reading.
[26] Filed 03/10/18, pages 14 – 24 inclusive
In terms of his immediate mental health issues, X’s move to the husband seems to have helped. But he is far from being “out of the woods” and by the time of trial he had already been in detention at school, as well as apparently being involved with cannabis. [27] I accept the Family Consultant’s opinion that going into the husband’s care is unlikely to be a “cure-all” for X’s difficulties.
[27] Wife’s affidavit filed 09/11/18
In the lead up to trial, Y, also had behavioural issues at school after X left the wife’s home. Like X he has experienced some anxiety; the wife took him to her GP.
The wife also engaged Z in the “Seasons of Change” programme.
Parenting proceedings - the law:
The court’s power to make parenting orders is found in Part VII of the Family Law Act (“the Act”).[28] Section 60B of the Act sets out a number of key objects and principles which underpin the operation of Part VII. I do not propose to restate those.
[28] The term “parenting orders” is statutorily defined in s.64B of the Act
When deciding whether or not to make a particular parenting order, the court must regard the best interests of the children as the paramount consideration: s 60CA, s 65AA.
In arriving at a best interests determination, s 60CC prescribes mandatory considerations for the court. There are two (2) so-called “primary considerations” in s 60CC(2)(a) and s 60CC(2)(b). There are fourteen (14) so-called “additional” considerations set out in s 60CC(3).
When a court is considering making a parenting order, s 61DA(1) of the Act imports a rebuttable statutory presumption that it would be in the best interests of the children for the parents to have equal shared parental responsibility.[29] Pursuant to s 61DA(2), this presumption is not to be applied if there are reasonable grounds to believe that a parent has engaged in “abuse” of the children, or “family violence”.[30]
[29] “Parental responsibility” is defined as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children: s61B
[30] “Abuse” is statutorily defined in s 4 of the Act, “family violence” in s 4AB
Where the presumption applies, s 61DA(4) provides that it can be rebutted by evidence which satisfies the court that the making of such an order would not in fact be in the children’s best interests in the particular case before it.
If the court makes an order that the parents are to have equal shared parental responsibility for children, then the court is obliged to follow the specific statutory pathway set out in s 65DAA: see Goode & Goode (2006) FLC 93-286. Put shortly, the court must consider, as the first option, making an order for the children to spend equal time with both parents provided that an equal time order is in the best interests of the children and “reasonably practicable”.
“Reasonable practicability” is defined in s 65DAA(5). It refers to practical matters such as how far apart the parents live, their capacity to communicate and resolve difficulties, and the impact that the making of such orders would have upon the children. The definition is inclusive and contains the familiar catch-all “such other matters as the court considers relevant”.
In MRR & GR (2010) FLC 93-424, the High Court of Australia explained that “reasonable practicability” required the court to consider the reality of the situation of the parents and the children. This involves a practical assessment. The High Court emphasised that the “reasonable practicability” requirement is in the nature of a jurisdictional fact.
If equal time is not in the best interests of the children or is not reasonably practicable, then the court must consider making an order for the children to live primarily with one parent but to spend “substantial and significant time” with the other parent. “Substantial and significant time” is statutorily defined as meaning that the children spend time with the other parent not merely on holidays and weekends but also in a way that allows that parent to be involved in the children’s day-to-day routine and on occasions of special significance: s 65DAA(3) of the Act. Once again though, such an order can only be made if in the children’s best interests and reasonably practicable.
If a “substantial and significant time” order is not in the best interests of the children, or is not reasonably practicable, then the question of the children’s time is simply to be determined by application of the best interests considerations in s 60CC.
Best Interests - Primary Considerations:
I have already made numerous findings which engage the relevant provisions of s 60CC. In what follows I will endeavour not to be unduly repetitive.
s.60CC(2)(a) - Benefit of children having a meaningful relationship with both parents:
In Mazorski & Albright (2007) 37 Fam LR 518, Brown J referred to the concept of a “meaningful relationship” as being a relationship which is important, significant and valuable to a child. It is a qualitative adjective, not a strictly quantitative one.
In this case it is common ground that the children would benefit from continuing their meaningful relationship with both parents.
On either parent’s proposed orders, the children will have the opportunity to continue their meaningful relationship with both parents. Of the two (2) competing proposals, the husband’s order provides for the most meaningful relationship with him.
I note here that the moratorium on the husband’s time as originally contended for by the wife was formally abandoned at the commencement of the trial.
s.60CC(2)(b) - Protecting children from harm:
The court is particularly concerned about the emotional risks to Y and Z in this case.
To the extent that X’s life has to some extent “gone off the rails”, the court is anxious to avoid such an outcome for his younger siblings. The court is particularly concerned about the husband’s aligning and undermining behaviours and about his actions in empowering X to make his own decisions.
