IDLER & ASANTI
[2019] FCCA 2817
•4 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IDLER & ASANTI | [2019] FCCA 2817 |
| Catchwords: HELD – The Mother have sole parental responsibility for the children, the children live with her and spend time with the Father on alternate weekends, during school holidays and on special occasions – further order that there be a period of time following the making of these orders that the children spend no face-to-face time with the Father. PROPERTY – The Mother’s application for a superannuation splitting order – the Father opposes a superannuation splitting order being made and proposes each party retain that which is in their possession – where the Father’s superannuation is the only realisable asset of value – the contributions of the Father post-separation greatly exceed that of the Mother including assuming responsibility for over $80,000 of joint debts. HELD – No order be made altering the parties’ property interests. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 79. |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS IDLER |
| Respondent: | MR ASANTI |
| File Number: | MLC 3892 of 2017 |
| Judgment of: | Judge Bender |
| Hearing date: | 24 June 2019 |
| Date of Last Submission: | 26 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 4 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Devries |
| Solicitors for the Applicant: | Nevett Wilkinson Frawley |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Not applicable |
| Counsel for the Independent Children's Lawyer: | Ms Treyvaud |
| Solicitors for the Independent Children's Lawyer: | Ruffin Lawyers |
ORDERS
Parenting
All previous parenting orders be discharged.
The Mother have sole parental responsibility for the children [X] born … 2008 (“[X]”), [Y] born … 2009 (“[Y]”), [Z] born … 2010 (“[Z]”) and [W] born … 2012 (“[W]”).
The Mother inform the Father in writing of any major long-term decision in respect of [X], [Y], [Z] and/or [W] within seven days of making the decision.
[X], [Y], [Z] and [W] live with the Mother.
Commencing at the conclusion of fourth term 2019 [X], [Y], [Z] and [W] spend time with the Father as follows:
(a)in the 2019/2020 long summer holiday for two weeks as agreed between the parties in writing and failing agreement:
(i)for one week from 12:00 noon on the first Saturday in January until 12:00 noon on the second Saturday in January; and
(ii)for one week from 12:00 noon on the third Saturday in January until 12:00 noon on the fourth Saturday in January;
(b)in the long summer holiday commencing 2020/2021 as agreed between the parties in writing and failing agreement, for two weeks from 12:00 noon on the first Saturday in January until 12:00 noon on the third Saturday in January;
(c)during school terms on the first weekend after the school term has commenced from 5:00pm Friday until 5:00pm Sunday (and in the event Monday is a public holiday until 5:00pm Monday) and each alternate weekend thereafter with changeover to occur at the police station closest to the Mother’s residence;
(d)during school term holiday periods as agreed between the parties in writing and failing agreement for one week from 12:00 noon on the first Saturday of the holiday period until 12:00 noon on the middle Saturday of the holiday period;
(e)on each of [X], [Y], [Z] and [W]’s birthdays, in Town C with all of the children to be in attendance, as follows:
(i)if the birthday falls on a school day from 4:00pm until 7:00pm with changeover to occur at the police station closest to the Mother’s residence; and
(ii)if the birthday falls on a weekend or during school holidays from 10:00am until 1:00pm with changeover to occur at the police station closest to the Mother’s residence;
(f)on the Father’s birthday in Town C as follows:
(i)if the birthday falls on a school day from 4:00pm until 7:00pm with changeover to occur at the police station closest to the Mother’s residence; and
(ii)if the birthday falls on a weekend or during school holidays from 10:00am until 5:00pm with changeover to occur at the police station closest to the Mother’s residence;
(g)on Father’s Day weekend from 5:00pm Friday until 5:00pm Sunday with changeover to occur at the police station closest to the Mother’s residence;
(h)from 5:00pm on Christmas Eve until 5:00pm on Boxing Day in 2020 and each alternate year thereafter, with changeover to occur at the police station closest to the Mother’s residence;
(i)from 5:00pm on Boxing Day until 5:00pm on 28 December in 2021 and each alternate year thereafter with changeover to occur at the police station closest to the Mother’s residence;
(j)by telephone each Monday and Thursday between 7:00pm and 7:30pm;
(k)by email or other written means as agreed between the parties; and
(l)any further and other times as agreed between the parties in writing.
The Father’s time with [X], [Y], [Z] and [W] pursuant to order (5) herein shall be suspended on the Mother’s Day weekend.
For the purposes of changeover in accordance with orders (5)(a), (5)(b) and (5)(d) herein:
(a)if the Father is living in Victoria, changeover shall occur at the police station closest to the half-way point between the Mother’s and the Father’s residences; and
(b)if the Father is living outside of Victoria changeover shall occur at the police station closest to the Mother’s residence.
For the purposes of the time spent in accordance with orders (5)(a), (b) and (d) herein, the Father be at liberty to travel interstate with [X], [Y], [Z] and/or [W] provided the Father provides the Mother with 21 days’ prior written notice of his intention to take the child or children interstate including details of where the child or children will be staying and their contact details for the duration of the interstate travel.
For the purposes of the telephone communication in accordance with order (5)(j) herein, the Father shall telephone the Mother’s mobile telephone number and the Mother shall ensure the telephone is turned on, charged and ready to use for the Father’s scheduled telephone calls.
For the purposes of the telephone communication in accordance with order (5)(j) herein, the Mother will ensure that the children have privacy during such contact.
Both parties shall keep the other advised of their contact mobile phone number, email address and residential address and advise the other of any change within 48 hours of same.
The parties be at liberty to communicate about [X], [Y], [Z] and [W] by email, or in the event of an emergency by text message, with any communication between the parties to be solely in relation to the well-being of the children, or for the purposes of coordinating the Father’s time with the children, with such communication to be child-focussed and respectful.
Each of MS IDLER and MR ASANTI and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of [X] born … 2008, female, [Y] born … 2009, male, [Z] born … 2010, male, and [W] born … 2012, male, from the Commonwealth of Australia.
[X] born … 2008, [Y] born … 2009, [Z] born …. 2010 and [W] born … 2012 be and are hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the following dates:
(a)[X] until … 2026;
(b)[Y] until … 2027;
(c)[Z] until … 2028; and
(d)[W] until … 2030.
Any passport in the name of [X], [Y], [Z] or [W] held at the Town B Magistrates' Court be released to the Mother within 48 hours of being served with a copy of these orders and those passports shall remain in the custody of the Mother unless otherwise agreed between the parties in writing and such agreement to be witnessed by a lawyer who at that time holds a current Australian Practising Certificate.
Each party shall advise the other of any serious illness or injury suffered by [X], [Y], [Z] and/or [W] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
The Mother keep the Father advised of [X], [Y], [Z] and [W]’s progress at school.
The parties be permitted to attend all school events relating to [X], [Y], [Z] and/or [W] normally attended by parents and receive at their expense all school reports, school photograph order forms and newsletters, with the Father to confirm in writing to the Mother his attendance at any school event no less than 48 hours prior to the event.
This order act as an authority for the Mother to obtain any documents relation to [X], [Y], [Z] and [W]’s schooling from their school in Town B, including but not limited to NAPLAN results and school reports.
Each party and their respective servants and agents be and are hereby restrained by injunction from physically chastising and/or disciplining [X], [Y], [Z] and/or [W] and from permitting any other person to do so.
The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of [X], [Y], [Z] and [W] and from permitting any other person so to do.
Property
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)insurance policies remain the sole property of the owner named therein;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
The Mother’s application for orders for a division of the property between the parties be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Idler & Asanti is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3892 of 2017
| MS IDLER |
Applicant
And
| MR ASANTI |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter primarily relates to what orders should be made in relation to the living arrangements for the parties’ children [X] born … 2008 (“[X]”), [Y] born …2009 (“[Y]”), [Z] born … 2010 (“[Z]”) and [W] born … 2012 (“[W]”).
The Mother seeks orders she have sole parental responsibility for [X], [Y], [Z] and [W], that they live with her and spend time with the Father on alternate weekends, for one week in each of the term holidays and for two separate weeks in the long summer vacation.
[X], [Y], [Z] and [W] currently reside with the Father. The Mother seeks that the time [X], [Y], [Z] and [W] spend with the Father not commence for three months after they come into her care to enable them to adjust to their new circumstances and to prevent the Father undermining or unduly influencing them against her.
The Mother also seeks orders that [X], [Y], [Z] and [W]’s names remain on the airport watch list as she is fearful the Father, especially if orders are made in the terms she seeks, will permanently remove them from Australia in order to frustrate the orders.
The Father is seeking orders he have sole parental responsibility for [X], [Y], [Z] and [W], that they continue to live with him and spend time with the Mother “as they desire” and otherwise during school holidays.
The Father is also seeking orders that [X], [Y], [Z] and [W]’s names be removed from the airport watch list so that he is able to travel internationally with them, especially to visit his family in Country D and the Country E.
The Mother is also seeking property orders. The parties’ only asset is their superannuation. The Mother is seeking an order that there be a superannuation splitting order in her favour such that an amount of $34,000 is split from the Father’s current superannuation entitlement.
