HOWELL & HOWELL
[2012] FamCA 903
•1 November 2012
FAMILY COURT OF AUSTRALIA
| HOWELL & HOWELL | [2012] FamCA 903 |
| FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Sole or equal shared parental responsibility - Whether presumption of equal shared parental responsibility rebutted in relation to health and schooling – Parent’s inability to communicate – Both parties originally sought sole parental responsibility but later changed to equal shared parental responsibility – Sole parental responsibility on health matters – Father’s views in relation to western medicine – Father’s preference for natural medicine – Requirement on parents to consult a general practitioner in the first instance - Immunisation – Primary school agreed – Disagreement as to secondary school FAMILY LAW – CHILDREN – WITH WHOM A CHILD LIVES - Past week about arrangement – Equal time – Substantial and significant time - High conflict between parents – Effect of conflict on child – Child’s primary attachment – Both parents involved in child’s upbringing – Relevance of child’s wishes – Age and maturity of child – Father and child’s involvement in Religion T – Father and child strict vegetarians –Mother’s attitude towards Religion T and vegetarianism - Relevance of Religion T and vegetarianism in regards to the child’s best interests – Child’s relationship with extended family and parent’s new spouses – Child’s attendance at EE Town and U Town music festivals – Mother’s past illicit drug addiction – Mother’s use of prescribed drugs – Parent’s inappropriate questioning of child - Inappropriate involvement of child in parental conflict – Requirement for child to undergo further court enforced counselling FAMILY LAW – PROPERTY - Main asset is residential home currently resided in by husband – Minimal superannuation and other assets - Agreement that husband should retain home at first instance and make a capital payment to wife – Home should only be sold if husband defaults in payment to wife – Dispute as to percentage distribution – Assessment of s 79(4) contributions - Initial contribution by husband – Husband runs own business and made the significant financial contribution during the marriage – Wife was parent and homemaker during the marriage – Whether liabilities to a third party are included in the asset pool – Evidence of those liabilities – Legal obligation to repay liabilities - Value to be attributed to husband’s business where no formal valuation obtained – Both parties’ future income earning capacity – s 75(2) adjustment dependant on who retains primary care of the child |
| Evidence Act 1995 (Cth), s 140 Bremner and Bremner (1995) FLC 92-560 |
| APPLICANT: | Ms Howell |
| RESPONDENT: | Mr Howell |
| INDEPENDENT CHILDREN’S LAWYER: | McKean Park Lawyers |
| FILE NUMBER: | MLC | 11470 | of | 2010 |
| DATE DELIVERED: | 1 November 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Young J |
| HEARING DATE: | 10, 11, 12, 13 & 14 September 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Mellas |
| SOLICITOR FOR THE APPLICANT: | Grice Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Dickson |
| SOLICITOR FOR THE RESPONDENT: | Kenna Teasdale |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Swart |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | McKean Park Lawyers |
INDEX
ORDERS
MS HOWELL
REASONS FOR JUDGMENT
ISSUES
ORDERS SOUGHT
AFFIDAVITS RELIED UPON
BACKGROUND FACTS
NOTICE OF ALLEGED CHILD ABUSE
PREVIOUS ORDERS
STANDARD OF PROOF
OBSERVATION OF WITNESSES
FAMILY LAW ACT 1975 (Cth) – RELEVANT SECTIONS
BEST INTERESTS OF B – SECTION 60CC
WIFE
MR C
HUSBAND
MS D
RELIGION T
RELIGION T CONCLUSION
FINDINGS OF CREDIT
COMMUNICATION BOOK
MEDICAL AND HEALTH ISSUES
IMMUNISATION BY VACCINATION
E SCHOOL
SECONDARY SCHOOLS
HUSBAND’S MOTHER – MS F
MR G
MR H
FAMILY CONSULTANT
DR J
CONCLUSION
PROPERTY DIVISION
ORDERS SOUGHT
FAMILY LAW ACT 1975 (CTH) (“THE ACT”)
S 75(2) FACTORS
LEGAL PRINCIPLES – INITIAL CONTRIBUTIONS
SUBURB K
L TOWN
M STREET, SUBURB N
SUBURB O
BUSINESS
PARAGRAPH 28 OF HUSBAND’S AFFIDAVIT
SUPERANNUATION
LEGAL FEES
HUSBAND’S INCOME AND FINANCIAL STATEMENT
TAXATION LIABILITIES
WIFE’S INCOME AND FINANCIAL STATEMENT
MONIES PAID TO WIFE POST SEPARATION
MR P
PERSONAL POSSESSIONS AND CHATTELS
ASSETS
LIABILITIES
NET ASSET POOL
S79(4) CONTRIBUTIONS
S75(2) FACTORS
OVERALL DIVISION
FOURTH STEP
Orders
CHILD AND PARENTING ORDERS
THAT all previous child and parenting orders be discharged.
THAT the husband and wife have equal shared parental responsibility for the child B born … August 2003 (“the child”) save that the wife have sole parental responsibility to make all decisions about her health.
THAT the child live with the wife.
THAT:
(a)the child spend time with the husband on each alternate weekend during school terms from the conclusion of school on a Friday afternoon to the commencement of school on the following Tuesday morning, and if that day be a public gazetted holiday then until the Wednesday morning;
(b)for the purposes of Order 4(a) hereof the child’s time with the husband is to commence on the next Friday that the child would have been with him pursuant to the previous Court Orders, and then on each alternate weekend thereafter.
