Hirsch and Hirsch
[2019] FCCA 48
•16 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HIRSCH & HIRSCH | [2019] FCCA 48 |
| Catchwords: FAMILY LAW – Parenting and property dispute – mother being primary carer – whether family report writer’s recommendation for 9/5 regime should be adopted – 9/5 impractical given distance between parties homes – 10/4 regime to be introduced over time –short 4 ½ year relationship – wife owning a property at the commencement of relationship – wife’s contributions and future needs both substantially greater than husband’s – 75/25% division of property and agreed equalisation of superannuation. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CC |
| Cases cited: Goode v Goode [2006] FamCA 1346 Stanford v Stanford [2012] HCA 52 |
| Applicant: | MR HIRSCH |
| Respondent: | MS HIRSCH |
| File Number: | DGC 57 of 2018 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 7 November 2018 |
| Date of Last Submission: | 7 November 2018 |
| Delivered at: | Dandenong |
| Delivered on: | 16 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Glezakos |
| Solicitors for the Applicant: | Tyler Tipping & Woods |
| Counsel for the Respondent: | Ms McDonald |
| Solicitors for the Respondent: | Duffy & Simon |
ORDERS
Parenting
The Husband and Wife have equal shared parental responsibility for the children:
(a)[X], born …2013; and
(b)[Y], born …2015.
(“the children”).
The children live with the Wife.
The children spend time with the Husband:
(a)From 16 February 2019, until the conclusion of the 2019 School Term 1:
(i)Each alternate weekend from 10.00am Saturday until 5.00pm Sunday.
(b)From commencement of the 2019 school Term 2 and thereafter:
(i)Each alternate weekend from conclusion of school (or 3.00 pm if not a school day) each Friday until commencement of school (or 9.00 am if not a school day) Monday.
(c)From the commencement of the 2019 school Term 3 and thereafter:
(i)Each alternate week from conclusion of school on Thursday (or 3.00 pm if not a school day) until commencement of school (or 9.00 am if not a school day) on Monday.
(d)From the 2019 school Term 1 holidays and thereafter for one half of each school holiday period including long term summer vacations as agreed between the parties, and in default of agreement for the first half of such school holiday period in even numbered years and the second half in odd numbered years;
(e)From 4.00pm on Christmas Eve until 2.00pm Christmas Day in even numbered years;
(f)From 2.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years;
(g)From 4.00pm on New Year’s Eve until 2.00pm New Year’s Day in even numbered years;
(h)From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in odd numbered years;
(i)On the weekend of Father’s Day, from 10.00am on Saturday until 5.00pm on Father’s Day; and
(j)As may otherwise be agreed between the parties.
Any period the children are to spend with the Husband be suspended as follows:
(a)From the 2019 school Term 1 holidays and thereafter for one half of each school holiday period including long term summer vacations as agreed between the parties, and in default of agreement for the second half of such school holiday period in even numbered years and the first half in odd numbered years;
(b)From 4.00pm on Christmas Eve until 2.00pm Christmas Day in odd numbered years;
(c)From 2.00pm on Christmas Day until 4.00pm on Boxing Day in even numbered years;
(d)From 2.00pm on New Year’s Eve until 2.00pm New Year’s Day in odd numbered years;
(e)From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in even numbered years;
(f)On the weekend of Mother’s Day, from 10.00am on Saturday until 5.00pm on Mother’s Day; and
(g)As may otherwise be agreed between the parties.
Changeovers occur at the children’s school where possible, and otherwise at the Suburb A Police Station, or such other location as may be agreed between the parties in writing from time to time.
Each of the Husband and Wife be at liberty to communicate with the children at reasonable times and by reasonable means (including by FaceTime, etc.) when the children are in the other party’s care, including, but not limited to, between 7.00pm and 7.30pm each Tuesday and Thursday night.
The parties each be, and is hereby, authorised to obtain, directly from any school attended by the children, or either of them, details of the children’s progress at school; copies of all school reports; photographs; notices of parent-teacher interviews; and notices of other functions which parents normally attend.
Both parties be permitted to attend parent/teacher interviews and other school activities/functions normally attended by the parents.
Neither party enrol the children, or either of them, in any extra-curricular or sporting activity which is to occur during the time the children spend with the other parent, save with the consent of such parent.
