JACOBS & JACOBS
[2009] FMCAfam 719
•10 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JACOBS & JACOBS | [2009] FMCAfam 719 |
| FAMILY LAW – Parenting application – equal parental responsibility – parents living 3 hours drive apart – property application – contributions – consideration of factors under s.75(2). |
| Family Law Act 1975, ss.60CA, 60CC(2),(3),(4), 65DAA(5)(a), 79(2) |
| Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Sampson & Hartnett (2008) 38 FAMLR 315 |
| Applicant: | MS JACOBS |
| Respondent: | MR JACOBS |
| File Number: | NCC 2893 of 2007 |
| Judgment of: | Baumann FM |
| Hearing date: | 25 March 2009 |
| Date of Last Submission: | 21 April 2009 |
| Delivered at: | Coffs Harbour |
| Delivered on: | 10 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levick |
| Solicitors for the Applicant: | Everingham Solomons |
| Counsel for the Respondent: | Mr Graham |
| Solicitors for the Respondent: | Mullane & Lindsey |
ORDERS
To be pronounced.
IT IS NOTED that publication of this judgment under the pseudonym Jacobs & Jacobs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
NCC 2893 of 2007
| MS JACOBS |
Applicant
And
| MR JACOBS |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of W (aged 10); X (aged 8); Y (aged 9) and Z (aged 5) have not been living in the same town since January 2007 having separated under the one roof in the family home in (omitted) some months earlier.
Although the intentions of the parents as a family unit around the time of separation are disputed, it is clear that the Father moved permanently to (omitted) for, as he sees it, increased work opportunities whilst the mother remained with the children in (omitted). These towns are 3.5 to 4 hours drive apart.
The family home in (omitted) was sold in August 2007 and the mother and children vacated the premises with the nett proceeds of sale (at trial approximately $210,000) being invested pending the determination of both parenting and financial proceedings by this Court, the application having been initially filed in the Family Court of Australia in September 2007. The funds represent almost the entirety of the non-superannuation interests of the parties.
As the reasons which follow explain, the parents are unable to agree on where the children should live and how the time spent by the children with each parent should be divided. Also they are unable to agree on how the modest pool of assets should be split. These are the issues the court is asked to decide.
Parenting issues
A comparison of the competing proposals of the parents distils the essence of the parenting dispute.
Applicant mother
The mother proposes the four children live with her in (omitted) and spend time during school terms with the father as follows:
a)End of weeks 2,5 and 8 from 7pm Friday to 4pm Sunday in (omitted)
b)End of weeks 3,6 and 10 from 7pm Friday to 4pm Sunday with changeovers outside the (omitted) Post Office – this essentially taking place in the (omitted) area.
The mother says school holidays should be shared equally (unless the father gives the mother four weeks notice of being unable to facilitate time), with changeovers to occur outside of (omitted) Post Office.
Regular telephone time on special days such as Fathers Day and the usual specific issues orders are sought. Additionally the mother seeks an order restraining the father of selecting less than the total sibship group to spend time with on individual occasions and also seeks orders which are likely to facilitate overseas travel.
The mother did not make any proposals as to what orders she seeks if the children live with the father in the (omitted) area.
Respondent Father
The father proposes that “in the event that the mother continues to reside in the (omitted) area” that the children live with him in (omitted) and spend time with the mother at the end of weeks 2,4,6 and 8 and half of all school holidays with changeovers to occur at (omitted). Again arrangements for special days do not appear to be in dispute.
Importantly the father proposes as an alternate option that in the event the mother chooses to live in the (omitted) area, then there be “an equal shared parenting arrangement so that the children live week about in the care of their parents.”
Both parents seek an order that they have equal shared parental responsibility.
Legal framework
In making a parenting order the best interests of the children are the paramount consideration (s60CA) but not the only consideration. The Act specifies various objects and underlying principles including the children’s right, unless contrary to their best interests, to spend time on a regular basis and be cared for by their parents with the aim of the children having a meaningful relationship with their parents and others significant to their care welfare and development. Later in these reasons, in seeking to explain the order which I believe on the evidence at this time best serves the interests of these children, I will make findings on relevant primary and additional considerations identified in s60CC (2) (3) and (4) of the Act.
The parent’s agreement that they shall have equal parental responsibility mandates the court to consider whether it is in the best interests of the children to spend equal time with each parent and whether that would be reasonably practicable (see s.65DAA(5)). In this case, of relevance to this issue is “how far the parents live from each other” (s65DAA(5)(a)).
