HULLS & HULLS
[2015] FamCA 1074
•3 December 2015
FAMILY COURT OF AUSTRALIA
| HULLS & HULLS | [2015] FamCA 1074 |
| FAMILY LAW – CHILDREN – Best interests – With whom a child lives – With whom a child spends time – Long-term detrimental effect of the children of the current shared care arrangement continuing – Where the parents have poor communication and ongoing conflict – Issue of the father’s conduct and undermining of the mother’s relationship with the children – Parental responsibility – Family violence – Shared parental responsibility not in the children’s best interests. FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where it is just and equitable that orders effecting a property adjustment be made – Identification of property pool – Father’s farming partnership considered a financial resource – Overall financial and non-financial contributions should be regarded as favouring the wife – Consideration of s 75(2) factors particularly wife’s future care of the children and the lack of any real financial support from the husband. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79 |
| Bevan& Bevan [2014] FamCAFC 19 |
| APPLICANT: | Ms Hulls |
| RESPONDENT: | Mr Hulls |
| FILE NUMBER: | DUC | 173 | of | 2014 |
| DATE DELIVERED: | 3 December 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Dubbo |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 2, 3 and 4 November 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kenny |
| SOLICITOR FOR THE APPLICANT: | Campbell Paton & Taylor |
| COUNSEL FOR THE RESPONDENT: | Mr Giveny |
| SOLICITOR FOR THE RESPONDENT: | Victoria Baker Solicitor |
Orders
Parenting:
That all previous parenting orders in relation to the children B born … 2001 and C born … 2005 (“the children”) be discharged.
That the mother have sole parental responsibility for the said children.
That the children live with the mother.
That the children spend time with the father as agreed between the mother and father in writing with such writing to include but be not limited to SMS or email communication and in default of agreement as follows:
(a) During school term each alternate weekend from after school Friday to before school Monday, extending to before school on Tuesday if Monday is a public holiday, with such weekend to commence on the first weekend after the resumption of school term where the children are with the father for the first half of the preceding school holiday period and on the second weekend of school term where the children are with the father for the second half of the preceding school holiday period;
(b) For one half of the school holiday periods at the conclusion of school terms 1, 2 and 3 being the first half of such holiday periods in even numbered years and the second half of such holiday periods in odd numbered years with such holiday periods in even numbered years to commence from after school on the last day of school term and to conclude at 5.00 pm on the Saturday of the weekend in the middle of such holiday period and with such holiday periods in odd numbered years to commence at 5.00 pm on the Saturday of the weekend in the middle of such holiday period and to conclude at 5.00 pm on the day prior to the resumption of school term;
(c) For one half of the Christmas school holiday period being the first half of such holiday period in even numbered years and the second half of such holiday period in odd numbered years with such holiday period in even numbered years to commence after school on the last day of school term and to conclude at 5.00 pm on the midpoint day of such holiday period and with such holiday period in odd numbered years to commence at 5.00 pm on the midpoint day of such holiday period and to conclude at 5.00 pm on the day prior to the resumption of school term provided always that this order is subject to the following orders;
(d) For the Father’s Day weekend from after school Friday until before school Monday provided always that the children’s time with the father shall be suspended on the Mother’s Day weekend from after school Friday until before school Monday;
(e) That the children’s time with the father be suspended in even numbered years from 2.00 pm Christmas Day until 5.00 pm Boxing Day provided always that the children shall spend time with the father from 2.00 pm Christmas Day until 5.00 pm Boxing Day in odd numbered years; and
(f) On such other occasions and at such other events as are significant to the children’s welfare being occasions relating to education, religious education, health, sporting activities, extracurricular activities or other occasion significant to the welfare of the children where the attendance of either or both parents is to be reasonably expected.
That the commencement of the operation of Order 4(a) be suspended until the commencement of school term 1 in 2016.
That on the children’s birthdays or a parent’s birthday the parent who does not have care of the children on such day shall spend time with the children on those days if a school day from after school to 6.00 pm and if a non-school day from 3.00 pm to 8.00 pm.
That for the purposes of the children spending time with the father and thereafter returning to the mother if a non-school day changeovers shall take place at a venue as agreed between the mother and father and failing agreement at the McDonald’s Family Restaurant in D Town.
That the mother and father be restrained from providing to the children or either of them a mobile telephone or other communication device in respect to periods where the children are in the care of the other parent and in the event that such a device is provided to the children by the mother or father in contravention of this Order the other parent is hereby authorised to remove such device from the child or children with it to be returned to the other parent upon the children coming into the other parent’s care.
That the mother and father shall have reasonable telephone communication with the children when the children are in the care of the other parent on such occasions and at such times as are agreed between the mother and father in writing with such writing to include but be not limited to SMS or email communication and in the event of there being no agreement on Tuesday and Thursday evenings between 6.00 pm and 7.00 pm and for the purposes of this order the mother and father shall ensure that they have a landline or mobile telephone on which the children can be contacted by the other parent during such times and ensure that the children are reasonably available to take the call of the other parent who shall initiate the call.
That the mother and father are restrained from saying anything to or in the presence of the children which is in any way abusive, belittling or demeaning of the other parent or their family and further shall use their best endeavours from allowing any other person to say anything to or in the presence of the children which is in any way abusive, belittling or demeaning of the other parent or their family.
That the mother and father shall ensure that the other is at all times informed of their residential address, landline telephone number if applicable, mobile telephone number and email address and shall notify the other within 24 hours of any change to those particulars.
That the mother shall sign all necessary documents and do all necessary things so as to authorise the children’s school to provide to the father at his request copies of all school newsletters, school reports and other notices usually made available to a parent.