The Father opposes any property orders adjusting the parties’ property interests being made. It is his evidence his superannuation entitlements include monies he earned in Country D prior to the parties’ marriage and his post-separation contributions. It is his further evidence that he has paid the shortfall on the sale of the parties’ property in Queensland after separation as well as other joint liabilities of the parties and has also been solely responsible for the children since separation. He submits in these circumstances that it is not just and equitable that orders be made adjusting the parties’ current property interests and therefore no superannuation splitting order should be made.
Background
The Mother was born in Country D on … 1981 and is aged 37 years. She has recently qualified as a health professional and is employed by Employer G earning approximately $55,000 per annum.
The Father was born in Country D on … 1972 and is aged 46 years. He is a qualified health professional employed as a manager with Employer F. The Father earns approximately $120,000 per annum.
The parties married in Country D on … 2006.
The parties migrated from Country D to Town H on 5 May 2008 where the Father obtained employment as a health professional.
On … 2012 the Father received Australian citizenship.
In 2013 the Mother commenced studying part-time.
Whilst living in Town H the parties purchased Property J (“the former matrimonial home”). This property was placed in the Father’s name.
Between January 2013 and January 2014, the maternal grandmother travelled to Town H to assist the Mother in the care of the four children, then aged four years and under.
In July 2015 the Father moved to Town C as he had obtained employment there. The Mother, [X], [Y], [Z] and [W] remained in Town H until December 2015 so that [Y] and [Z] could finish the school year.
When the Mother and [X], [Y], [Z] and [W] moved from Town H to Town C, the parties rented out the former matrimonial home.
The parties dispute their living and childcare arrangements when the Mother and the children moved from Town H to Town C. The Father alleges the Mother “abandoned” the family, lived elsewhere and only occasionally cared for the children. It is the Mother’s evidence she lived with the Father and the children, was the children’s primary carer and the only time she was absent from the home was on two occasions when she travelled to Queensland for two nights to attend residential school as part of her nursing course.
The Father received an offer of new employment in Town B on 14 September 2016.
On 19 September 2016 the Mother made application for an intervention order for her protection against the Father.
The parties separated on 29 September 2016 when the Father, [X], [Y], [Z] and [W] moved to Town B. It is the Mother’s evidence the Father did not invite her to move to Town B with him and the children. It is the Father’s evidence the Mother chose to remain in Town C and not to join the family in Town B.
In October 2016 [Y] broke his arm, which required surgery. The Mother visited [Y] in hospital.
On 18 October 2016 the Mother obtained a final intervention order against the Father in Town C. The Father did not attend court.
On 31 January 2017 the Mother travelled to Town B in an attempt to see [X], [Y], [Z] and [W]. It is the Mother’s evidence the Father prevented her from seeing the children. It is the Father’s evidence the Mother behaved inappropriately at the children’s school and childcare and that after being contacted by the school he contacted the police.
Following this incident, the Father made application for an intervention order on behalf of himself and [X], [Y], [Z] and [W] against the Mother.
On 30 March 2017 the Mother filed an Initiating Application in the Magistrates’ Court at Town C. Orders were made ex parte placing [X], [Y], [Z] and [W] on the airport watch list and for the surrender of their passports.
On 20 April 2017 the matter was transferred to the Federal Circuit Court at Melbourne and was listed on 15 June 2017.
On 15 June 2017 interim consent orders were made that provided:
·[X], [Y], [Z] and [W] live with the Father;
·[X], [Y], [Z] and [W] spend time with the Mother in Town B on the first Saturday of each month from 1:00pm until 5:00pm and the first Sunday of each month for mass from 9:30am until 11:30am at K Church Town B;
·the Mother communicate with [X], [Y], [Z] and [W] by telephone each Tuesday and Friday between 7:00pm until 7:30pm; and
·both parties be restrained from physically disciplining [X], [Y], [Z] and [W].
Whilst the first visit between the Mother and [X], [Y], [Z] and [W] in the first weekend in July 2017 went reasonably well, the children ran away from the Mother back to the Father’s home in August and September. It is the Mother’s evidence she heard [X], [Y], [Z] and [W] whispering “Daddy said we should run home”. It is her further evidence the Father took the children to mass on the Saturday night before they were to go with her and they therefore did not want to go to mass with her.
On 18 September 2017 further interim consent orders were made in the Federal Circuit Court which provided:
·[X], [Y], [Z] and [W] spend time with the Mother on the first Saturday of each month and on 23 December 2017 from 1:30pm until 4:30pm at L Motel Town B (“the motel”);
·changeover take place in the motel reception area;
·in addition to the Mother’s birthday, by telephone on Christmas Day and New Year’s Eve between 7:00pm and 7:30pm;
·the parties be restrained from discussing the proceedings with [X], [Y], [Z] and [W] or allowing them access to the court documents or communication between the parties;
·the Father be restrained from:
·being within 500 metres of the motel when the children are with the Mother;
·bringing the children’s bicycles to changeover or having the bicycles within 500 metres of the motel;
·providing the children with mobile phones when with the Mother;
·the Mother be permitted to speak to [X], [Y], [Z] and [W]’s treating psychologist; and
·the Father keep the Mother advised of [X], [Y], [Z] and [W]’s progress at school/childcare and provide her with copies of their reports.
It is the Mother’s evidence that after these orders were made, she spent time with [X], [Y], [Z] and [W] pursuant to the orders and the children enjoyed their time with her.
On 3 January 2018 Ms M prepared a family report (“the first report”). At the time of the preparation of the first report the Mother was not seeking orders that [X], [Y], [Z] and [W] live with her. The Mother was studying and living in shared accommodation and did not have the income or accommodation available to her to enable the children to live with her. The first report was therefore focused on what time the children should spend with the Mother.
In the first report Ms M notes all the children told her their parents physically discipline them, using their hands and sometimes a belt.
[X], [Y], [Z] and [W] were observed to interact positively with the Mother. At paragraphs [73]-[76] of the first report Ms M writes:
“73. The children were reasonably cooperative with entering the room where their mother was waiting to do the observations. [Z] and [Y] tried to run out of the room but it did not take much encouragement or direction to have them stay. Ms Idler was inviting and fun. She played with them in a physical manner and she was able to deflect some attempts to hit her by the two older boys. She corrected by redirecting rather than taking issue with them. It was most notable that [W] sought her affection physically and clearly enjoyed being held by her and kissed.
74. All the children appeared relaxed and able to enjoy playing with their mother. She was able to direct them gently and seemed aware of keeping her voice relatively quiet. [W] also has a naturally loud, strong voice for a little boy. Ms Idler told the children she loves them very much.
75. It was noted that none of the children appeared uncomfortable with her, nor did they seem fearful of her. The initial attempts to leave seemed very much to be a rehearsed and/or expected behaviour without distress.
76. When it was time to end the observation the children all happily hugged their mother who warmly hugged them and kissed them. [X] also seemed to enjoy being around her mother in a quiet way.”
The Father attended the report interviews with his then partner Ms N, who he had met three months earlier. Ms N no longer appears to be in the Father’s life. When [X], [Y], [Z] and [W] were observed with the Father and Ms N, Ms M reports at paragraphs [78]-[79] of the first report that the Father was directive for most of the observation, the boys to be of high energy and [X] to be much more subdued and somewhat tentative around her father.
In the first report under the heading “Evaluation” Ms M describes the Mother as follows:
“81. Ms Idler impressed as focussed on the children’s best interests in so far as she seems able to be thoughtful and playful about what might work best for them to have a relationship with her whereby the alleged effects of their father’s manipulations of them are minimised. She said she is focussed on completing her qualifications to enable her to earn a reasonable income so she can provide a home for the children to be able to spend time and sleepover with her. She impressed as capable of supporting the children to continue to have a meaningful relationship with their father.
…
83. Ms Idler displayed a warm and affectionate nature with the children. She admitted to, and the children confirmed she uses physical chastisement, at times, with the children. She would benefit from undertaking a parenting course in which she learns other strategies to manage their behaviours. She impressed as open to the extent that she shared in depth reflections and perceptions about how to manage the negative impacts on children of gate keeping and emotionally manipulative parental behaviours. She did not consider that a quick decision to remove the children from their father would be in their best interests, in part, because of his alleged manipulation of their minds about her.”
Ms M describes the Father in the first report, as follows:
“85. There was enough evidence from the Family Report interviews and observations for me to form the belief that at a minimum, Mr Asanti uses controlling behaviours with the children and with Ms Idler. While he may have an understanding of overt physical family violence and denies the use of it, he did not seem to understand the layers of behaviours and attitudes that as a pattern constitute family violence. It would benefit him to attend a Men’s Behaviour Change program and a separate parenting program to learn different strategies in his relationships and to learn different strategies to manage the children.
…
91. While Mr Asanti is an educated man, he seemed to lack a capacity for reflection. The concern about that is the extent to which he will genuinely learn from the recommended courses and be able to reflect on the layers of Family Violence and underpinning beliefs he seemed to demonstrate prior to and during the interviews.”
In relation to [X], [Y], [Z] and [W], Ms M noted in paragraph [87] that [W] misses his mother. In paragraph [88] she set out her concerns in relation to [X], noting her to be overlooked by the Father and vulnerable to manipulation. Ms M in paragraph [89] states the two older boys have taken on some aspects of their father’s views of their mother and this raises concerns that this could impact their future relationship with the Mother and consequently their adult relationships and their own mental health.