As the case unfolded it was apparent that the father desires to live in (omitted) and the mother desires to remain in (omitted). This is not a case where the father seeks an order that the mother move to (omitted). The form of order reflects that by the use of the words “if the mother chooses…”
I am mindful of the remarks of the full court in Sampson & Hartnett (2008) 38 FAMLR315 about the propriety of orders and the power to make orders that have a “coercive” impact. In my view, the primary proposals of the parties clearly establish that the dispute is whether the children live with the father in (omitted) or with the mother in (omitted).
The option of equal time, or even substantial and significant time, does not realistically arise for consideration unless the parties both choose to live in either the (omitted) area or the (omitted) area. Neither parent indicated a preference to move. On the evidence I am not prepared to make a “coercive” order directed to either the father or the mother. If as a result of my order a parent chooses to move then at that time the parents can discuss the best arrangements for their children.
Before dealing with the primary and additional considerations I choose to make some observations and findings about some factual issues in dispute.
Intentions to move to (omitted)
The father is a (occupation omitted) now with the (employer omitted). Although the mother has lived most (if not all) of her life in the (omitted) area I am satisfied that for some time before separation the parents had discussed relocating to (omitted). This discussion was prompted by an announced merger of the (omitted) and the (omitted) (for whom the father was then working). The father gave evidence which I accept, that although the work grading and pay were the same he believes the move would give him more opportunities for advancement.
The merger took effect on 1 January 2005 but the father had to wait almost 2 years before he was required to actually move. Unfortunately for this couple and their family the later part of this 2 year wait coincided with the deterioration in the parent’s relationship. By August 2006 the parties both agree they were separated, but continued to live under one roof. Tensions increased. Although the father was, in my view, evasive when asked questions in relation to Ms L, I am satisfied that he began a relationship of some sort post August 2006 and when he moved to (omitted) he almost immediately began cohabitating with Ms L and her children. They were engaged by April but the father at trial said they no longer live together but remain “very good friends”.
With this history perhaps the mother’s outburst under cross examination that the father had “left his children and to go and live with another woman and her three children” in (omitted) is understandable and caused her some hurt. The father also, at separation, took the family car which the mother needed to ferry the four children around. The father says he did so because the mother could not afford the payments and some adverse consequences for FBT would have been incurred by him if he did not maintain a certain number of kilometres.
The father’s lack of insight into how the changes and his actions were likely to affect the mother’s prior position about moving as a family unit to (omitted), is simply astounding.
The marriage was over. The mother had support then, as she does now, in (omitted). The mother says she changed her mind. Although the father clearly was both frustrated and disappointed in the mother’s change of mind, even at trial, he seemed to me to lack any understanding of his contribution to that change of mind.
The father has made it clear to both the report writer and the court that he does not intend to return to (omitted). Quite validly, his work situation, requires him to remain in (omitted). The mother, in my own view, gives equally compelling reasons why she does not intend to leave (omitted) where she is happy and has the support she says of friends and her 72 year old mother. I say “she says” because no evidence was called by the mother from the maternal grandmother. I accept the mother’s evidence however. I also accept the mother’s evidence that the current relationship that the current relationship which she enjoys with Mr G is not such that she intends to relocate to Sydney, where he lives. Again some criticism of the mother’s case was made by the father’s Counsel about the failure to call Mr G.
In the end result, whatever may be the likelihood of the renewed relationships of the parents with their current or former post separation partners, those issues do not trouble me in making this decision about the competing applications of the parents.
Incidents in front of the children
Although the mother says over the last few months changeovers have “gone well” – which I interpret as indicating without parental conflict – my observations and the evidence of the parties, supports the assessment by the report writer (at paragraph 95 of the report) that:
“Both parents agree that there is extremely high parental conflict. To that end there have been a number of verbal and physical altercations which have occurred between the parents (and parents’ partners)…..All of the children have witnessed and are acutely aware of the parental conflict”.
No useful purpose is achieved for the future aim of co-operative parenting to dissect the events that I heard in evidence about, in summary:
-the circumstances resulting in Y not returning to the mother and the lack of time with the mother and siblings thereafter;
-the circumstances whereby W remained with the father;
-the conflicts at handovers at (omitted) particularly the events in November 2007;
-the incident involving the parents and the mother’s car and the father’s allegation of injury to the father;
-the need for the mother to begin proceedings seeking recovery orders resulting in a consent order made by the Family Court of Australia on 27 November 2007 that all four children live with the mother on an interim basis;
-the altercations on 13 September 2008 on the mother’s property when the father tried to take floral lounge and an altercation between the father and Mr G in the presence of at least W occurred.