IT IS FURTHER ORDERED BY CONSENT:
THAT the child spend further time and communicate with the husband as follows:
(a)for half of the Victorian School Holiday periods as agreed between the parties, and in default of agreement, the first half of all school holidays in 2012 and the second half of all school holidays in 2013 and each alternate half school holiday period thereafter;
(b)for Christmas each year as follows:
(i)from 4:00pm Christmas Eve to 4:00pm Christmas Day in 2012 and each alternate year thereafter; and
(ii)from 4:00pm Christmas Day to 4:00pm Boxing Day and each alternate year thereafter;
(c)for Easter each year (when it does not fall during the school holidays) as follows:
(i)for half of the Easter period in each year as agreed between the parties, and in default of agreement, for the second half thereof;
(d)on her birthday in each year:
(i) from 4.30 pm to 7.00 pm on a school day; and
(ii) from 10.00 am to 3.00 pm if a non-school day;
(e)on his birthday, should it not coincide with time that the child spends with him, in each year as follows:
(i)from 4.30 pm to 7.00 pm on a school day; and
(ii) from 10.00 am to 3.00 pm if a non-school day;
(f)on Father’s Day in each year from 10.00 am until 4.00 pm when it does not fall on the alternate weekend as ordered; and
(g)such further and other time as can be agreed between the parties, including all reasonable telephone and electronic communication.
THAT the husband’s time with the child is suspended on each Mother’s Day between 10.00 am and 4.00 pm and for a similar time on the wife’s birthday as is provided for in sub-paragraph 4(e) above.
THAT for the purposes of changeover, if changeover does not occur at the conclusion or the commencement of school periods, the husband or his nominee collect the child from the wife's home and the wife or her nominee collect her from the husband's home at the conclusion of time spent periods.
THAT the wife keep the husband informed of the child's primary school progress and otherwise she continue to attend at E School until the completion of her primary education.
THAT prior to the time the child must be booked into a secondary school or college the parties must discuss and make a genuine effort to reach agreement as to which is the appropriate secondary school and if agreement cannot be reached then the parties, and the child if appropriate, are to attend upon a family dispute resolution practitioner and use their best endeavours to resolve this issue prior to filing any Application and returning to Court for a further hearing.
THAT the wife do all acts and things and sign all necessary authorities to ensure that the husband receives all school notices, details of school concerts, sporting events and the like that parents would ordinarily receive.
THAT in the event that either parent elects to volunteer, for a day, their services at E School, then neither of them is to use this opportunity to spend further periods of time with the child during her school hours and they are each restrained from engaging with her in school activities unless they have been given written permission to do so by the Chairman or Principal of that school and the child agrees to their involvement.
THAT both parents be at liberty to attend all school activities ordinarily involving the attendance of parents.
THAT the parties, save in a medical emergency, are to seek medical treatment from the child’s general medical practitioner (currently Q Street Medical Centre) or Specialist referred by such practitioner and each parent is to:
(a)advise the other of attendance of the child on a medical practitioner as soon as possible;
(b)advise the other of the child’s symptoms and the doctor's diagnosis and medication prescribed or treatment prescribed;
(c)comply with treatment prescribed by the medical practitioner, including administration of medication; and
(d)is hereby authorised to obtain all information from the general medical practitioner and to obtain copies of their records held in relation to the child.
THAT both parties be entitled to utilise natural therapies and remedies where appropriate to treat minor medical conditions suffered by the child.
THAT each parent be at liberty to travel interstate with the child for a holiday provided that parent gives to the other parent fourteen (14) days written notice of such travel proposals and the other parent then agrees, and such agreement is not to be unreasonably withheld.
THAT each of the husband and wife and their servants and agents be and are hereby restrained from:
(a)denigrating the other or their family members in the presence or hearing of the child or allowing other persons to do so;
(b)interrogating or excessively questioning the child in relation to arrangements in the home of the other; and
(c)discussing in the presence or hearing of the child these proceedings or issues arising out of these proceedings.
THAT the husband forthwith deliver up to the wife, if it is in his possession, the child’s current Australian passport, such document to be held by the wife for safe keeping purposes, but to be made available to the husband if he has made an airline booking for the child for an overseas holiday.
THAT the order for the appointment of the Independent Children's Lawyer be discharged one (1) month from the date of pronouncement of these Orders.
Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.
PROPERTY
THAT within ninety (90) days the husband pay to the wife’s solicitors the sum of $408,375 (“the lump sum”), and in default of such payment, or any part thereof, interest then be paid to the wife at the rate prescribed from time to time, adjusted quarterly, pursuant to the Family Law Rules 2004 until the whole of the lump sum is paid in full.
THAT contemporaneously with her receipt of the lump sum the wife sign all documents and do all acts and things required to transfer to the husband, at his expense, all of her right, title and interest in and to the real property situate at and known as Q Street, Suburb O in the State of Victoria (“Suburb O”), such transfer to be subject to the husband refinancing the Westpac mortgage and overdraft encumbering the title and that he be solely responsible for the repayment of all such bank liabilities including interest, charges, costs, arrears and penalties (if any) and indemnify and keep indemnified the wife in that regard.
THAT the husband be solely responsible for the repayment of the liability of $450,000 owed to Mr P and any and all interest owing thereon and he indemnify and keep indemnified the wife in that regard.
THAT the husband retain, to the exclusion of the wife:
(a)all of his right, title and interest in the business known as R Pty Ltd;
(b)the motor vehicles registered in his name;
(c)the Telstra and S Pty Ltd shareholdings; and
(d)his household furniture and contents.
THAT the wife retain, to the exclusion of the husband:
(a)her motor vehicle;
(b)her jewellery and personal possessions; and
(c)her household furniture and contents.
THAT in default of payment by the husband of the lump sum to the wife’s solicitors within the term specified Suburb O is then to be offered for public sale, on terms and conditions agreed upon between the parties, or as may be further ordered by the Court and the net proceeds of sale are to be applied in the following manner:
(a)in payment of all reasonable and proper legal and real estate costs, commissions and expenses of and associated with the sale;
(b)in payment of all monies, interest and charges owing to Westpac as a secured creditor;
(c)in payment of the sum of $408,375, plus any and all accrued and calculated interest, to the wife;
(d)the balance to be paid to the husband.
