HOLDER & LITTLE
[2015] FCCA 1164
•8 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOLDER & LITTLE | [2015] FCCA 1164 |
| Catchwords: FAMILY LAW – Property – how monies kept in trust for the parties ought to be distributed between them – whether the husband has failed to disclose his financial position – whether the husband has manipulated his income for the purposes of the proceedings. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 65DAA, 79(2), 75(2) |
| Mazorski v Albright (2008) 37 FLR 518 Tait & Dinsmore (2007) FamCA 1383 |
| Applicant: | MR HOLDER |
| Respondent: | MS LITTLE |
| File Number: | MLC 8181 of 2013 |
| Judgment of: | Judge Small |
| Hearing date: | 2 February 2015 |
| Date of Last Submission: | 4 February 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 8 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Williams |
| Solicitors for the Applicant: | Pearsons Lawyer |
| Counsel for the Respondent: | Ms L. McCreadie |
| Solicitors for the Respondent: | McGowan Family Law |
ORDERS
Parenting Orders
All previous parenting orders in relation to the children X born (omitted) 1998 (“X”) and Y born (omitted) 2002 (“Y”) are hereby discharged.
Subject to paragraph 3 hereof the parties shall have equal shared parental responsibility for X and Y.
The wife shall have sole parental responsibility for Y in the area of education.
From the commencement of Term 3, 2015 the wife is permitted to enrol Y in a secondary school of her choosing.
Notwithstanding the provisions of paragraph 4 hereof, the wife shall inform the husband and obtain his views in relation to any particular school she considers appropriate for Y prior to changing her school.
In the event that it is deemed necessary, the husband shall do all such acts and things and sign all such documents as may be necessary to ensure that Y is enrolled in a school of the wife’s choosing from the commencement of Term 3, 2015.
X shall live and spend time with each parent according to his wishes.
Y shall live with the wife.
Y shall spend time and communicate with the husband as follows:
(a)during school terms on each alternate weekend from after school Friday to the commencement of school on Monday or 5:00pm if not a school day commencing on the first Friday after the date of these orders;
(b)during school terms on each Wednesday from after school until 7:00pm with the husband to provide a meal for Y- Y before returning her to the wife’s care;
(c)for half of all school term holidays by agreement and failing agreement from after school on the last day of term to 12 noon on the second Saturday in odd-numbered years, and from 12 noon on the second Sunday to the commencement of school on the first day of the next term in even-numbered years;
(d)for three weeks in the long summer holidays each year by agreement and failing agreement from 12 noon on the first Saturday to 12 noon on the fourth Saturday when Christmas falls in even-numbered years and from 12 noon on the fourth Saturday to 12 noon on the seventh Saturday when Christmas falls in odd-numbered years;
(e)from 6:00pm on 6 January to 6:00pm on 8 January each year for the (religion omitted) Calendar Christmas;
(f)for Y’s, X’s and the husband’s birthdays each year from after school to 8:00pm if they fall on a school day and if they fall on a non-school day from 10:00am to 2:00 pm in odd-numbered years and from 4:00pm to 8:00pm in even-numbered years;
(g)from 6:00pm on the night before Father’s Day to 6:00pm on Father’s Day should it fall on a day when Y is not usually spending time with the husband pursuant to these orders;
(h)from 6:00pm on the day prior to Easter until 6:00pm on the day following Easter according to the (omitted religion) calendar in each year;
(i)from after school on Holy Thursday to 6:00pm on Easter Eve in odd-numbered years and from 6:00pm on Easter Eve to the commencement of school on Easter Tuesday in even-numbered years; and
(j)at other times by agreement between the parties.
The time Y spends with the husband shall suspend, if applicable, on the following occasions:
(a)for the wife’s birthday from after school to 8:00pm should it fall on a school day and if it falls on a non-school day from 10:00am to 2:00pm in odd numbered years and from 4:00pm until 8:00pm in even-numbered years;
(b)from 6:00pm on the night before Mother’s Day each year until the commencement of school on the day after Mother’s Day should it fall on a day when Y would usually be spending time with the husband pursuant to these orders;
(c)from 6:00pm on 24 December to 6:00pm on 26 December in each year;
(d)from after school on Holy Thursday to 6:00pm on Easter Eve in even-numbered years and from 6:00pm on Easter Eve to the commencement of school on Easter Tuesday in odd-numbered years; and
(e)on any other occasion that the parents may agree from time to time.
Time spent pursuant to paragraphs 9(a) and (b) of these orders shall suspend during all school holidays and shall recommence in the next school term as if the holidays had not intervened.
Where time spent commences or concludes before or after school, changeover shall take place at Y’s school.
Otherwise, for the purposes of changeover, the husband or his nominee shall collect Y from outside the wife’s residence at the commencement of time spent, and the wife or her nominee shall collect her from outside the husband’s residence at the conclusion.
Only the husband and wife, or their respective nominees, shall be present at changeover.
The wife and X shall attend counselling with Ms L, or such other family therapist as Ms L might suggest, with a view to repairing and developing their relationship and the wife shall contact Ms L forthwith to make the first appointment.
Both parties shall comply with all lawful directions of the family therapist referred to in paragraph 15 hereof, including attending at any sessions, and/or ensuring that X and, if appropriate, Y attend.
The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the mother or father to or in the presence or hearing of the children or either of them, and from permitting any other person to do so.
The parties are hereby restrained by injunction from showing, reading, or interpreting any part of these reasons for judgment to X or Y, or allowing any other person to do so.
Each parent shall be permitted to obtain from Y’s school, at his or her own cost, all school reports, notices, photographs and other like information usually provided to parents.
Each parent shall be permitted to attend Y’s school events and extracurricular activities such as concerts, drama presentations, sports carnivals, sporting activities and the like, and each shall inform the other of his or her intention to attend no later than seven days prior to such events.
Each party shall notify the other as soon as practicable in the event that the children or either of them suffer a serious illness or injury while in his or her respective care, and shall authorise any medical practitioner treating the child to provide information to and consult with the other parent.
Each party shall notify the other of any change in his or her address or contact details within seven days of such change.
Property Orders
The funds being held on trust for the parties in the trust account of the husband’s lawyers be distributed as follows:
(a)$60,000 to remain in trust and to be applied to the capital gains tax liability resulting from the sale of the property at Property M as that liability becomes due and payable;
(b)any residue of the $60,000 referred to in sub paragraph (a) hereof after the payment of capital gains tax shall be divided 40% to the husband and 60% to the wife;
(c)the remainder of the monies held in trust shall be distributed:
(i)$54,086 to the husband;
(ii)$201,634 to the wife; and
(iii)any remainder to be divided equally between the husband and wife.
The (shares omitted) shares in the parties’ joint names shall be sold forthwith (“the share sale”) and the proceeds divided between the parties 40% to the husband and 60% to the wife, with each being responsible for and indemnifying the other against any attributable capital gains tax liability in relation to their portion of the share sale.
The wife shall pay to the husband the sum of $3740 in reimbursement of her share of fees incurred in preparation of the family reports of Ms R, such payment to be made within seven days of the receipt by her of the monies referred to in paragraph 23 hereof.
The husband shall retain for his own use and benefit absolutely:
(a)the sum of $300,000 already distributed to him from the monies held in trust;
(b)50% of the parties’ joint Velocity Frequent Flyer points;
(c)50% of the parties’ joint (omitted) Bank credit card reward points; and
(d)the offset bank account.
The wife shall retain for her own use and benefit absolutely:
(a)the sum of $302,500 already distributed to her from the monies held in trust;
(b)the Honda (omitted) motor vehicle, registration number (omitted);
(c)the (omitted) Investment Fund monies;
(d)the sum of $12,010 withdrawn from the (omitted) Bank account;
(e)50% of the parties’ joint (omitted) Bank credit card reward points; and
(f)50% of the parties’ joint Velocity Frequent Flyer points.
In accordance with s.90MT of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the Applicant, MR HOLDER, in the (omitted) Superannuation Fund (“the Fund”), the Respondent, MS LITTLE, will be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using the base amount of $79,488.00, (seventy nine thousand, four hundred and eighty eight dollars) and there will be a corresponding reduction in the entitlement of the Applicant.
The trustee of the Fund must comply with the obligations imposed upon trustees of eligible superannuation plans under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
The Applicant is hereby restrained by himself his servants and agents from making any binding death benefit nomination to the trustee of the Fund in favour of any person who is an eligible beneficiary within the meaning of Regulation 13 of the Family Law (Superannuation) Regulations 2001 which would have the effect of diminishing the value to the Respondent of the splitting order made in paragraph 28 hereof.
Paragraphs 28 and 29 of these Orders bind the trustee of the Fund when these paragraphs take effect from the operative time, being the fourth business day after the date these Orders are served upon the trustee.
The Applicant and the Respondent shall do all such things and execute all such documents as are necessary to facilitate the rollover by the trustee of the Fund of the Applicant’s entitlements pursuant to paragraph 28 of these Orders to another regulated superannuation fund, an approved deposit fund, or a retirement savings account or other such applicable fund or account at the sole nomination of the Respondent as soon as that is practicably possible after the operative time.
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.
(b)monies standing to the credit of the parties in any joint bank account are to be divided between the parties in the proportion of 40 per cent to the Husband and 60 per cent to the Wife, after which the joint account is to be closed;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed; and
(f)each party forgoes any claim they may have to any inheritances to which the other party is entitled to either presently or in the future.