Frankly these incidents both individually and in their totality, do little credit to the parents. At times each acted inappropriately and were capable of provoking the other. The father’s demand to remove some furniture was likely to provoke the mother and her partner – the mother’s actions at (omitted) with her car would have distressed the children.
The children shouldn’t have witnessed these events, as they did on occasion. It was emotionally damaging for them. I take some comfort from the better communication at handovers that has been occurring. The father’s frustration (with the mother’s unreasonable, as he sees it, change of mind) and the mother’s difficulty in adjusting to her new situation and the day to day parenting rigours all created a “powder key” environment which exploded from time to time.
My assessment is that by the time of the hearing 2 years post physical separation, the possibility of such disappointing acts of parental conflict are less likely to occur. The mother gives credit to the effect of some therapeutic counselling. That has surely assisted her. As I soon observe the father has still some way to go in separating his sense of loss of regular time with his children from the needs of his children – all arising from his decision to continue to relocate to (omitted) after the marriage was over.
Facilitation of a relationship with the other parent
The father asserts that the mother’s conduct in the post separation period showed a lack of flexibility and more than that, an attitude which establishes the mother does not support the children having a relationship with their father. In particular the father relies upon the findings in contravention proceedings determined by FM Housego on 9 July 2008 (see Jacobs (2008) FMCAfam802).
A careful reading of those reasons do not in my view significantly assist the father’s submissions. Whilst the father asserted 37 contraventions of the interim orders made 27 November 2007 – 33 of the allegations were “not matters which were properly the subject of a contravention application” and were struck out leaving only 4 allegations to be heard. Her Honour found: -
a)On the mother’s admissions of calling the father “prick” in the hearing of the children, that she had denigrated the father in breach of the orders;
b)An allegation that the mother had enrolled Y at a school without notification to the father in contravention of an order that the parents share parental responsibility for long term decisions. The charge was proved but no penalty imposed for the reasons identified at paragraph [12];
c)That an allegation the mother had failed to inform the father of a change of residence less than one month after change. This count was not proved.
d)That an allegation of denigration using works “Daddy doesn’t want you” as admitted by the mother was proven but no specific penalty was ordered.
The court ordered both parents to attend a Parenting After Separation program because Her Honour was satisfied that both parents “have fallen short of the standard of communication and cooperation that is required of each of them”.
In my view the mother’s inflexibility post these proceedings and her stated wish “to comply with the orders” explains the mother’s reluctance to agree to sensible suggestions for more convenient handover venue, but to some degree it seems to me that the mother was happy to adopt this approach as it upset the father. It would have been in the children’s interests for her to show greater flexibility.
I do not leave this topic without observing the father’s actions in retaining Y, in particular, showed a serious lack of insight into the affect of his actions on the siblings relationships. Of course no order was breached as none was in place. However retaining the child for many months as he did (and even though he ensured he attended school and the father says he was happy to be with him), represented a further example of the father taking a position without considering the family situation for all the children as a whole.
Generally since the contravention proceedings, the arrangements for the children to see the father have been complied with and although each parent has, I am satisfied, shared negative views of the other parent I believe each parent does support the children having a meaningful relationship with the other parent. I rely upon this finding for the purposes of the additional consideration at s60CC(3)(C) and s60CC(4). As I soon explore, the source of really all current conflict can be sourced to the inability of the parents to effectively communicate.
Family Report
The experienced social worker Ms K was appointed to prepare a family report in this matter which, dated 10 February 2009, was in evidence before me. The author of the report was cross examined, particularly strenuously, by the father’s counsel Mr Graham.
Despite that testing the report writer held to her substantive observations opinions and recommendations which I summarise as follows:-
a)The father indicated to the report writer that “he proposes that the children live with him, he is actually using this approach as a mechanism to get the children to relocate to (omitted) and for a shared care arrangement to be implemented”. Although the father denied he said this the report writer was adamant he had so indicated. I accept the report writer’s recollection. It is, in my view, consistent with other actions of the father designed I believe to put some pressure on the mother;
b)The mother acknowledged the children had said they wished to relocate to (omitted) but the mother believes that is because they know the father seeks that and they have “fun” time when with him;
c)The mother acknowledged she had been “no angel” in the conflict in the past and expressed regret. On the evidence I am satisfied that the mother has insight now into her actions and is genuinely contrite.