THAT liberty be specifically reserved to each of the parties to apply, upon proper documents filed and served, as to the terms and conditions of and related to the sale of Suburb O, if that be required.
THAT each party retain to the exclusion of the other the superannuation benefits currently owned by each of them.
THAT each party be solely liable for and indemnify the other against any other liability encumbering any item of real or personal property to which that party is entitled pursuant to these Orders.
THAT the joint tenancy of the parties in Suburb O is expressly severed by these Orders.
THAT all documents that have been subpoenaed to Court are, after a period of one (1) month, to be returned by the Subpoenas Clerk, Family Court, Melbourne Registry to the person or organisation who produced the documents to the Court.
THAT otherwise all extant applications for interim or final orders be dismissed and the proceedings be removed from the docket of Young J
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel for each of the husband, the wife and the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Howell & Howell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 11470 of 2010
| Ms Howell |
Applicant
And
| Mr Howell |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
ISSUES
This hearing focused upon parental responsibility and living arrangements for the nine year old child of the marriage, B. Since separation she had been living with her parents on a Court ordered consent week about arrangement, with each of them having shared parental responsibility. It was agreed and the case proceeded on the basis that such living arrangements were no longer in the best interests of the child. The Court was asked to determine appropriate future orders with both parents seeking that they be her primary carer.
This case did not involve any allegation of family violence or any other suggestion that the child would be at risk in the household of one of the parties. Indeed it was a finely balanced case in which both parents offered a safe and nurturing environment for their daughter. Nevertheless, the expert witnesses and the parties had all given evidence that an equal time arrangement should not be continued in the best interests of the child and thus I have determined who should be her primary carer and the consequential time spent and communication provisions for the other parent.
Initially both parents had sought sole parental responsibility for the child though each of them changed their position on this issue during the hearing with the husband agreeing to an equal shared parental responsibility order and the wife also agreeing to such an order, but save as to all of the child’s health issues. The Independent Children’s Lawyer finally sought an order on parental responsibility similar to that sought by the wife.
Additionally, the parties sought a division of property and the key asset was the former matrimonial home in Suburb O, which is subject to a mortgage and overdraft. The husband alleged various other liabilities, including to a third party friend and the nature and quantum of that liability was a matter of focus throughout the hearing. I have evaluated the evidence, the contributions of the parties pursuant to s 79(4) and the relevant s 75(2) factors and determined a suitable percentage distribution. From that the lump sum capital payment required to be made by the husband to the wife can be calculated, with the husband retaining Suburb O subject to its encumbrances and otherwise generally the parties retaining their personal chattels and other assets.
ORDERS SOUGHT
WIFE
In her Initiating Application filed 13 December 2010 the wife initially sought an order for her and her former husband (“the parties”) to have equal shared parental responsibility and for the child to live with her and enjoy alternate weekends from Thursday until Sunday (inclusive) with the husband, together with other holidays and special event days.
In interlocutory proceedings that were before the Court in mid 2011, the wife filed a Response dated 25 May 2011 where she maintained her request for an equal shared parental responsibility order but offered further time for the husband to spend with the child, that being from 4.00 pm Tuesday until 5.00 pm Sunday in each alternate week, and otherwise as further agreed together with continuing holidays and other special days.
Those orders were substantially amended by the wife in her Amended Initiating Application filed 31 May 2012 at which time she then sought an order for her to have sole parental responsibility for the child in relation to making decisions as to her day to day care, welfare and development, including but not limited to medical and schooling decisions and for the child to be immunised by vaccination.
Further variations to the orders previously sought included scheduling the husband’s time with the child to be from Friday afternoon until Monday morning each alternate weekend, with a drop off at school once a fortnight and other specific days and holidays.
Included in this amended document were various injunctive and restraining orders, a request for the wife to hold the child’s Australian passport and specific orders restraining the husband from taking her to Religion T retreats or from his attendance at the child’s school on more than one occasion during the week, save for drop off or collection times.
Late on the fourth day of hearing, and at a time in the proceedings when the Family Consultant was being cross examined, Counsel for the wife advised the Court that his client no longer sought an order for sole parental responsibility for the child but rather sought an order in like terms to that sought by the Independent Children’s Lawyer, that is an order for equal shared parental responsibility save that the wife have sole decision making responsibility for issues of and concerning the child’s health, which included her right to decide to have the child immunised by vaccination.
In her Initiating Application the wife had initially sought a division of property in terms that were found to be appropriate and additionally for payment of spousal maintenance of $500 per week.
That request for spousal maintenance was discontinued in her Amended Initiating Application and an order was sought for the sale of the former matrimonial home at Q Street, Suburb O (“Suburb O”) and that 65 per cent of the net proceeds be distributed to her, though there were no further particulars given as to the apportionment sought of the other property then available for division.
The wife’s solicitors filed the Case Outline of their client shortly prior to the commencement of this hearing and in Part G thereof, the orders sought were updated and refined and her case was opened by her Counsel in the terms therein identified.
In summary, the wife had then sought final orders as follows:
§sole parental responsibility for the child, though this was amended during the hearing to be for equal shared parental responsibility save for decisions on health matters;
§the child spend time with and communicate with the husband from 3.15 pm Friday until 8.30 pm Monday each alternate week, a mid week dinner on each other Wednesday, and other holidays and special occasions as were identified in paragraphs 8 and 9 therein;
§a restraint on the child being taken by the husband to the EE Festival and the U Festival unless both the husband and Ms D are present and only during the setup period for those festivals but not once the festivities have commenced;
§various injunctive and restraining orders including a requirement that the child not be taken to any Religion T retreats and limiting the time to one full day that the husband could be in attendance and working in lunch preparation at her primary school; and
§as to property settlement the wife’s case was that she should be entitled to no less than 65 per cent of the proceeds of sale of Suburb O, an unencumbered motor vehicle and a percentage of other net assets.
HUSBAND
The husband’s Response was filed 7 March 2011 and his Amended Response was filed 3 August 2012. In both documents he sought an order for sole parental responsibility for the child and for her to live with him and spend time with the wife.