IT IS NOTED that publication of this judgment under the pseudonym Holder & Little is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLC 8181 of 2013
| MR HOLDER |
Applicant
And
| MS LITTLE |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and property settlement proceedings arising from the breakdown of the marriage between Mr Holder (“the husband”) and Ms Little, (“the wife”).
The wife is estranged from the parties’ son X born (omitted) 1998 (“X”), she says because of X’s violence towards her and the failure of his father to take any steps to prevent that violence.
Indeed she claims that the husband too behaved towards her in an abusive, coercing and controlling manner throughout the relationship and marriage.
The husband says the estrangement is the result of statements the wife made to X at the time of separation, which he (and X) believe blamed X for the breakdown in the family unit.
X’s care arrangements were no longer formally the subject of these proceedings by the time the matter came to trial, but his sister Y born (omitted) 2002 (“Y”), and the issue of with whom she will live, is at the centre of them.
The husband seeks final orders that Y live with her parents on an equal shared care, week-about basis.
The wife seeks orders that Y live with her and spend fortnightly time, half school holidays, and special days with the husband.
The parents are also in dispute about where Y is to go to school.
The husband seeks orders that she remain at her current school until X leaves school at the end of 2016. He says that the parties can then consider alternative arrangements for her education.
The wife seeks an order that she be permitted to enrol Y at a school of her choice immediately.
In relation to property matters the parties disagree on the value of the pool of assets to be distributed between them and on the percentage of those assets each should retain.
There are also disputes about the application of withdrawals the husband has made from his superannuation fund, what happened to certain chattels which are alleged to have been in the parties’ holiday home at the date of separation, and whether there ought to be an adjustment to the wife from the sale proceeds of the holiday home.
In addition the wife seeks periodic spousal maintenance in the sum of $350 per week for two years after making final orders.
Therefore the issues to be decided in this case are as follows:
A. Should the parties share the care of Y equally or should she live predominantly with her mother?
B. Where should Y go to school?
C. What are the property interests of the parties?
D. Is it just and equitable to alter those interests?
E. If it is just and equitable to do so what are the contributions of the parties to the property of the marriage?
F. Should there be any adjustment made to the contribution-based entitlements by reason of the matters set out in s.75(2) of the Act?
G. In light of those findings what orders should be made to produce a just and equitable settlement between the parties?
H. Should there be any additional payment of spousal maintenance to the wife?
Background
The husband was born on (omitted) 1969 and is thus 45 years old.
The wife was born on (omitted) 1970 and is 44 years old.
The parties began living together at either the end of 1991 (according to the husband) or early 1989 (according to the wife) and were married on (omitted) 1993. They separated for some months in May 2011 when the husband left the family home with the children, but reconciled in October 2011 and lived together again until 9 February 2013, when they lived separated under the one roof until the wife left the family home on 4 August 2013.
The relationship and marriage thus lasted between 21 and 24 years, a significant period whoever is correct about the date of cohabitation.
As stated above, there are two children of the relationship. Currently both children attend (omitted) College in (omitted), where X is in Year 11 and Y is in Year 7.
During the marriage the parties bought and sold several properties. At the time of separation they owned two properties: the former family home at Property G (“the Property G property”); and a holiday house at Property M (“the Property M property”).
Both properties have been sold since the commencement of these proceedings and the nett proceeds of sale have been placed in the trust account of the husband’s solicitors.
As a result of interim orders made on 6 February 2014 and 29 September 2014 the husband and the wife have each had sums distributed to them, with the sum of $315,720 remaining in the trust account of the husband’s solicitors at the time of trial.
The husband currently lives with X in a property he has purchased in (omitted), and is involved in (hobbies omitted). He is employed as a (occupation omitted) and deposes that his salary has decreased from $110,000 per annum to $79,000 per annum since March 2013.
The wife currently lives in rental accommodation in (omitted) with Y. She was unemployed at the time of trial.
Procedural History
The husband filed his Initiating Application on 23 September 2013 seeking parenting and property orders.
The first hearing in these proceedings was on 22 October 2013 before me in the Duty List at Melbourne. The parties came to an agreement that X would live with the father and Y would live with the mother. Arrangements were also made for X and Y to spend time with the respective parent they were not living with.
The parties agreed to fund a private Family Report, attend a “Parenting Apart Post Separation” program, and orders for property valuations and mortgage payments were made. The parties were ordered to attend a Conciliation Conference with a Registrar on 6 February 2014.
The Wife filed her Response on 23 October 2013 seeking parenting and property orders.
The first Family Report of Ms R (“Ms R”) was released to the parties on 2 December 2013.
On 3 December 2013 the matter was listed for a Mention Hearing and the matter was set down for trial on 29 September 2014. Consent orders in relation to Y spending more time with her father were made.
The Parties attended the Court on 6 February 2014 for the Conciliation Conference with Registrar Moser but were unable to reach a final agreement. The Registrar made an interim order by consent for the sale of the Property M and Property G properties.
The matter returned to me on 20 February 2014 for a Mention Hearing after the Conciliation Conference. Further changes to the time Y spent with her father during the school holiday periods were incorporated in consent orders and a further order was made for an updated Family Report to be prepared by Ms R.
The second Family Report prepared by Ms R was filed with the Court on 1 September 2014.
The husband filed an Amended Application on 1 September 2014.
The wife filed an Amended Response on 1 September 2014.
The husband filed his Application for Divorce on 17 September 2014.
On 29 September 2014 the matter was listed for Final Hearing but was not reached, and was adjourned with a future priority hearing on 2 February 2015.
The Divorce Application was heard by a Registrar on 30 October 2014 and a Divorce Order was made, that order becoming final one month later.
The Final Hearing commenced on 2 February 2015 and proceeded for 3 days with both parties being represented by Counsel. Mr Williams appeared for the husband and Ms McCreadie appeared for the wife.
Witnesses were the husband, the wife, the husband’s sister-in-law and Ms R, all of whom were subjected to cross-examination.
Issues and Evidence
Parenting Issues
Before I consider the issues to be decided in this matter as set out above, there is an issue of fact relevant to these proceedings which I believe it is necessary for me to determine at this stage, that being whether and if so, to what extent, there was family violence in the parties’ relationship and home.
Family Violence
Holding perpetrators to account for their behaviour is an integral part of any strategy designed to eliminate the scourge of family violence from our community.
State legislation covering Family Violence Protection Orders often states that principle in unambiguous terms.
While the principle is not stated anywhere in the Family Law Act1975 (“the Act”) - the best interests of the children being the Court’s paramount consideration under that Act - children’s best interests will usually be served by ensuring that the impact of perpetrators’ behaviour upon other members of their families is brought home to them.
The definition of family violence as set out in section 4AB of the Act is as follows:
S. 4AB (1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
S.4AB(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withhold in financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family members family, of his or her liberty.
S.4AB(3) for the purposes of this act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
S.4AB(4) examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attended incident involving the assault of a member of the child’s family by another member of the child’s family.
In situations where family violence is found to have occurred as a matter of fact, where one of the perpetrators is the adolescent son of the victim, and there is a further finding that the teenager’s father has passively condoned if not actually encouraged the son’s behaviour, it is important that both father and son are made aware of the impact of such behaviour on the mother and any other members of the family who might be exposed to it.
The wife alleges that she was subjected to family violence in the form of physical and emotional abuse, and coercive and controlling behaviour throughout the parties’ relationship and marriage.
She alleges that in the later years of the marriage X joined his father in abusing her and that it was as a result of this abuse that she finally decided to separate from the husband.
In her affidavit material the wife sets out a regime of what she calls “verbally violent and oppressive and intimidating” behaviour towards her throughout the period of cohabitation and marriage, and says that this behaviour had become “normalised in our family”.
It is her evidence that while she had had expressed her fear of the husband and concern for the children’s welfare to relatives, friends, treating health practitioners and counsellors, she was too afraid of the husband to report his abuse to the police or take any other legal action.
She further alleges that the husband behaved in a “physically abusive and oppressive” manner towards the children, which, she says, has not only directly impacted the children, but has had a detrimental effect on her own relationship with the children.
The wife’s affidavit evidence sets out multiple examples of such behaviour in detail. Examples of the abuse by the husband alleged by the wife include the following:
a)The husband hit X with a closed fist and/or wrestled with him to the extent X was physically injured;
b)The husband forced her to sign papers which made her an employee of the husband’s employer so that the husband’s tax liability would be reduced and hers increased;
c)The husband accused her of engaging in extramarital affairs and frequently questioned her about her activities outside the home;
d)The husband engaged in physical abuse “that had the effect of ensuring that I remain submissive and obedient to him”. For instance, he “often and frequently” woke her in the middle of the night by punching the pillow next to her head; threatened to hit her with his hand and closed fist both in private and in front of the children; pinned her against the door frame and threatened her with his fist while screaming abuse at her; pushed her into walls as she passed him; deliberately drove the family car in a way that exacerbated her physical discomfort resulting from a medical condition; washed the floors of the parties’ bedroom with chemicals that caused her to have an asthma attack as a punishment for what he deemed as misbehaviour; and deliberately did not inform her that stairs were wet after washing so that she would slip and injure herself;
e)The husband intimidated her verbally and psychologically by calling her names such as “slut”, “whore”, “mental”, and “not normal”;
f)The husband threatened her with physical violence in front of the children;
g)The husband insisted on having access to her mail, mobile phone, handbag and computer and would physically wrest them from her if she did not produce them;
h)The husband taunted her by saying that no one would ever believe her if she told them about his behaviour;
i)From 2011 onwards, the husband would not allow her to close the door to her bedroom, bathroom, or toilet, telling her that he needed to know that she was not hiding things from him;
j)The husband laughed at her when she could not control X’s violent behaviour, thus encouraging X;
k)The husband encouraged her to keep a journal and then told her that its contents had been photocopied and would be used against her in any subsequent family law proceedings;
l)The husband taunted her and laughed at her for what he perceived as her sexual shortcomings;
m)The husband would destroy or dispose of her personal belongings and keepsakes to the extent where the wife was afraid to show an attachment to special items because the husband would deliberately break them; and
n)The husband would tell his family and friends private details about her childhood experiences and tell them that the wife was a burden to him and an unfit mother.