Under the heading “Recommendations” Ms M set out her recommendations for interim living arrangements as follows:
·“The parties have equal shared responsibility for the children, including for decisions about when or whether the children travel overseas
·The children live with their father
·The children spend time with their mother unsupervised in the Town B area for up to a full day on Saturday and Sunday on the same weekend once per month
·The children spend time with their mother in her home in Town C or if she moves for employment, in the area where she moves, when she can provide evidence she has a suitable accommodation for them. The time the children spend then occur each school holidays for at least half the school holidays during the school terms and up to the whole school holidays if she can financially manage to do that. The children also spend at least half the long summer holidays with their mother.
·Mr Asanti be restrained from speaking in a negative or derogatory manner about Ms Idler in the presence or hearing of the children, which means any time they are in his care
·That Mr Asanti ensure the children do not refer to Ms N as “Mum” or “Mummy” or any other partner he may have by those terms, and that they be encouraged to refer only to Ms Idler as “Mum” or “Mummy”
·That Mr Asanti undertake a suitable Men’s Behaviour Change program preferably in a group program with Anglicare or Relationships Australia or similar organisation in region O or if that is professionally uncomfortable for him, then [closer to] Melbourne. That he complete 90% of the program and provide evidence of completion of the program to Ms Idler’s legal representative and the ICL
·That both parties complete a suitable parenting skills program which focusses on the use of other strategies and not physical chastisement for the management of children’s behaviours
·That both parties be restrained from the use of physical chastisement of the children
·That should the children not be provided to Ms Idler to spend time with her whereby they have been adequately and properly encouraged to stay for the duration of the time, Ms Idler be at liberty to apply for the children to live with her.”
Following the release of the first report interim orders were made on 5 February 2018 which provided:
·[X], [Y], [Z] and [W]’s time with the Mother extend from 1:00pm until 6:00pm on the first Saturday of each month;
·upon the Mother obtaining suitable accommodation [X], [Y], [Z] and [W] spend two weeks of the term holidays and four weeks of the long summer holidays with the Mother.
After the 5 February 2018 orders were made the Mother spent time with [X], [Y], [Z] and [W] on the first Saturdays in March and April. Time did not take place on the first weekend in May as the children were unwell. The Mother therefore proposed she spend time with [X], [Y], [Z] and [W] the following weekend, including on the Sunday as it was Mother’s Day. The Mother came to Town B on that weekend but the Father did not make the children available to see her.
The Father’s intervention order application of 1 February 2017 was resolved on 18 July 2017 when the Mother gave an undertaking not to commit family violence. On 7 March 2018 the Father made application for a further intervention order against the Mother for what he describes in his outline of case document filed 20 June 2019 as her “unabating incidents of violence against the kids”.
On 1 May 2018 the Mother filed an Application in a Case seeking, inter alia, property orders.
On 30 May 2018 the Father notified the Mother that [Y] had been chosen to play in a [sporting event] at location P on … 2018 which was the day the Mother would have spent time with [X], [Y], [Z] and [W] in Town B. The Mother agreed to the Father and the children attending [Y]’s game. She instead asked that she be able to spend time with the children the following weekend. The Father responded to the Mother’s request to reschedule her time as follows:
“In regards to an alternative arrangement, I wish to advise that I’m unavailable during the next weekends in June at this stage due to personal commitments planned since June 2017.”
The Mother attended location P for [Y]’s game but did not contact the children because of the Father’s intervention order.
The matter came back before the Court on 18 June 2018. In addition to interim property orders being made, further interim parenting orders were made which provided:
·in addition to the time [X], [Y], [Z] and [W] spend with the Mother pursuant to previous parenting orders they also spend time with her from 9:00am until 11:30am on the first Sunday of each month;
·the Mother be permitted to attend all school activities normally attended by parents;
·the Mother be authorised to communicate with [X], [Y], [Z] and [W]’s schools and obtain information normally provided to parents;
·changeover occur in the foyer of Town B Police Station with the Father to leave immediately upon bringing the children into the Mother’s care.
The Mother did not spend time with [X], [Y], [Z] and [W] in July, August, September, October or November 2018.
In his outline of case document the Father states:
“July-Dec 2018 – Mother did not attend to spend time with the kids.”
In paragraphs [172]-[212] of the Mother’s trial affidavit sworn and filed 10 February 2019 she sets out her evidence as to why [X], [Y], [Z] and [W] did not see her between July 2018 and November 2018 as follows:
·she travelled to Town B on 7 July 2018 and waited at Town B Police station for the Father to attend with [X], [Y], [Z] and [W]. After half an hour the police telephoned the Father who said he could not bring the children because he was too unwell and that he had sent an email. The Mother received an email from the Father which was sent after changeover time;
·in August the Mother was unwell and her solicitors emailed the Father on 3 August 2018 explaining she would be unable to attend because of her illness and requested an alternate weekend. The Father did not respond to the request for an alternate weekend. The Mother was subsequently told by [X], [Y], [Z] and [W] the Father had taken them to the police station on 4 August 2018 and they asked her why she didn’t come to see them. The Father claimed he did not open the Mother’s solicitor’s email until after 4 August 2018;
·in September the Mother was due to visit on the Father’s Day weekend. She proposed she visit on the weekend of 22 September instead so the Father could have Father’s Day with [X], [Y], [Z] and [W] and because 23 September is [W]’s birthday. The Father declined the proposal suggesting she, the Father and the children do something together on the Father’s Day weekend. Given the Father’s intervention order, the Mother declined to do;
·in October the Mother had to travel to Town B on 11 October 2018 for the parties’ competing intervention order applications. She could not afford to travel to Town B for the weekend of 7 October as well as on 11 October. She therefore proposed she spend time with [X], [Y], [Z] and [W] overnight on 10 October 2018 in lieu of the weekend. The Father did not agree with this proposal;
·in the first weekend of November the Mother was unable to obtain accommodation in Town B. On 30 October 2018 the Mother’s solicitors emailed the Father to advise of the Mother’s difficulties and proposed time take place the following weekend. The Father did not respond.
Despite the February 2018 orders, [X], [Y], [Z] and [W] did not spend time with the Mother during any of the term holidays in 2018. It is the Mother’s evidence that whilst she was studying she did not have the financial resources or appropriate accommodation for [X], [Y], [Z] and [W] to stay with her.
The Mother qualified as a health professional in late 2018 and obtained full-time employment. She was then able to rent a three-bedroom home. [X], [Y], [Z] and [W] spent time with the Mother from 23 December 2018 until 26 January 2019. During this period the Father travelled overseas.
On 25 January 2019, the former matrimonial home was sold. It incurred a $43,000 loan upon sale which the Father has been responsible for.
On 10 February 2019, some ten days prior to the final hearing date, the Mother filed an Amended Initiating Application seeking for the first time that orders be made she have sole parental responsibility for [X], [Y], [Z] and [W], that they live with her and spend time with the Father.
Given the late filing of the Mother’s Amended Initiating Application which raised the issue of residence for the first time, the matter could not proceed on 20 February 2019. Orders were therefore made for the preparations of an updated family report and for [X] to be able to travel with the Father to the Country E in the first term holidays between 6 April 2019 and 22 April 2019 for a family wedding.
Whilst [X] was in the Country E with the Father, [Y], [Z] and [W] spent the first term holidays with the Mother.
Orders clarifying the arrangements for [X], [Y], [Z] and [W] to spend time with the Mother in the second term holidays, whilst the Father was again overseas, were made at the conclusion of the trial.
The Evidence
The Mother
The Mother relies on her trial affidavit sworn 10 February 2019, together with her Financial Statement sworn 10 February 2019. The Mother also gave vive voce evidence at the final hearing.
As has been set out earlier in this judgment, the Mother seeks orders that she have sole parental responsibility for [X], [Y], [Z] and [W], that they live with her, that they spend time with the Father each alternate weekend from after school Friday until before school Monday, one week in each of the term school holidays, for two weeks in the long summer vacation and on special occasions.
The Mother also seeks that there be a period of time, approximately one term, after [X], [Y], [Z] and [W] move to live with her that they not spend time with the Father. This is to enable them to settle in with her and to protect them from what she believes will be the Father’s attempts to undermine her and her parenting and prevent [X], [Y], [Z] and [W] from being able to comfortably settle into their life with her.
It is the Mother’s evidence that during the marriage she was the primary carer of [X], [Y], [Z] and [W] as she was the stay-at-home mother whilst the Father was engaged in full-time employment. She strongly refutes the Father’s evidence that she did not cope with the parenting of the children or that she had to call upon the Father to leave work to come home and assist her. She notes that for 12 months after the birth of [W] her mother travelled from Country D to assist in the care of the children, as she had four children four years and younger.
It is the Mother’s evidence that during the relationship the Father was very dominating and emotionally abusive of her and that she was seeking assistance for her and the children to separate from the Father in the months before the Father accepted his new position in Town B and moved there with the children.
When shown the video of the incident where she was screaming at [Z] while putting cream on him, the Mother was able to acknowledge that it looked very bad. She explained that at the time she was caring for the children, she had an assignment due as part of her nursing studies and was at the end of her tether and that the Father was not offering any assistance to her despite her asking for his help.