That the mother shall sign all necessary documents and do all necessary things so as to authorise the children’s medical practitioners or other health professionals to provide to the father at his request information pertaining to the children as is reasonably requested by him.
That the father and mother shall as soon as practicable inform the other of any significant illness or accident suffered by the children or in relation to such illness or accident the attendance or admission of the children or either of them at a hospital or upon a medical practitioner.
That the mother and father within 28 days from the date of these orders sign all necessary documents and do all things necessary to attend upon Interrelate at Dubbo for the purposes of enrolling or registering in the Parents Not Partners program and thereafter attend and complete that program as soon as practicable thereafter.
That within 7 days from the date of these orders the mother do all things necessary so as to contact Family Consultant Mr E at the Dubbo registry of the Family Court of Australia and make arrangements for she and the children to attend upon the Family Consultant in relation to these orders.
Property:
That within 3 months from the date of these orders the mother pay to the father $136,760 and concurrently with and in consideration of such payment the father do all necessary things and sign all necessary documents so as to transfer to the mother all of his right title and interest in the property situate at 4 F Street, D Town, New South Wales being the whole of the land described in Certificate of Title Folio Identifier ...
That upon compliance with the previous order the mother shall indemnify the father against all or any liability in relation to rates and taxes outgoings and mortgage payments with respect to the said property.
That in the event of there being any application for costs such application be made by way of the filing of an application in a case supported by affidavit within 28 days from the date of these orders.
The parties have leave to apply in relation to implementation or enforcement of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hulls & Hulls 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 PARRAMATTA |
FILE NUMBER: DUC 173 of 2014
| Ms Hulls |
Applicant
And
| Mr Hulls |
Respondent
REASONS FOR JUDGMENT
Context
The present disputes relate to parenting arrangements in relation to the children B born in 2001 and C born in 2005 and property settlement as between the mother and father.
The children are now aged 14 and 10.
At trial the mother sought parenting orders that provided for:
a)The mother to have sole parental responsibility for the children;
b)The children to live with the mother;
c)The children to spend time with the father during school term each alternate weekend from after school Friday to before school Monday or before school Tuesday if the Monday is a public holiday, half the school holidays, for a period of the Easter festive period, Father’s Day weekend time and time during the Christmas festive period;
d)Various specific issues orders including as to changeovers, telephone communication, mutual non-denigration, ongoing provision of contact and residential address and details.
The mother sought orders as to property that provided for a sale of the property at G Street, D Town with the proceeds of sale being applied wholly in reduction of mortgage debt and the transfer of the former matrimonial home at F Street, D Town to her.
At trial the father sought parenting orders as set out in his Amended Response filed 4 March 2015 that provided for:
a)The mother and father to have equal shared long term parental responsibility for the children;
b)That the children live with the father; and
c)That the children spend time with the mother effectively in a mirror arrangement to that proposed for the father’s time should the children live with the mother although with a fall-back position that the children spend time with the mother alternate weekends during school term from after school Thursday to before school Tuesday.
As to property the father sought an order for sale of both real estate properties with the net proceeds of sale paid as to 50 per cent to him with a further sum of $33,389 paid to him and the balance then remaining to the mother and that there be a superannuation split in the sum of $21,681 from the mother’s superannuation to the father’s superannuation fund. Notwithstanding the issue as to a superannuation split no evidence was adduced that the Trustee of the wife’s fund had been accorded procedural fairness. There was only a suggestion to that effect.
The relationship
The mother is 38 years old and the father 41 years old.
The mother is a works full time. She earns about $90,000 per annum.
The parties commenced a relationship in about early 1996 and married in1999. They separated on 26 December 2012.
The subject children are the only children of their marriage.
At the commencement of their relationship the parties had minimal assets save for some savings of the father.
At that time the wife was completing a final year of university study but undertaking casual work 5 days a week. The wife commenced full-time employment with in 2000. At the commencement of cohabitation the father was working as a tradesman.
In late 1998 the parties jointly purchased the property at G Street D Town for $83,000. The father funded the deposit of about $18,000 and $67,000 was provided by way of mortgage advance.
In 2002 the parties purchased the matrimonial home at F Street, D Town for $155,000. The whole of the purchase price was funded by way of collateral borrowing of $183,000 secured over both properties. Subsequently the G Street property was tenanted as an investment property. In 2005 the parties expended about $50,000 on renovations to the F Street property with those funds being provided by way of further borrowings.
In March 2005 the husband’s father passed away. The rural property owned by the husband’s father passed to the father’s mother. The father under his late father’s will inherited the stock, plant and machinery on the property. The husband from March 2006 took over the management of the family farm known as “H” comprising of about 1000 acres in the D Town area. The father and his mother thereafter conducted the business on the rural property in partnership, although the father’s mother operated a business in town and did not work much on the property.
The father spent long hours working on the rural property in addition to which for six months of the year he was significantly involved in cricket each weekend. From 2006 much of the day-to-day care of the children has fallen to the mother particularly during school holiday periods when the father continued to be obligated to work on the rural property on a day-to-day basis.
It is common ground that since 2006 the father’s income from the rural partnership has been very modest with the primary income coming into the household being that of the mother from her employment full-time as a teacher.
The father’s lack of financial contribution to the household expenses and outgoings was an ongoing significant issue resulting in conflict between the mother and father. The father’s income by inference was significantly less than the mother’s full time income as a teacher, such inference being readily available when the accrual of the mother’s superannuation is considered. The maternal grandparents provided additional financial assistance for the household expenses and for holidays during the relationship. Subsequent to separation they have continued to assist the mother meeting expenses.
Despite asserting that he works hard on the property, in terms of income the father’s return is extraordinarily minimal. He concedes that he told the mother that he has an expectancy that one day the farm will be his.