After final separation in August 2013 the wife deposes that she agreed to an equal shared care regime in relation to the children as a result of duress, pressure from the husband, and “fear of repercussion”.
It is her evidence that when the children were living with the husband Y often complained to her about both the husband’s and X’s behaviour, telling her that X had been physically violent toward her and that the husband had not intervened to prevent that behaviour.
The wife deposes that Y further told her that the husband had physically disciplined her by threatening to hit her with his belt, and that it was common for the husband and X to fight physically.
Further examples of family violence alleged to have been perpetrated upon Y by the husband are set out as follows in paragraph 43 of the wife’s affidavit sworn and filed 1 September 2014:
THAT I have personally observed the following with regard to the husband’s conduct towards Y:
(a)The husband has forcefully struck or threatened to strike Y for such minor indiscretions is not cleaning her bedroom or making errors in her homework;
(b)Y was frequently abused by the husband and told she was “dirty” or “naughty” for minor indiscretions;
(c)Y was forbidden from coming to our beach house at Property M with me for Mother’s Day in 2013 to hurt and punish us both and was forced to attend a paternal family birthday instead;
(d)The husband would frequently leave for work around 6:00 am and leave Y alone at home to make all preparations for the day;
(e)On different occasions the husband has threatened to dispose of Y’s pets or to throw away her personal possessions if she did not obey him completely. She also witnessed the husband do this to myself and X.
It is the wife’s further evidence that the husband has deliberately alienated her from X by involving X in adult disputes and telling him lies. For instance, she says that the husband would tell X that it was she who was forbidding X to accompany the husband to sporting events, when in fact it was the husband who did not want X to attend with him; that the husband discussed his feelings about the separation with X and told him that the wife was trying to get him (the husband) in trouble with the police; and that he would tell X of his suspicions that she was having an extramarital affair.
The wife deposes that during the marriage the husband’s discipline of X was quite harsh, including destroying his personal possessions and sometimes striking him or “grabbing him by the throat” for relatively minor misbehaviour.
She says that after separation the husband reduced the level of discipline he exercised with X and increased his attempts to alienate him from his mother.
The wife deposes that after the husband moved back into the family home in late 2011 there was “a serious decline in the relationship between X and myself and the way that X behaved and spoke to his sister”. She says that the husband continued to manipulate X and that the husband’s behaviour gave X the message that his abuse of the wife and of Y was acceptable. It is her evidence that the husband would tell X to ignore his mother and would praise him when he behaved abusively or disrespectfully towards her.
As a result of the final separation between the parties in August 2013, the wife applied for an intervention order against the husband, naming herself and Y as Affected Family Members. She deposes that X attended the Magistrates Court on the day of the hearing which resulted in an interim intervention order being granted, and that he had been brought to court in order to support his father. She says that X was very upset on that day and that she had observed his paternal aunt, Ms P (“Ms P”) comforting him at the court.
The wife further deposes that she believes that the husband has shown X all material filed in these proceedings in order to further alienate him from her.
It is the wife’s evidence that prior to the final separation X’s behaviour towards her and Y extended to physical violence. She deposes that he attempted to hit her while she was driving the car; that he would hit her over the head when he was seated behind her; that he would push both her and Y into the wall when passing them in the house; that he forcefully kicked Y including in the genital region; that he would send the wife numerous threatening texts in relation to his future behaviour; and that he would jump on her bed and throw bedding around her bedroom.
The wife says that X’s physical violence became more intense as the husband “minimised its significance”. She deposes that X would deny the conduct and the husband would believe X, or that the husband would characterise X’s behaviour as normal.
It is the wife’s evidence that she decided to leave the family home and the marriage on 4 August 2013 after X attacked her in response to being asked to stack the dishwasher. The attack was severe enough for Y to intervene and try to stop it by hitting X and the husband with an umbrella. The husband had been standing behind X and had done nothing to try to stop his behaviour.
She said in evidence at trial that at that time she told X that she was leaving because she had only two choices: to leave or to apply for an intervention order against him and she simply could not do that. She said that she told X that she was afraid of him, and that she would be returning to retrieve her belongings from time to time.
It is the wife’s further evidence that she had attended the property on three subsequent occasions in order to remove her belongings.
The wife deposes that the last time she saw X alone was on 7 August 2013, only days after she had finally left the family home as a result of the abuse she had suffered. She says that on that occasion X, who was about 6 feet tall, pushed her into the front door and tried to prevent her from entering the house, that he repeatedly called her a “pig”, demanding that she prepare food for him, and that he followed her through the house yelling abuse at her and swearing at her in the presence of Y.
She says that as she got into her car, X was “pounding his fists on the car and circling the car trying to make it impossible for me to leave. Y attempted to get into the car, but X prevented her from doing so. I was eventually able to use my mobile phone to call a neighbour to request urgent assistance and when X saw this he retreated into the home and then Y could get into the car and leave with me for the visit.”
She describes a further incident on Melbourne Cup Day 2013 when she had attended at the family home to retrieve some of her belongings. She says that she received abuse from both X and the husband and that the husband had called two of his friends to come to the home. The wife says that she called the police who asked one of the friends to leave. She says she was angry and hurt and that she had behaved “in a manner that I deeply regret in front of my children”.
The incidents set out above by no means constitute the whole of the wife’s affidavit evidence in relation to abuse she alleges she suffered at the hands of the husband and X during, and especially in the latter stages of the marriage and in the aftermath of separation. They are set out here merely as examples.
As previously stated, the wife gave evidence at trial and was subjected to cross examination.
In the witness box, she impressed as a woman severely distressed and traumatised by the events and incidents set out above, and one who has only since her marriage ended understood that she might be a survivor of family violence.
She gave her evidence clearly and strongly. She could not be shaken on her evidence about the abuse she suffered during and after the marriage at the hands of both the husband and X.
She conceded that there had been times when she had responded to the violence and abuse in inappropriate ways, including on one occasion when she took Y to the local police station when Y began to behave abusively so that a police officer could warn Y about the inappropriateness of her actions, but stated that she had also arranged counselling for Y and that the relationship between them was much stronger as a result.
She was adamant that she had never told X that she wished he were dead, nor that the separation was his fault.
When asked by her counsel about her attempts to apologise to X so that some rapprochement between them might be affected the wife said the following:
I can’t count how many times I have apologised. I have apologised to his face. I have apologised on voice messages. I have apologised by text. I have apologised in front of Ms R. I can’t apologise any more. And the same apology – the same words. It’s not moving anywhere.
Under cross-examination she said that on the occasion she is alleged to have told X she wished she were dead in late 2012, she had actually said: “Son, I love you. You taught me how to be a mother. You’re my first born. This version of you is not your best version of yourself. This version of you is dead to me”.
She vehemently denied that she said to X on 4 August 2013: “You have been the trouble for the last few years and I am leaving”.
It was her evidence that she had left the children with the husband when she separated from him in August 2013 because she had been under what she called the “mistaken delusion” that the violence might stop because it was she who had always been blamed for everything and if she was absent “the sting of the violence” would be removed.
She said that she had learned in counselling that she had not recognised the danger she had been in, and that she would react very differently now.
She said that she had apologised to her son, not because she believed she had said that the separation was his fault, but in an attempt to forge a new relationship with him. She said:
You don’t have to be right. If an apology is required to mend a bridge and build a relationship again, you give it. And I’m giving it. I have not apologised for being scared on text, on face-to-face, on voice. I’m not apologising for being scared.
It was her evidence that despite X’s abusive treatment of her, including at the family report interviews, there had been “movement” in her relationship with him and that there was some minimal contact between them via Facebook.
The wife is firmly of the view that the only way her relationship with X will develop appropriately is with the help of a family counsellor, and she gave evidence of attempts she had made to engage him in that regard.
She stated clearly that she was still fearful of her son but that he would always be welcome in her home.
Overall I found her to be a convincing witness who displayed insight into her own behaviour and who holds genuine fears for the future of her relationship with her daughter if Y is permitted to spend half her time in the husband’s care.
The wife’s evidence in relation to the husband’s behaviour is supported by affidavit evidence from her brother and several friends, some of whom deposed to witnessing his aggressive behaviour directly, and it is clear that the wife was telling friends and family about her concerns about that behaviour for many years prior to the date of final separation.
The husband denies the wife’s allegations. He says that any violence that occurred in the relationship was at the wife’s instigation and that it is he who has been the victim of family violence.
In support of that claim, among other evidence, he tendered at trial a torn shirt which he claimed had been damaged by the wife during an altercation begun by her.
