HOGAN & LEEDS
[2010] FamCA 1142
•17 December 2010
FAMILY COURT OF AUSTRALIA
| HOGAN & LEEDS | [2010] FamCA 1142 |
| FAMILY LAW – CHILDREN – Final parenting orders – Property Settlement – Where there is a history of family violence – Where there are allegations that the mother fails to provide for the children’s basic needs – Where the parties’ geographical location is an issue |
| APPLICANT: | Mr Hogan |
| RESPONDENT: | Ms Leeds |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 554 | of | 2008 |
| DATE DELIVERED: | 17 December 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bell J |
| HEARING DATE: | 12, 13 & 14 July 2010 & 8 September 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Andrew |
| SOLICITOR FOR THE APPLICANT: | Harrington Family Lawyers of Brisbane |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McAuley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The children A born … December 2003 and Z born … April 2008 live with the father
The children spend time with the mother from 5.30pm on Friday until 6.00pm on Sunday for three weekends out of four.
For the purposes of the mother spending time with the children:
(a) Should the mother remain in the R area the mother is to collect the children from the father’s residence at the commencement of contact and return the children to the father’s residence at the conclusion of contact;
(b) Should the mother reside within 25 kilometres of the father’s residence the mother is to collect the children from the father’s residence at the commencement of contact and the father is to collect the children from the mother’s residence at the conclusion of contact.
Pursuant to Order 1 above the children are to be handed to the father by the mother at 4.00pm on Friday 24 December 2010 at Y Contact Centre.
The time the mother spends with the children is to commence at 4.00pm on Friday, 31 December 2010.
The parties must keep each other informed as to:
(a) their residential address and landline telephone number;
(b) any medical condition, significant health issue or illness concerning the child.
The father must keep the mother informed as to the name and address of the child’s school or schools and any treating medical or dental practitioners and authorise each of them to provide to the father such reports and other information as he may seek in writing from any such school or practitioner, at her cost, provided that this order is sufficient authority for that purpose without further authorisation by the father.
The mother and the father are restrained and an injunction is granted restraining them from denigrating the other parent or the other parent’s family to the children or in the presence of the children or allowing any other person to do so.
The Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Hogan & Leeds approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 554 of 2008
| MR HOGAN |
Applicant
And
| MS LEEDS |
Respondent
REASONS FOR JUDGMENT
Before me is an application on the part of Mr Hogan (“the Applicant”) for a property settlement and also final parenting arrangements for A (born in December 2003) and Z (born in April 2008). These orders sought are set out in his amended case outline of 7 July 2010.
RELEVANT MATERIAL FACTS – PARENTING APPLICATION
Ms Leeds (“the Respondent”) commenced a relationship with the Applicant in or about March 2004 while they were both serving in the Australian Defence Forces and separated on a final basis on 22 June 2009. They never married. They originally resided in Darwin but relocated to Queensland upon their discharge from the Defence Forces.
At the time of separation, the Applicant had been employed on a “10 days on, 5 days off” roster which left the mother to be the primary carer for the children.
The children have resided with the Respondent since the time of parental separation, and there are different accounts from the parties as to how much time was spent with the Applicant between July and September 2009. An interim hearing before Federal Magistrate Howard on 25 November 2009 resulted in orders being made for both children to live with the Mother in R near Maryborough and spend the first three weekends of the month from Friday after the Applicant finishes work until Sunday afternoon, with changeovers at Y Contact Centre.
There are allegations by both parties of serious domestic violence during the relationship and cross Domestic Violence Orders are in place, due to expire in September 2011.
The Applicant believes that the Respondent has neglected the child’s basic needs and behaves extremely erratically. The Respondent in turn alleges that the Applicant exerts very controlling and domineering behaviour.
As I understand it, there have been multiple notifications to the Department of Community Services (Child Safety) in this matter, some of which have resulted in further investigations but none of which have led to applications pursuant to the Child Protection Act 1999. I should also briefly mention that the mother was involved in parenting proceedings concerning her older children from her previous marriage with a Mr Leeds, who also resides north of Brisbane and also previously served in the Australian Defence Forces. However, that is a separate matter entirely which was eventually finalised by final consent orders wherein the children reside with their father, after the mother said in Court “Let him have them”.