Each of the parties keep the other informed of any illness or injury occurring to the children, or either of them, whilst in their care which requires medical attention, such notice to be provided as soon as practicable and not more than 24 hours following the child attending upon a medical practitioner.
Each of the parties provide the other with their contact address and telephone number during periods when the children are in their care and inform the other forthwith of any change in such address or telephone number.
The parties, by themselves, their servants and/or agents be and are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party, their partner or their family; and
(b)Discuss these proceedings,
To or in the presence or hearing of the children or either of them and from permitting any other person to do so.
Property
The Wife pay to the Husband the sum of $61,500 (the cash payment”) within 30 days.
In default of compliance with order 13, the parties do all such acts and things, and sign all documents necessary to forthwith affect the sale of the real property situate at and known as Property B (“the real property”) altogether out of Court (“the sale”) and the proceeds of the sale be applied;
(a)Firstly, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage and any other encumbrance affecting the real property;
(c)$61,500 to the husband and the balance to the wife.
Pending the completion of the sale:
(a)The Wife have the sole right to occupy the real property and that during such right of occupation the Wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)The parties hold their respective interests in the real property upon trust pursuant to these Orders;
(c)Neither party encumber, or further encumber, the real property without the consent in writing of the other party.
Liberty be reserved to either party to apply with respect to the terms and conditions of and execution of the sale.
The Husband be permitted to attend at the real property within 28 days of the making of Orders to remove and retain the following items:
(a)His Mountain Bike and any associated equipment;
(b)His scuba diving gear and any associated equipment;
(c)His fishing rods and any associated equipment.
Pursuant to section 90MT(1)(a) of the Family Law Act 1975 there be a superannuation split in respect of the Husband’s interest in Super Fund 1 in favour of the Wife in a base amount of $32,350.00.
Each party otherwise be entitled to return all superannuation entitlements current in their respective names or held on their behalf.
Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the Wife;
(b)Monies standing to the credit of the parties in any joint bank account are to become the property of the Wife;
(c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the beneficiary named therein;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Procedural
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligation these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
All extant Applications be otherwise dismissed.
Pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
THE COURT NOTES THAT:
A.Pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
IT IS NOTED that publication of this judgment under the pseudonym Hirsch & Hirsch is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 57 of 2018
| MR HIRSCH |
Applicant
And
| MS HIRSCH |
Respondent
REASONS FOR JUDGMENT
This is a parenting and property dispute arising out of a short relationship which produced two young children, [X], born …2013, and [Y], born …2015.
The applicant father seeks that the children live with him in a 9/5 arrangement recommended by the family report writer, Dr F, although he proposes that the full expansion to that regime takes some time. The mother seeks a lesser amount of time and a longer period of introduction.
In terms of property, the husband seeks a 60/40 division of the matrimonial pool in favour of the wife, and the wife seeks that there be an 80/20 per cent adjustment in her favour. Both parties now agree that there will be an equalisation of superannuation by an adjustment of $32,350 in favour of the wife.
For the reasons that follow, I am going to order a gradual increase in the time that the children spend with their father (until they spend four nights each fortnight with the father). This may be increased if the father relocates his residence to a point close to the children’s school, a matter to which I will return. I will further order that there be a property adjustment of 75 per cent in favour of the wife and 25 per cent to the husband.
It should be noted that I will refer to the parties as “husband” or “father” and “wife” or “mother” as the context makes appropriate.
Agreed or Undisputed Relevant Facts
The husband was born on …1975 and is employed as a professional. He is presently suspended but it appears, on his evidence, to be unlikely that that suspension will continue.
The wife was born on …1986 and is also a professional, working eight days per fortnight.
The parents met in 2011 and commenced cohabitation in …2012. They married on …2014 and separated in December 2016.
The husband was, at the commencement of these proceedings, living in an extension at a property owned by his own mother. He has deposed more recently to being in a new relationship. He spends 80 per cent of the time with his partner, who lives in Suburb C, and the remainder at his mother’s premises. Nonetheless, he considers his mother’s premises as his continuing address.
The wife continues to live in the former matrimonial home at Property B. She has not re-partnered. She has paid the mortgage on the property since separation.
When the parties met, the wife already owned a property at Property A that she had bought in 2009 for $350,000, with an initial mortgage of $270,000. She has deposed that she borrowed $13,000 from her mother to buy that property and that the loan is still outstanding and payable, a matter to which I shall return.