In his affidavit material the husband answers many of the wife’s specific allegations against him, albeit mainly by simple denial, and then makes counter allegations against her.
In his affidavit sworn and filed 19 January 2015 the husband says the following at paragraph 148:
Ms Little was physically abusive towards me, she would punch, kick, dig her nails into me. Scream, verbally abuse me, attempt to control every aspect of my life, including what friends I could have, where I could work and the closeness of the relationships I could have with my family. She would threaten me with stories of how her mother would chase her stepfather with knives. I have had my belongings smashed, clothes ripped and jewellery ripped from my neck. I have never laid a finger on Ms Little, even when I was being assaulted by her. I am strongly against any violence against women, including verbal abuse, emotional abuse and economic abuse. I have always tried to be as gentle as possible with Ms Little. Even when we were fighting, I would carefully choose the words I would say as I did not want to verbally abused her.
Specifically, the husband alleges that on 9 February 2013 the parties decided to separate under the one roof after an argument during which the wife grabbed his necklace, ripped it from his neck and threw it onto the driveway. He said that she had yelled at him, picked up a golf club and smashed it on the ground, and that when he had taken the golf club from her she had grabbed him by the shirt and ripped the shirt. This was the shirt that he later entered into evidence at trial, having kept it for two years after the event.
The husband’s description of the date of final separation, being 4 August 2013, states that Y had been angry with the wife because the wife had wanted Y to accompany the husband while he took X to various commitments. In the argument that followed the husband deposes that Y called her mother “cruel” and that X had called his mother “a pig”. It is his evidence that he told X not to speak to his mother that way. Y did not accompany the husband and X on that day.
The husband says that on his return to the family home with X at about 9:00pm, the wife’s brother was visiting. He deposes that the wife then said the following words to X after asking him to sit down:
X you have done this, you wanted this, mummy is going to leave home today. You have been the trouble for the last few years and I am leaving.
He says that the wife told her family that “specialists” had instructed her to leave for her well-being, and that X had said: “Just leave”. The wife’s brother had then said: “X your mum’s talking” and the husband had told the wife that “that was enough”.
The husband deposes that the wife at no time told him on that day that she was leaving because of his violent, controlling or coercive behaviour.
The husband says the wife and her brother then left the family home and that he and the children had been “devastated” at the evening’s events.
He deposes that after the wife left the family home X stated that he did not want to be alone with her and that he had informed the wife of that fact. He says:
I tried to encourage him to see his mother but did not want to push him due to the pressures of the separation. I sent a text message to Ms Little to advising her of X’s wishes.
He is critical of the wife (quite properly in my view) for taking Y to the police station on 1 October 2013 to have her spoken to about her developing violent behaviour, although he does not deny that Y’s behaviour had been abusive. It is his evidence that on that day the wife had sent him a text claiming that Y had told the wife that it was X who had encouraged the abusive behaviour. He says that Y had later confirmed that fact during a telephone call to him.
While he says that the experience of being taken to the police station “would have had an adverse effect on Y”, he does not say whether he spoke to Y about her behaviour towards the mother.
The husband is also critical of the wife for her behaviour on other occasions, alleging that she yelled at him at changeover at (omitted) supermarket on 5 November 2013, accusing him of having an affair; that later on the same day she had accused him of having a homosexual relationship with his neighbour; that she had pushed a model boat with sharp edging into his chest during an argument; and that she had threatened to destroy his reputation with his employers. He says that at changeover he had ignored her and left with Y, but that her behaviour at the family home later in the day was so seriously abusive, both to him and to X, that the police had been called and the wife had been asked to leave. He says that it was after that incident that he applied for an intervention order against the wife.
The husband states that the parties’ several sets of intervention order proceedings were finally resolved by way of mutual undertakings on 28 May 2014.
The husband deposes that Y has told him about hearings due to be heard in this court and that Y was upset about these proceedings. He says that she is aware that several people known to the children have sworn affidavits for the wife in these proceedings.
He says that Y told him the that she wanted to spend more time with him and X but that he should not tell the wife about that because Y would get into trouble. The husband says that he avoids engaging in such conversations with Y.
Several people filed affidavits on behalf of the husband in the course of the proceedings, some saying they had never observed any violence between X and Y, one saying that when she had been present on an occasion when the wife visited the family home to collect her belongings she had seen no conflict between the parties, others saying that they had not observed any violent behaviour from X. While it is difficult to prove that something did not happen, I note that these affidavits in the main do not address violence between the husband and the wife.
As he gave oral evidence at trial, the husband appeared somewhat defensive (although that would not be unusual given the allegations against him) and, at times, evasive. He certainly appeared to see himself as the victim in these proceedings and showed little insight into the effect of his behaviour on his wife and children. I gained the impression of a somewhat immature man who finds it very difficult to examine or analyse his own behaviour.
Only when he was directly questioned by the wife’s counsel as to epithets he had directed toward the wife did he admit to any aggressive behaviour at all, and then insisted that he had only used those epithets once.
There were times when he seemed to change his evidence slightly in response to questions from the wife’s counsel, and overall, I found him an unconvincing historian, although I cannot say that his evidence was dishonest. He simply appeared to lack insight about how his behaviour might have affected the wife, and how his relationship with X has been allowed to develop in such a way that X is alienated from her.
He denied that X, who he acknowledged is six feet tall and of quite solid build, has behavioural problems which are different to other teenagers, or that he used his size to intimidate his mother and his sister.
He disagreed with the wife’s evidence that he had failed to intervene when X behaved in a violent manner, saying that as soon as he had heard that X had kicked Y in the groin he had gone to speak to him.
He disagreed that he had laughed at the wife’s inability to control X’s behaviour, or that he had given him any message to the effect that it was acceptable for X to disrespect and abuse his mother.
He said that he had always intervened in arguments between the wife and X, and that during the first separation between the parties, Y had called him several times because X and the wife were arguing and that he would attend and “defuse the situation”.
The husband conceded that he had not taken X to buy Christmas or birthday presents for the wife, claiming that he had asked but that X had refused. He said that he had not himself bought a present for X to give to the wife because the wife had told X that the separation was his fault.
He conceded that Ms R was clearly of the view that X had read the court documents, but said that he had never seen X reading any of his documents, that he had never given the documents to X, and that they had always been kept in a safe place. He did not know how X had gained access to the documents. I am sceptical about that statement and find it to be somewhat disingenuous.
In relation to X attending the Magistrates Court for the intervention order hearing, the husband said that as X’s name appeared on the Application for the intervention order he thought it was appropriate for him to be there.
When it was pointed out to him that he had said in affidavit material that he had not wanted X to attend the Magistrates Court but that X had insisted and had told him that he would be very disappointed if he were not allowed to attend, the husband said that he had not thought it was wrong for X to be there and that he had removed him as soon as he had been informed that he ought not to be.
The husband conceded under cross-examination that he had shared his feelings about the marriage breakdown with X, and that X had seen him crying, but he denied that he had involved him in inappropriate adult issues.
He said that X was “a very mature teenager”, and that while he had deposed that he treats X like an adult and speaks to him in that way, he insisted under cross-examination that he did not do so all the time.
He was firmly of the view that the wife ought to apologise to X for telling him that the separation was his fault.
He did not accept that his inability to have any positive influence on X’s relationship with his mother means that the wife might have some anxiety about the prospect of Y living with him for longer than is now the case.
In that regard he was adamant that he sought an equal shared care arrangement for Y because it is what Y wants.
In relation to his own behaviour, the husband denied, when asked, that he had behaved in an overbearing and bullying manner throughout the marriage. He conceded that he had slapped both children with an open hand as a form of discipline, stating that he did not see anything wrong with such action, but denied any other physical or emotional abuse of either the wife or the children.
He specifically denied threatening to copy the wife’s journal or threatening to use its contents against her in these proceedings, or exposing the children to any arguments or verbal abuse between him and the wife.
He conceded that he might have called the wife the names she alleges, and in response to an allegation that he had said to the wife: “If you ever touch me I’ll rip your throat out” the husband said that he could not recall having said that, although he might have “gone a bit berserk” after the wife had ripped his shirt.
It was his evidence under cross-examination that any tension and hostility in the relationship between him and the wife came “100%” from her side.
In all of those circumstances, where the wife’s evidence is detailed and unshaken, and where the husband does not answer it in any real detail other than to deny any such behaviour, and having seen both parties in the witness box, I prefer, on balance, the evidence of the wife where it conflicts with the evidence of the husband.
It is clear that the relationship between the parties was characterised by tension, and conflict which included physical and emotional violence. I am satisfied on the evidence before me that it was the husband who set the tone for that conflict, engaging in highly inappropriate physical and emotional violence against the wife, but I am also satisfied that the wife retaliated and behaved inappropriately at times, including by engaging in verbal and sometimes physically aggressive behaviour herself.
To say that X is angry with his mother would be a significant understatement.
He believes that his mother blames him for the breakdown of the family unit, and that she owes him a full apology for what he believes she said to him on the date of separation.
He admitted to Ms R during the interviews for the first Family Report that he had physically pushed his mother, and that he had verbally abused her, a matter which was confirmed by Ms R’s observation of X with his mother. His fury at and contempt for his mother leaps off the pages of Ms R’s first Family Report.
Y, too, has given some indication of following her brother’s lead in relation to abusing their mother. The incident which led to the wife taking Y to the police station involved Y hitting her with a laptop computer. The wife is rightly concerned about this development in Y’s behaviour.