In terms of what the parties are seeking, the Applicant proposes for the mother to move back to Brisbane and enter into a shared care arrangement, ie Wednesday afternoon until Monday morning in one week and from Wednesday afternoon until Friday morning in the other week. The Respondent seeks for the children to continue residing with her at R and visit their father every second weekend but in her written submissions she seeks supervised contact at Y Contact Centre.
The primary issues for me to consider are essentially the history of family violence in this matter, the complete breakdown in communication between the parties; the Respondent’s seeming reluctance to foster the children’s relationship with their father, and her insistence to remain living in R.
EVIDENCE OF THE PARTIES
The Respondent cross-examined the Applicant for approximately one and a half days and I believe that the evidence he presented was on the most part consistent with that of his witnesses. On the contrary, I found the mother’s evidence to be mostly uncorroborated by her witnesses. I note that both parties accepted that they have lost their temper and overreacted on certain occasions.
Counsel for the father has in his extensive and quite properly reasoned submissions placed before me, I believe on the final day of the trial, in particular at paragraph 14, which goes from sub-paragraph (a) to (l) inclusive, shows in his view where the mother’s evidence could not be accepted because of the contradictory evidence by herself in relation to many matters set out therein. Whilst it is necessary for me to consider each of these submissions made by him, the general tenor of her evidence supports the submissions made by him. In particular, I refer to the contradictory evidence, I refer to the corroborative evidence called on behalf of the father who was not cross-examined by the mother notwithstanding she was offered the opportunity to do so.
The contradictory evidence in relation to the kettle incident (see paragraph 14(f)) in which a witness called in favour of the respondent mother did not see any injuries caused to the child; the mother attempted to explain this away by saying that the statement purportedly signed by Ms X was not hers. I am of the opinion that each of the sub-paragraphs to which I have referred are supported by the evidence.
In paragraph 15 of his submissions, he submits that the mother’s evidence was incredible in relation to those sub-paragraphs. Particularly, I am impressed with his submissions in relation to allegations of injury sustained by the mother either by way of an assault causing her red marks or an endeavour to run her down when the police were informed and they took no steps to protect her (see paragraphs 15(a) and (c)).
On the evidence before me it appears that initially the father was of the view that the children should remain with the mother but has subsequently amended his application to seek sole parental responsibility for the children and that they reside with him.
Ms Q, in her report exhibited to her affidavit of 26 February 2010, was of the view that the parties were in agreement that the children reside with the mother. This is not the case now. I will also if necessary refer to and incorporate in this my reasons for judgment the history as set out by Ms Q at paragraph (b) on page 2 of her report.
The mother on the other hand initially seeks an order that she have parental responsibility for the children, the children live with her and the father have supervised contact for no more than two hours on each alternate weekend, now superseded. She seeks supervision of the father’s contact for a limited time.
Having touched upon the evidence of the mother, I must say that I was not impressed with her evidence in relation to either the parenting matter or subsequently in relation to property. I mentioned previously Mr J’s report which is exhibit 1, a psychological assessment report dated 15 May 2010. While he had some concerns about the “short-temperedness” of the applicant father, to me the more important matter is as set out in paragraph 10.2.1.5, 10.2.1.6 and in paragraph 12.10 Mr J says as follows:
“[The mother] presented on testing as a person who would be likely to suffer disorders such as mania, hypermania or cyclothymia. Consistent with testing, she is a person who tends to take on far more than she can handle. She is much more inclined towards aggressive responses than [the father], due to her impulsiveness, and her inability to delay gratification. She would tend to display poor judgment to the degree that this would lead to impairment in her functioning across a range of areas. She is likely to experience flight of ideas and grandiosity that could at times provide delusional. Social interactions would be likely affected by her inflated sense of self-importance, her hostility and her need to be the centre of attention.” (my underlining)
And he subsequently was of the view (see 12.1.4) as follows:
“Based upon psychological assessment, [the father] is likely to be the parent who is more emotionally stable in his parenting and able to focus his attention upon his children and put their needs before his own.” (my underlining)
This diagnosis of Mr J is supported, as far as I am concerned, on the evidence to which I have hereinbefore referred in the submissions of Andrew of Counsel on behalf of the Applicant Father.