I have concerns about the husband’s lack of appropriate boundaries; and his communications with the children, and his attitude towards the wife’s parental authority, and authority figures generally – including the court when it made interim orders that he did not agree with.
I have lesser concerns relating to the husband’s long-term history of cannabis use. There is no recent evidence that he has used cannabis, he tells the court that he has “grown out of it” and in that regard he has provided the court with a “clean” urine screen from 27 September 2018.[31] All drug screens he has provided since 2017 have been clear. [32] His partner Ms B is also strongly anti-drugs and has never seen him use them, which is also a protective factor. [33]
[31] Husband’s affidavit filed 03/10/18, para 46 and annexure “B”
[32] Exhibit “ICL-1”
[33] Affidavit of Ms B filed 02/11/18, para 30. Her affidavit was unchallenged at trial.
I consider that there is always a risk of the husband relapsing at some point in the future, particularly given his past history including when under stress. [34] But in the end this is not a major factor in the court’s consideration.
[34] See the letters which are annexure “M1” to the wife’s affidavit filed 03/10/18
Of far more concern to the court are the emotional risks posed by the husband.
The court is also concerned about the children being exposed to ongoing parental conflict whatever orders are made. It is impossible to see how any orders made by the court can completely extinguish the risk of the children being exposed to parental conflict going forward.
Section 60CC(3)(a) – Views expressed by the children:
When Y was interviewed by the Family Consultant, he said that he thought things would be better if he and his brothers were allowed to spend “50/50” with each parent and that such arrangements would be “fair”.
Z told the Family Consultant that he wanted “50/50”, explaining that this was “the only thing that is fair for the kids”.
The wife conceded to the Family Consultant that the children “resented” the current orders.
The difficulty in assessing the views of the children however is that the husband has very much aligned them to his cause over a long period of time. This casts a shadow over the reliability of their wishes, to the extent that such wishes can be given weight.[35]
Section 60CC(3)(b) – The nature of relevant relationships:
[35] See Bondelmonte v Bondelmonte [2017] HCA 8.
The wife was always the children’s primary carer, until X moved in with the husband in September 2018. X is presently estranged from the wife and this is potentially problematic in terms of Y and Z who may be negatively influenced by him against the wife when staying at the husband’s home. The husband is likely to “turn a blind eye” to same.
The children nonetheless have a good relationship with each other but the younger children’s relationship with the wife is potentially under some pressure going forward.
The deterioration in Y’s behaviour the week before trial resulted in him being placed on a behaviour contract at school which highlights the tension and difficulties in his life and the impact upon him of being exposed to the parental dispute. Y is suffering and the wife has had to appropriately seek help for him from his GP, as well as enrolling him in a “Seasons of Change” Program. I have little doubt that Y is missing the quality time with X that he used to enjoy prior to X’s decision to move in with the husband.
Over time however, X will inevitably make his own way in life away from his younger brothers. As the oldest sibling, this is no more than the natural order of things. Moreover his brothers may need to be shielded from some of his anti-social or defiant behaviours at times.
I also note that the husband’s partner Ms B has a daughter R who is turning 13 and who apparently has a good relationship with the children of this proceeding.
Section 60CC(3)(ca) – Extent parents have fulfilled their parental obligations:
Despite being a good income-earner during the relationship the husband’s income has significantly dropped since separation. He has paid minimal child support to the wife and at times the wife has in fact been assessed to pay child support to him. In truth however I do not see this is a major consideration.
Section 60CC(3)(d) – Effect of change on children’s circumstances:
The husband points to X’s “voting with his feet” in support of his position. His case is that the children need to know that both parents are being treated equally. But his focus is on the needs of the parents rather than the children.
In truth, none of the usual indicators for a successful equal time arrangement are in place. Nor do I consider such an arrangement to be “reasonably practicable” given the acrimony between the parents, their mistrust, poor communication and very different parenting styles.
The husband, clearly a firm advocate of equal time, had undertaken significant research about the necessary ingredients for it to work. But all of the criteria that he identified as being necessary for such an arrangement to work seemed to be absent. He referred to “united decision making”, “trust”, “good communication”, “cooperation” and an “amicable co-parenting relationship”.
To the extent that the husband points to the belated agreement between the parties in respect of X, I have no doubt the consent order at trial was one in which the wife felt that she had no practical alternative. Notably, she refused to concede in the witness box that X’s mental health would improve if he lived with the husband, nor would she concede that the husband and his partner could even “provide adequate care” for X. I see her consent to that order as a realistic concession on her part that she had little or no alternative. It is hardly an example of an amicable and cooperative outcome. While the order was in X’s best interests, in truth it might accurately be described as nothing more than “sweeping up broken glass”.