Y told Ms R that she had witnessed parental conflicts and arguments after separation but that before separation there was only “occasional yelling” between her parents which had not escalated to more extreme behaviour.
She did however say that she had intervened at times when X was angry with her mother and that X had taken it out on her because he had thought she was on the wife’s side. Y stated that she was not afraid of X.
Tellingly, Ms R records that Y describes her parents as ‘both acting like children’ and she wants to tell them to ‘grow up!’ but has not had the courage to do so as she fears getting into trouble.
Ms R describes her interview with X on 18 November 2013 in preparation for the family report as follows[1]:
22. Almost immediately in interview, X expressed his anger towards his mother and his distress about many of the things she has allegedly done to hurt him and his father. He was agitated throughout most of the interviews speaking fast and his narrative was often disconnected and hard to follow but it echoed much of his father’s narrative. He defends his father and blames his mother and perceives the conflict emanating from his mother is ill will and self interest. X has read the court documents and is aware of the details of his parents dispute.
23. There are two main reasons for X’s anger: his mother blaming him for leaving the family; and the angst and distress he believes his mother is creating for his father. He is hurt and upset that his mother had allegedly described him as “a bully… an idiot… and dickhead”.
24. X strongly denies that he has ever hit his mother although he acknowledges that “I’ve pushed her… she’s pushed me… and I moved her aside”.
[1] Family Report of Ms R dated 2 December 2013
Ms R describes X as having a strong sense of responsibility for his father’s welfare and that X told her that his father cries almost every night and cannot get to sleep. X told her that his father is taking the separation very badly and that his mother is at fault.
She says that X refuses to reconcile with his mother until she changes but that he was unable to articulate exactly how she would need to change.
Ms R’s observation of X in the presence of his mother is very disturbing. She describes his behaviour as follows:
39. X readily agreed to meeting with his mother on the day although he was observed to sit in an outside area away from his mother most of the day. When given the opportunity to discuss his issues with his mother, X embarked on a tirade of criticism and complaint directly at his mother and was firm that he did not wish to see or speak with her. He then considered that their relationship could not be repaired until his mother had apologised to him but when she attempted to do so, he would not allow her to and he rejected the apology as a manipulative attempt to gain the writer’s approval.
40. X was angry, upset and at times aggressive with his mother, which distressed Y who sat quietly next to her mother but who was clearly feeling uncomfortable and distressed by the exchange. She accepted the offer to leave the room and she sat with her father outside.
41. The conversation between X and his mother escalated to one where X became increasingly robust and assertive in his communication, often interrupted his mother and he was clearly not invested in clarifying or repairing relationships between attacking his mother and displaying his wrath.
Ms R says that she terminated the observation session “as there was nothing positive being achieved”.
She does say that it did not appear that X would “act out on his anger” (although she does not expand on how she came to that conclusion) and that the wife had later said that she did not feel threatened on the day because X would not behave aggressively in public.
The interviews for the updated family report were held in July and August 2014.
In the report attached to her affidavit filed 1 September 2014 Ms R comments that “the issues between the parties remain unresolved and their relationship remains tense with little communication or cooperation in parenting”.
The husband told Ms R that the wife has done little to repair the relationship between her and X and that X has been further hurt by his mother’s failure to send him either a card or present on special occasions. He said that X has been “shattered by the rift” between him and his mother and repeated that the wife needs to apologise to X and withdraw her accusations that the separation between his parents was his fault.
The wife told Ms R that she had attempted to send X regular text messages but that he had not responded to any of them. She said that she had not sent him gifts on special occasions as she did not think it would assist in repairing their relationship. Instead she thought that sending him gifts would be perceived as a bribe.
Ms R reports that X continues to reject his mother and does not want to spend time with her. She says[2]:
While on the one hand he is desirous of repairing the relationship at the same time he says that he has lost trust in her and is reluctant to resume their relationship.…. He has not ruled out a reconciliation in the future but is adamant that the first step is ‘in her hands’. He says that he was helped by attending counselling earlier in the year and he feels comfortable and resolved about the issue at this stage. His presentation on the day was calmer and there was notable absence of anger but a firm determination not to resume his relationship at this stage.
[2] Report attached to the Affidavit of Ms R sworn 29 August and filed 1 September 2014 paragraph 26.
It is almost trite to say that two people may have opposing but genuinely and honestly held beliefs about the same incident.
In this case, what the wife said to X at the time of her leaving the family home has been interpreted differently by her and by X and the husband and that difference of interpretation has led to a complete breakdown in the relationship between mother and son.
There is, in my view, a great deal of difference between a mother saying to her adolescent son words to the effect of: “I’m leaving because of you and the breakdown of my relationship with your father and everything that flows from it is your fault”; and her saying: “I can no longer live with your violence and abuse and I therefore have to leave because I don’t know what else to do for my own wellbeing.”
Clearly X and his father heard the first of those statements, while the wife’s evidence is that she intended and made the second.
In light of other affidavit evidence about the relationship between X and the wife both before and after the breakdown of the marital relationship, and after seeing both parties in the witness box, I find that it is more probable than not that the wife said words to the effect of the second statement above on the date of final separation.
Overall, on the balance of probabilities, and on the basis of the evidence set out above, I find that during the relationship and marriage the husband engaged in coercive and controlling behaviour, emotional and psychological abuse and some physical violence against his wife, sometimes in the presence of his children.
I find further that in the later years of the marriage X participated in that regime of abuse, and at times violence, against the wife, and that the husband made (and continues to make) no attempt to restrain X’s behaviour in that regard. I find that the effect of that failure to act is that the husband has, at very least, passively condoned X’s behaviour.
I find that the wife defended herself on occasions, sometimes inappropriately, and that she also engaged in behaviour that can be characterised as family violence against the husband.
Given those findings, it is difficult to imagine why the wife ought to apologise to X for her statements at the time of separation. Rather, it would appear appropriate that X apologise to his mother for his behaviour both before and after that date.
There appears little hope of a rapprochement being reached between X and his mother without professional assistance, and the parties have agreed to engage in family therapy with Ms L, psychologist, to that end.
Therefore, while I have little confidence that the husband and X will engage in that therapy openly, at least at first given the intensity of their contempt for the wife, I will make an order for that therapy to take place. It is encouraging that the wife said in evidence that there had been some movement in her relationship with X since the second family report was released, and it is to be hoped that the proposed therapy will bear fruit in that regard.
The husband appears to have little or no insight into the effect of his own behaviour on his former wife and on his children. He sees his behaviour as reasonable and himself as the victim, while the evidence leads the Court to believe the contrary.
That does not augur well for his role as a father to X and Y or for their well-being into the future.
I turn now to the issues as set out above.
A. Should the parties share the care of Y equally or should she live predominantly with her mother?
The husband seeks an order that Y live with each of her parents on a week about equal shared care basis.
The wife seeks an order that Y live with her and spend four nights per fortnight in the care of the husband.
Y herself presented a list of wishes to Ms R which included being with her parents on an equal shared care basis. It was her view that she should spend two weeks at a time with each parent.
However Ms R says that Y wants equal time with each parent because otherwise “the other parent will think I think less of them”. She told Ms R that if she lived predominantly with her mother she would feel as though she were “living in a suitcase”.
Ms R says that Y is clear that she loves both her parents but that she wishes her home situation to be conflict free.
Ms R's Family report recommends that Y live week-about with each parent.
However, at trial, when asked whether a finding that the husband and/or X had engaged in family violence would cause her to have fears for the husband’s influence over Y, Ms R said:
Probably, because a coercive controlling person is not just like that usually with partners generally. And certainly perhaps with a daughter there is evidence around the impact that that can have on a young girl.
When told that evidence adduced at trial had shown that the wife had attempted to apologise to X on multiple occasions for the statement she made at the time of separation, and that X’s opinion of his mother had been unmoved by those apologies, Ms R said:
I think there is a possibility that (the husband) has empowered X, because if Ms Little has apologised – I’m not sure what the apology is about – I think it’s about empowering children which can sometimes be problematic.
She went on to say that the implication of empowering children in those circumstances would be that:
…it asserts that they can dictate. It condones the behaviour when perhaps the behaviour is not appropriate.
Ms R was of the very clear view that failing to give adolescent children direction puts them at risk.
She agreed with me that if I were to find that the husband had behaved in a controlling and coercive manner in relation to the wife then there might be a danger that he would behave that way in relation to Y.
On the basis of the above evidence, and being convinced that if she is allowed to spend half her time with her father there will be a detrimental effect on Y’s relationship with her mother, as well as a danger that she herself might be subjected to controlling and coercive behaviour, I will make orders for Y to live predominantly with her mother and spend regular time with her father.
B. Where should Y go to school?
Currently the children attend the same school and the husband asserts that Y wishes to remain there. He says that while Y has suffered some bullying at (omitted) College, she feels safer knowing that X is there as well.
Therefore, he says, Y should remain at (omitted) College, at least until X leaves school at the end of 2016. He would then be open to discussions about where Y should go to school.
The wife says that Y has been unhappy at (omitted) College for some time because of bullying by some of her peers, and in particular by one girl whose parents remain friends with the husband.
She says that X spends his time in a different part of the school and that if Y needs to speak to him she would have to ask the school to page him as students are not allowed to use their mobile phones while at school.