Dr C assessed the Respondent mother and prepared a report dated 7 December 2009. He believes that she does not have any symptoms of psychiatric illness, generalised anxiety or frank panic, or any significant personality dysfunction. He also notes that she has seen two psychiatrists in the past (Dr F and Dr D) and treatment has either been at the time following the birth of a child or because of significant stressful difficulties in her life at that time. Also see the report of Mr J which is exhibit 1. I will be touching upon this at a later stage. He was somewhat concerned that the mother was showing signs of obsessiveness, not only in relation to the children, I would find, but it appears that she may be obsessional in relation to her occupation.
RELEVANT LAW – PARENTING APPLICATION
Considerations Pursuant to Section 60CC of the Family Law Act
The history of family violence and domestic violence orders in this matter prompts the application of s 60CC(2)(b), s 60CC(3)(j) and s 60CC(3)(k). Both children have witnessed domestic violence between their mother and father, A to a greater extent than Z, including incidents such as the mother biting the father in December 2007 and the father swiping a kettle which struck A on the head in June 2009. The parties contend that the other was the instigator and perpetrator of family violence but both accept that they have lost their temper on occasions and in hindsight would do things differently.
Considering s 60CC(3)(b), the mother up until this point of the children’s lives, has been their primary carer. This was clearly so when the father worked in his “fly in, fly out” job. The father has spent very limited time with the children since separation and the mother’s unilateral relocation to R. She however was given an imprimatur to reside there by order of the Federal Magistrates’ Court. Nevertheless, he still enjoys a good relationship with them according to the expert evidence presented in this matter.
In so far as s 60CC(3)(c) is concerned, it appears to me that the mother is less than willing to facilitate and encourage a close and continuing relationship between the children and their father. This is manifested in her behaviour to date, such as her unilateral relocation to R without consulting the father and further telling him that he would not see his children again, her unwillingness to move back to Brisbane suburbia, and her statement to Ms Q that Z is not bonded to the father. The father’s proposal for a shared care arrangement, on the other hand, reflect his willingness to foster a relationship between the children and the mother and he has even indicated that he would assist her with her relocation to Brisbane.
Given the allegations against the mother about her failing to sufficiently provide for the children’s basic needs, s60CC(3)(f) is a relevant factor to consider. It was submitted by the Independent Children’s Lawyer in his outline of submissions that the following facts are relevant here:
a)that at times the mother failed to provide enough or appropriate food for the children;
b)that at times the mother failed to maintain a reasonable standard of hygiene in her home;
c)that A has missed a significant number of school days;
d)that the mother removed A from school for inappropriate reasons such as pursuing her own business;
e)that if the children remain at R there is likely to be disruption to their education;
f)Ms Q has stated that the mother is a little bit obsessed by her own needs and becomes absorbed in other things and that she has problems prioritising the children’s needs (see also Exhibit 1 Mr J’s report)
g)that at times the mother’s supervision of the children is inadequate, for example, failing to bring another adult to look after the children during her interview with Ms Q and Mr J, and not reacting appropriately to Z’s attempt to get out of the doors of the Legal Aid Office onto a busy street;
h)Mr J stated that the mother spends a lot of time working while she is supervising the children; and
i)Ms Q assessed that there were no risks to the children when in the care of the father.
These matters are supported by evidence.
I have conceded and adopted many of the submissions of the father and the Independent Children’s Lawyer. (see Dicosta & Dicosta [2008] FamCAFC 161).