It is the Mother’s evidence that when she becomes upset she has a loud voice and has yelled at the children. It is her evidence that culturally it is usual for Country D parents to physically discipline their children and that both she and the Father would do so when the children were younger. It is her evidence that she has been made aware that this is not how children are parented in Australia and following the release of the first report, she attended the recommended parenting courses and now utilises different techniques when wishing to discipline [X], [Y], [Z] and [W] for their behaviour. This includes “time out” and sitting down calmly with them to discuss why their behaviour is inappropriate. It is her evidence she no longer physically disciplines [X], [Y], [Z] or [W].
It is the Mother’s evidence that when the parties first separated the Father made it extremely difficult for her to spend any time with [X], [Y], [Z] and [W]. It is her evidence that when she travelled to Town B the Father would encourage [X], [Y], [Z] and [W] to run away from her. He would let the children know that he was just parked around the corner if they were to run away. He provided them with their bikes so that they would be able to ride home to him.
It is the Mother’s evidence that because she was financially challenged after separation because she was studying and only in receipt of Centrelink payments to support herself, it was very difficult for her to get to Town B to see [X], [Y], [Z] and [W] any more than once a month. Because she was living in shared accommodation, she was not in a position to have the children come to Town C to spend time with her.
When giving evidence, the Mother had a tendency to make grand and holistic statements about her aspirations for [X], [Y], [Z] and [W]. She spoke of their emotional and psychological wellbeing as being essential to their growth as human beings, that she doesn’t think they’re functioning at their best, that there is no excitement or happiness in their voices when she speaks to them, how she wants to ensure that they are given every opportunity to develop their individual skills and passions and the importance that they be brought up in an environment where they are free to be children so that they can grow as individuals and develop into responsible and functioning adults.
However, when questioned about the day-to-day care of [X], [Y], [Z] and [W] if they were to live with her, it was apparent that the Mother had made the necessary enquiries and had arrangements in place for their care if they were to live with her.
The Mother’s evidence is that she is employed by Employer G as a health professional and that she works 56 hours per fortnight. She works two shifts: one from 7:00am until 3:30pm and the other from 1:30pm until 10:00pm.
When on the early shift, it is the Mother’s evidence that she has arranged for a close friend from the Town C Country D community to come to the house in the mornings to get the children ready for school and that she would be able to collect them from school after work.
It is the Mother’s further evidence that she also has a very close friend who is in childcare and that she will be able to engage this woman to care for [X], [Y], [Z] and [W] when she is on the evening shift. It is her evidence she is hoping to be able to arrange her working life so that she predominantly undertakes the day shift. It is the Mother’s evidence that her friend assists her in the care of [X], [Y], [Z] and [W] when she has them over the school holidays and is required to work.
The Mother agrees that when [X], [Y], [Z] and [W] were living in Town C the older children did not like the school they were then attending. She has therefore made enquiries at Q School and that there are positions available for the children to commence at that school if orders are made as sought by her. It is the Mother’s evidence that she already has school uniforms for them.
During the interviews for Ms M’ second family report, the Mother told Ms M that if [X], [Y], [Z] and [W] were to return to her, she has put in place arrangements for them to attend counselling with Berry Street utilising a specific reunifying children’s program to assist them with their transition from living in Town B in their father’s care to living in Town C with her.
The Mother seeks orders that the watch list order continue to be in place in relation to [X], [Y], [Z] and [W]. It is her evidence that if the Father were permitted to travel overseas with the children, he would in all likelihood not return to Australia with them, particularly if there were orders for them to live with her. It is her evidence that the Father has qualifications which would enable him to work anywhere in the world and that he has family in Country D and in the Country E.
The Mother is not opposed in principle to there being arrangements where the Father could travel with one of the children, as he did with [X] in April 2019, as in those circumstances she believes he would return with that child to Australia.
In relation to financial matters the Mother is seeking orders that there be a superannuation splitting order in her favour in the sum of $34,000 and that otherwise the parties each retain that which is in their possession.
The Mother argues that if she is successful in relation to her application for the children to live with her, this is a just and equitable that the parties’ only realisable asset be divided between she and the Father.
The Father
The Father relies on his trial affidavit sworn 6 February 2019, a document headed “Response to Trial Affidavit” sworn 10 February 2019 and an affidavit headed “Response to Family Reports” sworn 7 June 2019. The Father also relies on his Financial Statement sworn 19 February 2019. The Father gave vive voce evidence at the final hearing.
The Father’s affidavit material is very lengthy and totals some 212 pages.
It is previously noted in this judgment, the Father is seeking orders that he have sole parental responsibility for [X], [Y], [Z] and [W], that they live with him and that they spend time with the Mother as they desire and otherwise during all school holidays save for the long summer vacation when they should spend time with the Father upon him giving the Mother notice he wishes to travel overseas with them. The Father is seeking that the current orders that prevent [X], [Y], [Z] and [W] from travelling internationally be lifted.
As is reflected in his voluminous affidavit material and his oral evidence, the Father is unrelentingly critical of the Mother as a person and as a parent. He accuses the Mother of violence to himself and to the children, of infidelity, of a complete and total inability to care for [X], [Y], [Z] and [W], of lying, of having mental health issues and of abrogating her parental responsibilities.
The Father’s attitude towards the Mother is perhaps best summarised in this exchange between the Father and the Mother’s Counsel during the final hearing:
Counsel: “You don’t have a high opinion of the Mother? You repeatedly call her a liar”
The Father: “She is – she lies.”
Counsel: “Manipulative?”
The Father: “Yes. She is.”
Counsel: “Vengious?”
The Father: “Yes – yes.”
Counsel: “Mentally disturbed?”
The Father: “Yes.”
Counsel: “Malicious?”
The Father: “She is.”
Counsel: “Stalked you in Town B?”
The Father: “She has – yes.”
Counsel: “Has ulterior motives?”
The Father: “She has.”
Counsel: “Calculating?”
The Father: “Very correct.”
Counsel: “Glutton?”
The Father: “Very correct.”
Counsel: “Lazy?”
The Father: “She is physically lazy.”
Counsel: “Thoroughly disturbed?”
The Father: “Yes.”
Counsel: “Dangerous to the children?”
The Father: “Yes, she has been.”
Counsel: “Violent to the children?”
The Father: “Yes, she has been.”
Counsel: “Abdicated the role of parent?”
The Father: “Yes, she has.”
It is the Father’s evidence that [X], [Y], [Z] and [W] are thriving in his care. It is his evidence they have settled very well in Town B, that all the children are progressing well at school and that he has them engaged in extra-curricular activities within the community in which they are excelling.
It is the Father’s evidence that he has properly attended to [X], [Y], [Z] and [W]’s physical and emotional needs. He notes that it is he who took [Z] to the specialist to have the appropriate testing done to ascertain what allergies he has that have contributed to his eczema and that his condition is now being properly managed.
It is the Father’s evidence that during the marriage the Mother struggled to care for [X], [Y], [Z] and [W] and that she would often call upon him to return home to assume their care as she was unable to cope. It is the Father’s further evidence that when the Mother and the children moved from Town H to Town C (400 kms away), it was he who assumed the children’s care as the Mother was either absent for study purposes or would absent herself from the home because she was unable to cope with the children or was having an affair.
During the trial, the Father played a video that he had taken during the marriage of an incident where the Mother was putting cream on [Z]’s eczema. The Mother is screaming at [Z] to be quiet and give her some peace. It is the Father’s evidence that this is indicative of how the Mother parented during the relationship and shows her inability to cope with the children.
It appears that the Father did not intervene whilst this was happening and instead sat back and videoed the incident. When challenged as to why he did not intervened, the Father explained that it would have only made matters worse as the Mother would have become even angrier.
When questioned about the time he would seek to spend with [X], [Y], [Z] and [W] in the event the Mother was successful in her application that they live with her, the Father told the Court that he would only seek to spend time with the children when travelling with them.
In Ms M’ first report, she made a recommendation that the Father undertake a suitable men’s behaviour change program and that both parties complete a suitable parenting skills’ program which focusses on the use of strategies and non-physical chastisement for the management of the children’s behaviours. The Father was questioned as to whether he had undertaken either of those recommended courses. He responded that he had not done so. When asked why he had not done so, he responded that it was because he did not need to and because the necessity for his attendance upon those courses was not an accurate reflection of his situation or the situation in which the children live.
The Father is a proud Country D man who is very confident in himself and in his belief that he is by far the better parent of his children. The way in which the Father presented himself and the tenor of his evidence suggests the Father does not hold women in particularly high regard. At one stage when cross-examining Ms M, the Father had to be pulled up for being openly rude and dismissive of her.
Perhaps the Father’s attitudes and belief in his superiority as a father is best summarised in his concluding comments to the Court at the end of his closing submissions, where he said:
“No matter what happens [Country D] children will always come back to their father.”
In relation to financial matters, the Father proposes that each of the parties retain the property which they currently own, including their superannuation.
It is the Father’s evidence that post-separation he has been responsible for all of the parties’ liabilities, including the not insignificant loss sustained by them in the sale of their Town H property. It is the Father’s evidence that since separation he has been solely financially responsible for [X], [Y], [Z] and [W] with no child support being paid to him by the Mother.
It is the Father’s submission that in these circumstances he should retain his superannuation, a considerable component of which has been earned in the three years since separation.