On the second day of this hearing, after the wife’s case had closed but prior to the husband giving evidence, his Counsel advised the Court that the husband no longer sought a sole parental responsibility order but rather an order for equal shared parental responsibility and his case was thereafter conducted on that basis.
As an aside, it was recorded in paragraph 29 of the Family Report prepared and submitted in evidence by Mr V that in his interview with the husband on 22 May 2012, the husband supported parental responsibility remaining shared between himself and the wife.
Notwithstanding that acknowledged statement which he made to the Family Consultant the husband’s subsequent trial affidavit and his orders sought, as outlined in his case document and in his Amended Response, continued to seek sole parental responsibility orders.
The reason behind the husband’s very late change in orders sought (during the hearing) should be read in the context of the advice that he was then given by his Counsel, the orders proposed by the Independent Children’s Lawyer and various concessions in evidence given by the wife on matters of diet, primary years schooling and her proposed co-operation with the child in practising a lifestyle or religion of her choice.
The husband however remained consistent in his order for the child to spend the majority of time with him and he proposed that the time that she should spend with the wife would be on alternate weekends and half of school holidays and otherwise on specific days in each calendar year including birthdays and Mother’s Day.
The husband had also sought various restraining and injunctive orders, for the child to continue her primary schooling at E School, for the parties to utilise natural therapies and remedies where appropriate to treat the child’s minor medical conditions and otherwise for her to be treated, or to seek medical advice, from the Q Street Medical Centre or other specialists as referred.
What was fundamental to the orders sought by the husband was that the child be permitted to continue to attend, by her choosing, at and engage in Religion T practices and that she be permitted to accompany him to the EE and U music festivals.
As to property the husband had originally identified a just and equitable order would have been a division of the net assets 70 per cent in his favour and 30 per cent for the wife. Subsequently in his Amended Response and in his detailed orders sought, as included within his Outline of Case document, he proposed payment to the wife within 120 days of a sum of $200,000 and for her to retain her motor vehicle, wedding ring and her superannuation, but otherwise the husband would have transferred to his name sole ownership of Suburb O, subject to its encumbrances, his business interests, his superannuation and the other personal chattels and assets of value as are sought by him.
INDEPENDENT CHILDREN’S LAWYER
The final orders sought by the Independent Children’s Lawyer were outlined in the document filed with the Court at the commencement of proceedings and, in summary, the orders sought were for:
§the parties to have equal shared parental responsibility for the child, save that the wife have sole parental responsibility to make decisions concerning her medical welfare and treatment;
§the child to live with the wife;
§the child to spend time with the husband on each alternate weekend from after school on Friday until the commencement of school on Monday, for half of all local school holidays and for periods at Christmas and Easter in each year and other birthdays and special days, including Father’s Day;
§the child to continue her primary education at her current school E, with her parents to be at liberty to attend all school activities at which parents were normally involved but that their time volunteered at meal preparation within the school not be used for the purpose of engaging with the child in school activities;
§specific orders for ordinary medical treatment from a general practitioner or specialist;
§various injunctive and restraining orders limiting the knowledge or information to be provided to the child of these proceedings or of other family matters, or of any interrogating or questioning of the child as to the home arrangements of the other parent;
§no orders were sought in relation to the child’s involvement in Religion T practices;
§further inclusive counselling was recommended for the family and the engagement of a paediatric psychologist to assist the child in addressing issues surrounding her anxiety and confusion as a result of her parents different standards and dynamics.
In her closing address Counsel for the Independent Children’s Lawyer varied the orders sought in three regards, they being:
(a)that the wife have sole parental responsibility for major long term decisions concerning the child’s health, rather than as it was previously expressed to be for her medical welfare and treatment. Specifically, this further amendment was intended to include the wife’s right to have the child immunised by vaccination and to reflect the approach of the Full Court judgment of Chappell & Chappell (2008) FLC 93-382;
(b)the time which the child was to spend with the husband on each alternate weekend was extended to be from after school on a Friday until the commencement of school on a Tuesday, or if Tuesday is not a school attendance day, then to the Wednesday;
(c)the orders identified in paragraphs 15 and 16 of the original orders sought, that is for further child inclusive counselling, or for the child to engage in paediatric psychological counselling, were no longer pursued.
AFFIDAVITS RELIED UPON
WIFE
The wife’s case relied upon:
§her trial affidavit filed 25 May 2012 and the annexures thereto;
§her Financial Statement filed 8 August 2012;
§the affidavit of her new husband, Mr C, filed 23 May 2012.
Additionally a detailed Outline of Case and orders sought on behalf of the wife was filed on 5 September 2012.
HUSBAND
The husband’s case relied upon:
§his trial affidavit filed 3 August 2012 and the annexures thereto;
§the affidavit of his mother, Ms F, filed 3 August 2012;
§the affidavit of his new wife, Ms D, filed 3 August 2012;
§the affidavit of Mr G filed 23 August 2012;
§the affidavit of Mr H filed 23 August 2012;
§the affidavit of Mr P filed 23 August 2012;
§his most recent Financial Statement filed 3 August 2012.
Likewise the husband filed on 6 September 2012 a detailed Outline of Case document incorporating his orders sought, a pool of assets and liabilities and a summary of legal argument.
INDEPENDENT CHILDREN’S LAWYER
The Independent Children’s Lawyer’s case relied upon:
§the affidavit of Dr J filed 24 February 2012 and the comprehensive report annexed thereto;
§the initial issues and assessment report prepared by Mr V, Family Consultant, dated 18 May 2011;
§the Family Report of Mr V, Family Consultant, dated 4 June 2012.
Likewise an Outline of Case and updated orders sought was filed on 11 September 2012.
I record that I have read and evaluated each of the affidavits relied upon and the Family Reports of Mr V. I have further read the Outline of Case documents filed by all parties, though of course that is not a sworn document and does not represent evidence in the proceedings.