In October 2008 there was a significant incident between the mother and father that led to an Apprehended Domestic Violence Order being taken out against the father and he being charged with assault and intimidation to which he pleaded guilty. The father, in his mind suspicious as to the mother’s infidelity, confronted and argued with her while holding a shotgun he had retrieved from the garage and later left two .22 calibre bullets on her pillow with the note to the effect that “one will be for you and one for the next person I catch you with”. He was excluded from the home but was able to return some time later when the parties reconciled their relationship.
The mother makes complaint that the father’s conduct was coercive, controlling, intimidating and violent, with the father it appears being consumed by suspicions of her infidelity. That suspicion continues to be evidenced in the father’s trial affidavit and in his oral evidence in the form of demeaning and unsubstantiated allegations against the mother and self-serving assertions about the alleged adverse effect on himself of his suspicions. The father agreed that such suspicions were “part of my psyche for 16 years”, that is the whole period of the relationship.
In December 2012 they separated and significant issues have arisen in relation to the father’s post-separation behaviour.
The children have substantially resided with the mother and father in a shared care arrangement since separation with initially changeovers occurring on a Sunday.
Subsequent to separation the mother has resided in the home at F Street and has been responsible for paying mortgage payments and other outgoings in relation to that property and also any shortfall on the investment property without contribution from the father.
Notwithstanding the mother’s representations that she was struggling to meet mortgage payments post-separation the father refused to consent to payments being made on an interest only basis until final determination of the parties’ property entitlements.
The wife has maintained the children in private health cover without contribution from the father and by reason of the father’s low farm income is required to pay child support of about $150 per week to the father despite the shared care arrangement.
In May 2014 interim parenting orders were made by consent at the I Town Local Court that substantially provided for the children to continue to live in a shared time arrangement with the mother and father with changeovers changed to occur on a Friday after school to avoid issues that had arisen. The mother considered the arrangement in the best interest of the children despite what she perceived to be the father’s awful behaviour in the past.
Communication
Regrettably the parties find it very difficult to communicate and are able to do so effectively it appears only through text messages with the mother complaining that often the father does not respond in a timely fashion and on occasions at all. The father describes his relationship with the mother to the family consultant as “so poor that the best thing is that we not see each other”.
The father’s communication with the mother by text message is mostly abrupt and argumentative.
The mother otherwise complains that the father is inflexible and uncooperative in relation to any variations to the shared care arrangement that could accommodate unforeseen exigencies or the interests of the children. Both parties have contributed to that position by reason of their inability to communicate. The mother’s frustration at communication with the father is obvious.
Conduct
The father’s conduct towards the mother post-separation has been intimidating. The father in March 2013 attended at the property whilst drunk and later that same month attended at the property unannounced at 5.30 am and was abusive towards the mother. He has told the mother “to get your fat arse of my property” when she attended for good purpose at the rural property. He has given the mother’s companion “the bird”, agreeing that it was inappropriate behaviour although initially denying same to the family reporter. As to this issue the family reporter comments:
Notably, [Mr Hulls] also denied that he has made, or continues to make, offensive hand gestures (i.e. ‘the bird’) to [Mr J]. During interview however, [C] confirmed that his father does do so, and when it occurs it makes him feel “a little sad”. This particular incongruity casts very serious doubt on the veracity of [Mr Hulls’] comments, and on his capacity to prioritise the children’s best interests ahead of his own, especially in circumstances where there may be a conflict between the two.
On occasions after separation he has attended at the property in the absence of the mother and removed items of personalty and personal effects of the mother including her wedding ring, engagement ring and eternity ring. In October 2014, nearly two years after separation, whilst the mother was absent overseas on holiday the father in company with his brother-in-law attended at the home, notwithstanding the mother had arranged for a house-sitter to occupy the property. The father, whilst in the company of the youngest child, cut padlocks on the side gate and the shed at the home and removed items of personalty and effects without the mother’s consent.
There is significant dispute between the mother and father as to the nature of their relationship and their conduct post-separation. Notwithstanding that it is difficult to discern where the truth may lie the allegations made by them one against the other and concessions made it readily apparent that the nature of their relationship is completely unsuited to the maintenance of an ongoing shared care arrangement as to the children. This is readily illustrated by the minutiae delved into in cross-examination of both the mother and father as to conflictual incidents post-separation.
The father’s oral evidence was given in a flat and emotionless style in which it was difficult to find any self-reflection on the nature of his actions and conduct on the mother, the children and particularly the children’s relationship with the mother. The father in many instances provided answers that were ingenuous and self-serving with little insight in to the significance of the matters put to him. The mother was responsive to questions put to her which she answered clearly without equivocation. Overall where there is a conflict between the evidence of the mother and father, the evidence of the mother was preferred.
The children in the conflict
It is clear that the children have been caught in the middle of this conflict and they are torn between an alignment with the father and an alignment with the mother.
Following a referral from the child’s GP Dr K under a Mental Health Care Plan in 2013 the child B had been engaged with a clinical psychologist Ms L since July 2013. The psychologist notes on initial interview contained the following:
… main concern is [B’s] anger and ability to manage emotions – concerned re impact of the parents separation and of being a witness to their “bad marriage” especially over past 5 years. Has seen counsellor at school… Discussed a general treatment plan in relation to anger, separation anxiety.