Ms M
Ms M is a Regulation 7 family consultant with the Federal Circuit Court. As previously noted in this judgment Ms M has prepared two family reports in this matter, the first dated 3 January 2018 (“the first report”) and the second dated 1 May 2019 (“the second report”). Ms M gave vive voce evidence at the final hearing.
The salient features of Ms M’ first report have been set out in paragraphs [35]-[40] of this judgment.
In the second report Ms M described the Mother as not spontaneously making negative comments about the Father but rather, answering direct questions of her. She noted the Mother to be able to demonstrate reflective capacity and that she had “proactively undertaken a parenting course to cease all physical chastisement of the children.”[1]
[1] Family report of Ms M dated 20 February 2019, para 31.
Ms M notes that the Mother recognised that [X], [Y], [Z] and [W] had been in the Father’s care for almost two years and that their return to Town C would be a significant move for them. The Mother explained to Ms M that she believed “they would benefit from being returned to Town C primarily to have the stability of the bond with her and so they are no longer exposed to what she alleged was Mr Asanti’s largely psychological and emotional abuse.”[2]
[2] Family report of Ms M dated 20 February 2019, para 28.
As mentioned previously in this judgment, the Mother told Ms M that if the children were to return to her, they would attend upon Berry Street for a specific reunifying children’s program to assist them with their transition back to her care.
In relation to the Father, Ms M described him as being “somewhat cooperative”[3] during the interview but struggling to remain focussed on the questions asked.
[3] Family report of Ms M dated 20 February 2019, para 34.
Ms M reports the Father to be concerned for [X], [Y], [Z] and [W] if they were to relocate to live with the Mother, as he believed they would be “traumatised by being moved away from him, and that … they would be neglected in Ms Idler’s care.”[4]
[4] Family report of Ms M dated 20 February 2019, para 37.
In paragraph [39] Ms M describes the Father as making “many allegations about Ms Idler which created the impression that he considered her to be of poor character.”
Ms M notes the Father emphasised that [X], [Y], [Z] and [W] spend time with the Mother reluctantly and that he “needs to insist they attend.” He told Ms M that they do “not enjoy their time with their mother” but that he believes they need to have a relationship with her. Ms M concludes that “he did not volunteer any positive information about Ms Idler’s parenting.”[5]
[5] Family report of Ms M dated 20 February 2019, para 41.
When discussing the children, Ms M noted [X] reported about her mother in very specific language that “created an overall impression that she had been prepared for interview.”[6] In contradiction to the Father’s evidence that the Mother was not part of their home when they lived in Town C, [X] reported that her mother was there “every day and she lived with the children and her father, but she also went out to work sometimes and her father worked outside the home too.”[7]
[6] Family report of Ms M dated 20 February 2019, para 46.
[7] Family report of Ms M dated 20 February 2019, para 48.
When asked to describe something positive about the Mother, [X] responded in words to the effect that “at least we got some good behaviour from her since the separation.”[8] When asked about anything not so good about the Mother, [X] responded with information that she advised her father had informed her about, such as that her mother had seized the children’s passports and did not wish the children to travel overseas.[9]
[8] Family report of Ms M dated 20 February 2019, para 50.
[9] Family report of Ms M dated 20 February 2019, para 51.
When asked to describe positive things about the Father, [X] told Ms M that “he takes care of them when hurt badly and tells them what’s good and not good.”[10]
[10] Family report of Ms M dated 20 February 2019, para 52.
Ms M sets out in paragraph [52] [X]’s response to her question to describe what was “not so good” about their father as follows:
“52. [X] reported it was not so good when the children do not do what their father requests of them such as cleaning. [X] described a three-step process of two warnings and then said in words to the effect that “everything turns upside down...he yells and that’s it”. [X] reported she has figured it is better to do what her father says, and she described that his discipline practice has changed and, in her words, “I’m not exactly whacked anymore”.”
In relation to [Y] Ms M reports that he too spoke using words that were “unusually adult” in describing the Father and were “inconsistent with his language generally, suggesting he may have been prepared for interview.”[11] Ms M reports [Y] as using words to the effect that his mother had “changed her ways and she’s changed her attitude”. He gave an example that “in the past she would hit the children and yell at them and now she does not.”[12]
[11] Family report of Ms M dated 20 February 2019, para 56.
[12] Family report of Ms M dated 20 February 2019, para 57.
When discussing [Z], Ms M notes that he reported the Mother to be kind and described some of the activities he enjoys with her.[13]
[13] Family report of Ms M dated 20 February 2019, para 62.
In relation to the Father, [Z] reported to Ms M that a good characteristic of the Father was “that he makes the children Country D snacks and allows them to go to Hungry Jacks.”[14] (It is interesting to note the Father took great exception to this, as he said he has never taken the children to Hungry Jacks).
[14] Family report of Ms M dated 20 February 2019, para 62.
Ms M reported that when asked what was not so good about the Father, [Z] told her that his father uses physical discipline when they do something bad and that he recalls his father using a cane in 2018. Ms M notes [Z] told her that the Father now “uses his hands instead.”[15]
[15] Family report of Ms M dated 20 February 2019, para 63.
At paragraph [63] Ms M observes “It was clear that [Z] was fearful of his father. He reported not being fearful of his mother.”
In paragraph [66] Ms M also states that: “[Z] reported he misses his mother. [Z] reported he believed he would easily make new friends if the children relocated.”
In relation to [W], Ms M reports him telling her that “his mother is kind” and that the bad thing about her is that she “encourages him to eat vegetables like broccoli and potatoes.” [W] told Ms M that he is not fearful of the Mother.[16]
[16] Family report of Ms M dated 20 February 2019, para 68.
When discussing the Father, [W] told Ms M that the Father is “really kind” and that the not so good thing about the Father is that he “yells and smacks the children with in his words” and “whips on the bum”. Ms M notes [W] reported that he is not scared of the Father despite the corporal punishment.[17]
[17] Family report of Ms M dated 20 February 2019, para 69.
In paragraph [73] under the heading “Children’s relationships” Ms M describes the relationship between the parents in the following terms:
“73. The children appeared to have a pragmatic kind of relationship with their father and one in which he was described as helping them and problem solving for them. There was a sense about their mother that they have all enjoyed being with her in contrast to what Mr Asanti reported and there was a wistful and pressured sense about them. They seemed to have been prepared for interview and highly conscious of not saying anything too detrimental about Mr Asanti, especially the two older children. [W], perhaps naively, spoke openly about his father’s ongoing use of corporal punishment and used words which raised alarm bells about how severely that discipline may be employed. It was on the basis of [W]’s description that a formal complaint was made to the Department of Health and Human services under mandatory reporting responsibilities.”
When discussing her observation of the children with each of their parents, Ms M noted the Mother to be warm and affectionate and the children seemed to be comfortable with her. Ms M noted [X] in particular to have sat beside the Mother and them chatting about everyday things, [Y] being quiet but sitting near the Mother and engaging with her quietly and [Z] being quite demanding and continuously sitting on the Mother kissing her face. Ms M notes that [Z] subsequently found some chocolate in the Mother’s bag and later told her that he was only kissing her so that she would give him the chocolate.
[W] was noted to be quite difficult in transitioning from the Father to the Mother, with him clinging to the Father who seemed ineffectual about encouraging [W] or directing him to spend time with the Mother.
Ms M also notes that during the observation session with the Mother, [W] left the room and that the Father did not return [W] to the room to be with the Mother.
When with the Father, [W] sat on his lap and [X] spoke next to him and engaged mainly with [W]. Ms M noted the younger boys to have been playing, roughhousing and playfighting. Ms M overall noted that there was nothing of concern during the observation.
Under the heading “Evaluation” Ms M sets out her impressions of the Mother in paragraphs [80]-[85] as follows:
“80. Ms Idler has continued during 2018 to travel once per month to Town B to spend time with the children on the first Saturday of the month and she pays for the travel and accommodation there. She has also spent time with the children on school holidays since her accommodation had become suitable.
81. Ms Idler impressed as focussed on what would most benefit the children. She had been thoughtful about the support they will need if they are permitted to return to live with her in Town C. Ms Idler had undertaken a parenting program and was able to indicate how that has changed her disciplinary practice with the children. Ms Idler had also completed her nursing qualifications to enable her to financially support the children better.
82. Ms Idler was respectful in relation to Mr Asanti and did not primarily focus her attention on him during the Family Report interviews, rather she answered questions about him when asked. What she described with Mr Asanti was a relationship in which what she experienced as controlling and manipulative behaviours escalated to include psychological and emotional put downs on a continual basis and then to some physical violence. Ms Idler reported that Mr Asanti’s behaviour towards her escalated when she became more assertive.
83. Ms Idler impressed as an intelligent woman who has formed some understanding of the psychological and relationship dynamics of the parties due to her health professional training, and the professional assistance she has sought.
84. In relation to whether Ms Idler would support the children to have a meaningful relationship with their father there is confidence that she would, based on her presentation at interview, her commitment to compliance with Orders, and to slowly working with the children to re-establish their confidence with her. Ms Idler was of the belief that they have been confused about whether she loves them or not because of what has been said to them about her since the separation. However Ms Idler reported she has demonstrated consistent love towards them and has patiently worked within the system for the children to have their own experience of her as opposed to their father’s opinion of her.