d)The father acknowledged that at times he is “emotionally fragile” and “very emotional with all issues pertaining to the children”. The report writer said the father “described how some days he attends work and just looking at the children’s paintings can cause him to cry”. When talking about the conflict over the lounge at the mother’s home the father said he found it hard to “control my emotions”.
e)At paragraph 47 the report writer recorded that: -
“…if the orders were made for him to spend time in (omitted) with the children that he would not do so “it is not going to happen.” He indicated that cost associated with accommodation and transport was the primary factor in his decision”
I found the father’s comments to the report writer inconsistent with the father’s assertion that he wants more time with his children. It was however consistent with the tenor of the father’s case that time with the children would be on his terms.
f)The father’s comments to the report writer at paragraph 49 and 50 are troubling. It seems he was prepared to subject his children to DNA testing “for peace of mind”. Until the proceedings had commenced it does not seem paternity was a real issue – certainly at the time of the consent orders in November 2007 it was not an issue. The father’s attempts in his evidence to refer to the alleged lack of similar physical characteristics and to question the mother’s fidelity during the relationship – and nothing more – I regard as one of the most damning parts of the evidence which supports a finding, which I made, that the father finds it very difficult to separate his feelings from the children’s best interests.
At paragraph 100, on the basis of earlier findings and also comments made by the children (which I summarise below when dealing with the children’s expressed wishes/feelings), Ms K says that:
“at best the father has a very limited ability to control his emotion al state and to protect the children from it. At worst he may be deliberately using his emotional state as a strategy to influence the children to comply with his preference for their living in (omitted).”
g)I agree the father has an inability to disguise his emotional state and his preference. Perhaps unintentionally but nonetheless I am satisfied the father has influenced the children and has burdened the children with the responsibility “of ensuring his own happiness” as the report writer opines at paragraph 101, with the affect on the children she describes. The physical symptoms experienced by Z could well be related in part to the anxiety she experiences.
h)Although the report writer for the reasons identified at paragraph 108 (with which I agree) recommends the children live with the mother in (omitted) she records a troubling caution at paragraph 111, that if such an order is made:-
“….the father, through a range of mechanisms may seek to align the children to him, particularly as he is of the opinion that the children may choose where they live in the future.”
I have this concern. The fixation and entrenched views expressed by the father suggest he may well further involve the children who would then quite possibly either blame the mother or cause further disruption in her home. If that became the reality the court might in the future be required (if asked to do so) to limit the father’s time with the children and protect them from this emotional abuse.
The report writer gave thoughtful and considered responses under cross examination. The issues and opinions explained and expressed by the reporter support her recommendations. I give those recommendations some weight particularly where in my view those opinions were not diminished by the strenuous cross examination purposely conducted by the husband’s counsel.
Primary considerations
Benefit of child having a meaningful relationship with both parents
The evidence establishes the children do currently have a meaningful relationship with both parents created over many years of co-parenting before separation. Whilst, as Ms K opines, it would be optimal for the children for the parents to choose to live closer to each other, for the reasons already discussed, they both elect to maintain where they currently live. The proposals – being a combination of school term weekends and holiday time – do reflect that the parents each wish to nurture the children’s relationships with the other parent.
Need to protect children from harm
In my view the post separation altercations between the parents (and at times their partners), are at odds with the more controlled environment which existed before separation. I have no doubt verbal exchanges as the marriage deteriorated escalated however not with the frequency or intensity of the 12 months or so passed post physical separation. The children have been exposed to both that conflict and also more involved in these legal proceedings than they should have been. The father has found it more difficult to disguise his emotional hurt than the mother. Seeing a parent who the children deeply love, in such pain causes confusion and anxiety. Even though the mother has had the children primarily in her car (save for the period Y lived with the father), and has been required to cope with the daily rigours of parenting coupled with the adjustments arising from the father’s decision to move the sale of the family home renting new premises and the like, my impression is she has acted more consistently with a child focus than has the father. She presents at this time, in my view, less of an emotional risk of harm to the children than does the father.
Additional considerations
Views expressed
It will be obvious from findings already made that this is a case where the views expressed by the children to the independent family report writer must be treated with some caution. The father’s influence on the children’s expressed views cannot be discounted. A clear example in respect of the oldest child W is recorded at paragraphs 56 and 57. For W his desire for his mother to live in (omitted) was, I accept, “primarily influenced by wishing to ameliorate the father’s emotional state and by the focus on “fun” when with the father”. It must be noted that the mother continues to provide the structure for these children around school and extra curricular commitments which is generally less “fun” than the recreational opportunities the father is able to explore on weekends and on holidays. X’s context for wanting his mother “to live in one part of (omitted)” again has been shaped not only by the father’s discussions with him (see paragraph 67) but also the understandable concerns about travel. I agree that although developmentally appropriate, there is a level of immaturity evidenced in his expressed wishes (see paragraph 72).