X may have experienced some improvement in his mental health after moving in with the husband; this may be only because he is now no longer exposed to the parental conflict to nearly the same degree. The cost of that “improvement” has been his estrangement from his mother, which is hardly a good outcome for him.
The court accepts the wife’s submission that:
(a)If it makes orders as sought by the husband, then the children, will be moving between households offering two completely different parenting styles, which is likely to be confusing and destabilising for them at best;
(b)If the court “rewards” the husband’s inappropriate behaviour in relation to parenting issues over the last two years, it is likely he will continue to adopt the same mode of behaviour in seeking to deal with disagreements with the wife about future parenting issues.[36]
[36] Exhibit “W-5” page 7.
The problem with maintaining the current arrangement is that the children resent it. They do want to spend more time with the husband. For his part, the husband is likely to resent anything less than an equal time order.
Section 60CC(3)(e) – Practical difficulties and expenses:
There are no practical difficulties or expenses that arise in this particular case.
Section 60CC(3)(f) – Parental capacity:
Both parents have the capacity to provide for the children’s day-to-day needs. However, I assess that the wife has much greater capacity and insight in relation to setting appropriate boundaries, proper parental role modelling as well as having a more appropriate attitude towards authority and court orders. Though she has not been “perfect” – the trip to Country Q being an example – the court doubt considers that, overall, the wife has a much better attitude toward authority than the husband. She can provide a safer emotional environment and has supported the children through counselling and appropriate interventions.
Section 60CC(3)(g) – The maturity, sex, lifestyle and background of the children:
The Family Consultant opined that at his age it would be quite normal for Y to gravitate towards his Father. No doubt in time this will also be true for Z.
Section 60CC(3)(h) – Aboriginal or Torres Strait Islander Culture:
This consideration does not apply here.
Section 60CC(3)(i) – Parental attitudes:
I have concerns about the attitudes of both parents, although my concerns about the husband are far greater.
The husband has actively set out to undermine court orders to the extent that he disagrees with them; he has shown a lack of appropriate boundaries with the children; he shows little respect for opinions of experts (including judges) where their views differ to his own. In the witness box, the husband rejected and was generally dismissive of the opinions and recommendations set out in the Family Report. [37]
[37] Consistent with para 9 of the husband’s affidavit filed 03/10/18
Most concerning, the husband has actively engaged the boys in the litigation process, seeking their “support” for his equal time position.
I add here my own observation that, when the husband was being cross-examined in the witness box, he did come across as being rigid, controlling and resistant to other viewpoints different from his own. He told the children that he was “doing all I can to get 50/50”. He even said in the witness box that the children felt sorry for him and in fact Y wanted to live with him.
The husband seems unable or unwilling to separate the children’s needs from his own. His self-righteous assessment that he “always complies with court orders” is simply unsustainable. [38]
[38] Exhibit “ICL-2”, para 78.
The husband’s negative view of the wife as a parent, particularly vis-à-vis X, is a theme of his trial affidavit. He cannot however see his own failings and his own contribution to the problem.
I also struggle with the husband’s evidence that if the court rules against him in terms of equal time, than he will simply accept it and tell the boys that they all need to “move on”. This self-serving comment seems rather unlikely.
Having said all of these things, I accept that the husband does have positives to offer the children as a parent. He is, as the wife concedes, a very “present” father for them.
For her part, the wife can be quite stubborn. Like the husband, she is quite capable of “digging in” and insisting on getting her own way. By and large however, she has been setting boundaries and trying to comply with court orders.
The wife could have been more protective in relation to X’s cannabis-using friend and she has also exposed the children to her angry outbursts about the husband from time to time. She downplays her own contribution to the difficult co-parenting dynamic.
Section 60(CC)(3)(j)&(k) – Family violence & orders:
I have addressed family violence issues earlier herein.
Section 60CC(3)(l) – Future litigation:
This is a very difficult consideration because any orders that I make pose the potential for future risk of litigation.
If I do not make orders for equal time, the risk is that the husband will undermine the wife’s parenting and that the children will end up “voting with their feet” and moving in with him and rejecting the wife as X has. In my view this would not be in the children’s best interests.
But if I make the orders sought by the husband, equal time is likely to be disastrous given the extremely poor co-parenting relationship. Parallel parenting would not likely work here and in the court’s view the husband would have even greater opportunity to undermine the wife’s parental authority than he has done to date – increasing the risk of the children deciding to follow X’s lead and “vote with their feet”.
In truth, there is no “safe order” that the court can make which will completely extinguish the risk of future litigation. But the court needs to limit the risk of future litigation as much as possible.
Section 60CC(3)(m) – Other facts and circumstances:
No particular issue arises here.