The wife paid the mortgage on the Property A property until July 2016 when the parties moved from this property to the former matrimonial home at Property B Street bought in 2015. Following this, rent appears to have paid most of the mortgage until the Property A property was sold in July 2016. Net proceeds of the sale were $93,266, of which the wife still possesses approximately $67,000.
The wife earns approximately $85,000 a year, and while the husband’s income is subject to some fluctuation, it is somewhat greater than that of the wife.
The wife ceased all time between the children and their father on
25 August 2017 and they spent, essentially, no time with their father until Court orders on 20 March 2018 provided that the children spend time with the father from 10.00am till 4.00pm each alternate Sunday, which arrangement continues.
The Family Report of Dr F
Dr F saw the parties for the preparation of a family report in May and June 2018. Dr F noted that, while the father had decided to move on, he might not fully understand why this would be not so easy for the mother (paragraph 4.6).
He also noted that the mother was not very inclined to see parenting as a shared task (paragraph 5.6).
Dr F interviewed the two children and noticed obvious affection between the children with both their parents. [X], aged five and a half years, expressed that she would like two sleepovers with her father (paragraph 6.4), but, otherwise, no definite views were expressed by the children.
Dr F opined that the mother was the primary attachment for the children and that both girls already had a developmentally important bond with their father. He assumed (paragraph 8.4.1) that both parents could exercise responsibility for the girls’ long-term care, welfare and development and see to their day-to-day care while the girls were with them. He opined that they should live with the mother but spend substantial and significant time with their father. From June 2019, this would be a 9/5 arrangement, moving to overnight time immediately and gradually expanding. Dr F recommended equal shared parental responsibility.
It should be noted that the premise adopted by Dr F as to the parents’, more particularly the father’s, parenting capacity is a matter in issue in the proceeding, not a joint position as Dr F’s report tends to suggest.
The Parties’ Affidavits
I have read the parties’ affidavits carefully. Much of what they have to say is encapsulated in the agreed or uncontroversial matters set out above. I have noted the mother’s criticisms of the father’s parenting style. She maintains that the younger child has been sent back with an excessively full nappy, and that the children have been unwashed and/or with matted hair upon return from the father.
I also note the mother’s allegations of family violence against the father, a matter to which I shall return when I traverse the evidence. It is not, in the circumstances of this case, necessary to set out more detail of the parties’ affidavits.
The Evidence Given at Court
What follows is taken from my notes.
The father was called and adopted his affidavits and Financial Statement as true and correct. He confirmed that he is suspended with pay but that he does not expect that matter to go anywhere. He will seek a transfer in due course.
He is living with his own mother, but spends 80 per cent of his time with his new partner in Suburb C. The relationship has been underway for about six months. If the children spend time with him, it would be at Suburb C where there are bunk beds available. He has been slow to introduce the children to his new partner, Ms G.
Ms G’s children are there on opposite weekends as they spend Thursday to Sunday in one week and Wednesday and Thursday in the other week with their father. Those children are 13 and 10, respectively. Ms G is receiving WorkCover. Her underlying job is at a …Employer but he does not know how long she will be incapacitated. He understands that Ms G owns her own home and believes she has a mortgage.
The father denied that [Y] had, at any time, suffered nappy rash while in his care. He conceded it was a long drive from his mother’s to the mother’s home, but said that Suburb C to the mother’s home was only half an hour. He coaches in Town D on Thursday nights. He denied that [Y] had been returned with a very heavy nappy.
When it was put to him that he had been in a habit of returning the children on occasions at 9.00pm instead of 5.00pm, as agreed, he answered that there was no Court order at that time. This lack of consideration does not do him credit. He did not seek medical attention for his child’s itchy vagina because there was no doctor available on a Sunday.
The father was cross-examined about an occasion when he broke into the former matrimonial home. He broke a door because the mother had locked him out and was ranting and raving. He knocked the door down to go in and check on her. He denied berating the mother in front of the children, but I do not accept that denial. I have seen and heard him give his evidence and do not accept it in this regard.
When asked what would happen if his relationship with Ms G did not work out, the father said he would move closer to the girls. He accepts that the mother is the primary carer and accepts that there should be a gradual increase in his time which should have already commenced.
The father has made application to …Tribunal as a result of three incidents in 2016. The claims were determined in March 2018 and he received a total of $3,500. He sees a psychologist once a month as the incidents caused him anxiety.