The feelings of the younger children Y and Z, are similarly shaped by the father’s unrestrained emotions and his discussions with them – although consistently with their older siblings the solution of their parents being closer together and having less travel is a common theme. It is troubling that Z is experiencing enuresis – something which both parents need to assist her overcoming.
The mother acknowledged that the children tell her she should move to (omitted). I am satisfied that the father continues to involve the children in the dispute and that these expressed views of the children cannot be given determinative weight.
Relationships
The children deeply love each of their parents however I agree that their primary attachment is to their mother. It follows that the state of happiness and security the mother feels is likely to have a significant affect on the children. It seems most extended family of the father live out of the region. Certainly the mother considers her mother an important figure in the children’s lives. In the absence of evidence from the maternal grandmother or any observations from the report writer it is not possible to assess the strength of this relationship. It is reasonable to infer that as the mother and the children now see the maternal grandmother regularly (she lives in (omitted)) and where no negative comments are raised by the children, that the maternal grand mother is an important person in the children’s lives – but secondary to the parents.
Clearly the sibship relationships are important. In this context the father’s view that the children might benefit from some “one on one” time with him shows some lack of insight into the affect on sibship relationships and the competitive nature of such relationships. His actions in retaining Y in the manner he did seems to have been made in isolation of any understanding of what message that delivered to the other children. Although the mother seeks an order restraining the father from exercising time to less than all 4 children it is not necessary to do so. They should be treated equally. None have special needs only able to be met by the father.
Effect of change
Part of the father’s case was based on his argument that (omitted) provided more educational sporting and cultural opportunities than the community of (omitted). It is not necessary to say more about this view of the father, other than I am not satisfied either region has superiority of opportunity. Whilst X. is more of a city environment and whilst (omitted) is a large regional town – each offers good schools and the like. Because of the positions of the parents choosing to live where they live it is inevitable that they will be exposed to a range of opportunities in both regions.
The children are settled in the (omitted) area. They are doing well at school. Of course they miss the frequency of time with their father, but requiring them to live with the father in (omitted) could also incur:
a)The mother choosing not to move to (omitted) thereby severing to some degree the children’s primary bond;
b)Removing them from the settled community and school environment in which they have been well nurtured to date;
c)If, as could occur, such an order for the children to live in (omitted) is made then the mother, I assess would be isolated from her support network if she then chose to move. She would be less happy. The parental dynamic would be shaped by the father controlling, in an environment he is now very familiar with, what happens.
It can also be said that the father’s relationship with the children has certainly been maintained in the 2 years since he decided to live in (omitted). The mother deserves some credit for this. The father has chosen (he says for financial reasons) not to come to (omitted) except rarely. Rather he expects the children to travel to him. He could make it much easier for the children if he travelled to (omitted) regularly to see them – even for a day. His attitude in not doing so (and indicating further of no intention to do so in the future) in my view, does him little credit.
This factor heavily supports the mother’s primary proposal that the children live with her in (omitted).
Practical difficulties
The clear practical difficulty in this case arises from the over 3.5 hours of car travel between the homes of the parents. All the children and not surprisingly the report writer maintain the children’s displeasure with such travel. Although the father asserts that expenses of accommodation and travel for him to (omitted) are prohibitive he was not convincing. This finding is made also considering the minimal child support he pays, partly due to the novated lease on his car. He has a clear focus on financial issues (which he sought to justify as the basis for the removal of the most suitable family car at separation), and seemed unable to understand the benefit in both perception and reality for the children, if they continue to live in (omitted), spending time with him.
Attitude and capacity of parent
In most parenting disputes which end up being heard it is difficult to restrain parents from delving into the most minor of parental deficits. There are always differences in parenting styles – but I do not detect major differences between these capable parents in core values or principles. The father has responsible employment and a focus on educational achievement. His personal skills and attributes enrich the lives of the children in a different, but in my view not a superior, way to the mother. As a (occupation omitted) she has an understanding also of normal child development and seems on the whole of the evidence more attuned emotionally to the children than the father. The criticisms of the mother by the father are not supported by the evidence.