BACKGROUND FACTS
The following were agreed facts in the hearing:
1963 Wife born
1964 Husband born
2003 Husband and wife married in Suburb QQ, Victoria
August 2003 B born
August 2010 Husband and wife separate
November 2011 Divorce granted2012 Wife remarries Mr C
2012 Husband remarried Ms D.
NOTICE OF ALLEGED CHILD ABUSE
On 5 July 2011 the Independent Children’s Lawyer filed a Notice of Child Abuse and identified the following acts alleged as constituting that abuse:
(a)the husband inappropriately shared his bed with the child;
(b)the husband inappropriately showered naked with the child;
(c)the husband and the child got in the bath together and he physically washed her body and the child has demonstrated sexualised behaviour; and
(d)The child has masturbated in the presence of the wife, after having spent time with the husband, and has disclosed to the wife that she has masturbated in the presence of the husband.
Those acts relied upon the wife’s evidence in her affidavit filed 25 May 2011 and in particular paragraphs 50, 51, 52 and 59 thereof.
Whilst a consideration of that conduct has featured in the Family Consultant’s report, and were rejected by the husband in his further affidavit, they did not lead to any suspension of the week about shared living arrangement for the child.
The alleged conduct was not focused upon by the wife in her evidence in this hearing and, though she was cross examined by Counsel for the husband on these issues, the wife attempted to explain her then concerns but significantly said that they are not matters which she now relied upon for her orders sought. There is no suggestion that the husband had sexually or inappropriately handled or been involved with his daughter.
I record that it was part of the husband’s case that the Independent Children’s Lawyer erred in not obtaining his contemporaneous response to the wife’s past allegations and further erred in filing the Notice of Alleged Child Abuse.
For completeness I find that there has never been any occasion of inappropriate physical or sexual behaviour or conduct by the husband towards the child, and these issues have played no part whatsoever in my determination of the appropriate parenting and child orders that represent the best interests of the child.
PREVIOUS ORDERS
By consent it was ordered by Senior Registrar FitzGibbon on 31 May 2011, in a hearing in which the husband and wife were represented by different Counsel as are now appearing, and before an order had been made requesting the Independent Children’s Lawyer to involve themselves in the proceedings, that (in summary):
§the parties have equal shared parental responsibility for the child;
§The child live week about with each of her parents with the changeover being effected by the parent who had her care on the Friday delivering her to the residence of the other parent;
§telephone contact with the other parent on each Sunday, Tuesday and Thursday evening;
§the wife was restrained from using or ingesting illicit drugs or prescribed legal drugs other than as recommended by her treating medical practitioner;
§the wife was required to undertake random supervised urine drug screens upon receiving a request from the husband’s solicitor and promptly to provide the results of such tests;
§the wife was required to undertake a hair follicle test for detection of illegal substances and provide the results to the husband’s solicitor;
§the wife was required to attend upon a forensic psychiatrist for the purposes of the preparation of a report, inclusive of an assessment of her past illicit substance use;
§the parties were required to attend and satisfactorily complete a parenting orders program and the child was to attend a Supporting Children After Separation program;
§the parties were required to better communicate issues by email;
§save in a medical emergency the parties were to seek required treatment for the child from the Q Street Medical Clinic or other practitioners or specialists to whom the child may be referred;
§otherwise orders were made for holidays and specific days on which either parent would enjoy further time to be spent with the child; and
§an Independent Children’s Lawyer was appointed.
There were two notations to the above consent orders and they were:
A.it is the husband’s intention to utilise natural remedies where appropriate to treat minor medical conditions suffered by the child; and
B.The wife consented to the order restraining her from using or ingesting illicit drugs or prescribed drugs in excess of any prescription and in respect of the testing of her urine and hair follicle without admitting the necessity for same.
In paragraph 47 of his trial affidavit the husband made reference to orders made by Senior Registrar FitzGibbon on 3 October 2011 and they included orders that:
§the husband and wife attend therapeutic counselling at Relationships Australia;
§the husband establish a separate bedroom, bed and toileting facilities for the child; and
§The husband was restrained from being naked in the child’s presence or from showering with her.
With hindsight these orders were unnecessary. The counselling at Relationships Australia was cancelled before it began and there were no grounds whatsoever for there to be any reasonable concern about the husband’s conduct or attitude towards the child and, insofar as issues were raised by the wife and almost spontaneously acted upon by the Independent Children’s Lawyer, they were both unfounded and unnecessary.
The matter was listed before me for case management directions on 22 June 2012 at which time I fixed the current defended hearing and also required court mediation on the division of property, which I record did not occur.
Of some importance I then noted on the Court orders, in summary, that:
§the parties agreed upon a valuation of Suburb O at $2,050,000 provided by the single expert, Mr W;
§Dr J, Consultant Forensic Psychiatrist, was not intended to be called as a witness in the proceedings; and
§that the husband has previously deposed that the value of his business is $28,000 and the wife’s solicitor had indicated at the hearing this day an acceptance of that valuation and thus presently it is not intended that there be any further monies spent on a valuation thereof.
STANDARD OF PROOF
The appropriate standard of proof that I have applied is the civil standard, namely the balance of probabilities. The more serious that the matter was, or its importance in this case, then I have more strictly examined the level of proof required.
Section 140(1) of the Evidence Act1995 (Cth) provides that a Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Sub-paragraph (2) further provides that, without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.While Dixon J’s classic discussion in Briginshaw v Briginshaw (1938) 60 CLR 336 of the operation of the civil standard of proof does express the considerations which s 140(2) of the Evidence Act1995 (Cth) requires a court to take into account, the correct approach, as recently observed by Branson J (with whom French and Jacobson JJ agreed) in Qantas Airways Ltd v Gama (2008) 167 FLR 537, at para 139 is that :
. . . references to, for example, “the Briginshaw standard” or “the onerous Briginshaw test” . . . have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s.140 of the Evidence Act provides.