The father confirmed that the cohabitation commenced in March 2012 and marriage in …2014. Separation occurred when he left the home on 5 December 2016. He had moved into the wife’s home in …2012 and they only moved to the Suburb C home four months before separation. The wife had bought the first home in 2009 and the mortgage was in her name. He had contributed $221,000 over four and a half years which should be in his materials. He earned between $90,000 to $110,000 a year. His pay went to a joint account and the wife handled the money.
The wife refinanced to buy the home in Property B. When it was put to him that the first application for finance was knocked back because of his poor credit, he said he did not know. He conceded that the wife had paid the mortgage since separation. He denied obstructing an application to move to interest only and said he had made calls to the bank, who had told him that the wife would need a new loan in any event.
The husband accepted that there would be $6,000 worth of capital gains tax payable in respect of the sale of the Property A property. He said he paid some bills and paid the internet, as it was contracted, but ceased after six months. He paid Child Support, as assessed, and there were zero arrears. He conceded, however, that he had fallen behind in Child Support payments and they were then garnisheed from his salary. He had ceased to pay for swimming lessons once access was taken away.
The husband said he had a couple of thousand dollars’ worth of debts at the start of the relationship, which he had paid out by a tax return. He bought a dirt bike after separation with his … Tribunal money. He had got out of a lease of a vehicle at a cost of approximately $4,000. His current income loses shift allowances and he is now paid about $90,000 a year. He had had a holiday in Country R for seven nights this year.
The Evidence of the Wife
The wife adopted her affidavits and Financial Statements as true and correct. She now works in Town E and is not in a relationship. Her younger child was toilet trained about two years ago. She denied being psychologically unwell when the husband broke the door down. She said she was crying on the ground. When asked why she was seeking an order for sole parental responsibility in relation to health and education, the mother said it was very hard to communicate with the father and that he intimidates her.
She had bought her property in 2009 for $306,000 with a mortgage of $270,000. This had reduced to about $260,000 in 2012 and the property was sold in June 2017 for $415,975 with a net outcome of $93,000. She has paid $50,000 on the mortgage on the matrimonial home since separation and has no plans to work full-time. She earns about $85,000 per annum. She has $67,000 in her bank account now, although it was $70,000. Her mother had lent her $13,000 to buy the Property A property, which is still outstanding. She still intends to pay that money but has been unable to do so because of financial difficulties.
When asked about overnight contact, the mother said this should be Friday to Sunday evening with a gradual build up. It should start with one night and build up to two. Thursday nights were not in the best interests of the children because of travel. If the father was in Property A or Property B, this would be okay. Thursday after school for dinner with the father was okay. Holidays should be equal and special days should be shared. She was amenable to undertaking any counselling or courses that the Court might deem appropriate.
Under cross-examination, the mother conceded that the father had assisted with the children during the relationship. Following separation, the children spent from Friday till Sunday with their father until August 2017. She then stopped this time because of family violence. There was an Intervention Order application in 2017 which did not proceed. The children spend time with the maternal grandmother and aunt, which includes overnight time.
She resisted overnight time with the father. She makes all the decisions about the children and the father only sees them six hours per fortnight. She had not told the father about [X]’s UTI. She takes the children to the doctor. She had told the father on one occasion when the children were in hospital but got no reply for 24 hours. The father has not contacted the day care centre for reports. The children are enrolled in swimming on Sundays and [X] will start school next year.
She had read the family report and at first appeared to concede that a block of three weeks of time in the long summer holidays would be all right. She said it would not be different if the father was living closer to school. 30 minutes was too far. (I took this to be a reference to the father living at Suburb C with Ms G). The father pays private health insurance for the children but she has not used it.
The mother conceded that there was no mention of the loan from her mother in her Financial Statement. It was not a written loan and the grandmother had placed no caveat over the property. The loan had not been repaid on the sale of the property as her mother had not made any demand.
When asked about paragraph 111(a) of her trial affidavit, the mother confirmed that $36,000 had been used to pay out the outstanding mortgage. Capital gains tax had been paid out of the net $93,000 figure and $20,000 had been used to pay debts, improve the Property B property and other matters. The mortgage on the Property A property was $265,000 when cohabitation commenced but she has not had a retrospective valuation.