Similarly if the children lived with the father he would, I am satisfied so arrange his work commitments and available support (including his friend Ms L) to meet the children’s needs. At this time as earlier identified the father has shown more difficulties in separating his almost fixated need for the children to live in (omitted) (where he chooses to live) with the children’s needs. Whether over time and faced with a decision of this Court which he does not agree with, counselling is capable of assisting his emotional functioning, is at least uncertain.
Family violence
I am not aware of any AVO orders or proceedings, although there is some suggestion the father has sought to lay criminal charges against Mr G in respect of the incident in September 2008.
Although no verbal or physical violence between the parents or others being witnessed by the children is condoned, it seems on the events that most of the events initially occurred around handovers and that the nature of them, although regrettable, have simply left the children with the impression that their parents do not get on. The child X expressing concerns about the mother getting “in trouble with the police” (paragraph 67) suggests a parent has discussed police involvement with the child. I am satisfied that the orders I propose to make are likely to reduce the opportunity for more family violence being witnessed by the children.
An order that would be least likely to lead to further proceedings
The uncertainties of where the children might live, which has been an alive issue for over 2.5 years now, has not been optimal for these children. A final order, coupled with a final determination of the division of property, will give the parents the opportunity to move on. I hold some doubts that the father will be able to do so as easily as the mother, not only because of the nature of the order but because as the boys grow older and if the father does not avail himself of the chance to spend time with the children in (omitted), then they may (with his likely encouragement) seek out more time with their major male role model. This could result in the fracturing of the family – and or isolation of the youngest child Z – and with detrimental effect. I have come to the view that if the father is able to accept the court’s decision and by his actions show to the children he accepts the verdict then the prospect of the possible instability greatly reduces. Only time will tell.
Evaluation
As a result of the findings I have made above I am of the view that the children’s best interests both individually and collectively are served by them continuing to reside with the mother in (omitted).
Because the mother has expressed no intention of moving to (omitted) – or the father back to (omitted) – no purpose is served by speculating on the best parenting order if the children have the obvious benefit of their parents being in the same community. If a parent does move then at that time it would be appropriate for the parents to discuss and negotiate new arrangements for more inclusive time – but this should not be read as any indication that an equal time regime would be supported. The use of external community based organisations focussed on family dispute resolution would be an ideal forum before embarking on new litigation.
Subject to hearing further submissions at 2pm on Tuesday 14 July 2009 when I am next in Newcastle, I would propose to make parenting orders as detailed in the mother’s sixth amended application filed 19 March 2009 with the following variations:
a)If the father does not intend to exercise time with the children under order 3(a) then he is to give the mother not less than 7 days notice in writing;
b)I am comfortable with changeovers occurring as proposed by the mother for weekends at either the (omitted) McDonalds or Post Office or (omitted) Post Office. If the father exercises all the time proposed the children would be in his care for all but 3 weekends in most school terms (weekends at the end of week 1, 4, 7). If he doesn’t choose to see the children in (omitted), then he would have 3 weekends a term. As the children are likely to be engaged in community activities, sport, peer’s birthdays and the like – having some regular recreational time in (omitted) (whether in the mother’s care or the father’s care) is in their best interests;
c)A changeover at (omitted) as proposed by the mother seems sensible for holidays- being a major regional town approximately equidistant between (omitted) and (omitted). It hardly needs stating however if the mother on a holiday intends to continue on to Sydney it would be silly to expect the father to travel north to (omitted). Whilst the parents might think it important to share travel equally the children are not relieved from doing the whole journey.
d)The proposed specific issue orders 6 and 7 should apply to both parents. Order 7 should be modified to extend to discussing these proceedings or other issues of adult conflict with or in the presence of the children (with clause 11 deleted);
e)The order requires the father to spend time with all 4 children. I do not propose to further injunct the father as the mother proposes at order 8. Because of the parties having equal shared parental responsibility the obligations at proposed order 9 should be redrawn so as to allow the order to be authority for both parents having access to all information about the children in the possession of health professionals and schools.
f)I heard no submissions at all about the mother’s proposal for possible future overseas travel. In my view a time of notice of a mere 21 days for overseas travel is insufficient. A parent should give at least 60 days written notice, so as to allow a parent, if they wish to bring and be heard, on an application to restrain overseas travel. If the parents do not agree on this order they can use the 14th July as an opportunity to make further submissions.
Property proceedings
As the transcript of the hearing would demonstrate the overwhelming share of court time (and affidavits) were properly directed to the strenuously contested parenting issues.