It is readily apparent from the psychologist notes (Exh N) that the father has sought to frustrate the children’s engagement with the psychologist, resulting in Ms L writing to the Forbes Community Health Centre on 5 September 2014 in the following terms:
I am wondering whether you had the capacity to accept a referral for [C Hulls]… I have had intermittent involvement with the family over the past 12 months and he is at present refusing to engage in treatment with me. The background of the family includes domestic violence and his parents are now separated. His mother, [Ms Hulls], is concerned that he has very little respect for women. His father, [Mr Hulls], has indicated to me that he believes there is currently no reason for counselling. [Ms Hulls] however has reported increasing aggression, poor social skills, threats towards herself from [C] and sexualised talk increasing over the past few months.
Subsequently on 24 September 2014 Ms L forwarded to the Department of Family and Community Services a Risk of Significant Harm Report in relation to both children. The report included the following:
The mother… Has reported acts of physical aggression directed at herself from [C]. She has also reported that he has been engaging in sexualised talk and inappropriately grabbing at her. The father has indicated that he does not feel psychological counselling is necessary and has cancelled appointments that are booked for the weeks the children are in his care. He has also reportedly failed to take [C] to a doctor or dentist appointment in relation to decaying teeth earlier in the year. The father has apparently told the boys that psychological counselling is not necessary and they refused to engage when brought with their mother. Termination of treatment has been deemed appropriate in relation to [B] but not [C] with reports of continuing aggressive behaviours, poor social skills and sexualised talk.
A perusal of the student records in relation to the child C at the D Town Public School post-separation reveals also significant behavioural issues in relation to violence, rudeness, disobedience and lack of respect for authority.
The father asserts that he spoke to the psychologist who told him “there was no need for counselling”. That assertion is simply false in light of the psychologist’s complaint that the father refused to bring the children when they were in his care and her concerned notification to the Department and her attempt to obtain supplementary support.
The father demonstrated little insight into the needs of his children by involving them in his decision. He rejected the assertion that it was derelict of him to leave it up to the children.
Many aspects of the children’s aberrant behaviour since separation are reflective of the concessions by the father as to his own behaviour post separation and engagement by him of the children in the interparental conflict. He has told the children “if your mother hurts you let me know” and “if you don’t like her discipline let me know”. Such comments can only undermine the mother’s parental authority and such is reflected in the children’s conduct particularly the youngest child. The father acknowledging that C complains about the mother to him “a lot”.
There is a strong inference that the children’s behaviour particularly the younger child C is a learned behaviour from exposure to the father and his relationship attitude to the mother and the mother’s new partner. The father further acknowledges that he has spoken to the children about the current proceedings.
Overall the father demonstrates little if any reflective capacity to focus on the needs of his children over his own and the priority that he places on the conflict with the mother to the detriment of the children.
Both parents have now re-partnered although neither live with their present companions. The father reported to the family reporter that he had no problem with the mother’s new companion Mr J as “I consider he took a problem off my hands”, that comment evidencing the father’s demeaning attitude towards the mother.
The family reporter
Both children were seen by the family reporter, who has had many years of experience in that role, in interview on 4 March 2015.
The family reporter observed that the children moved easily between their parents and their parents’ respective partners during the course of the day.
The older child B expressed the view that he was comfortable with the current shared arrangement continuing. Whilst acknowledging that his parents did not get on very well he denied that they said bad things to each other. The child was reflective of his younger brother’s use of the conflict between the parents to his own end telling the family reporter that when C gets angry with the mother “he tells mum he wants to live with dad all the time” and “if he’s told to do something and he doesn’t want to do it, he chucks a tantrum”.
On interview the younger child C said he didn’t like either school work or home work. He described the current living arrangements as “good… But there’s more rules at mums’”. He would prefer to live with his father with every second Saturday at his mother’s, although conceding a continuation of the current week about arrangements would be “all right”.
He would not prefer to live primarily with his mother and spend time with his father on weekends and school holidays because “she’s always on [B’s] side”. C was clearly enmeshed in the issue of parental conflict acknowledging his mother referred to the father as “he’s going to be at [Ms M’s]” (the father’s companion) and the father referring to the mother as “a cheater”, although not knowing the connotation of the term.
In evaluation the family report writer assessed the children as having very good relationships with each of the parents and their parents’ respective new partners.
Of concern was the question of weight to be afforded to the children’s views, as reflected above. As to a shared parenting arrangement the family reporter was of the view that the parent’s lack of communication and cooperation effectively makes the arrangement unviable. The evidence is clearly indicative of that.
As to B’s views the family report writer opined that the form and content of B’s views suggested that he was keen to avoid being drawn into the parental dispute or to favour one parent over the other.
As to C’s views it appears that underlying reasons related to the greater attraction of farm related activities, the relative lack of parental rules and discipline in his father’s household and the perception of differential treatment by his mother. The family reporter notes that none of these reasons are particularly persuasive and indeed some may actually be reasons to disregard C’s preference on the basis they are not likely to be in his long term interests. The family reporter further commented:
It is therefore not surprising that [C’s] verbal preference favours the least restrictive parental environment, although this is not necessarily a good reason to accede to this preference.
Of significant concern to the family reporter was the allegation that the father undermines the mother’s parenting of the children. This circumstance is illustrated by an incident in January 2015 school holidays when after an incident between the two boys at the mother’s residence, the child C telephoned the father who then collected the child and instead of seeking to resolve the issue, took the child to the local police station and had the child speak to the police before returning the child to the mother the next day, it appears without protest. It is also reflected in the father’s actions in relation to an incident in March 2014 where the children manipulated a situation to avoid accompanying the mother and her companion to a funeral.
In the view of the family reporter the father has effectively created expectation that C can avoid or escape the consequences of his actions in his mother’s household whenever it wants: a “get out of gaol free card”. This is clearly reflected in the B view of his younger brother’s antics with the mother and the incidents since separation.