The mother’s residing in R has been commented upon by Ms Q and it has been suggested by her that the mother should relocate to an area closer to where the children’s contact with the father could be facilitated. Since I am of the view that the children should be placed in the possession of the father, her residence at R is of little consequence save in relation to contact. Contact has been extremely difficult, according to her, since her residing in R necessitates some considerable time driving and in particular it affects the child A’s attendance at school because she says she has to remove the child from school at about lunchtime for three weekends out of four in an endeavour to get her to Y Contact Centre where the handover takes place. I do not accept that contact is the sole cause for A’s poor school attendance. I believe the mother’s obsessiveness with e-Bay and the other money-making schemes is part of A’s failure to attend school.
It is my view that taking into account all those matters hereinbefore set out and in particular I consider the mother’s inability to put the interests of the children before her own, that it is necessary for their welfare to be properly advanced by their being placed in the possession of their father. I recognise that this will be somewhat distressing for the children, the mother having been the primary caregiver but, as I have said, it is incumbent upon me to place their welfare first and I do so. And taking into consideration those matters to which I have referred and to s 60CC, it is essential that the children be placed in the care of the father.
Having decided that, I am now compelled to consider the principle enunciated by the High Court in MRR & GR [2010] HCA 4. The presumption of equality is, in my opinion, untenable as a result of the matters to which I have referred, i.e. violence, obsessiveness on the part of the mother.
It is a matter entirely for the mother as to whether she moves closer to Brisbane or not but I am of the view that she should. I will not make that order. I am of the view that she should in order to necessitate the children not having to experience lengthy driving between their place of residence in northern Brisbane and R near Maryborough. That is a matter for the mother. Whilst the order for contact is practical it would become more so if she moved closer to the children.
The question of contact is such that as a result of MRR I have to consider what contact would be significant and substantial. I believe that there is a relationship between the children and the mother. I am also of the belief that the relationship should be emphasised and consequently I believe that the mother should have contact for three weekends out of four from 6.00pm on Friday until 6.00pm on Sunday and I believe this would be significant and substantial.
The contact is substantial and practical as it stands but should the mother not remove herself from the R area and relocate herself to a more juxtaposition to the children’s residence, I order that she be responsible for picking up the children and delivering the children back. Should she relocate to an area within 25 km of the children’s residence this would be more reasonable and practical and I order that the father be responsible for picking up the children on the Sunday and the mother be responsible for picking up the children from the father’s residence on the Friday.
There does not appear to be an application made by the mother for spousal maintenance pursuant to the Act. In particular that means that I do not have to really consider the principles as set out in s 90 in relation to spousal maintenance. (See paragraph 47 of affidavit of 7 July 2010; see also the particulars of the superannuation in the same affidavit at para 59; corroborative evidence Ms N’s affidavit dated 30 March 2010.)
RELEVANT MATERIAL FACTS – PROPERTY SETTLEMENT
In relation to the property in this matter I have had put before me two submissions, that on the part of the father by Andrew of Counsel and the mother’s submissions which have been prepared and put before me by the mother.
The property of the parties is confusing in the least. Aide memoires were put before me by the parties. In the father’s aide memoire, which is supported in his submission and the evidence, it appears that he alleges the assets of the parties amount to $782,600 and liabilities $754,748. He alleges that net non-superannuation assets amount to $27,852. On the following page he refers to the value of the superannuation which appears to be about $151,106. Thereafter he refers to add backs. These add backs, he says, arise out of the mother’s selling on e-Bay of vehicles which were either owned by himself or by a company which he and the mother ran. ….
The father alleges, and there is evidence to support this, that the mother has sold three of the vehicles, they being a vehicle for $8,100 by e-Bay on 30 July 2009 after separation; a vehicle which was listed on 8 July 2009; and a vehicle which was sold by the mother on e-Bay on 27 June 2009. I am unable to find what price the second vehicle was sold for but I am of the view that taking into consideration that these assets at worst for the father were jointly owned or owned by a company in which he and the mother were the sole shareholders, that these amounts of money received by the mother should be added back.