In her interview with Ms R for the second Family Report in July 2014 Y said that she wanted to change schools because of the bullying although Ms R comments that she had not considered that bullying may occur at her new school.
When Ms R spoke to Ms F, the Head of School at (omitted) College, Ms S’s view was that while there had been allegations of bullying, the issue was not as severe as Y and her mother had stated, and that Y herself played a role in the dynamics between her and other girls at the school. Ms S could see no benefit to Y in changing schools as she seemed happy and settled at (omitted) College.
As I have decided that Y should live predominantly with her mother, and that there is a risk that the husband’s influence over Y may not be a particularly positive influence, I will make an order that Y attend a school of her mother’s choosing from the beginning of Term 3 2015.
The general question of equal shared parental responsibility is not in dispute in this matter. However, I make an order that the wife have sole parental responsibility for Y’s educational needs and arrangements. I will make a further order requiring the wife to consult with the husband about a suitable school for Y, but she will have the ultimate choice of where Y goes to school from Term 3 2015.
The Law in Relation to Parenting Orders
In making the above decisions, I have had regard to the matters set out in ss.60B, 60CA, 60CC, 61DA and 65D AA of the Act.
Section 60B sets out the objects and principles which form the foundation of the law in Australia about post-separation parenting matters. I set out those objects and principles here for the benefit of the parties.
Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with and communicating the bank regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA states that in making a parenting order the court must take a child’s best interests as its paramount consideration.
Section 60CC sets out the matters that the court must consider when determining what is in a child’s best interests. I here set out each of those matters in turn insofar as they are relevant to the facts of this case.
S.60CC (2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The question of what is meant by “a meaningful relationship” has been discussed in many decisions in this court and the Family Court of Australia.
Perhaps the most often-quoted decision is that of the Brown J in the matter of Mazorski v Albright[3] where Her Honour said, at paragraph 26:
I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
[3] Mazorski v Albright (2008) 37 FLR 518
In Tait & Dinsmore[4], Cronin J said, at paragraph 170:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
[4] Tait & Dinsmore (2007) FamCA 1383
In this case it is difficult to see how the relationship between Y and the husband is “meaningful” in the terms set out by Cronin J. The example the husband has set in relation to both his own lack of self-discipline and his lack of discipline of X, certainly do not meet the requirements of that passage.
Nevertheless, it is clear from what Y told Ms R that she values her relationship with her father and that it is important to her.
The need to protect a child from harm clearly extends beyond the need to protect her from physical harm, and I have considered very seriously the need to protect Y from psychological and emotional harm at the hands of her father and her brother.
That is not to say that, based on the husband’s and X’s behaviour towards the wife, Y is at no risk of physical harm from either the husband or X, and I have also taken the need to protect her from that harm into account in this decision.
S.60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
In making my decision in relation to Y’s care arrangements I have taken the need to protect her from harm as the most important issue.
Section 60CC(3) then sets out additional considerations as follows:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Y is approaching her 13th birthday. Her expressed views are that she wishes to spend equal time with both her parents. I have taken those views into account, and while I do not propose to make orders in accordance with them because of other evidence, she should not be allowed to believe that her views have not been heard. The simple but undoubtedly unpalatable fact for her to accept is that 13-year-olds do not always get what they want.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
On the evidence of both parties Y’s relationship with her mother has been difficult at times. While the wife regrets having taken Y to the police station to have her spoken to about her behaviour, it is her evidence that the relationship between her and Y has been much more stable ever since.
Y herself told Ms R that she enjoys doing “girly things” with her mother, and that while their relationship is sometimes “a bit shaky”, and her mother can at times be moody and emotionally demanding, the relationship is fundamentally good.
Ms R saw nothing in her observations of Y and the wife that concerned her.
Similarly, Y reports a positive relationship with her father, although she states that sometime she is unable to express how she feels because her parents “would get upset”.
Y’s relationship with her brother is reported to be positive other than the occasional disagreements which are normal between siblings. Indeed, Y reports that she would like to spend more time with X.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
During the marriage, despite its volatile and often toxic nature, it appears that the parties were able to negotiate and reach decisions about Y’s long-term issues.
However, the circumstances of the separation, X’s estrangement from his mother, and the parents’ current lack of ability to communicate in a positive manner, have made their joint participation in making major long-term decisions about her difficult.
Nevertheless, each parent seeks to share parental responsibility for Y.
It appears from the evidence that both parents have taken appropriate steps to ensure that they spend time and communicate with Y both during and after the marriage.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Both parties have supported both children throughout the marriage. No evidence was adduced at trial about child support being paid by either party, but in closing submissions counsel for the wife pointed out that given a disparity in the parties’ income and the fact that one child was living with each party at the time, a situation which will continue as a result of these orders, the amount of child support to be paid, if any, is unlikely to be significant.
There is certainly no evidence that either party has failed to fulfil his or her obligations to maintain the children.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The orders I propose to make in relation to Y’s care do not involve a change in her circumstances.
The effect of the orders will be that she spends less time than she would wish with her father and brother, but they will not affect her ability to maintain a meaningful relationship with each of them.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Currently the husband and X live in a property purchased by the husband in Melbourne’s (omitted) suburbs.
The wife lives in rental accommodation in (omitted) but she intends to purchase a property using funds she might receive as a result of these proceedings. It is her evidence that she intends to find such a property in a nearby area, which would create no practical difficulty in Y being able to maintain personal relations and direct contact with the husband.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
There is no evidence that either parent lacks the capacity to meet Y’s physical and material needs. It is in the area of her emotional and psychological needs that the court has some significant concerns for her.
The husband’s behaviour towards the wife, and his tacit condoning of X’s behaviour towards the wife, do not give the Court confidence that he has the maturity or the insight to provide for the emotional and psychological needs of his teenage daughter, especially as she moves further into adolescence.
Similarly, I have serious concerns about X’s influence on Y given the intensity of his contempt for the wife and his behaviour towards her.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have already said that while the views of a 13-year-old child are to be given some weight, they are not determinative in matters of this kind.
I do however take Y’s gender (or “sex”) into account in the making of these orders. The attitude of the husband to his former wife, which can only be categorised as contemptuous, leads the court to believe that that attitude may be generalised, if only in the mind of Y. That is, there is a danger that Y may feel that as a female, she is held in contempt to some degree by her father.
I further take into account the husband’s demonstrated immaturity in his dealings with X, and his tacit encouragement of X’s behaviour towards the wife. His lack of ability, or will, to restrain X, or even to see the inappropriateness of X’s behaviour, does not give the court confidence that he ought be the parent with whom Y spends most of her time.
The husband’s cultural background is (country omitted), although little specific evidence was adduced as to its importance in his life other than evidence showing that he and his family celebrate (religion omitted) Christmas.
The orders I propose to make will provide for Y to spend every second (religion omitted) Christmas with her father, as it falls in a period she will spend with her father every second year, although the orders will provide enough flexibility for the wife to allow her to spend (religion omitted) Christmas with her father in the alternate year as well should that be appropriate and suitable.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This consideration is not relevant in this case.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It will be clear from the reasons set out previously in this judgment that the court is not impressed by the husband’s attitude to Y’s welfare, nor by the performance of his responsibilities as a parent, as demonstrated by his behaviour towards the wife, and his failure to restrain X from abusing her.
His lack of insight into the impact of his behaviour on his daughter, and his tacit approval of X’s abusive behaviour, together with his enlisting the children in what he sees as a war with their mother, demonstrate an appalling attitude towards his role as a father.
The wife’s behaviour too, at times, has been less than satisfactory, although she does demonstrate some insight into the effect of that behaviour, and overall it would appear that she takes a more adult approach to parenting responsibilities than does the husband.
Her multiple attempts to apologise to X for her perceived blaming of him for the breakdown of the marriage demonstrate her ability to behave in a way that accounts for his emotional needs, while the husband has demonstrated no such capacity.
(j) any family violence involving the child or a member of the child’s family
I have already discussed the issue of family violence elsewhere in these reasons and will not repeat that discussion here
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
Each party has applied for an intervention order against the other in the aftermath of the separation. The wife obtained an interim intervention order against the husband in his absence, although neither application proceeded to final hearing with both being resolved by way of undertaking.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The court has no confidence in the husband’s ability to refrain from making inappropriate statements to Y about the outcome of these proceedings.
The orders I propose to make are intended to be final orders, and there is no reason other than the husband’s skewed views and potential influence over Y why they would not be final.
In any event, I am satisfied that those orders are those least likely to lead to the institution of further proceedings in relation to Y.
(m) any other fact or circumstance that the court thinks is relevant.
I am aware that the orders I propose to make are not those recommended by Ms R in her second Family Report. However, in her oral evidence, Ms R conceded that her views may have been different had she known that there was to be a finding of coercive and controlling behaviour against the husband and I am satisfied that the orders I propose to make are in Y’s best interests.
Because I have no confidence in the father’s ability to restrain himself from involving the children further in the dispute between him and the wife, I propose to make an order restraining both parties from reading, showing, or interpreting any part of these reasons for judgment to either child. That injunction of course does not extend to explaining to the children the nature and effect of the orders made this day.
The other fact or circumstance that I have taken into account as being relevant in deciding what orders to make in relation to Y’s care is what the wife calls the normalisation of the violence perpetrated upon her by the husband and X.
The wife’s evidence is that the pattern of abusive, coercive and threatening behaviour was so entrenched in the family dynamics that the children came to believe it was a normal part of life.