Of particular concern is the father undermining ongoing psychological assistance for C and the view of the treating psychologist that a Significant Risk of Harm Report was required as a consequence of her position as a mandatory reporter.
The family reporter was clearly of the view that things must change:
69. This is not a sustainable parental approach, and it is one which is likely to cause unnecessary problems and emotional trauma for both [C] and [Ms Hulls] in future, although I suspect [Mr Hulls] already knows this. It seems hard to imagine [Mr Hulls] could not be aware of these consequences, especially when they are so aligned with his views, and the outcome that he seeks. I would also note that [Mr Hulls] is not an unintelligent person. Collectively, these factors give [Mr Hulls’] claim that “I thought I was doing the right thing” something of a hollow ring. A more appropriate parental response in the circumstances of this incident would have been for [Mr Hulls] to take/send [C] back to his mother’s house and allow them to sort out the issues which had arisen.
The family reporter observes:
78. The single incident of family violence in 2008 or 2009 which has been acknowledged by [Mr Hulls], his propensity to act in ways which undermine [Ms Hulls’] parenting, and his belief that these children need to be protected from [Ms Hulls’] controlling and potentially abusive parenting, collectively suggest that [Mr Hulls] may not be an appropriate primary parent for these children. [Mr Hulls’] attitude and behaviour suggest that if [B] and/or [C] were to live with their father, [C’s] relationship with his mother could be at risk of deteriorating, potentially to the point of extinction. Nothing about [Mr Hulls’] discussion of these issues gave any confidence that he would promote or protect the children’s relationships with their mother….
This conclusion by the family reporter is supported by the oral evidence by the father as referred to above.
The family reporter then said:
80. On the other hand, I have no such concerns about the children’s continuing relationships with their father if they were to live primarily with their mother. Indeed, my major concern in this eventuality would be that [Mr Hulls] may continue to undermine [Ms Hulls’] parenting of (and relationships with) the children, especially [C].
81. If the Court was to form the view that the disputed allegations of family violence have any validity whatsoever, I would imagine it may need to give very serious consideration to restricting [Mr Hulls’] time with, and influence upon, the children even more than [Ms Hulls] is proposing. In such circumstances it may be appropriate for the Court to send a strong message that such behaviour is not only inappropriate, but is incompatible with children’s best interests.
82. In relation to the question of parental responsibility, [Mr Hulls] reported that “we don’t speak … if it’s really, really urgent we will send a text message”, and “the best thing is that we not see each other”. This is hardly the kind of parental relationship that is necessary to support equal shared parental responsibility for the ‘major long term issues’ in the children’s lives, so it seems likely that this responsibility may need to be vested solely in one parent. In any case, it would seem likely that the presumption of equal shared parental responsibility outlined in Section 61DA of the Family Law Act may not apply in this instance due to the family violence which has previously been substantiated.
The family report writer said:
89. Clearly there is an asymmetry of power in the relationship between these parents, and the information obtained during the preparation of this family report lends support to [Ms Hulls’] perception that [Mr Hulls] continues to be a disruptive, undermining and at times hostile influence.
The evidence at trial is clearly supportive of this conclusion.
The family report writer continued:
90. At least one of the ways in which [Mr Hulls] appears to maintain this hostility is by allegedly making offensive hand gestures to [Ms Hulls’] partner, [Mr J]. [Mr Hulls] specifically denied that he does so, but during interview [C] confirmed that this occurs, and said he is not happy when he father behaves in this manner. This behaviour suggests that [Mr Hulls] has a propensity to allow his hostility or negative feeling towards [Ms Hulls], and those associated with her, to take precedence over the needs and interests of the children.
91. Given the foregoing circumstances I do not consider it would be reasonable or appropriate for these parties to hold equal shared parental responsibility for [B] and [C]. In any case I would imagine that the presumption in favour of equal shared parental responsibility outlined in Section 61DA of the Family Law Act is not likely to apply in this instance due to the acknowledged history of family violence.
92. On the basis of the information currently available to me, I recommend that [B] and [C] should live primarily with their mother, and spend time with their father.
In his oral evidence the family report writer saw the father’s undermining of the mother as a very problematic circumstance for the mother’s control of the children. He expresses concern about the prospect of the father covertly communicating with the children should orders as recommended by him be made and the need to address such an issue with proper counselling of the father (and the mother) in the context of the Parents not Partners program conducted through Interrelate.
The family reporter saw problems for the children if the father’s behaviour continued in that their ability to develop interpersonal relationships would reflect their own parent’s relationship that demonstrates lack of civility and disrespect.
The father was seen to have limited reflective capacity as to the needs of the children with the prospect that he would see the children’s best interests through the lens of his own interests with the prospect of the destruction of the children’s relationship with the mother.
Parenting
The relevant principles in relation to parenting proceedings are well settled: see Goode and Goode (2006) FLC 93-286. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Parental responsibility
Section 61DA of the Act provides that when making a parenting order, 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.
The presumption relevantly does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence (s 61DA(2));
b)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)).
Family violence is defined in s 4AB of the Act. For the purposes of this relationship the provision relevantly refers to violent, threatening behaviour that causes a person to be fearful and can include assault or repeated derogatory taunts. For the reasons discussed above there is ample evidence, including the father’s plea of guilty, to conclude that there has been family violence perpetrated by the father on the mother and in some circumstances in the presence of the children. The mother’s evidence is clear: she is fearful of the father.
Otherwise a consideration of the best interest factors below render it clear that shared parental responsibility is not in the children’s best interest. The family reporter’s recommendation as to this is accepted.
In such a circumstance the presumption of equal shared parental responsibility is rebutted. The family reporter makes considered recommendations as to the allocation of parental responsibility to the mother. In the circumstances as discussed above it is entirely appropriate that such recommendation be implemented.