Weighing up the options and applying the statutory pathway:
Parental responsibility:
Each party complains about the other’s attitude to communication. When the husband organised a natural homeopathic remedy for X’s anxiety for example, he did not consult the wife. [39] For her part the wife took the children to Country Q over the husband’s clear objection. These are just two of many examples.
[39] Exhibit “ICL-2”, paras 66, 85 & 164.
The parties have very different attitudes to boundaries, to discipline and to the use of social media. For example, they have had arguments about X having sleepovers with his girlfriend, the wife saying it was not acceptable and the husband saying that it was. There are many examples of their different attitudes littered throughout these Reasons.
In my view, trust and cooperation between these parties has broken down. The parents cannot properly communicate. Their toxic co-parenting relationship has damaged their children.
In relation to X, the parties consented to orders for the husband to have sole parental responsibility. They could have agreed to share parental responsibility. Inferentially the parties accept that equal shared parental responsibility would have been unworkable or otherwise not in X’s best interests.
Z told the Family Consultant that the parents don’t get on and they don’t like one another. He said they won’t even speak to one another without yelling or fighting. He said that this makes him feel sad.[40]
[40] Exhibit “ICL -2”, para 129.
Y said similar things.[41]
[41] Exhibit “ICL-2”, para 136.
The presumption that an order for equal shared parental responsibility would be in the children’s best interests does not apply by reason of the court’s earlier findings as to family violence: s 61DA(2). But even if there had been no family violence, the court would comfortably have found that the presumption was rebutted on the evidence.
The wife and the ICL take the position that the children need to stay living with the wife and spending significant and substantial time with the husband. The husband seeks equal time.
The court considers that it would be disastrous for Y and Z to “vote with their feet” as X did and that the real challenge in this case is to come up with a set of parenting orders that provides the children with a stable and supportive environment. The Family Consultant emphasised the need for proper parental boundaries. She acknowledged that the risk of alignment to the husband is present in no matter what orders the court makes.
The Family Consultant considered that the risk of limiting the husband’s time – as the wife and ICL seek – is that the children will want to spend more time with him and this may place their stability at risk. But in the court’s view, the risk of the orders being subverted and the children “voting with their feet” is even greater in the case of an equal time order.
In the end, having weighed all of these matters, the court considers that this is simply not a case where equal time could work in the children’s best interests, nor is it reasonably practicable. The Family Consultant said as much. The court considers that the wife is the more stable, secure and emotionally safe parent and the appropriate orders to make are that the children should live in her primary care. As equal shared parental responsibility is unworkable and not in the best interests of the children, the wife should also have sole parental responsibility.
But the wife’s own concession to the Family Consultant that the children “resent” the 3 nights per fortnight arrangement during school terms makes its continuation a somewhat unattractive proposition. Even if their wishes have been influenced by the husband, it would be better in the court’s view for the husband’s time with the children each fortnight to increase slightly. In the court’s view a modest increase to 4 nights per fortnight will work more in the children’s best interests. It will never be enough for the husband but it is an improvement on 3 nights – if the husband is willing or able to see it that way, which in the short term I doubt.
The court is otherwise of the view the appropriate orders to make are those set out by the wife and the ICL. Though the court doubts the husband’s capacity to do so, the court will be making orders that each parent be restrained from discussing the court-ordered arrangements with the children or permitting any other person to do so. The order would be best explained to the children by the ICL and the court’s orders will provide for that.
If the husband is true to his word and encourages the children to “get on with things” going forward then there is no reason why he should not continue to have a meaningful relationship with the children in the context of them having a stable and secure home life with the wife. They can also enjoy quality holiday time with both parents.
Though any increase in the husband’s time carries some risks, the court considers that its orders best meet the difficult balance required.
For these reasons the court makes the parenting order set out at the commencement of the judgment.
THE PROPERTY PROCEEDINGS:
As distinct from the parenting proceedings, the parties’ trial affidavits in relation to the property dispute were relatively “thin”. Much of the evidence ended up having to be “fleshed out” in the course of cross-examination and through the tender of documents.
The court’s approach:
These proceedings are governed by the provisions of Part VIII of the Family Law Act (“the Act”).
In considering what property settlement order (if any) to make in the present case, these reasons for judgment will:
(a)Firstly, identify and value the property, liabilities and financial resources of the parties;
(b)Secondly, consider whether it is “just and equitable” to make a property settlement order; [42]
(c)If so, then the third step will be to identify and assess the respective contributions made by each of the parties towards the net assets pursuant to s 79(4)(a), s 79(4)(b) and s 79(4)(c) of the Act;
(d)The fourth step will be to identify and assess what might be called the “future factors” (as relevant) contained in s 75(2), which are brought into consideration by operation of s 79(4)(e). I will also assess any relevant matters set out in s 79(4)(d) and s 79(4)(g) as relevant. Having done so, I will then determine what (if any) adjustment ought to be made to each party’s respective contributions-based entitlement. In carrying out this step I will be mindful not only of percentages (which are often convenient to the court) but also the underlying dollar figures that are involved (which are the practical consequence to the parties);
(e)Finally, I will consider the effect of my findings and proposed orders so as to satisfy myself that my proposed property settlement order is “just and equitable”. [43]
[42] Stanford & Stanford (2012) FLC 93-518
[43] The pathway I am adopting is primarily based upon that endorsed by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143, adapted by me to take into account the High Court’s decision in Stanford (supra).