Similarly, in Johnson & Page (2007) FLC 93-344, at p 81,891, the Full Court of this Court expressly agreed with the “view that reference to the Evidence Act, rather than Briginshaw, is appropriate”.
OBSERVATION OF WITNESSES
I have had what I consider to be in this case the very real benefit of observing the husband, his mother and his new wife and his other witnesses, as well as the wife and her new husband in giving evidence on oath and in observing them in the courtroom and also when they were cross‑examined. That observation of them has been of real assistance in formulating appropriate orders. Those observations are acutely available to a trial judge and the legal authority for such a position is that part of the Judgment of Kirby P in Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at p 313:
By conventional theory, the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process. They normally provide the primary decision-maker a distinct advance which controls, and even limits, the exercise by the appellate court of its statutory functions in an appeal by way of re-hearing.
I have had the significant benefit of hearing all of the evidence in its entirety, of reading carefully all of the affidavits, the annexures to the affidavits and the other exhibits in the proceedings. I have reflected upon and have weighed all parts of the individual testimony against the balance of all evidence prior to delivering these reasons for judgment. I stress that, in this case, my Court observations of the parties were of real benefit and importance.
The unique role and observations of a trial Judge have been highlighted by the House of Lords, Appellate Committee, in the case of In re J (a child) (FC), judgment delivered 16 June 2005 and I refer to this opinion to support my observations in this case.
In paragraph 4 and paragraphs 10-12 (inclusive) of the Judgment of Baroness Hale of Richmond the role of the trial Judge in the evaluation of oral evidence was considered in paragraph 10 thereof and it was there stated that:
The Court of Appeal appears to have intervened on the basis, first, that the judge’s conclusion on the risk was not justified by the evidence and second, that he had given it too much weight in his overall conclusion. Yet the assessment of the risk depended entirely on the judge’s evaluation of the father’s present intentions and likely future behaviour and its impact upon the child. There was objective evidence of the risk in the fact that the father had made the allegations in writing and then withdrawn them when he saw that they were damaging rather than helping his case. Whether he might do so again depended crucially on the judge’s evaluation of his oral evidence. The judge was the only person who could do this. He concluded that, while the father was sincere in his current intention not to raise such allegations again, there was a serious risk that if disputes arose in future, as they might easily do, he would resurrect them. These were findings of credibility and primary fact with which, for all the reasons explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, at pp 1372-3, an appeal court is not entitled to interfere.
I have recorded my observations of the parties and others and made findings on their evidence as part of my evaluation of this case.
FAMILY LAW ACT 1975 (Cth) – RELEVANT SECTIONS
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires the Court, in deciding whether to make a particular parenting order in relation to a child, to have regard to their best interests as the paramount consideration. This has been my primary focus throughout my evaluation of all of the evidence.
The objects of and principles underlying Part VII of the Act, as set out in s 60B are intended to ensure that the best interests of children are paramount and have been fully considered in determining appropriate parenting orders.
It is important for the parents to wholly understand their obligations and for such purpose I therefore have incorporated within this Judgment, the provisions of s 60B of the Act. The objects are there stated to be:
(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, 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) thereof highlights the principles underlying those objects which are:
(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 communicate on a 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).
I have had careful regard both to the objects and principles as expressed above. There are behavioural, conduct and personality issues which may, on the facts of this case, partly nullify those objects and principles. The parents have a strained relationship with difficult personal, legal and communication issues which I have explored. Ideally, as parents, they should be more understanding and respectful of each other, but on the facts of this case that is overly optimistic but it would be of real benefit if they each reflected upon and acted more positively to perform their primary obligations to the child.
Section 61DA of the Act provides that there is a presumption of equal shared parental responsibility when making parenting orders. That presumption relates solely to the allocation of parental responsibility as defined in s 61B. Section 61DA provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
The basis upon which that presumption may be rebutted by evidence is identified in sub-section (4) where it provides as follows:
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
I have carefully evaluated all of the evidence and assessed the position of each of the parties and the submissions of their Counsel in determining appropriate parenting orders. The starting presumption is that the best interests of the child requires her parents to have equal shared parental responsibility. That scenario must be evaluated within the parameters of any “family violence” or “abuse” and any other evidence that might appropriately rebut the presumption.
Thereafter the evaluation must be of the best interests of the child and that is “at large” and in that regard I have carefully considered each of the relevant primary and additional considerations as are identified in s 60CC(2) and (3) of the Act. My primary focus has been to carefully listen to and analyse the evidence of the parents and the other witnesses and of the family consultant and Dr J to establish and identify the benefit to the child of a meaningful relationship with her parents. In that approach, I have primarily focused upon the attitude and capacity of each of the parents, their willingness and ability to establish a meaningful and continuing relationship between the child and the other parent and also sub-paragraphs (a), (b), (ca), (d), (f), (g),(i) , (l) and (m) of s 60CC(3).
The orders should be both practicable and, wherever possible, final and avoid further proceedings and therefore, within the ambit of these primary and additional considerations I have focused upon and made findings as to the best interests of the child.
BEST INTERESTS OF the child – SECTION 60CC
The child is not exposed to any physical or psychological harm or abuse, neglect or family violence. Section 60CC(2)(b) and s 60CG therefore are not applicable. That is a common position adopted by the parties and is consistent with their evidence and the lack of any significant allegation or incident before the Court. For completeness I record that the wife, under questioning from the Independent Children’s Lawyer advised that the child is now seeing a school counsellor at E School and that has been the situation for the past month. There was no evidence as to the reason for the child being offered such counselling, though the wife’s evidence was that both parties had made an independent request to the school for them to offer such counselling to the child.
The remaining primary consideration is the benefit to the child of having a meaningful relationship with both parents. It is very clear from the professional evidence of the Family Consultant and Dr J that the child does enjoy a close and bonded relationship with each of her parents. They each love her and she is surrounded by step parents and extended family who also warmly embrace and offer care and support for her.