Equal or substantial and significant time: s 65DAA
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In light of there being an order for the mother to have parental responsibility, it is not required that consideration be given as to the children spending equal time or substantial and significant time with each of the parents.
Accordingly other orders to be made must be considered in the light of the best interest considerations.
Best interests of the children: s 60CC
The primary considerations: 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 with this factor to be given greater weight of the two primary considerations.
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520; Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object 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 quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The risks to the children of a continuation of the present shared care regime are evidenced by the circumstances post separation and the considered views of the family report writer.
The children’s relationship with the mother into the future is at risk by reason of the father’s lack of reflective capacity and his relentless conflict with her and his either conscious or unconscious undermining of her to the children.
The children need a message that their relationship with their mother is valuable and important to them into the future and should not be seen through the rigidity of a shared care arrangement that takes no account of the risk that their father poses to their relationship with the mother.
As such the children’s relationship with the mother needs to assume primacy in temporal terms to send a message to them that she is an important figure in their lives.
Of necessity the children’s relationship with the father in terms of time spent will diminish but he will remain engaged in their various sporting and schooling endeavours. Such a reduction will provide some balance and place the children’s relationship with the father in a circumstance that will not present as a risk to them into the future and thus render the father relationship valuable and important to the children.
Section 60CC(2)(b) – need to protect
This is the subject of significant concern to the family reporter and those concerns being reasonably expressed and supported by the evidence are accepted. The father represents a risk to the children in terms of the prospective insidious diminution of their relationship with the mother and their own capacity to form mature relationships as they get older.
This can on the view of the family report writer be addressed by a reduction in the children’s time with the father. That view is accepted notwithstanding that particularly the younger child may be disappointed and feel aggrieved.
The children should be seen by the family reporter after the making of orders.
The additional considerations
The additional considerations are set out in s 60CC(3) of the Act. The relevant considerations are discussed below.
The views of the children are discussed above as is the family reporter’s view that they should not be given significant weight. That view is accepted. There are good reasons about any significant weight being attached to the youngest child’s views in all the circumstances as referred to above. For the reasons set out above a determination of this matter transcends a simple appreciation of the children’s expressed views.
The children have a good relationship with both parents subject to overarching issue of conflict and risk discussed above. They have a good relationship with the partners of each of their parents and enjoy a relationship with extended family on both sides.
Both parents have taken the opportunity to participate in decisions about the major long-term issues in relation to the children. Since separation they have continued notwithstanding contraindications as to same to implement a shared care arrangement.
Prior to separation the mother provided the primary income into the household supplemented by the father’s farm and off farm income. Subsequent to separation the mother has made a significant contribution to the maintenance of the children by reason of her superior income whilst they are residing in her household, the continuing provision of accommodation to the children by her in maintaining mortgage payments without contribution from the father, the maintenance by her of ongoing private health cover for the children and notwithstanding a shared care arrangement the payment by her of periodic child support to the father by reason of his modest farm income.
The mother’s proposal seeks to change the shared care arrangement that has been implemented post separation. As discussed above there are good reasons for a change in the best interests of the children. The family report writer expresses the view that the children, particularly the youngest child will be disappointed with such a result and there could be some issues arising.
However both parties need to be conscious of the best interests of the children and the issues impacting on the children as discussed in these reasons. It is hoped that both parents engaging in the post-separation parenting program referred to above will assist in settling the children after a change as will the children being seen by the family report writer after final orders. Notwithstanding some disruption that may occur, that disruption must be balanced against the prospective long-term detrimental effect of the children of the current shared care arrangement continuing. The changes proposed will render an imbalance in the defined time the children spend with the father and mother but otherwise contact will still continue in relation to the children’s activities as will the children’s contact with their respective parent’s partners and extended family.
There is no practical difficulty or expense in the children spending time and communicating with each of their parents. However the current arrangement with changeovers should be implemented after school on Friday and then thereafter before school on a later day should continue so as to avoid the necessity of personal contact between the father and mother. Otherwise as suggested by the family reporter it would be appropriate that if the children are in possession of a mobile phone or laptop on which they can contact the other parent then such devices should be in the control of the parent with whom they are spending time so as to avoid misuse particularly in the hands of the father.
Both the mother and father have capacity to meet the children’s needs including their emotional and intellectual needs. The mother represents a more formalised parenting regime probably as a consequence of her long-term occupation as a teacher. She clearly is able to provide for the children’s emotional and intellectual needs within her household particularly in circumstances where there will be an initial period of difficulty particularly with the youngest child.
The father needs to be alert to the issues discussed in these reasons for judgment and hopefully be conscious of his future obligations as a parent to these children. Should his behaviour continue as has in the past then he will fall well short of being able to address the needs of his children, particularly their emotional needs. But on the other hand he offers to these children particularly the youngest an engagement with a rural lifestyle and perhaps a greater freedom in parenting style that the children enjoyed. His younger child has a great interest in the rural life and into the future may well work on the land. However that of course is contingent upon his continuing progress in education and appropriate psychological development into the future. The father needs to be conscious of these issues and not seek to undermine the mother or continue to pursue conflict. Should he do so he will fail miserably in his obligations to his children.
The subject children are not children of immature years. The eldest B is now 14 years of age and in high school. The youngest C is now 10 and a half years of age and in primary school and in several years will follow his brother into high school. They have had a difficult few years over the latter period of their parents’ cohabitation and in the years since separation. Appropriate parenting arrangements now may well see these children develop with appropriate intellectual and psychological maturity. The children are at an impressionable age and, as it appears, from the post-separation history can be easily influenced either openly or insidiously such as to undermine their respect for, and their relationship with, their mother. The father needs to be conscious of this issue.