Step 1 – Identifying and valuing the assets, liabilities and financial resources:
A number of items in the Balance Sheet were not agreed.
I find the Balance Sheet to be as set out below. The contentious items are asterisked and my reasoning in relation to those items follows.
NON-SUPERANNUATION ASSETS:
ASSETS
Owner
Description
Value
Joint
Sale proceeds – Town E property
$ 237,994
H
Town S property
$ 390,000*
W
Town T property
$ 400,000*
H
Motor Vehicle F motor vehicle
$ 11,000
W
Motor Vehicle G motor vehicle
$ 10,000
H
Motorcycle
$ 15,000
H
Boat, motor & trailer
$ 1,000
H
Tools of trade
$ 3,000
H
Ride-on mower
$ 500*
SUB-TOTAL
$1,068,494
ADD-BACKS
Owner
Description
Value
W
Legal fees & disbursements paid by wife out of interim property division
$ 58,809
LIABILITIES:
Owner
Description
Value
W
Mortgage – Town T
$ 192,367
Joint
Loan from Husband’s father
$ NIL*
Joint
Loan from Husband’s mother
$ NIL*
SUB-TOTAL
$ 192,367
NET NON-SUPERANNUATION ASSETS INCLUDING ADD-BACKS
$ 934,936
SUPERANNUATION:
Owner
Description
Value
W
Super Fund H
$ 20,000
W
Super Fund J
$ 7,500
H
Super Fund U
$ 1,812
TOTAL SUPERANNUATION
$ 29,312
TOTAL NET PROPERTY INCLUDING SUPERANNUATION
$ 964,248
The Town S & Town T properties:
The court has adopted the wife’s proposed approach, which is to adopt the unchallenged expert valuation evidence of Mr A.
The husband contended for an entirely different approach. As the parties had each received a post-separation sum of $390,000 upon sale of the former matrimonial home, and each had applied those moneys towards the purchase of their respective real properties at Town S and Town T, the husband’s case was that the appropriate course was instead to include the $390,000 on each party’s side of the ledger and ignore the current home values. This meant disregarding the attendant mortgage over the wife’s property at Town T. In taking that position the husband contended that the wife’s mortgage had been accrued “wastefully” or that she had otherwise over-capitalised on the Town T home, whereas the husband had been much more financially prudent.
The husband relied upon the Full Court’s decision in Townsend & Townsend [44] in relation to “premature” property distributions. He relied upon the decision of Baker J in Kowaliw & Kowaliw [45] in relation to “waste”. He also relied on the High Court’s decision in Stanford & Stanford [46] - submitting that it would not be “just and equitable” that the husband effectively share in the wife’s Town T mortgage in circumstances where she was herself seeking to avoid any liability to the husband’s parents for the moneys advanced by them to the parties during the relationship.
[44] (1995) FLC 92-569
[45] (1981) FLC 91-092
[46] (2012) FLC 93-518
Having taken into account the evidence and the husband’s submissions, the court considers that the current real property values should be included – with appropriate adjustments to be made in the husband’s favour in the assessment of the contributions. The husband conceded that such a course was open. The court’s reasons for taking this course are set out later in the discussion of post-separation contributions.
I should add here that the wife’s legal costs paid out of her $390,000 have been treated as an “add-backs” by agreement.
Ride-on mower:
The only admissible evidence on point was the husband’s admission against interest in his filed material. His figure has accordingly been adopted.
Family debts to husband’s father and mother:
In 2011, the husband’s father provided the parties with $100,000 in order to enable them to purchase a property at Town E for $184,000. The husband’s evidence is that those moneys were loaned, with interest of $10,000 being repayable. The wife’s evidence is that the moneys were gifted.
The husband’s mother provided the parties with the other $84,000 needed to purchase the property.
There was no formal loan agreement in relation to either the $100,000 or the $84,000. But the $84,000 was repaid quite promptly when the parties took out a bank loan. Notably the $100,000 was not repaid.
During the relationship, there were no repayments towards the $100,000.
In the first half of 2016, the parties sold the Town K property and each netted $390,000. The wife did not repay any of the $100,000 but the husband did – he repaid $55,000 being what he contends to be his half share with interest.