The mother cannot increase her hours of work. She is based in Town E and the travel time is one hour. Her mother, has the children if she is rostered on.
In re-examination, the mother confirmed that she suspended time. The children would come home. [Y]’s nappies were very full and you could see her bottom. Even whilst toilet trained, she was still in a nappy. The children’s hair was not brushed and was matted and they smelled. [Y] was in hospital in November 2017. She had not told the father about [Y]’s UTI thereafter because she did not think he would care. She would prefer a week about arrangement in the long holidays as the weekend time is the longest the children have been away from her. She obtained a private carer card for health in August 2018.
The Parenting Issues
The Court is obliged to apply the statutory pathway as illuminated by paragraph [65] of the decision of the Full Court in Goode v Goode, which, in my respectful view, continues to be applicable, notwithstanding some minor statutory amendment.
The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental Responsibility
Dr F was not required for cross-examination and he has recommended joint parental responsibility. The mother has sought sole parental responsibility in relation to health and education, essentially because of the overbearing nature of the father and his ability, as a result, to intimidate her and get his own way.
I have already found that there was family violence within the extended meaning of that phrase in section 4AB of the Family Law Act 1975 (Cth) (“the Act”), and this, at least normally, is capable of rebutting the presumption as to equal shared parental responsibility. I should make it clear, if it not so already, that I accept the wife’s evidence about the occasion when the husband broke into the home (see paragraph 28 above). I found that the mother seemed beaten down and presented as very much overborne by her interactions with the father. These matters militate against an order for equal shared parental responsibility.
Nonetheless, as counsel for the father pointed out, Dr F was not required for cross-examination by the mother, and his expert report recommends equal shared parental responsibility.
In the ultimate, the assertions as to violence do not go so far that an order for equal shared parental responsibility is contraindicated. Rather, the parties should be encouraged to seek counselling and/or the assistance of appropriate courses to enable them to communicate in a fashion that is more child-focused. The mother presented to Dr F as someone who did not regard parenting as a joint exercise and the father presented as somebody who lacked insight as to the force of his past actions. Having seen the parents give their evidence, I agree with both those observations.
Bearing in mind that it is the children’s best interests that is paramount, it is plainly appropriate that there be equal shared parental responsibility but the parties both address the various difficulties they have with making this work. This is what is in their children’s best interests, bearing in mind that both parents love the children, and while the mother is certainly the primary carer, the children already have a developed bond with their father.
This leads us to consideration of the children’s best interests by reference to the matters in section 60CC of the Act.
The Primary Considerations
Everyone agrees it is in the best interests of these children to have a good and meaningful relationship with each of their parents, and although there is disagreement as to what the end point should be and how it should be reached, there is no disagreement that the children should spend time and communicate with their father.
In these circumstances, while the family violence in the past is a matter of concern, it seems clear that, implicitly, both sides agree that it is not necessary to sunder the relationship with the father because of it.
The Additional Considerations
Section 60CC(3)(a)
The children have expressed very little by way of views. Given their age, this is in no way surprising and, indeed, the weight to be given to their views at these ages is, obviously, limited. Nonetheless, [X] did express to Dr F what, in my view, is a sufficiently clear indication that she wants to see more of her father than she does and that she would like some overnight time with him. [Y] did not express any views.
Section 60CC(3)(b)
It is common cause, and, indeed, is immediately obvious, that the children would regard their mother as their primary attachment. She has been their primary carer all their lives and this has only been accentuated since separation. Nonetheless, as the mother herself conceded, the father did assist with the children during the relationship and they have a well-developed and secure attachment with him, according to Dr F, whose evidence I accept.
It seems that the children also have a good relationship with the maternal grandmother, and, also, the mother’s sister. They spend time with the grandmother, including overnight time, when she looks after the children when the mother’s roster so requires.
Section 60CC(3)(c)
Although the mother is critical of the father and suggests that he does not really commit himself properly to the children, the fact is that the father has prosecuted his case to judgment, which, in my view, speaks for itself. To the extent that he has not participated in decision-making about the children, as I find, this is because he may have been excluded from doing so by the mother. The father has consistently sought to spend time with his children and, indeed, has returned them late on occasions when they were with him in the past. It is clear that he wants to spend time and communicate with the children in an extensive way.
Section 60CC(3)(ca)
The father and mother both contributed to the well-being of the children when they were together. Following separation, the father got behind in his Child Support but that has now been resolved.