The parents have shared week about time with the child since separation, initially by agreement and then by a consent order made by Senior Registrar FitzGibbon. By agreement all parties have presented to the Court evidence and submissions that the shared arrangement must now cease and no party sought its continuation.
I well understand and I intend for the child to continue a close and meaningful relationship with both parents but it must be in the context of the orders sought by each of them. The primary dispute is as to which parent the child will primarily live with and otherwise enjoy substantial and significant time with the other parent on three or four days, including a weekend, in each fortnight together with holidays and other special occasion days.
The additional considerations which I have carefully evaluated are focused upon (in summary):
§the views expressed by the child relevant to the weight to be given to them at her age and level of maturity;
§the nature of her relationship with each of her parents, step parents and other relatives including her paternal grandmother;
§the extent to which each of the child’s parents have fulfilled, or failed to fulfil, their parental obligations to her;
§the likely effect of changes in her circumstances arising from separation from one of her parents;
§the capacity of each of her parents and other relevant adults to provide for her emotional and intellectual needs;
§the parents attitude towards the child and her upbringing and their demonstrated responsibilities of parenthood;
§whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child;
§any other fact or circumstance that the court thinks relevant.
Under the umbrella of parental responsibility, the issue raised by the Independent Children’s Lawyer, and adopted by the mother is that she should, in the best interests of the child, exercise sole parental authority on matters of health, inclusive of medical advice and treatment, hospitalisation and immunisation by vaccination, but that both parties should exercise equal shared parental responsibility in all other respects. These issues have occupied a substantial part of this hearing and I have carefully evaluated the evidence and reflected on a proper outcome in the best interests of the child.
It was thoroughly understood that the father opposed any such sole parenting aspect of the orders sought by the other parties and his final position was for an equal shared parental responsibility situation and with no exceptions, where both parties would have to discuss and/or negotiate any issue that was in dispute, most likely issues of and related to health or future secondary education.
Pursuant to s 63B parents are encouraged to reach agreement and to take primary responsibility for their parenting arrangements and to resolve their conflicts. Having heard all of the evidence I do not accept that these parents have shown that they will be able to achieve agreement on issues of the child’s health. I find that there is an entrenched level of conflict on this issue. I therefore find that it is in the child’s best interests for the presumption of equal shared parental responsibility to be rebutted, in accordance with s 61DA(4), but only on this health issue.
On all other aspects of the child’s parenting and upbringing the parties have ongoing equal shared parental responsibility. I have later in these Reasons for Judgment better explained the reasons why I have separated the wider health issues and bestowed upon the wife the right to make such sole decisions. I record that outcome is consistent with the orders sought by the Independent Children’s Lawyer but I strongly emphasise that I have myself determined those orders on the basis of my assessment and evaluation of the evidence and in the best interests of the child.
Both parents sought orders for the child to live primarily with them that is to spend eleven nights in each fortnight living with them and to spend time with the other parent from Friday after school until the commencement of school on Monday morning in each alternate week, save where that day is a Public Holiday and then until the Tuesday morning.
The variation to that scenario first arose in the final address of the Independent Children’s Lawyer who proposed that the substantial and significant time with the other parent should be for a period of four nights in a fortnight, that is from Friday after school until the Tuesday morning at school each alternate week, or in the case of a public holiday on the Tuesday, then until the Wednesday morning.
As I have made an order for equal shared parental responsibility, save on health issues, I am required by s 65DAA(1) of the Act to consider pronouncing an order for the child to spend equal time with both parents. As I have previously recorded it was the agreed position of both the husband and wife, supported by the Independent Children’s Lawyer and the other experts who gave evidence that such an equal time situation would not be in the child’s best interests. Having regard to that evidence, and my evaluation thereof, I accept that an equal time division between the child’s parents is not in her best interests. It is not reasonably practicable and I have therefore declined to pronounce such an equal time order.
I am next required to consider pursuant to s 65DAA(2) whether an order for substantial and significant time with each parent would be in the best interests of the child and if such an order is reasonably practicable. On my evaluation of the evidence, and consistent with the submissions of Counsel for all parties, I conclude that such a provision for substantial and significant time is both practicable and strongly in the child’s best interests. I therefore have pronounced an order for the child to live with her mother and spend substantial and significant time with her father.
Section 65DAA(3) provides that a child would be taken to spend substantial and significant time with a parent only if such time includes both days that fall on weekends and holidays and allows the parent to be involved in the child’s daily routine or occasions and events that are of particular significance to the child and also for the child to spend time with that other parent on days of significance to them.
I intend the child to spend substantial and significant time with her father and that will include time on the weekend and during the week, and otherwise during holidays and on special occasion days such as Father’s Day. The time intended for the child to therefore spend with her father both satisfies the requirements of the Act and otherwise is in her best interests.
I will order that the usual routine of fortnightly time which is divided as to ten nights to the wife and four nights to the husband be suspended during school holiday periods and thus the parents are required to closely monitor the calendar to ensure strict compliance with my orders.
Whilst the child is only 9 years of age the evidence is that she is mature and articulate for her years. Thus I have given a level of consideration to her views, which however have been differently expressed in the period since the parties separated. I have informed myself of those views of the child in accordance with s 60CD(2) by having regard to the report of the Family Consultant, the report of the forensic psychiatrist Dr J and the evidence of the parties themselves.
It is important to record that at or near to the conclusion of the hearing, the parents and the Independent Children’s Lawyer were finally able to agree on various orders in relation to spending time with the child and other specific issues and injunctive orders. That said the primary child and parenting orders that the court determined were as to which parent the child would live with and the exception to the equal shared parenting responsibility order whereby I have concluded that the wife be solely responsible for all issues of health.