That evidence is supported by Y’s view that her parents only occasionally yelled at each other, while calmly telling Ms R that she had had to intervene in a physical altercation between X and his mother while her father stood by doing nothing.
On either parent’s evidence, the relationship was characterised by emotional volatility, physical violence, and verbal abuse, although each blames the other for that situation.
I have found on the evidence before me that it was the husband who set the tone for that environment to develop, and it is important that Y learns that while all families have their ups and downs, such an environment is not normal. Nor is it conducive to the positive emotional development of children or to them developing appropriate strategies for dealing with conflict in their own lives.
Section 61DA(1) of the Act states that when making a parenting order a court must apply a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for him or her.
However, s.61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or in family violence.
In circumstances where I have found that the husband has engaged in behaviour which falls under the definition of family violence, and where I find that there are reasonable grounds to believe that he has engaged in emotional abuse of both children, I find that the presumption does not apply.
Nevertheless, both parties seek orders for equal shared parental responsibility of Y, and in those circumstances I will make that order, save for responsibility for educational matters which will rest with the wife.
Section 65DAA of the Act states that where parents have equal shared responsibility for a child the court must consider whether it is in the child’s best interest for the child spend equal time with each parent.
I have set out above my reasons for believing that it is not in Y’s best interests for her to spend equal time with each parent.
Section 65DAA(5) Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Therefore, the orders I make will provide for Y’s parents to share parental responsibility for her other than in the area of education, for her to live predominantly with the wife, for her to spend substantial and significant time with the husband, with further orders designed to protect her from the emotional fallout of her parents’ separation and these proceedings.
Property Issues
The parties have agreed for the most part on how their property ought to be divided between them, including the quantum of superannuation split which would equalise the parties’ superannuation entitlements.
Indeed they are essentially agreed on the format of the orders to be made. It is really only the substance of those orders and, in particular, the percentage of the joint assets that should be distributed to each party, that is in contention.
C. What are the property interests of the parties and what is the value of those interests?
The property interests of the parties and their value, as agreed between them at the commencement of the trial, may be set out as follows.
Assets-Owner-Value
Proceeds of sale from the Property G and Property M properties-Joint-$315,720
Interim property distribution already made to the parties-Husband
$300,000
Wife
$302,500 -$602,500
Honda (omitted) Motor Vehicle-Wife-$10,500
(omitted) Investment Fund-Wife-$17,500
(omitted) Bank funds-Wife-$12,010
(omitted) Shares shares-Joint-$8700
Offset bank account-Husband-$14,477
Velocity Frequent Flyer points-Joint-9000 points*
(omitted) Bank Credit card rewards points-Husband-Unknown*
TOTAL Assets--$981,407
*The monetary value of the reward and frequent flyer points is not known but their disposition is agreed. I have not counted their value here.
Liabilities-Owner-Value
Capital gains tax liability on the sale of the Property M property-Joint-Up to $60,000
As the exact liability is not known I will consider this liability separately when making orders.
TOTAL Liabilities--Up to $60,000
Superannuation--
(omitted) Fund-Wife-$9718
(omitted) super-Wife-$10,928
(omitted)-Wife-$24,378
(omitted)-Husband-$204,000
Total superannuation--$249,024
That is, for the purposes of this settlement, the parties’ assets are worth $981,407 less whatever the exact capital gains tax liability is for the Property M property sale.
Their combined superannuation entitlements are worth $249,024. The parties are agreed as to how those entitlements ought to be divided between them and have agreed on a base amount of $79,488 which is to be the subject of a superannuation splitting order from the husband’s to the wife’s entitlements.
D. Is it just and equitable to alter those interests?
This question is raised by s.79(2) of the Act, which states that a court must not make an order altering the property interests of parties to a marriage unless it is just and equitable to do so.
In Stanford v Stanford (2012) FLC 93-495, the High Court said that while the term “just and equitable” is a qualitative description not capable of precise definition, the decision as to what is just and equitable will be reached after an examination of the current property interests of the parties, and a determination, based on the provisions of the statute, as to whether it is just and equitable to alter those interests.
The High Court said further at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife.
In Bevan & Bevan the Full Court said that the circumstances described in that passage of the Stanford judgment “encapsulate the vast majority of cases”[5] .
[5] Bevan & Bevan [2013]FAMCAFC 116 paragraph 70
In this case, the parties were in a relationship and marriage for more than 20 years.
They have bought and sold property which, as a result of this separation, can no longer be in “common use” by the husband and the wife.
I therefore find pursuant to s.79(2) of the Act that it is just and equitable in all the circumstances to alter the property interests of the parties.
E. If it is just and equitable to do so what are the contributions of the parties to the property of the marriage?[6]
[6] See s.79(4)(a)-(c) of the Act
At what he says was the date of cohabitation, in 1991, the husband deposes that he owned a motor vehicle valued at about $16,000.
The wife deposes that at the time of cohabitation, which she says was in early 1989, she had an inheritance of $53,000, which was applied to the purchase of a (omitted) motor vehicle and household furnishings, with the remainder being invested.
It is common ground between the parties that those investment monies, which had been applied to buying shares in (omitted), were lost when (omitted) collapsed in 1990.
The husband denies that the wife had an inheritance of $53,000 at the time of cohabitation, and says she had less than $3000 in the bank in (omitted) 1989. He annexes to his affidavit sworn 19 January 2015 a statement from (omitted) in support of this assertion, but the statement provided is dated 30 May 1991, after the wife says she bought the motor vehicle and the household furnishings.
The husband says that the amount of the wife’s inheritance applied to joint purposes was $10,000 at maximum. No documentary evidence was provided to the court to support either party’s contention in relation to those monies.
Neither party owned any real estate at the commencement of their relationship.
However it is the wife’s evidence that the parties lived rent-free in a property owned by her parents for two years from 1991 and that it was savings accumulated during those two years which allowed them to purchase their first property together.
During the marriage the husband worked full-time and received two lump sums: one a $71,000 inheritance from his mother in 1994, which he deposes to having applied towards the mortgage over the Property G property; and a $110,000 redundancy payment in 1999 from a former employer for whom he had worked for six years prior to cohabitation. The husband says he deposited $70,000 of that sum into his superannuation and a further $30,000 was applied to the purchase of the Property M property.
In his affidavit sworn and filed 19 January 2015, the husband annexes a document which he says shows the sum of $71,000 being deposited into his account. However on inspection of the annexure, I find it to be a copy of a bank statement showing that sum coming out of an account in the name of (business omitted), with the name “Mr Holder” written next to the transaction. There is no corroborative documentary evidence before the court supporting the husband’s assertion that he applied those monies to the mortgage over the Property G property.
Similarly, there is no corroborative documentary evidence for the husband’s assertion that he applied $30,000 of his redundancy payment to the Property M mortgage in 1999.
It is difficult, therefore, to quantify the husband’s financial contributions to the parties’ property, although there is no evidence contradicting that of the husband.
I am satisfied on the evidence before me that the husband did make some lump sum contributions to the parties’ property between 1994 and 2000, although I cannot find that those contributions were of any particular sum.
Also in 1999 the husband says the parties won the sum of $54,000 in a lottery, that sum being applied to general expenses and a holiday.
The wife worked full-time until about (omitted) 1998 when she received a redundancy from her then employment. She does not say in her affidavit material how any redundancy payment was applied, but as she was pregnant with X at that time, she did not work outside the home again until she returned to work on a part-time basis in about 2000.
It is her evidence that she took maternity leave of approximately 6 to 9 months following Y’s birth in 2002, and that she has worked part-time or on a casual basis since then save for about three years between 2008 and 2011 when she was engaged in full-time home duties.
It was her evidence at trial that her latest contract of employment expired in July 2014 and that she had been unemployed since that date.
Post separation in February 2013 the husband says he continued to pay the mortgage, utility bills, insurance and rates for both the Property G and Property M properties until they were sold, while the wife made no financial contributions to those properties after that date.
He says that between separation and his swearing his trial affidavit on 19 January 2015 he also contributed to the welfare of the family in financial terms by way of payments in relation to the children’s school fees and other education expenses, family health insurance, extracurricular activities for Y and X, X’s counselling and medication expenses, the two family reports prepared by Ms R, and furniture rental for the Property M property.
The husband quantifies those post-separation contributions at just over $79,000, saying that he had been forced to increase his credit card debt to $22,000 in order to make those payments.
While the wife accepts that the husband made post separation financial contributions of the nature alleged by the husband, she said in evidence at trial that she had not seen any receipts for those amounts and could not quantify them.
She also said that because the husband was living in the Property G property after separation he was able to have his ordinary accommodation costs considered as post-separation contributions, whereas she was not able to have her accommodation costs so considered as she has been paying rent.
In relation to non-financial contributions the husband deposes to having performed domestic duties such as cooking, cleaning and ironing. He also says that he was very involved in the care of the children during the marriage.
The wife too says that she performed those duties, and in circumstances where the wife was working outside the home part time or not at all from 1998, while the husband was working full time, I find that the majority of the homemaker and parent duties were performed by the wife.
I consider that the family violence which I have found to have been a feature of this marriage cannot help but have had an effect on the wife’s ability to contribute to the property of the marriage both in financial and non-financial terms.