This part of my reasons deals with my determination of the order which does justice and equity to both parties. In this part of my reasons, I shall describe the applicant as the wife and the respondent as the husband.
Legal framework
The preferred or usual approach to determining property proceedings under s.79 of the Act was the subject of a succinct summary by the Full Court in Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [39] where the Court said:-
“39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions for the parties within the meaning of ss79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s79(4)(e), the matters referred to in s75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1085) FLC 92-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDR (2001) FLC 92-075 and Phillips and Phillips (2002) FLC 9.-104.”
Pool of assets
The joint email submission of trial council received 21 April 2009 confirms the agreement as to the pool of assets. I have marked that email Exhibit 6. I record the agreed pool as follows:
Proceeds of Sale of Home
$210,899
Furniture
- Wife
- Husband
$4,000
$1,000
$215,899
Less
- Wife’s loan to mother
- Husband’s loan to mother
$9,000
$3,000
$12,000
Nett non-superannuation pool
$203,899
Superannuation Interests
Wife’s superannuation
Husband’s superannuation
- (omitted) - $95884
- (omitted) - $11229
$38,659
$107,113
Total superannuation
$145,772
TOTAL NETT POOL (all interests)
$349,671
I have no evidence about the extent or value of the parties superannuation interests at the time of cohabitation in 1995. However at that time the husband was approximately 30 and the wife 3 years younger at 27. The husband says he and the wife both had some superannuation and a car. It is likely that as the husband had been working longer his occupational superannuation was greater but in all probability the assets and interests were minimal.
In the circumstances in the absence of any other submission, I propose to treat the superannuation and non-superannuation interests as one pool.
Contributions
The court has already observed that at cohabitation in 1995 the parties assets were modest. They married in 1997 and separated physically in January 2007 – in summary a relationship of approximately 12 years to the hearing. The initial income of the husband was higher than the wife – the wife’s annexure “X” confirms that to be the case. The parties purchased vacant land at (omitted) prior to marriage and constructed a home on the land – during which time they spent some time living rent free with the wife’s parents.
Although the wife was employed as a (omitted) and had accumulated some superannuation entitlements prior to her resignation by about 1999 (see annexure “2”) of about $25,000 it was agreed between the parties that the wife would cease work to care for the children, with the husband becoming the sole financial provider – save for the wife’s initial contributions and her superannuation entitlement which the wife says was utilised to meet a large VISACARD debt accumulated during the honeymoon.
The four children were born in 1999, 2000, 2002 and 2004. The distinctive roles adopted by the marital partners were maintained. Although the husband was, in every sense an effective “breadwinner” he did assist with the parenting duties and often household activities. The wife as I have noted, whilst devoting herself to the role of primary homemaker and parent had, before the birth of W made financial contributions as well.
Really the financial and non financial contributions during the marriage were not controversial except:-
a)Each party asserts the other gambled but neither discharged the evidentiary onus of proof upon them to establish the extent of this actually had a significant affect on this modest pool – if it occurred at all.
b)The wife claims her mother provided some financial assistance and annexes to her affidavit some random bank statements with apparent highlighting. No evidence from the wife’s mother in any probative form was offered to the court. Whilst I would not be surprised if this couple, as a young family on a single income, obtained some assistance from family members, the evidence is simply insufficient to establish the overall extent of that assistance.
c)I do note that the parties have agreed that some payments on loans are owing to their respective mother’s and are a liability in the pool.
d)At separation the wife and children remained living in the house until it was sold in August 2007. I have already observed the husband took the family car. The wife and family had the benefit of living there, but since the sale the wife, like the husband pays rent of about the same amount.
e)Although the husband in his affidavit swears to a number of additional contributions he has made to the wife’s household or to joint debts considering the low level of child support assessed (only $398 per month for 4 children), those additional contributions are hardly generous.
f)Since separation the wife has met the majority of the children’s living expenses and emotional needs. Her income is less than that enjoyed by the husband and only reaches a modest $781 per week with the benefit of parenting payment ($283) and family tax benefit ($399).
g)It is likely that the husband has made contributions to his superannuation since separation (he claims $35 per week) and additionally he enjoys occupational contributions by his employer. The fact that the increases in his superannuation are so modest evidenced by exhibit 6 (in one case reducing) is likely to relate to the general performance of equity based finds rather than anything the husband has done.
Considering the relationship from 1995 to 2007 (the date of hearing) as a whole and weighing all the diverse contributions both direct and indirect of a financial and non financial character I assess the contribution based entitlements at hearing as equal.