85. In relation to the allegations by Mr Asanti that Ms Idler has mental health problems, she has sought appropriate support for what she described as the impacts on her of the control Mr Asanti exerted. There were no indicators of mood disorders or cognitive impairment during the Family Report interviews. Ms Idler described feeling despondent about the children being removed from her care by Mr Asanti but apart from the understandable distress that caused her, she did not report any mental health impairment.”
In relation to the Father Ms M made the following observations in paragraphs [86]-[89]:
“86. Mr Asanti impressed as struggling to focus on what would most benefit the children. While it is heartening that the children seem to perform well at school and they are a credit to their parents in that regard, Mr Asanti repeatedly spontaneously focussed on Ms Idler expressing opinions about her that raised significant concerns about his capacity to support the children to have a meaningful relationship with her.
87. Mr Asanti demonstrated, at the updated Family Report interviews, a degree of ineffectual parenting when he was unable to support [W] to return to the observation with his mother. This behaviour by [W] was incongruent with his opinions about his mother.
88. Mr Asanti demonstrated a scatter gun approach to criticising Ms Idler, and he failed to recognise or acknowledge any positive parenting capacity of Ms Idler.
89. Mr Asanti impressed as minimising or denying violence towards the children. There was inconsistent information from the children about his current discipline of them. The inconsistencies and overt information from the children were sufficient for the Family Consultant to make a notification of risk of harm to them from their father to Department of Health and Human Services.”
In relation to [X], [Y], [Z] and [W], Ms M sets out her evaluation in paragraphs [91] and [94]-[98] as follows:
“91. There was information from the children which indicated that they had been prepared for interview by Mr Asanti and that he had discussed with them his negative opinion about their mother.
…
94. [X] at the age of 10 should be able to express a view about her preferences and to have that carry some weight. However, she impressed as under pressure and guarded in relation to her father. She also impressed as unable to openly state what she appreciates about her mother. Her behaviour with her mother during the observations was relaxed and comfortable and she appeared to enjoy sitting close with her mother and talking with her. The observations of [X] were inconsistent with her verbal feedback in which she appeared reluctant to say any too positive about her mother. Having said that [X] did not report anything negative about her mother. [X]’s words about her father’s reported change in his discipline were confused, suggesting she was under a degree of stress when responding.
95. [Y] at the age of 9 years should also have some weight placed on his opinions and wishes. He impressed as a quiet boy and also cautious about expressing an opinion. [Y] chose not to make a response in relation to the proposal that the children continue to live with their father, as was his right. It was clear that he did not wish to be involved in the conflict. However, [Y] reported that his mother does not smack the children and he was positive about her. [Y]’s manner of speaking suggested he had been prepared although he also seemed reluctant to act on that preparation.
96. [Z] also expressed positive views about his mother which was consistent with the observations of him with her. [Z]’s descriptions of his father were neutral rather than positive and it appeared he may be fearful of his father. [Z]’s difficult behaviour could be related to the grief of separation from his mother, and possible trauma from discipline by his father. While [Z] reported his father had used a cane in the past he was unconvincing as to whether that had ceased.
97. [W] expressed positive about both parties. He reported no negatives about his mother and concerning reports about discipline by his father. Although [W] expressed that he was not fearful of his father it was uncertain as to whether he would be able to identify fear or whether he might also be normalised to fear, if discipline has been physical throughout his life.
98. The children all expressed reasonable confidence they would make new friends at school if they relocate to Town C.”
Ms M then states at paragraph [90] the following:
“90. If the Court determines that Mr Asanti’s behaviour is a form of family violence which includes attempting to make Ms Idler feel responsible for the problems in their relationship and second guessing herself, then it would benefit the children to live primarily with their mother. Mr Asanti demonstrated that behaviour at interview. There are concerns that as the children’s independence of thinking increases, they may be subject to the same behaviours as their mother alleged she was.”
Ms M states the following at paragraph [92]:
“92. There are concerns that if the children remain in their father’s care, their relationship with their mother will not be adequately supported.”
In relation to parental responsibility Ms M expresses the view in paragraph [99] that the Mother would be unable to press upon the Father her reasonable opinions and that she would “continue to be subject to him undermining her relationship with the children if parental responsibility for education and major medical decisions are shared.”
On the basis of the presentation of [X], [Y], [Z] and [W] and her opinion of the risk to them from the Father’s behaviour together with the Mother’s presentation and reflective capacity, Ms M makes the following recommendations in paragraphs [101]-[106]:
“101. Ms Idler have sole parental responsibility for the children in relation to their education and major medical decisions
102. The children live with their mother
103. The children’s time with their father be suspended pending any investigation and advice from the DHHS
104. If the DHHS report there is no or low risk of harm to the children that they spend time with their father according to Ms Idler’s proposal for the first year and that the time on the long summer holidays be reviewed in the second year to possibly increase to two weeks or more weeks
105. That the children’s names remain on the Watch List with any international travel to be by agreement between the parties
106. Mr Asanti be restrained from the use of corporal punishment towards the children.”
Ms M was asked in cross-examination whether she was still of the belief that the Father would benefit from attending a men’s behaviour change course. Ms M responded as follows:
“I am. And that would be because even if – it’s not my decision as to whether family violence occurred or not – but there are indicators often with other people about whether somebody has what I would call controlling behaviours and they’re very linked. And so a Men’s Behaviour Change would assist in changing those shorts of behaviours and some of there (sic) were observed during the family report interviews with Mr Asanti.”
Ms M was then asked to explain what she observed of the Father’s behaviours. Ms M replied as follows:
“Mr Asanti had a tendency to speak over and to attempt to direct the family report interviews, particularly in the first one. In the second one I, at times, drew his attention to that and he would stop. So that suggests to me that some degree of learning about that would be a good thing in terms of managing that behaviour. The focus in Men’s Behaviour Change programs is on respect, I guess, and attitudes that inform ultimately violence and verbal abuse. So that the indicators were the tendency to want to control. Some of them were slight in terms of when the youngest child left the observation room and wouldn’t come back and I went out to see what was happening, he was sitting on Mr Asanti’s lap and Mr Asanti was smirking, but not – didn’t send the child back to the room. … I know they sound like minor things, but they’re all non-verbal indicators that there were somewhat of a challenge to me as the family consultant who was directing the process.”
Ms M also confirmed in cross-examination that she still believes the Father would benefit from completing a suitable parenting skills program. She noted that the Mother had completed that program and that the Mother spoke to her in detail about what she had learned, which suggested to Ms M that the Mother had genuinely benefited from doing that course and had changed the manner in which she was parenting the children, particularly in relation to not using physical discipline.
Towards the end of her evidence, Ms M was asked whether the basis upon which she recommended a change of residence was her concerns about the Father’s capacity to support the children having a relationship with the Mother. Ms M responded as follows:
“It is, but also the … controlling sort of behaviour. I would think that if that doesn’t change, that as the children become more independent, particularly around adolescence, that that may become more of an issue if it’s not rectified and maybe even specifically for [X]…”
Best interests of the child
Part VII of the Family Law Act 1975 (Cth) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):
“1. The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, 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.
2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and 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).”
Section 60CA of the Act provides that:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
To determine what is in the best interests of the child, the court must consider the matters set out in section 60CC(2) and section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the court, must be considered and assessed in the context of each of the parties’ proposals. The court should then make a decision as to which of the parties’ proposals, or such other arrangement as the court determines given the court is not bound by the parties’ proposals, is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the court must consider when determining what is in the best interests. They are as follows.
Section 60CC(2)(a): The benefit of the child having a meaningful relationship with both of the child’s parents.
This is a matter in which [X], [Y], [Z] and [W]’s best interests are met if they are able to have a meaningful relationship with both the Father and the Mother.
A central issue to this matter is whether the children will be able to have a meaningful relationship with the Mother if they continue to live in the Father’s care.
Whilst the Father states that it is important that [X], [Y], [Z] and [W] have a relationship with the Mother, the tenor of both his written and oral evidence is such that it is apparent that he holds no respect for her as a person or as a parent and that he sees no real benefit for the children in having a relationship with her.
When he and the children first moved to Town B and the initial orders were made for time between the Mother and [X], [Y], [Z] and [W], the Father actively undermined the Mother’s efforts to spend time with them by encouraging them to run away, parking his car around the corner from where they were to meet her and by making their bicycles available to them so that they could ride home.
In the second half of 2018 the Father failed to accommodate what were reasonable requests by the Mother to vary the weekend she was to spend with the children each month. It is open to the Court to make a finding that in August 2018, the Father deliberately took [X], [Y], [Z] and [W] to the police station for changeover when he knew the Mother could not attend as she was unwell and that he did so in an effort make the children think their mother did not care about them enough to travel to Town B to spend time with them.
The Mother has spent more time with [X], [Y], [Z] and [W] since the long summer vacation of 2018/2019 when they spent most of the holidays with her. After those holidays, the monthly weekend time seems to have been taking place, the boys have spent time with her for the whole of the first term holidays and all four children spent the whole of the second term holidays with the Mother. The Father has taken the opportunity during these holidays to travel overseas to visit family.