At trial, the husband did not call his father as a witness. Instead he annexed a statement from him – which was quite properly struck out on the wife’s objection. Nor did he produce any loan agreement. To the extent that he annexed an alleged “acknowledgment of debt” to this trial affidavit. [47] I found the document of no real evidential value.
[47] Husband’s affidavit filed 03/10/18, annexure “C”
I prefer the wife’s evidence that the $100,000 was a gift and will proceed on that basis.
But even if the moneys were loaned, the court considers that the loan is unlikely to be enforced. In Biltoft (1995) FLC 92-614 the Full Court held that it was open to a court not to take into account, or to discount, the value of an unsecured liability in certain circumstances – including but not limited to a liability which is vague or uncertain, unlikely to be enforced or not reasonably incurred.
Moreover, if the moneys were loaned, it is a “live” question as to whether the relevant time limitation had has expired. Moneys loaned on demand are repayable within six (6) years of the loan. The husband’s $55,000 repayment would effectively constitute an acknowledgment of the debt, thus re-commencing the limitation period. But such repayment may or may not have been made within the initial six years of the moneys being “loaned” – the husband’s evidence is unclear as to the exact timing and in the circumstances the absence of evidence counts against his case given he could have provided such evidence. (He could also have called his father as a witness).
The husband also alleged that the parties owed his mother $42,000. On his evidence she had loaned the parties a total of $50,000 in June 2014 in order to help the parties with some business debts, including paying for a new motor for the husband’s Motor Vehicle F. The wife also used some of that money to purchase a Motor Vehicle M.
At trial, the husband did not call his mother as a witness either. Nor did he produce any formal loan document. He did however produce bank statements for the partnership in which the wife, who did their bookwork, herself described the moneys as in the bank statements as “loan Ms P”. [48]
[48] Exhibit “H-5”
In the circumstances, I am inclined to the view that the moneys were loaned rather than gifted. But are they ever going to be required to be repaid?
The husband repaid $22,000. Confusingly his half share should only have been $21,000. The mother has since gone on to loan him a further $36,880 – as set out in the husband’s Financial Statement. [49]
[49] Husband’s affidavit filed 03/10/18, para 61
In all the circumstances the court’s view is that it is unlikely that the loan would ever be enforced: Biltoft[50]. I will however take it into consideration in the context of contributions.
Step 2 – Considering whether it is “just and equitable” to make a property settlement order in this case:
[50] (1995) FLC 92-614
In its decision of Stanford & Stanford (2012) FLC 93-518, the High Court of Australia elaborated upon and clarified the statutory requirement that the court not make any property settlement order pursuant to Part VIII, unless it is “just and equitable” to do so.[51]
[51] The High Court was referring to s.79(2) but by analogy the decision also applies to s.90SM(3).
In their plurality judgment, French CJ, Hayne, Kiefel and Bell JJ held that:
(a)In every case in which a property settlement order is sought it is necessary to satisfy the court that in all of the circumstances it is “just and equitable” to make such a property settlement order (section 79(2));
(b)The expression “just and equitable” is qualitative description of a conclusion reached after examination of a range of potentially competing considerations and does not admit of exhaustive definition. It is not possible to chart its metes and bounds. There are three (3) fundamental propositions which must not be obscured:
i)First, the court must begin a consideration of whether it is “just and equitable” to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. The question posed by section 79(2) is thus whether, having regard to those existing interests the court is satisfied that it is “just and equitable” to make a property settlement order;
ii)The power to make a property settlement order must be exercised in a principled fashion, and it cannot be answered by assuming that the parties rights to, or interests in, matrimonial property are or should be different from those that then exist;
iii)Whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them by reference to the matters set out in section 79(4). To conclude that making an order is “just and equitable” only because of, and by reference to the section 79(4) considerations, without a separate consideration of section 79(2) would be to conflate the statutory requirements and ignore the principles laid down by the Act.
In this case, each party contends that it would be “just and equitable” to make a property settlement order, albeit that each seeks a different order.
In the circumstances I am satisfied that it would be “just and equitable” to make a property settlement order.
Step 3 – Assessing the respective contributions:
In the exercise of my discretion I propose to assess the parties’ respective contributions globally across both the superannuation and non-superannuation property.[52]
[52] Norbis & Norbis (1984) FLC 91-543
At trial, neither party contended for any superannuation split; each is to retain what superannuation they currently hold. This lends support to my approach.
Of course, assessing homemaking and parenting contributions and weighing those up against direct financial contributions is something of an art rather than a science and of necessity it cannot be a strictly mathematical exercise.
Initial contributions:
The wife brought a car and some (likely modest) savings into the relationship. The husband brought in three (3) investment properties – one at Town L, one at Town N and one at Town O in Queensland.
The husband’s initial contributions were superior.