Section 60CC(3)(d)
The children have spent but little time away from their mother. I think that there is force in the mother’s concern that to move too quickly, with children of this young age, to an extremely expanded regime is undesirable.
The amount of time the children spend with the father is at least, in part, dependent on where he lives. I accept that, while he is living with his own mother at a distance of one hour’s drive from where the children live, an overnight on Thursdays is likely to be unhelpful, particularly when [X] starts school next year. A drive of this length for a single overnight is, in my view, contraindicated. Even the half hour journey from Suburb C may be problematic.
The difficulty here is that the ongoing nature of the father’s relationship with Ms G is not yet possible to evaluate in any meaningful way. In my view, if the father was to relocate his residence permanently and decisively to a point where the time to school was 30 minutes or less, then additional time might be thought appropriate.
Section 60CC(3)(e)
There are significant practical difficulties, as just noted, in relation to the children spending time with their father while he lives so far away from where the mother lives. The travel involved is, however, on one view of the matter, not excessive as many children in metropolitan Melbourne would travel one hour between their parents depending upon the time of day and the routes they were using. There does not appear to be any difficulty in relation to expense, but the time spent travelling is plainly a relevant issue.
Section 60CC(3)(f)
Dr F’s report pre-supposed that there were no difficulties in the parents looking after the children. I, however, have heard and seen the witnesses. I accept the mother’s criticisms of the father’s care of the children from time to time. Perhaps unsurprisingly, for someone not so used to looking after children as the father is, he has been inappropriately inattentive to his daughters clothing and [Y]’s nappies and the like. Nonetheless, these criticisms need to be seen in proper context.
The fact is that the children, obviously, have a close relationship and loving relationship with their father. Accordingly, while the father would do well to concentrate perhaps slightly more than he has done in the past on these matters, it has to be said that his capacity to care for the children is not so impaired as to render spending time inappropriate, indeed, this being something implicit in the mother’s position.
There seems no reason to doubt the mother’s capacity to provide for the needs of the children nor, to the extent that she does so, that of the maternal grandparent.
Section 60CC(3)(g)
Both these parents love their children and appear to do so in a fashion entirely consistent with their best interests. While neither parent is perfect (and who after all is) there is nothing remarkable to report under this subsection.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3)(i)
While important, this subsection has already been addressed in the matters above.
Section 60CC(3)(j)
I have already dealt with the question of family violence.
Section 60CC(3)(k)
No family violence order applies, or has applied, albeit that an application was apparently lodged but not pursued.
Section 60CC(3)(l)
It is plainly appropriate to make final orders and all parties seek that this be done.
Section 60CC(3)(m)
At this point, it is appropriate to consider in a final way the parties competing positions. The dispute is not about whether there will be time, but about how much and the speed of its introduction.
While I have nothing but respect for Dr F’s report, which has not been the subject of challenge in cross-examination, it is trite that the determination of the children’s best interests is a matter ultimately for the Court, not for the expert.
These are very young children who have spent little time away from their mother and no overnight time with their father of recent moment. While it is clear the elder child wants more time with her father, it is another matter altogether to move precipitately to substantial blocks. In my view, the end point should be a 10/4 regime. At one level of analysis, it might be fairly said that the qualitative distinction between nine/five and 10/four is extremely difficult to evaluate, particularly in terms of the children’s long-term development.
The 10/4 regime that I think is the appropriate end point provides for both parents to have regular weekday nights when they can plan and participate in recurring social or recreational activities with the children (Dr F report paragraph 8.6.3).
It will also minimise the number of changeovers to two per fortnight, this being desirable in circumstances where, although it is to be hoped that things improve over time, the dynamic between the parents is not without its difficulty.
While it will mean that there are longer periods of absence from the father, this disadvantage is offset, in my view, by the fact that, first, the Court is concerned with quality of relationship rather than quantity of time, and, second, the diminishing of changeovers, in my view, outweighs the additional benefit of an extra night in the off week.
I have drawn orders to reflect these conclusions. The graded increase of time is largely consistent with Dr F’s report.
Property Issues
Stanford v Stanford
The Court’s first task is to ascertain legal and equitable interests of the parties in determining whether it is appropriate that there be a property division. The parties have radically altered the basis upon which they approach their finances and both of them seek a property division and it is, therefore, appropriate that there be one.