Another matter which looms particularly large in the father’s allegations of the assets/liabilities etc are an amount of something like $180,000 which he alleges is missing from his wages. He was employed at a very high wage for a period and he alleges, and I accept this, that all the monies from his salary went into an account in G Pty Ltd, a company which the parties owned in effect, and that he received no benefit from those monies. He has called upon the mother to account for the expenditure of those monies and she has neglected and/or refused to do so. Since she has had the opportunity and has not indicated how that money was expended, I can be bold and I will order that that amount be included in the add backs.
Therefore, according to my mathematics, on the father’s estimates it should amount to as follows:
Gross assets
$782,600.00
Superannuation
$151,106
Add backs
$192,782
Total
$1,126,488
less Liabilities
$757,748
He indicates on his mathematical calculations that the total net non-superannuation assets and add backs amount to $192,792 and the superannuation is $151,106. I say in passing that the greater majority of the superannuation entitlement, as appears from this aide memoire which I will mark “B”, is of benefit to the mother. The father’s is $34,862 and the mother’s is $116,244 as at the date of trial. The total net assets appear to be $371,750.
The mother, on the other hand, in her aide memoire which has been admitted in this case and marked an exhibit in this Court, sets out, in her view, the values which she attributes to the various assets which are particularised therein.
May I say that the only evidence I have in relation to the valuation of the house property north of Brisbane which is owned solely by the father, is the father’s. And also the property which is jointly owned at O Street is the husband’s (see the affidavit of Mr S filed 7 October 2010). Consequently I would prefer that evidence to that of the wife.
She refers to the classic car collection (see the exhibit) in which she refers to inter alia ten cars…. Some of these cars, according to the father, have disappeared, save for the three to which he has referred as having been sold and the three in his asset statement. I have had photographs of these cars and I could not be persuaded even if there was evidence to support the wife’s value, that these generally wrecks would be worth $200,000 and I dismiss her estimate which is not supported in any way by any form of expert valuer.
She further puts estimates upon matters such as a car trailer, Hyundai Trajet, household items, furniture, $20,000, household items and furniture $100,000. She refers to U Pty Ltd including office equipment and G Pty Ltd as being worth $100,000. The expert evidence in this case shows that both of those companies are worth nothing since they owe more than what their assets are.
Insofar as the other allegations of property are concerned in the mother’s affidavit filed on 27 March 2010, I have included the whole of this exhibit in these my reasons. I am not persuaded to find that there was a book library, antique silky oak cabinet, aquarium, gardening equipment, heirlooms, map case, working equipment, tool box and Yamaha motor bike. These assets may have been in existence. I am unable to account for them on the evidence but even if they were there is no evidence before me to support any of the estimates which the mother has put upon these alleged assets. Consequently, I discount them totally.
She has further alleged, under the heading Add Backs, that certain payments made by the mother should be included as add backs. I am of the opinion that all of these matters to which he has refers save perhaps for the two box trailers, are in fact contributions allegedly made by her to the relationship or to various companies. I am unable to ascertain where she got the figures for the pay out loan to the mother from G Pty Ltd and the pay out to the mother from U Pty Ltd. It may have been from the father’s “missing” wages.
I am able to say that the evidence of the mother in relation to the question of assets of the parties and/or either of them is chaotic in the extreme and I much prefer the more measured and value-supported valuations of the husband and I would accept his valuations.
As appears from the evidence I have to consider that notwithstanding that this is a de facto relationship as I have found, that the matters that have to be proved to me and shown to me in the evidence of the parties or either of them, is very similar to the s 79 application and I commend Andrew of Counsel for his lengthy and I consider very well detailed submissions which have been put before me and I have received great assistance from them, much more than I could from the mother’s. He submits, in his submission paragraph 5, that the mother’s evidence lacks credit. I must confess that I am readily persuaded by his submissions that she does.
The mother’s evidence was characterised by exaggeration, inability to put before the Court any persuasive evidence by experts, inability to put before the Court matters which would support her case notwithstanding the fact that she had really been ordered to do so. I am referring to her bank accounts which her book keeper had available to her but which the mother refused to present to the Court.