Contributions during the relationship:
The wife was the primary homemaker and parent throughout. As a qualified health care worker she also undertook some work around her care of the children.
The husband was a self-employed tradesman throughout, conducting the business for income-splitting purposes in partnership with the wife. In practical terms he did nearly all of the work for the partnership; the wife’s role was limited to assisting with some fairly limited bookwork each week.
At some point the husband sold the Town N property but there is no evidence as to what was netted.
In 2004 the husband sold his Town L property, netting around $420,000.
In 2006, the husband sold his Town O property, netting around $150,000.
The parties purchased their property at Town K.
When they later purchased the Town E property the husband’s father gifted them $100,000 of the $184,000 purchase price as noted earlier.
In June 2014 the husband’s mother provided the parties with the $50,000 referred to earlier.
Contributions post-separation:
In terms of parenting, the wife continued as primary carer for the children up until September 2018 when X moved into the husband’s home.
The husband paid only nominal child support to the wife, [53] despite historically being a good income-earner. His income for child support purposes was at one point assessed as a mere $23,000. In practical terms apart from the husband paying for half of the children’s school fees the wife was otherwise left to meet the bulk of their day-to-day living costs.
[53] Wife’s affidavit filed 03/10/18, para 291
A major point of contention was how each party applied their $390,000. In this respect the husband was critical of the wife’s expenditure. His case was that he had applied his $390,000 much more prudently than she had.
On the evidence, the husband purchased the Town S property for $307,000. His mother generously loaned him the deposit of $30,700. The result was that he only had to spend $276,300 plus the stamp duty. Realistically he was therefore able to retain the better part of $100,000 of his share of the Town K proceeds. Of this he applied $77,000 to his parents made up of $55,000 to his father and $22,000 to his mother.
The husband could thus account for about $353,000 or so of the $390,000 he received from Town K.
Moreover, at trial his Town S property had increased in value to $390,000.
In relation to the wife’s $390,000, her affidavit evidence was fairly “thin” and was limited to two (2) paragraphs which did not attempt to give any real accounting. [54] Much of that detail came out in cross-examination, with respect rather tediously and at an unfortunate cost in trial time.
[54] Wife’s affidavit, paras 286 & 293
It emerged that she had had to fairly quickly utilise some $21,000 to meet tax and business expenses arising out of the former building partnership.
She had then rented with the children for about twelve (12) months, during which time she was going backwards financially.
By November 2016 she had spent about $45,000 of the Town K money, including the $21,000 referred to above. I do not consider such level of expenditure to be at a “wasteful” level in a Kowaliw sense.
In June 2017 the wife purchased the Town T property for $380,000. Adding in stamp duty, the total purchase price was about $395,000.
To facilitate the purchase, she paid “cash” of about $195,000 and borrowed the remaining $200,000. She then paid into the mortgage another $101,000 cash being proceeds from Town K, reducing the mortgage balance to $99,000 as at June 2017. On my calculations, at that date the sum of around $49,000 from Town K remained “unaccounted for” in a strict sense. [55]
[55] $390,000 - $45,000 - $195,000 - $101,000 = $49,000
The wife had spent $58,809 on legal fees as at the date of trial. So in the end, in a practical sense I consider that in the end the wife has accounted for her expenditure of the Town K proceeds.
The more significant point in my view is in relation to the wife’s mortgage increase. In particular, by May 2018 the wife had increased her mortgage by $94,000 in that the balance had increased from $99,000 to $193,000.
In the witness box the wife explained that she had spent some $65,000 in round terms on renovations to make the home more habitable including demolishing the old garage, putting in a new septic system, doing some landscaping and numerous other works.
Those renovations were of course understandable and were no doubt taken into account in the ultimate valuation figure of $400,000. But in all the circumstances, given the very minor differential in the value of the Town S and Town T properties, one can easily see why the husband contends for an adjustment in his favour given his seemingly more financially prudent investment.
In a Stanford sense his submission is that it is not “just and equitable” to make him share in the wife’s mortgage. But with respect his argument disregards the reality that the wife was primarily caring for the children post-separation and that the husband was not paying her any meaningful child support – thus freeing up more of the husband’s income to, for instance, pay his own legal fees. The $390,000 each received was an interim distribution only; though each dealt with their $390,000 as they saw fit, the parties nonetheless were still financially intertwined and their property case remained “live”. The husband’s approach of crediting each party with a (now non-existent) $390,000 is artificial as it does not reflect what they current hold. The court does not consider that such an approach would be “just and equitable” as the husband contends.
Nor for the same reasons is the court attracted to the husband’s Townsend argument for crediting each with $390,000.
To the extent each party has – independently and without reference to the other – invested in their respective real estate purchases, the husband’s deployment of funds has been more financially prudent. The wife is entitled to live in a habitable home but there needs to be an appropriate adjustment of the parties’ respective contributions-based entitlements in this respect.