The structure of my orders therefore record those two primary decisions being made by the Court, but otherwise, and with the consent of all parties the balance of the child and parenting orders were agreed upon and thus they are expressed to be made by consent.
WIFE
The wife was born and raised in Sydney until age 20. Her parents are both deceased.
The wife did not complete her final year at school but instead moved from Sydney to the Queensland where her parents had relocated for the purpose of assisting her mother care for her father. The wife also became involved in the care of her brother’s three children and was involved with their upbringing for approximately seven years, until 1996.
A comprehensive history of her early years living in Queensland is incorporated within the report of Dr J which the wife, with one modest exception, adopted as an accurate, albeit brief, summary of her early years.
She had been the victim of two sexual assaults and was violently abducted and raped when aged 19 and again raped when aged 23 years, after which she was admitted for a period to a psychiatric hospital in Brisbane.
She commenced to use heroin, when introduced by a boyfriend, at about age 20 and thereafter was a user, sometimes irregularly, for many years until April of 2008. I accept that she is now not involved with the taking of any illicit drugs. She takes a low dosage of prescribed Valium but expressed the desire to soon discontinue such use.
Her past heroin addiction, prescribed Methadone and other treatments are detailed in Dr J’s report and I have accepted that background history.
During her marriage to Mr Howell, and without his knowledge, she continued as an occasional user of heroin. She remained on Methadone until 2005 when the medication was changed to Buprenorphine which continued until April of 2009.
There is no evidence that the drug taking and treatment program of the wife through the years of the marriage had any adverse impact upon the child, though it was a matter of very serious concern that the wife organised and collected her heroin from her drug dealer in X Town, on a drive through basis to his home when the child was in the car. That poor parental example displayed a marked lack of maturity and respect for her daughter and they are both matters which were emphasised by Counsel for the husband and which I have evaluated as an issue in the proceedings. I am however satisfied that the child had no understanding of the serious events that were occurring, and thus, whilst the collection arrangements had no impact upon her, nevertheless they were highly inappropriate.
The parties first met in 1996 at a religious centre in Suburb Y and then renewed that acquaintance in 2001. A social relationship between the parties commenced in 2002 and that very quickly became romantic (in the circumstances described by Dr J). The child was conceived in September of 2002 though the parties did not formally reside together on any permanent basis until after their marriage in 2003. A more detailed history of their early relationship is provided by Dr J and I have read and assessed that evidence which was generally accepted by both parties, though the husband raised some dissent therewith.
Otherwise I conclude that there should be a further 5 per cent adjustment in favour of the wife to primarily reflect the differential in income and earning capacity and those matters identified in sub-paragraphs (b), (c), (m) and (o) of the s 75(2) factors.
Additionally, and as identified throughout the Reasons for Judgment, I have had regard to the husband’s somewhat superior financial position, his retention of the primary property, Suburb O, and the substantially lesser quantum of legal fees that he was required to pay. That is to understand that he has had the income or other monies to pay his legal fees as they have been incurred (in part) and also on an understanding that the wife has a legal right to require an assessment of her bill of legal costs, and that may result in a reduction in the quantum thereof that she is required to pay. I do not have any such stated intention of the wife to challenge her legal costs and disbursements and I do not speculate on what lesser sum, if any, she may ultimately be required to pay for her legal advice and representation. Nevertheless the lump sum cash payment that I have determined the wife should receive on a just and equitable division of property will be markedly reduced by her obligation to pay her solicitors and Counsel, and other outgoings and that is a matter that the overall justice and equity of the case requires that I should reasonably consider and balance.
Significantly I have further had regard to the difference in superannuation entitlements.
Insofar as the wife addressed the Court in her Outline of Case document upon sub-sections (d), (g) and (k) thereof, I do not assess the wife of any need of a spousal maintenance order or a separate adjustment therefore in her property requirements. The previous payments of $3,000 per calendar month which the wife received until January 2011 were paid on an interim basis only and should not (and have not) been continued. The wife has remarried and in her new financial circumstances with Mr C can and will provide appropriately for themselves.
As to the ongoing payment of child support, the husband has paid, and most likely will continue to pay that which is assessed upon the basis of his declared income. I have therefore not provided for any other adjustment based on sub-section (na).
That therefore means that, pursuant to s 75(2) factors there is a total loading of 10 per cent in favour of the wife and I have adjusted my property division orders accordingly.
OVERALL DIVISION
I therefore conclude that a just and equitable division of property is 55 per cent to the husband and 45 per cent to the wife.
In monetary terms that would mean the husband would retain $499,125 and the wife would receive $408,375. The difference in dollar value between the parties is approximately $90,000 and that is a substantial sum within this marriage and appropriately is reflective of all of the contribution and s 75(2) factors.
It is a just and equitable outcome that the wife transfer her right, title and interest in Suburb O to the husband and he is to retain the Telstra shares and the S Pty Ltd shares. As to liabilities, the husband is, upon retention of Suburb O at its current market value, to be solely liable for the repayment of, and is to indemnify and keep indemnified the wife from all of the Westpac liabilities, interest, costs and penalties (if any) and the monies and any interest owed to Mr P.
FOURTH STEP
As required I have carefully reflected on the overall division of property, and the financial requirement for the husband to pay to the wife the sum of $408,375. He will have the equity in Suburb O to raise that money and there is no evidence before the Court as to his borrowing capacity, or lack thereof.
If the husband does not pay, or is unable to pay that sum of $408,375 to the wife within ninety days then Suburb O must be sold, at the expense of the husband, and the wife receive her sum, as ordered, clear of any other expense or deduction.
It is proper that interest be paid to the wife at the rate prescribed from time to time by the Family Law Rules if she has not received the whole of the lump sum as ordered within ninety days of the date of these orders. Any such interest is to be adjusted quarterly and paid on the lump sum outstanding from time to time until the payment of all accrued interest and the whole of the lump sum has been made.
I certify that the preceding Four Hundred and Eighty Eight (488) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 1 November 2012.
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