Consequently, as I have said, I am persuaded to accept generally the father’s evidence. In particular I indicate that the father made significant contributions to the property while bringing into the relationship the house at O Street, cash at bank and other assets to the value of approximately $170,000. He did work hard during the relationship. In fact, during the period he did earn significant amounts of money working between July 2008 and June 2009. This is the wage which I referred to being deposited to G Pty Ltd and these monies were not accounted for by the mother.
It appears on the evidence that in fact the mother changed the father’s passwords in the bank accounts, thereby effectively excluding him from finding out what happened to the money. She has failed to make disclosure, as I have indicated previously, notwithstanding as I have said she allegedly gave accounts to her book keeper.
As I have said, the mother previously was in a relationship in which three children were born and as result of the dispute between herself and her then partner, she came to the relationship with the present father owing something between $25,000 and $50,000 in relation to legal fees and other matters and this amount was paid out by the father by his extending a mortgage on the existing house.
The mother during the cohabitation carried out various schemes all of which seem to have failed to a great extent. She has become obsessed with money matters and e-Bay. She has made extravagant claims as to the amount of money which she has received from such business and has nowhere in any way attempted to establish that by independent evidence. Might I say in passing that Andrew of Counsel in paragraph 2.11 refers in detail to the requests for the expenditure of the income derived from the father’s work and I note that he has referred to three letters requesting disclosure and refers to my order of 17 May when she did not disclose this. As I have said, I feel as though I can be bold in relation to the mother’s case.
I cannot and have not been able to accept anything the mother says in relation to the property disputes at all.
As was said by Andrew, I may not be able to accurately assess the property pool and I cannot. I have endeavoured to make sense out of the mother’s and have failed totally. What then are the contributions of the mother to the acquisition, etc of the assets of the parties? She has worked in relation to the children. She has had two children to the father. She has endeavoured to rear them to the best of her ability, particularly as the father was, during the time that he was working, away consistently. This looms large, I would think, in any contribution that the mother has made. There is, of course, allegations by the father that the she, in effect, made negative contributions in that she took everything and gave nothing back. I do not accept that that is quite right. But I am more than satisfied on the brief evidence that I have touched upon here that the father made by far the greater contribution to the assets of the parties.
I am also satisfied that the wife has made negative contributions to the value of the O Street property by in effect destroying part of it by removing toilets, by knocking down walls which she says are in the process of being renovated. But as far as I am concerned it appears to be almost vandalism. This is noted, of course, of the property wherein the valuer refers to uncompleted renovation.
The property of the parties is confusing in the least. Aide memoires were put before me by the parties. In the father’s aide memoire, which is supported in his submission and the evidence, it appears that he alleges the assets of the parties amount to $782,600 and liabilities $754,748. He alleges that net non-superannuation assets amount to $27,852. On the following page he refers to the value of the superannuation which appears to be about $151,106. Thereafter he refers to add backs. These add backs, he says, arise out of the mother’s selling on e-Bay of vehicles which were either owned by himself or by a company which he and the mother ran ….
The Applicant is seeking a 90/10 split of the matrimonial pool in his favour. I am uncertain as to the exact split the Respondent is seeking.
The Applicant is currently employed in a trade and I understand that the Respondent currently owns a business where she markets items that people sell online via eBay. Other than that, she relies on child support and Centrelink single parenting payments for her income. There parties also jointly hold shares in G Pty Ltd and the Hogan and Leeds Trust which are worth nothing (see Valuation).
The property at O Street, where both parties resided in during their relationship, is jointly owned. The father also owns a property north of Brisbane.
According to the Applicant, following separation, the Respondent remained living in the O Street home with the children and damaged the property by removing walls, doors, and hand basins. Furthermore, she allegedly sold motor vehicles, motor vehicle parts and a motor bike on eBay that belonged to the Applicant.
The parties jointly operated a business called U Pty Ltd dealing in motor vehicles. As it appears, there were originally fifteen vehicles of which three were sold, but five has since gone missing, both parties alleging they do not know their whereabouts.