The attitude of both the mother and father to the children and their conduct as to their responsibilities of parenthood has been discussed at length above. Regrettably for these children, the ongoing conflict and inappropriate shared care arrangements has demonstrated the little reflective capacity on the part of the father to consider the needs of his children over those of his own desire to pursue the mother. The mother for her part seems to have had little capacity to empower herself against the father and has been the subject of inappropriate behaviour by both children. It is hoped that by formalising the children’s arrangement in an appropriate way both parents will move into the future with a better understanding of their responsibilities of parenthood.
There are clearly issues of family violence in the history of this matter as discussed above. It is to be inferred that the children have been exposed to same. By reason of the circumstances as discussed above it is appropriate that the mother should hold sole parental responsibility for the children. Historically there was a short lived Apprehended Domestic Violence Order against the father by reason of the bullet incident. That order was discharged following the parties’ reconciliation after the father had pleaded guilty to charges of intimidation and assault.
It is hoped that orders to be made in the context of these proceedings will be least likely to lead to the institution of further proceedings in relation to the children. Whether further orders are necessary into the future may well depend upon the father’s future conduct.
There are no other facts and circumstances that are considered relevant.
Discussion as to parenting orders
The matters discussed above are clearly indicative in the best interests of the children of orders that facilitate the mother having sole parental responsibility for the children, for the children primarily living with the mother and for the children to spend more circumscribed time with the father. The mother’s proposal is that the children spend time with the father each alternate weekend during school term from after-school Friday to before school Monday or Tuesday if Monday is a public holiday together with other specific days and half the school holidays. The family reporter expresses some reservations as to whether indeed three nights a fortnight is too much in the context of the matters discussed above.
However the children have a significant relationship with the father particularly in relation to their engagement in the rural lifestyle and their respective sporting pursuits. The father’s time with the children will not be limited simply to the defined time but the mother is in agreement that he should be able to continue his engagement mid-week with the children’s training and sport and where applicable their weekend sporting activities. Otherwise he should be at liberty to attend on other occasions significant to the welfare of the children including occasions pertaining to education, religion, health and other extracurricular activities.
Orders as substantially proposed by the mother and supported by the family reporter in relation to parenting will be made.
Property
The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan& Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
The process ordinarily involves a staged process.
The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
In particular, such a circumstance arises where both parties seek property adjusting orders but are unable to agree as to same. Here both parties seek different orders as to the division of their property and it is conceded by counsel for both parties that it is appropriate for the Court to make orders altering their present property interests. It is appropriate to do so.
Once the s 79(2) issue is resolved the Court then considers the contributions made by the parties as defined in s 79(4)(a) to (c).
The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
The property pool
The parties are in substantial agreement as to the presently available property pool.
The present property pool comprises the following:
Joint F Street, D Town $350,000
Father Boat 5,000
Father Contents 2,000
Father Partnership Interest #
Mother Contents 8,000
Mother 4WD 8,000
$373,000
Liabilities:
Mother CGT liability 8,405
$356,595
Superannuation:
Mother First State Super $100,327
Father TAL Life Ltd 37,174
$137,501
Otherwise as at trial both parties had very modest amounts standing to the credit of the bank accounts and having regard to the period since separation it is appropriate to omit them from the pool of assets for adjustment purposes.
The farming partnership
The mother asserts that the father’s interest in the farming partnership that he conducts with his mother is equivalent to one half of the plant and equipment and stock set out in the most current financial statements for the partnership. That value is $142,563 and the father’s half contended by the mother should be included in the asset pool is $71,250.
It is contended on behalf of the father that such approach is inappropriate and regard should be had to the capital accounts in the partnership financial statements so as to properly come to a value of the father’s interest in the partnership.
The father’s interest in the partnership was as a consequence of his inheritance in 2005.
Exhibit R provides an updated balance sheet for the partnership based on market values of stock and plant and equipment. The partnership assets are valued at $142,563 and substantially comprise trade debtors, stock (sheep and cattle), wool on hand and plant and equipment. The father’s capital account representing his entitlement to the assets of the partnership was as at 30 June 2015 $29,237. That sum is not realisable by him unless the partnership is wound up.
The father was able to pay from his capital account in the year to 30 June 2015 (Exh Q):
Drawings to himself $21,866
Superannuation $19,603
Rent $13,000
Yet the partnership made a trading profit of only $4,545 in the same period.
Regrettably there was no single expert evidence in relation to the farming partnership.
It is appropriate that in such circumstances that the father’s interest in the partnership be seen as a financial resource and be considered in the context of s 75(2).
The final pool
Thus the overall asset pool comprises non-superannuation assets of $356,595 and superannuation of $137,501.
In circumstances such as discussed above in relation to the applicable principles where both parties seek a disparity orders in relation to property adjustment it is just and equitable that orders effecting a property adjustment be made.
Contributions
At the commencement of the parties’ relationship the father had the deposit necessary to purchase the home unit property at G Street, D Town.
Thereafter throughout the period of cohabitation the mother was, save for periods on maternity leave, in receipt of a salaried income as a teacher. Over the same period the inference is that until 2004 the father earned less than the mother.
Subsequent to his father’s death in 2005 and until separation, the father’s income in the financial years ended 30 June 2005 to 30 June 2012 totalled only $37,184 or an average of about $4,648 per annum. Although historical partnership accounts (Exh M) show he was on occasions able to make drawings and pay some superannuation contributions from his capital account.
The father acknowledges that he and the mother received some financial support from the mother’s parents.
Both the father and mother engaged themselves in household and domestic duties and the care of the children particularly in the period up to the father commencing to work on his family property in 2006.