The Pool
The pool appears to me to consist of:
a)Former matrimonial home at Property B, $660,000.
b)Funds held in wife’s bank account, $67,500, (any additional initial balance should be ignored as any diminution has been for family expenses).
c)Mortgage, $481,500.
Nett total: $246,000.
It will be noted that I have not included the motor vehicle referred to by the wife or the motorbike in the possession of the husband.
The motorbike was bought with funds received post-separation through … Tribunal and the motor vehicle is almost valueless.
I likewise have not included the motor vehicle. The nominal amount attributed to the debt by the wife is within $7,000 of its full value, there is no sworn valuation of it, and the husband’s evidence about his loss on the sale of his other vehicle was given with conviction and I accept it.
I have not included the alleged debt to the maternal grandmother. There is no suggestion that there was any loan agreement in writing. It had no apparent time limit for its repayment and, accordingly, was statute-barred after six years (see Ogilvie v Adams [1981] VR 1041). Furthermore, it was not paid out when the Property A property was sold and one would have thought that, if there was any obligation to repay, that would have occurred at that time, when there were funds available to enable its repayment. Indeed, the wife still has $67,000 in the bank.
As earlier noted, the parties have agreed on an equalisation of superannuation.
Contribution Issues
There is no doubt that the wife held the Property A property at the time of cohabitation in 2012. She had already owned it for some three years and it must have had some measure of equity at that time. The parties lived in it until they moved into the Property B property in 2016, where as chance had it, they only lived together for a short period of time. The wife has paid the mortgage since separation.
I accept that the husband and wife shared their finances throughout the relationship. They must have both contributed as well as they could. It is implicit in the husband’s position that there should be an adjustment in the wife’s favour in respect of the ultimate outcome. The question is how much.
The wife appears to have worked throughout the relationship, subject only to periods of maternity leave, and has had the role as primary carer of the children additionally. Given that the parties’ position has been significantly improved by the equity in the sale of the Property A property, it is obvious that there should be an adjustment. The contributions of the husband and wife are disparate. A sum of some $20,000 has been applied to pay off debts that the parties had at the time the property was sold and to improve the matrimonial home.
There are no retrospective valuations. Nonetheless, what I do know from annexure -1 to the wife’s trial affidavit is that the property was assessed at a value of $575,000 as at 7 March 2017. Given that separation was in December 2016, it would seem that not an insignificant amount of the increase in the value of the property has occurred thereafter. That increase has been engendered solely by the mother’s paying the mortgage and all other utilities and rates.
In circumstances where, on any view of the matter, the wife had a substantial initial contribution in the equity in the Property A property (however much that was) and which engendered the net sum of $67,000 presently in the wife’s bank account, and the relationship that subsisted for only four and a half years, in my view the overall assessment of the parties’ contributions should be 65 per cent to the wife and 35 per cent to the husband. This gives the husband credit for the contributions he made to the running of the household for the four and a half years of the relationship, but it acknowledges the other factors to which I have referred in the mother’s favour.
The Parties’ Future Needs
Both these parties are, as best I understand, in unexceptionable good health. The husband is fully confident that his job will continue. It seems there may be some capacity for advancement on his part in the future, even though his career is presently on hold as a result of the matters alleged against him.
The same can, perhaps, be said of the wife, except that her capacity to work full-time is going to be limited for the foreseeable future by the need to care for the children. I accept the wife’s evidence that it is not meaningfully possible for her to work more than she does at the moment and her wages will, therefore, not increase for some considerable time.
Furthermore, the wife will have the overwhelming majority of the expense of looking after the children and catering to their needs. The husband is paying Child Support, as assessed, since it has been garnisheed, and on any view of the matter the wife is likely to have greater expenses in this regard.
Bearing in mind the likely disparity in income (albeit relatively, perhaps, small) and the wife’s additional childrearing expenses, in my view there should be a further 10 per cent adjustment in the wife’s favour under this heading.
Conclusion
In my view, a division of the parties’ property 75 per cent in favour of the wife and 25 per cent in favour of the husband is, in the circumstances of this case, a just and equitable outcome. There will be an order that the wife pay the husband $61,500 within 30 days, failing which orders for the sale of the property and division will be put into effect.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Date: 16 January 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Constructive Trust
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Costs
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Remedies
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