The Mother is not without criticism in relation to her lack of involvement in [X], [Y], [Z] and [W]’s lives since separation. The Mother chose to remain in Town C to complete her study as a health professional rather than moving closer to where the children were living, thereby limiting her capacity to spend time with the children.
Section 60CC(2)(b): The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
It is the Father’s evidence that he believes that if [X], [Y], [Z] and [W] were to live with the Mother, they would be at risk of neglect, physical violence and psychological and emotional damage.
It is the Father’s evidence that during the relationship the Mother was not able to properly parent [X], [Y], [Z] and [W], often leaving that responsibility to him and often requiring him to come home from work because she was not coping.
The Father also questions the Mother’s capacity to financially support [X], [Y], [Z] and [W] given that she is going to earn what he describes as a significantly lower income compared to him.
The Father raises questions about the Mother’s capacity to attend to [X], [Y], [Z] and [W]’s physical and emotional needs. It is his evidence that since the parties separated it has been he who has been solely responsible the children’s care, observing there have been occasions where one or other of the children have been hospitalised and, despite him advising the Mother of this, she has failed to visit them.
As has been previously set out in this judgment, the Father showed the Court a video he took of the Mother screaming at [Z] whilst administering cream on him at a time when [Z] was very distressed with his eczema. The Father states this was typical of the Mother’s parenting whilst they were in a relationship.
The Father also questions how the Mother will be able to properly care for [X], [Y], [Z] and [W] given her new position requires her to work shift-work, which means she would have to be reliant upon childcare or her friends to care for the children before school or until quite late in the evening if she is on the afternoon shift that does not finish until 10:00pm.
The Father argues that his care of [X], [Y], [Z] and [W] since the parties’ separation has been exemplary. He has properly attended to their medical needs and has ensured that their education is being properly attended to. It is the Father’s evidence the children are doing well at school. This is reflected in their school reports which are annexed to the Father’s affidavit material. It is his evidence that the children are engaged in their local church and in sporting activities and have competed at state championship level.
It is the Father’s evidence that because of his management position, he has a level of flexibility around his employment that enables him to at times work from home when necessary and to be available to [X], [Y], [Z] and [W] in the event of an emergency.
It is the Father’s evidence that he earns a good living and is able to provide properly for [X], [Y], [Z] and [W]. They live in a comfortable, modern four-bedroom home that has all the requisite facilities. It is his evidence that he and the children are now well-established members of the Town B community.
The Mother strongly refutes the Father’s evidence that she did not properly parent and care for [X], [Y], [Z] and [W] whilst the parties were in their relationship. It is her evidence that she was the children’s primary carer as the Father was in full-time employment working out of the family home.
The Mother agrees that the video the Court was shown did not reflect well on her parenting, but explains that on that day she was under enormous pressure and that she had asked the Father to assist her and he had refused to do so.
It is the Mother’s evidence that she believes that [X], [Y], [Z] and [W] are at risk of emotional and psychological harm in the care of the Father because of his authoritarian and controlling parenting style, his total and complete disregard for her as a person and parent and his inability to recognise the importance of her relationship with [X], [Y], [Z] and [W] and to support them in having a relationship with her.
It is the Mother’s evidence that she has made all the requisite enquiries in relation to the practical arrangements for the care of [X], [Y], [Z] and [W] if they were to live with her in Town C. It is her evidence that she has spoken to a suitable school and that there are positions immediately available for [X], [Y], [Z] and [W]. It is the Mother’s evidence she has developed close friends within the Town C Country D community. She has a very close friend who runs childcare who will assist her in looking after the children whilst she is working. This person is known to the children as she has cared for them during the school holidays in 2019 when the children have been with her and she has had to work.
It is the Mother’s evidence that she recognises that a change of residence will be extremely difficult for the children after nearly three years with their father. She has therefore made the appropriate enquiries with Berry Street for counselling for the children to assist them through their transition to her care.
The essence of this matter is really an assessment of which is the greater risk to [X], [Y], [Z] and [W]: is it a greater risk to them that they go to the Mother’s care and she is not able to attend to their day-to-day care, including their health, education, cooking, cleaning, washing, getting them to sport and their other extra-curricular activities or they remain living with the Father who has attended to their physical needs very well but whose inability to support the children’s relationship with the Mother and his very authoritarian parenting style may impact on their emotional and psychological wellbeing and development?
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in the child’s best interest.
Each of the matters set out under that section will be considered in turn where applicable in this matter.
Section 60CC(3)(a): Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
Ms M formed the view that the three older children are fearful of their father and that they are all very conscious of the necessity to do what they are told. [X]’s description to Ms M was most illuminating. In paragraph [52] of the second report Ms M writes:
“[X] described a three-step process of two warnings and then said in words to the effect that “everything turns upside down...he yells and that’s it”. [X] reported she has figured it is better to do what her father says…”
The major concern in relation to the Father’s parenting of [X], [Y], [Z] and [W] is his complete inability to recognise that there is any benefit in the children having a relationship with the Mother. It is his belief the Mother does not have anything positive to offer the children, either as a parent or as a person. In his affidavit material and in his vive voce evidence he was unremittingly critical of her and could not identify a single positive thing about her, or anything that she could contribute to the benefit of their children. The Father lacks any insight into the emotional and psychological impact on the children of not having a relationship with their mother and of being exposed to his negative views of her.
There is clear evidence before the Court that immediately after separation the Father actively sought to undermine the time between [X], [Y], [Z] and [W] and the Mother. For the second half of 2018 he refused to be flexible and to change the weekend of the Mother’s monthly visits even when very reasonable requests to do so were put to him.
There was one occasion in August 2018 where, as has been previously noted in this judgment, it is open to this Court to make a finding that the Father deliberately took [X], [Y], [Z] and [W] for changeover with the Mother knowing she was unable to attend that weekend because she was unwell. It is therefore also open to this Court to draw the conclusion that he did so in order to have the children think that their mother did not care for them enough to come and see them.
Whilst the Father’s compliance with orders for [X], [Y], [Z] and [W] to spend time with the Mother has improved considerably since the long summer vacation 2018/2019, there seems to be an element of convenience to the Father as it has enabled him to travel overseas. However, to be fair to the Father, he has not been able to travel until recently as the Mother has only been able to accommodate the children since the 2018/2019 summer holidays and he has been unable to travel with them because of the watch list order that is currently in place in relation to the children.
When considering whether it is in [X], [Y], [Z] and [W]’s best interests to live in the primary care of the Mother there are two primary concerns.
The first is the impact on [X], [Y], [Z] and [W] of the considerable disruption to what is their now well-settled lives in Town B where they have lived with the Father for three years.
A move to the Mother’s care in Town C involves a change of their primary carer, a change of school and removal from their community.
A change of residence and school is not unknown to [X], [Y], [Z] and [W]. They have moved from Town H to Town C and then from Town C to Town B because of the Father’s work. It is noted that [Z] told Ms M he did not think he would have trouble making new friends if he relocated.
The Mother recognises the difficulties such a move would create for [X], [Y], [Z] and [W] and has already made enquiries for the appropriate counselling support to be available in Town C to assist the children with the move.
The second identifiable risk if [X], [Y], [Z] and [W] were to return to the Mother’s care is the question of her ability to meet the day-to-day demands of parenting four children on her own.
It is the Father’s evidence that the Mother struggled to parent [X], [Y], [Z] and [W] when the parties were in a relationship and that much of the parenting fell to him because she could not cope. The video he showed as an example of her parenting was most concerning.
It has been three years since the Mother has had the full-time care of [X], [Y], [Z] and [W]. They are now that much older and there is much to their care that she does not have full knowledge of at this time.
The Mother strongly refutes the Father’s allegations that she struggled to parent [X], [Y], [Z] and [W] during the relationship. It is her evidence that she was their primary carer throughout the relationship given she was predominantly a stay-at-home mother, albeit she started studying prior to separation. The Mother particularly points out to the Court that from July-December 2015 she had the sole care of [X], [Y], [Z] and [W] in Town H when the Father moved to Town C for work. The Mother notes the Father raised no concerns at that time about her inability to parent the children in his absence.
The Mother placed before the Court her evidence as to the arrangements she has in place should [X], [Y], [Z] and [W] move to live with her. This includes arrangements for their new school, care arrangements whilst she is working and, as noted previously, appropriate counselling support to assist them through their transition to her care.
Both the report writer Ms M and the Independent Children’s Lawyer support orders being made for [X], [Y], [Z] and [W] to move to live in the primary care of the Mother. Both were of the view that the greater risk to the children is the impact on them emotionally and psychologically if they are prevented from having a relationship with the Mother, which they believe would occur if they were to remain in the Father’s care.
Both the Independent Children’s Lawyer and Ms M also raised concerns about the controlling aspect of the Father’s parenting and that the older children are fearful of the Father. They also question how the Father will respond if once the children reach adolescence they started to challenge his authority.
Whilst there are many aspects of the Father’s care of [X], [Y], [Z] and [W] over the last three years which he should be properly commended for, his evidence raises real concerns about the emotional and psychological impact on [X], [Y], [Z] and [W] if they remain in his care. It is very apparent the Father does not and cannot support them having a relationship with the Mother given his beliefs as to her inappropriateness as a person and as a parent.