In Kennon & Kennon[7], the leading case on the question of how family violence is to be considered when the court is considering property settlements between married couples, the Full Court of the Family Court of Australia set out the following test:
where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79.[8]
[7] Kennon & Kennon (1997) FLC 92-757
[8] Supra
Subsequent judgements in the Family Court of Australia and in this court have settled that test as representing the law in Australia.
While I have found that both parties engaged in family violence, I have found that it was the husband who was for the most part responsible for it and for the toxic atmosphere of conflict which existed in the marriage and the home. I have taken that into account in assessing the parties’ contributions to the marriage.
On the basis of the above evidence I find that the direct and indirect financial contributions and the non-financial contributions of the parties over this long marriage should be apportioned equally between the parties.
That apportionment is based on the husband’s greater financial contributions to the acquisition and conservation of the Property G and Property M properties. That the contribution is balanced by the wife’s greater homemaker and parent contributions, by the impact of family violence upon her over many years, and by her indirect financial contributions which allowed the parties to save for their first home.
F. Should there be any adjustment made to the contribution-based entitlements by reason of the matters set out in s.75(2) of the Act?
Section 75(2) of the Act sets out the matters to be taken into consideration in relation to spousal maintenance issues. I will address each of these matters in turn.
The matters to be taken into account are:
(a) the age and state of health of each of the parties
The parties are in their mid-40s and there appears to be little if any evidence that the husband is not in a robust state of health.
The wife deposes to having suffered from some physical health problems during the marriage but I can find no evidence of any current issues in that regard.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The husband is gainfully employed in an (omitted) company and earns approximately $79,000 per year. It is his evidence that until about March 2011 he was earning six-figure salary, but that there had been a downturn in his area of employment and that he does not expect his salary to change in the foreseeable future.
The wife does not accept that the reduction in the husband’s income is the result of forces beyond his control. She believes that the husband has manipulated his income for the purposes of these proceedings and that when they are over the husband will again earn a salary over $100,000. There is, however, no corroborative evidence for this belief before the court other than an inference I am asked to draw from the fact that the husband’s employer is a distant relative of his by marriage.
The husband’s interests in property are set out at paragraph 243 above, as are his financial resources in the form of superannuation entitlements.
There is no evidence that he lacks the physical or mental capacity to engage in full-time work in the future.
The wife is unemployed and it is her evidence that while she has applied for multiple positions, she has been unable to secure one, whether full or part-time.
The husband challenges that evidence, saying that the wife has always been able to secure employment when she wanted to. Nevertheless, he can provide no evidence to contradict her experience in seeking employment since mid-2014.
The wife’s property interests and financial resources are also set out in paragraph 243 above.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
The husband has full-time care of X and, as a result of orders made this day, he will have the care of Y on each alternate weekend and during school holidays.
The wife will have the major care of Y, and while it may be optimistic to think so, I do hold hopes that a rapprochement can be reached between him and X so that X spends some time with her.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain
Both parties have commitments to support themselves and each of them will support one or both children while they are in their care.
It is clear that at least for the foreseeable future the husband will have the major part of the financial burden of supporting the children in the form not only of some of their day-to-day expenses, but in the form of X’s school fees and other educational expenses. He has also made himself responsible for both children’s medical insurance.
I note in that regard that X, at 16 ½ years old, has part-time casual work, and that he can be expected to continue that work in future.
(e) the responsibilities of either party to support any other person
There is no evidence before the court that either party has any responsibility to support any other person.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party
The court is unaware of either party’s eligibility for a Commonwealth state or territory pension, allowance or benefit, and neither is currently eligible to access superannuation entitlements.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
The court has noted many times that it is almost impossible for the parties to maintain after separation the same standard of living as they enjoyed while the marriage was on foot unless they have significant incomes, which is not the case here.
The husband has already applied the monies distributed to the parties on an interim basis to the purchase of a property in which he and the children can live.
The wife on the other hand, not being in employment, has been forced to use some of the monies distributed to her in accommodation costs and other living expenses. It was her evidence at trial that she intends to buy a property once these proceedings have concluded.
The wife’s part-time employment, and subsequent unemployment, have put her at a disadvantage in relation to the husband in this regard.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
There is no evidence before the court that either party intends to undertake a course of education or training in order to increase his or her earning capacity.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant
There is no evidence before the court that this factor is relevant in the this case.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
I have already discussed each party’s contributions to the income, earning capacity, property and financial resources of the other and have found that both have contributed through financial and non-financial contributions and the application of their incomes to joint purposes throughout the marriage.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
This marriage lasted somewhere between 21 and 24 years, a medium to long marriage in today’s terms.
The wife gave up working full time in 1998 so that she could commit more time to the care of the children and the parties’ home. When she came back to the workforce in 2000 she worked part-time or casually save for the three years when she was engaged in full-time homemaker and parent duties.
It is the wife’s evidence, and I accept that evidence, that she has found it impossible to secure any employment since mid-2014 and that she was engaged in part-time and casual employment between the date of separation and that date.
While the husband may be correct in saying that the wife was able to find part-time and casual work when she returned to the workforce after the birth of the children, she is now in a position where she will need to find full-time work if she is to support herself and Y in an optimal manner.
I find that given that she has not worked full-time since 1998, the duration of the marriage has had some impact on her earning capacity.
(l) the need to protect a party who wishes to continue that party’s role as a parent
Both parties wish to continue their roles as parents to X and Y, although X will turn 18 in (omitted) 2016. This does not mean that he will not need parenting after that time, and in this case, it is clear that he will need assistance to reconcile with his mother after that date.
Y is only twelve years old and she will need parental care for some years yet.
The orders I propose to make will mean that she will be spending most of her time with her mother and I take that into account under this sub-section.
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation
There is no evidence before the court that either party is cohabiting with another person.
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party
The orders I propose to make in relation to the property of the parties include orders for both parties to retain property already in their possession and for the distribution of monies currently held in trust for them by the husband solicitors.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii)
None of these matters is relevant in this case.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
As previously stated there is little if any evidence of any child support being paid by either party. However I agree with counsel’s submission that as each party will have the care of one child, and the husband’s income currently is significantly greater than the wife’s, it is possible that any liability in relation to child support will fall upon the husband, at least after X turns 18.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
I have also considered the fact that there are many items of property which is still in dispute between the parties about which I am unable to make findings because of the paucity of evidence.
For instance the wife’s evidence is that there remain furniture and chattels of the parties to the value of about $25,000, whereas the husband says that while the value of those items is unknown, they have already been divided equally between the parties. There is no independent evidence from either party to support his or her case in that regard.
The husband’s evidence as to the disposition of furniture and chattels from the Property M property is supported by the evidence of his sister-in-law, Ms P who gave evidence to that effect at trial.
The wife had claimed that Ms P and her husband had benefitted from receiving certain chattels belonging to the parties, but on the basis of the evidence adduced at trial, I cannot find that that allegation is proven on the balance of probabilities.
Further, the wife’s evidence is that the husband has in his possession tools worth about $16,000 which he uses to do independent work for which he is paid.
The husband acknowledges that he has those tools in his possession but says that their value is nominal. Again, there is no supporting evidence for either party’s proposition.
(p) the terms of any financial agreement that is binding on the parties to the marriage
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The court is unaware of any financial agreement that is binding on the parties to the marriage.
In all of the above circumstances, taking into account the husband’s greater earning capacity, the necessity for the wife to act as a parent to a child under the age of 18 years for longer than the husband’s obligation in that regard, I find that there ought to be an adjustment of 10% to the contribution-based entitlements of the parties in favour of the wife.
G. In light of those findings what orders should be made to produce a just and equitable settlement between the parties?
The result of the above findings is that the property interests of the parties should be adjusted such that the wife receives 60% of the property and the husband receives 40%.
For the sake of clarity I note again that I intend to make a separate order in relation to the capital gains tax liability resulting from the sale of the Property M property such that an amount of $60,000 is to be set aside from the monies held in trust for that purpose and any residue remaining after the payment of the tax is to be divided 60% to the wife and 40% the husband. That general proposal is agreed between the parties save for the percentage of the residue that each is to receive, that decision having been left to the court.
The pool of assets otherwise to be divided is therefore worth about $921,407. The wife should receive 60% of those assets overall, or property worth $552,844.
The husband should receive 40% of the assets or property worth $368,563.
It has been agreed between the parties that the husband will retain the following assets:
· monies already distributed to him from the sale of the Property G and Property M properties in the sum of $300,000
· the offset account in the sum of $14,477
Assets worth a total value of $314,477
He should therefore receive further assets worth $54,086 ($368,563 -$314,477).
The wife will retain the following:
· monies already distributed to her from the sale of the Property G and Property M properties in the sum of $302,500
· The Honda (omitted) motor vehicle worth $10,500
· the (omitted) investment funds worth $17,500
· her (omitted) shares worth $8700
· the contents of the (omitted) bank account worth $12,010
Assets worth a total value of $351,210
She should therefore receive further assets worth $201,634 ($552,844 - $351,210).
Thus the monies currently held in trust by the husband solicitors ought to be divided $201,634 to the wife and $54,086 to the husband.
Conclusion
These have been bitterly contested proceedings, made more complex by the issue of family violence and the very sad estrangement of X from his mother.
It is to be hoped that the therapy ordered will ameliorate that fraught situation somewhat, and that the final property settlement will allow both parties to find some financial stability upon which to base their futures.
I certify that the preceding three hundred and thirty seven (337) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 8 May 2015
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Tax Law
Legal Concepts
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Injunction
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