Overall assessment of contributions:
This was a lengthy relationship. Ordinarily a “broad brush” approach is warranted in such a case.
I have descended into particularity because doing so was unavoidable on the arguments as presented.
Both parties made substantial contributions. But in the end, the overall balance favours the husband given his introduction of the real properties (realised as cash during the relationship), his parents’ financial assistance and the husband’s superior investment of his $390,000. Overall, the court finds the parties’ respective contributions-based entitlements as at trial to be sixty percent (60%) to the husband and forty percent (40%) to the wife.
Step 4 – Any necessary adjustments for future factors:
Both parties are aged forty-five (45) and in good health. I have set out their assets and liabilities earlier herein.
The wife works part-time around her care of the children. She intends to stay working part-time. Her income is modest but she can meet her expenses each week, albeit presently with some Centrelink assistance.
The husband is self-employed and has a greater earning capacity than the wife historically. His affidavit says, and I accept, that he earned a good income during the relationship. But post-separation his income has dropped substantially. It is the court’s view that he will not be motivated to “put his shoulder to the wheel” in terms of income generation if it means paying the wife increased child support. He would resent doing so. As he has no mortgage he is in fact able to survive quite comfortably working part-time.
The husband’s partner Ms B also earns some $1,400 per week but the court knows little about the circumstances of their cohabitation except her unchallenged statement in her affidavit that she is only obliged to pay for her share of the utilities and groceries. Her daughter R lives with them for half the time. Thus it could reasonably be said that the husband is to some extent subsidising both Ms B and her daughter by way of providing them with free accommodation.
The wife has ongoing primary care of Y and Z; the husband has ongoing primary (almost exclusive) care of X although he will be an adult by August 2020. Both parents need to be protected in their primary parenting roles, the wife more so given that she will be deployed in such role for longer.
The parties have a reasonable standard of living. The husband’s standard of living is higher given his very low debt levels.
Neither party’s earning capacity would be affected by the orders the court is proposing.
On my findings, there are no relevant unsecured creditors to be considered.
Overall, I consider that an adjustment for future factors ought to be made in the wife’s favour. To recap, I have already found that the parties’ respective contributions-based entitlements to the present property are:
(a)Wife = forty percent (40%) of $964,248 being an amount of $385,700. She already holds property of $303,942 so in dollar terms she has a leftover contributions-based entitlement of $81,758 from the remaining proceeds of the Town E property;
(b)Husband = sixty percent (60%) or $578,548. He already holds property of $422,313 so he is entitled to the other $156,235 from the Town E proceeds.
Noting the wife’s ongoing primary care role for Y and Z, and weighing up all of the future factors referred to earlier, I consider that a further cash adjustment to the wife of seventy-five thousand dollars ($75,000) would be appropriate. In percentage terms this adjustment equates to seven point seven percent (7.7%) of the net property available for division.
Just and equitable outcome:
Having regard to the findings the court has made herein, the court considers it a just and equitable outcome for the wife to receive $156,758 from the sale proceeds of the Town E property, and for the husband to receive the balance of $81,236.
The husband would indemnify the wife in respect of any debts owed to the husband’s parents.
Each party is to otherwise retain all other property in their possession, including superannuation and in the wife’s case the mortgage over the Town T property.
This outcome reflects an appropriate division of the parties’ property taking into account all relevant matters under the Act.
For these reasons the court makes the property settlement orders set out at the commencement of the judgment.
The court will hear the parties on the question of costs.
Costs application by the ICL (parenting proceedings):
The court is well aware of the provisions of s 117 of the Family Law Act.
In this particular case the court has no doubt that the children required representation, thus the ICL was a necessary party. Moreover the ICL provided the court with real assistance at trial.
The ICL seeks its costs as set out in exhibit “ICL-4”.
While the ICL is a publicly-funded resource, but the public purse is not unlimited and in this case the parties have ample capacity to pay the ICL’s costs. Neither of them have conducted themselves “perfectly”. Both have exposed the children to their enduring conflict, the husband more so. He has also breached orders.
The wife was more successful than the husband but not wholly successful as the court determined that the children should spend four (4) nights per fortnight with the husband rather than three (3).
In the circumstances, the court considers that the circumstances “justify” the making of a costs order in the ICL’s favour and that it would be “just” that each party should pay one half of the ICL’s costs as agreed or assessed, with those costs to be paid within thirty (30) days and to come out of the trust moneys held by Ms P Conveyancer.
I certify that the preceding two hundred and seventy-seven (277) paragraphs are a true copy of the reasons for judgment of Judge Betts
Date: 13 December 2019
Key Legal Topics
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Family Law
Legal Concepts
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Consent
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Costs
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Injunction
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Procedural Fairness
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