Having considered the competing risks to the children in their respective parents’ care, the long-term emotional and psychological impact on [X], [Y], [Z] and [W] if they remain in the Father’s primary care is, on balance, a greater risk to them than the risk of shortcomings in the Mother’s practical day-to-day parenting of them and the disruption brought about by their relocation from Town B to Town C.
The Mother’s evidence as to the parenting course that she has undertaken and learned from, her evidence as to what she has done to take control of her life both in terms of a new career and establishing a support and friendship group in Town C and the sensible arrangements made by her for the children in the context of school and supporting counselling gives the Court some confidence that she will be able to adequately attend to the practical and physical needs of the children. More relevantly she is better placed to attend to their emotional and psychological development.
Accordingly, orders will be made that the Mother have sole parental responsibility for [X], [Y], [Z] and [W], that they live with her and that they spend time with the Father for half of the school holidays, as well as alternate weekends and special occasions.
The Father will not agree with this decision and will struggle to accept it is in [X], [Y], [Z] and [W]’s best interests. He will therefore struggle to support the children living with the Mother and there must be a genuine concern that the Father will continue to criticise the Mother and her care of them to [X], [Y], [Z] and [W] and therefore undermine their ability to happily adapt to living with the Mother in Town C.
In those circumstances [X], [Y], [Z] and [W] should be given an opportunity to settle into their mother’s care before they commence spending time with the Father.
I am therefore of the view that there should be no interaction between the Father and [X], [Y], [Z] and [W] until the long summer vacation 2019/2020, at which time they should spend two weeks with him.
The Father indicated to the Court that if orders we made that [X], [Y], [Z] and [W] live with the Mother, he would only want school holiday time with them when they can travel with him. He also put no proposals before the Court for any weekend or other regular time with the children during the school term. Such an outcome would be extremely detrimental to the children. They love him and need to know that he loves them too. They therefore need him to continue to be a regular and vital part of their lives. It will be vitally important that he accepts this Court’s decision even though he does not believe it to be the correct one and that he ensures he remains an active and involved parent in his children’s lives.
The final parenting issue between the parties is whether the current airport watch list order preventing [X], [Y], [Z] and [W] from travelling overseas should remain in place.
The Mother and Independent Children’s Lawyer seek the watch list order remain in place. Both express a concern that the Father is a genuine flight risk and he would not return the children to Australia if permitted to travel with them. This is especially so given the Court’s decision that they are to live in the Mother’s primary care.
There is a real risk that if the watch list order is lifted the Father will take the children back to Country D and not return them to Australia given his belief that the children should be in his care and not the Mother’s.
Accordingly, the watch list order will remain in place until [X], [Y], [Z] and [W] each turn 18.
Property
The remaining matter for determination is what, if any, property orders should be made in relation to this matter.
The parties’ affidavit material barely addressed financial matters and neither party was cross-examined on financial matters during the final hearing. In closing submissions the Mother’s counsel and the Father devoted less than a minute each to the monetary matters.
The Mother is seeking orders there be a splitting order such that she receives $34,000 of the Father’s superannuation.
The basis of the Mother’s proposal is that the Father’s superannuation is the only remaining asset of the parties and it is only equitable that it should be shared, especially in circumstances where she is to be the primary carer of the children.
The Father seeks orders that the parties each retain that property which is currently in their possession including their superannuation.
The Father argues that in circumstances where his superannuation includes both pre-cohabitation and post-cohabitation contributions and more particularly where he has been solely responsible the parties’ joint debts post-separation, it is not appropriate that there should be any orders made adjusting the parties’ property interests.
The law
Section 79(1) of the Act provides the Court may make such orders as it considers appropriate altering the parties’ property interests.
Section 79(2) of the Act provides as follows:
“The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
Once the Court is satisfied that it is just and equitable to make an order altering the interests of the parties, section 79(4) of the Act sets out the matters which the Court may take into account when determining what order, if any, should be made.
Section 79(4) provides as follows:
“(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.”
Prior to the decision of the High Court in Stanford & Stanford [2012] HCA 52 the preferred approach to determine property matters was set out by the Full Court in the matter of In the Marriage of Hickey [2003] FamCA 395.
The approach, as set out in Hickey (supra) may be summarised as follows. Firstly, the Court should make findings as to the identity and value of the property pool. Secondly, the Court should determine the contributions of the parties both direct and indirect, including financial and non-financial contributions and then determine the contribution based entitlements of each of the parties; as a percentage of the value of the property of the parties. Thirdly, the Court should determine whether any further adjustment should be made to the contribution based entitlements of the parties, after giving consideration to the relevant matters referred to in section 75(2) of the Act. Fourthly the Court should consider the effect of those findings and decide what order for division of property is just and equitable.
In Stanford (supra) the High Court held that prior to making any orders for the adjustment of parties interests in property, the Court must determine whether it is just and equitable to make any property orders, or to alter the parties interests in property.
In paragraphs [72]-[80] of the decision of Whent & Marbrand [2017] FCCA 1873, Judge Williams (as she then was) summarises the jurisprudence following the decision of Stanford (supra) in the following terms:
“72. At Paragraph [36] of Stanford , the High Court said:
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations .it does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
73. In Bevan & Bevan [2013] FamCAFC 116 the Full Court considered which matters might be taken into account in determining whether it is just and equitable to alter existing property interests.
74. At paragraphs [84] and [85], Bryant CJ and Thackray J said:
[84]Just as the expression “just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79 (4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s79(4) which make clear that in considering “what order (if any) to make, the court must take into account the matters referred to in that subsection.
[85] This requirement to consider the s79(4) matters, in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the “just and equitable” requirement being “readily satisfied”. But there will be a range of cases, of which arguably the present is a good example, we determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.
75. In Bevan (supra) Finn J stated at paragraph 169:
[169] Findings of fact concerning of the parties financial history (i.e. the contributions) and their present circumstances and future prospects made in the context of s 79(4) will also assist, but such findings cannot (according to Stanford) be conclusive in determining whether or not it is just and equitable to make an order altering any particular property interest.
76. The Full Court in Chancellor & McCoy [2016] FamCAFC 256 said at paragraph [42]:
[42] In adopting the approach she did, her Honour proceeded in accordance with what the Full Court said in both Bevan and Chapman, namely that it is open to a trial judge to take into account the matters stated in s 79(4) (or s 90SM) of the Family Law Act 1975 (Cth) (“the Act”) when determining whether it is “just and equitable” to adjust existing property interests. However, consistent with Stanford, her Honour also recognised that it was not open to her to decide that issue merely by reference to those matters.
77. The High Court stated in Stanford at [37]:
[37] First, it is necessary to begin consideration of whether it is just and equitable to make property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property……. The question posed by S79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.”
78. At paragraph [40] of Stanford (supra), the High Court stressed that the question of whether it is just and equitable to make property settlement orders should not be answered by starting with an assumption:
that one or other party has the right to have the property of the parties divided between them, or has the right to an interest in a marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s79 (4). The power to make a property settlement order must be exercised. “In accordance with legal principles, including the principles which the act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79 (4) without a separate consideration of s79 (2), B to conflate the statutory requirements and ignore the principles laid down by the act.
79. The High Court further stated at [42] that in most cases:
[42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
80. In the majority of matters the decision as to whether or not it is just and equitable for the Court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the court for orders altering their respective property interests.”
Conclusion
The Father submits that there should not be any adjustment of the parties’ property interests and that the only orders the Court should make is that each party retain their current property interests.
The only property of value in which either of these parties has an equitable interest is the Father’s superannuation entitlements.
The former matrimonial home in Town H sold at a loss and neither party otherwise has assets of any value or significance.
A consideration of the factors of relevance when considering the parties’ circumstances are quite straightforward.
Post-separation, the Father has been responsible for all of the parties’ debt arising from their relationship. The exact amount of this debt is not known to the Court. The Father’s oral evidence is their debts exceeded $80,000. In the Father’s Response to the Mother’s Trial Affidavit sworn 19 February 2019, the Father only refers to his current liabilities and does not set out the details of the parties’ liabilities paid by him up to that date. The Mother did not challenge his evidence as to this figure or that he has been responsible for these debts.
In addition he has been solely responsible for the financial support of [X], [Y], [Z] and [W] since separation given the Mother’s very limited income whilst she was a full-time student.
The Father has therefore made a considerably greater contribution post-separation than the Mother. He has met the parties’ liabilities, has financially supported the parties’ four children on his own and has continued to contribute to his superannuation.
Given the parenting orders being made, the Mother will have the primary care of [X], [Y], [Z] and [W].
The Mother is only 37 years of age and is now employed on a full-time basis as a health professional. This will afford her an opportunity to build up her own superannuation entitlements.
The Father is nine years older than the Mother and as such, has a shorter period of time in which he can continue to contribute to superannuation.
That there is an asset available for division, in this case the Father’s superannuation, does not automatically mean there should be an order made for its division. Given the Father’s measurably greater post-separation contributions, the Court is of the view that this is a matter where it is not just and equitable that there be orders made adjusting the parties’ current property interests.
Accordingly, orders will be made for each party to retain their current property interests and the Mother’s application for property adjustment is otherwise dismissed.
I certify that the preceding two hundred and seventy nine (279) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 4 October 2019
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
0
5
2