S.75(2) Factors
The commonly called “s.75(2) factors” are relevant for consideration pursuant to s.79(4)(C) of the Act. The similar age of the parties and the fact that they enjoy good health reduces the relevant factors for consideration to the following:-
a)The husband has both a superior income and earning capacity. The fact that he has maintained employment throughout the marriage means his work skills have accrued currency along the way. His move to (omitted) was significantly influenced by his belief that greater opportunities exist for him in that region. The wife is qualified as a (occupation omitted) and must still be registered as she has been working at (omitted) part time. With these proceedings completed and Z now of school age, the opportunities for the mother to increase her work hours (as the parties always had planned to do) exist – although in the absence of any direct evidence from (omitted) employer organisations including the (omitted), I am unable to assess the probability of full time employment in the immediate future. The husband says that jobs are available. The wife should not be able to limit her job applications to (omitted) at which the children attend (although that would of course be convenient). The husband is in a stronger position to the wife as to current income and immediate work capacity, but over time the wife I suspect is likely to catch up.
b)The modest child support paid means whatever income the wife can generate is likely to be mostly used for the children. Because of the age and likely extra curricular activities of these active children, the wife’s work availability as a result of my parenting orders are reduced compared to the husband.
c)The parties will have differential shares of the non superannuation asset pool and the husband a slightly greater share of superannuation which does disadvantage the husband slightly.
These factors are in my view the most relevant s.75(2) considerations and compel an adjustment to the wife. Counsel for the husband urged no adjustment to the wife, whilst counsel for the wife contended for a 20% adjustment.
In my view an adjustment to the wife of 15% is appropriate. The size of the non-superannuation pool would compute this to the wife receiving approximately the just 30% or $64,000. I regard that as fair considering the modest pool that exists.
Just and equitable order
In final submissions counsel for the husband Mr Graham contended that it would not be just and equitable for the husband to not have at least a cash share of $60,000. Although he has a current superior borrowing capacity and a secure income, I agree after a marriage of this length, with the husband having a cash share around $60,000 to begin to reaccommodate. It would not create a just and equitable order in my view, if the wife retained all the available yet modest cash interests.
If, as an example, a division of 65% to the wife and 35% to the husband was applied to both of the different categories of interests this would mean:-
a)The wife’s 65% share of $203,899 equals $132,534 and 65% of the combined superannuation would require a super splitting order in her favour of $56092 ($94751 - $38659);
b)The husband’s 35% share of $203,899 equals $71,365 and 35% of the combined superannuation after allowance for the superannuation split would reduce his entitlement to $51,021.
I regard a division in this regard as certainly within range, but to provide greater capacity to the wife now (when she has a reduced income and a greater need to reaccommodate the family including the 4 children). I propose to order a slight deduction in the husband’s cash share to $62,000 and then adjust the splitting order accordingly increasing his retained superannuation.
During the preparation of these reasons it was not clear that either party has given notice to the husband’s superannuation trustee of a possible splitting order. If the nominated Trustee has not been given notice, and as a result procedural fairness cannot be established, the pronouncement of the order may need to be delayed.
Again I will hear submissions from the parties on Tuesday 14 July 2009 at 2pm from Newcastle. The solicitors for the applicant wife are directed to prepare a form of order consistent with these reasons and send it to the solicitors for the husband by close of business on Monday. The order apart from the adjusted splitting order would provide for:-
a)From the controlled funds the following payments be made:-
i)Payment of $9,000 to the wife’s mother;
ii)Payment of $3,000 to the husband’s mother;
iii)Payment of $61,000 to the husband (after allowance for the furniture of $1,000);
iv)Payment of 35% interest accrued on and paid over the principal sum of $210,899 to the husband;
v)Payment of balance to the wife (which will make allowance for her share of the furniture and 65% of the interest);
b)Usual orders that parties retain all other property in their possession;
c)A splitting order in the wife’s favour with a base sum of $46,728 which I calculate as follows:
35% of total pool of $349671 = $122,385 made up of:-
Cash
$61,000
Furniture
$1,000
Current superannuation
$107,113
$169,113
Less super split
$46,728
Balance
$122,385
The wife would of course be entitled to 65% of the pool, on $227,286 made up of:
Cash
$137,899
Furniture
$4,000
Current superannuation
$38,659
$180558
Plus super split
$46,728
Balance
$227,286
I believe a division of the pool in this form is just and equitable to both parties.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Baumann FM
Date: 10 July 2009
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