The father inherited the stock, plant and equipment on the family property from his father’s estate. Thereafter he elected to use those assets in partnership with his mother. There is no evidence to suggest that those introduced assets to the partnership are otherwise than as reflected in the current partnership financial statements. His contention is that he continues to run the partnership using those inherited assets and his contribution to the family and household was the income derived therefrom (and presumably some capital account drawings).
After March 2006 until separation the evidence is indicative of the mother assuming the greater burden of homemaker and parenting duties.
Post-separation the father and mother have substantially shared the care of the children although the mother has assumed the greater financial burden for their support by reason of her superior income.
Whilst the mother has had the benefit of the continuing occupation of the matrimonial home now for almost three years since separation she has continued to pay mortgage payments on a principal and interest basis thus increasing the equity of the parties in the property and has attended to paying outgoings in relation to the property without contribution by the father.
Two pools or one
This is a very modest property pool. Counsel for the mother contends for a two pools approach so as to differentiate between the parties’ disparate contributions to their respective superannuation entitlements. However in the context of this relationship the parties made contributions in myriad different ways. It was not made clear by counsel for the mother as to why the mother’s contributions to superannuation should be regarded in such a way as to warrant a two pools approach and indeed he conceded that a one pool approach could just as well be adopted. The strong inference is that the mother has had a much more consistent history of employment during the relationship than that of the father thus resulting in a greater accumulation by her of superannuation entitlements.
In the circumstances it is proposed to adopt a one pool approach.
Overall contributions
Having regard to the contributions of the parties, overall contributions should be regarded as favouring the mother 55 per cent to the father 45 per cent.
Section 75(2) factors
The parties are reasonably young, the mother aged 38 and the father aged 41. Both, it is to be inferred, have a long history of income earning capacity ahead of them. Both parties are in reasonable health with the husband particularly able to attend to most tasks involved in running a small rural property.
The property and financial resources of the father and mother are set out above.
The mother is in receipt of a salaried income of about $90,000 per annum and she is able to continue in her capacity as a teacher on a full-time basis subject to any unforeseen contingencies in relation to the children.
The father for his part has chosen a path that has seen him receive a very modest financial remuneration for the long hours he ascribes to his effort in running the partnership with his mother. That is his choice by reason of his love of the rural lifestyle. The father’s taxable income is negligible but he is able to draw funds from his capital account that totalled about $55,000 in the year to 30 June 2015 without any increase in partnership debt.
Under the proposed parenting orders the mother will assumed the primary care of the children who are presently aged 14 and 10 and a half. This is a significant consideration.
The mother will have available to her a reasonable income with which to maintain herself and the children, with the father having resource to his farm income and drawings for his self-support and for the children when they are spending time with him.
Neither the father nor the mother has any obligation to support any other person.
The father has been in receipt of some government parenting related benefits by reason of his modest income from the farm and the shared care arrangement that has been implemented by the parties. In light of the new parenting arrangements, his continuing receipt of that benefit in part is to be expected however the rate of such benefit is simply not the subject of evidence.
The mother has reasonable accumulated superannuation and her continuing employment will see that superannuation continue to increase over her working life. The father is clearly in an industry where the prospects of any significant superannuation contributions will only flow in the event that the rural enterprise makes a reasonable income or his capital account allows it. In the 2015 financial year notwithstanding his taxable income he paid over $19,000 into superannuation.
The father has available to him accommodation on the farm on which he works. The mother proposes to acquire the father’s interest in the matrimonial home for the future accommodation of herself and the children.
The mother at present has an obligation to pay child support to the father by reason of the shared care arrangement. It is to be expected that that obligation will cease once the children move into her primary care. However by reason of the father’s modest income the prospect of the mother receiving any financial support by way of child support assessment in relation to the children is probably negligible. This is a significant consideration.
Otherwise the father is engaged in farming partnership with his mother. The father’s interest in the partnership will be regarded as a modest financial resource. In addition to the partnership the father concedes that it is his expectancy that at some indeterminate future date he will become the owner of the rural property from his mother however the exact nature and extent of this prospective expectancy is indeterminate and it is thus not a matter for consideration in this context.
The available pool is modest. The most significant issues relate to the mother’s future care of the children and the lack of any real financial support from the father. In the circumstances discussed above it is appropriate that there be an adjustment to the contribution-based findings of a further 10 per cent in favour of the mother.
Overall
Overall the mother would thus be entitled to 65 per cent and the father 35 per cent. In monetary terms of the total pool of $494,096 the mother is entitled to $321,162.
The mother will retain the following:
F Street, D Town $350,000
Contents 8,000
4WD 8,000
$366,000
Liabilities:
CGT liability 8,405
$357,595
Superannuation:
First State Super $100,327
Total: $457,922
She would be required to pay to the father an adjustive payment of $136,760.
The father sought a superannuation split but there is no evidence of procedural fairness being afforded the trustee of the mother’s fund. Nevertheless in the present factual matrix where both parties have long working history ahead and overall superannuation entitlements are modest and where a split in favour of the husband would see his cash payment in some way reduced a superannuation split is not indicated or necessary.
Until the completion of sale of the G Street property at the time of trial the mother was able to maintain mortgage payments on the matrimonial home in relation to a mortgage balance of just over $100,000. It is to be inferred that she would have the capacity to refinance the home so as to acquire the father’s interest therein.
That refinance should take place reasonably promptly and in consideration of the payment to the father, he will be required to transfer to the mother his interest in the F Street property.
The proposed orders have no impact on the earning capacity of either of the parties.
Orders will be made accordingly.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 December 2015.
Associate:
Date: 3 December 2015
Key Legal Topics
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Family Law
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Equity & Trusts
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