Since I am satisfied that the children should be in the hands of the father subject of course to such period of time that the mother has contact I am of the belief that the s 75(2) factors in her favour are minimal and that if anything the s 75(2) factors really are to the benefit of the father. I have indicated that I am of the opinion that the mother is entitled to 30% on the contribution area, ie s 79, and she will have some responsibility for the children whilst they are in her possession on contact, I would increase the 30% because of the s 75(2) factors by 5%. Therefore, the mother would be entitled to 35% of the net value of the assets.
Superannuation is not an issue here as neither party is seeking a splitting order of such interests.
RELEVANT LAW – PROPERTY SETTLEMENT
Part VIIIAB of the Family Law Act – Financial Matters Relating to De-Facto Relationships
For the purposes of s 90RD, I am satisfied that a de facto relationship existed between the Applicant and the Respondent. I am also satisfied that the requirements under s 90SB and s 90SK have been met and therefore this Court has the power to determine an application under s 90SM.
Of course, s 79 of the Act still applies. In Hickey & Hickey [2003] FamCA 395 at paragraph 39, the Full Court consisting of Nicholson CJ, Ellis and O’Ryan JJ sets out the approach that should be adopted for proceedings under s 79:
“The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEJ and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.”
Section 90SM(4) lists the factors that the Court must take into account when making an Order for property settlement in the context of a de facto relationship:
a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
g)any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
GENERAL OVERVIEW – PARENTING ARRANGEMENTS
According to the observations of Ms M, a very experienced family report writer, it is clear that the children have a relationship with their father and that they have missed having that relationship with him.
The communication between the parents is appalling to say the least. My observation is that they talk at each other rather than to each other.
I’m not minded to order a shared parenting arrangement because as the Family Consultant remarked in her oral evidence, it is unfair to make the children adapt and adjust because the parents won’t. The idea of the children spending three out of four weekends with their father has been suggested, but I am still mindful of the long travel they must so regularly endure.
Note that the mother has a lease at R until March 2011.
Further the experts, particularly the family consultants, are of the view generally that in fact the father would be more emotionally capable of maintaining the children. Taking that into consideration and the fact that I formed a very poor view of the mother’s obsessiveness, her lack of general care of the children and consideration for the children, her inability and refusal, in effect, to further the relationship of the children with the father and from the evidence which I have put in this judgment and numerous other pieces of evidence which I have not put in, I am satisfied the children should be with the father, as I have already found.
GENERAL OVERVIEW – PROPERTY SETTLEMENT
Therefore, insofar as the property is concerned, once again a general overview. I accept the evidence of the father where it is in dispute with the mother. I am of the opinion that he has by far made the greater financial contributions to the property of the parties.
In those circumstances I order that the mother be entitled to 35% of the net property which includes 5% in relation to s 75(2) factors for care of the children on contact and her limited employment prospects. I have already found that the net assets available for distribution between the parties taking into consideration those assets to which I have hereinbefore referred is $371,750. Thirty-five per cent thereof comes to an amount of $130,112.
The mother is entitled to an amount of $116,244 in the two military superannuation plans (see aide memoire of the father). Consequently, I am of the view that since no splitting orders have been sought by either of the parties that the mother should be entitled to that amount.
Consequently there is left to ascertain from where she will receive the balance. It appears therefore that she is entitled to an amount of some $12,900. She has in her possession a Holden Trajet motor vehicle which the husband estimates at $10,000. I have discounted such estimates because I do not believe that there has been adequate valuation of such vehicle. It has some value. I note that the wife has said that it is not in good condition. She is to retain that vehicle and also the chattels and household items which she has in her possession. At page 8 of 13 of her submission in relation to property settlement she says that she has furniture for one adult and three children which she views as being worth $50,000. If that is the case I am more than satisfied that with the addition of the Trajet motor vehicle, she retaining those items which she says she has and are valued at $50,000, she is more than compensated for the balance being $12,900.
Therefore, I order that any interest of the mother in any of the property in the possession of the father including real and personal property do vest in him and I order that the wife do all things necessary and sign all necessary documents to effect the transfer of her interests, particularly in the O Street property.
Further, that the ownership of the property in her possession do vest in her.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell
Associate:
Date: 17 December 2010
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