Jacot & Jacot
[2021] FedCFamC2F 632
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jacot & Jacot [2021] FedCFamC2F 632
File number(s): DGC 2602 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 22 December 2021 Catchwords: FAMILY LAW – PARENTING – 3 adolescent girls living with mother and spending 5/9 nights with father – mother seeking to reduce to 2/10 as a result of fears of alienation by the father – father seeking equal time – girls expressing support for equal time – family report writer noting alignment of 17-year old son whole lives with father – family report indicating girls in thrall of the father – father ‘s manipulative and parsimonious personality – family report writer opposing equal time – whether father sufficiently attuned to girls’ studies – orders made for existing time regime to continue.
PROPERTY – Both parties seeking property adjustment after 21 year relationship – husband seeking 57.5/42.5 in his favour and mother seeking 65/35 in her favour – parties benefitting significantly from rent-free accommodation both in the United Kingdom and in Australia – husband’s inheritance discharging mortgage on family home – wife’s Kennon argument established – contributions assessed 55/45 in favour of the husband – wife’s future needs greater – ten percent adjustment in favour of the wife appropriate – overall outcome 55/45 in favour of the wife just and equitable.
Legislation: Family Law Act 1975 (Cth) Cases cited: Bonnici & Bonnici [1991] FamCA 86
Goode v Goode [2006] FamCA 1346
Kennon & Kennon (1997) FLC 92-757
Stanford & Stanford [2012] HCA 52
Division: Division 2 Family Law Number of paragraphs: 120 Date of last submission/s: 18 November 2021 Date of hearing: 17-18 November 2021 Place: Dandenong Counsel for the Applicant: Mr Chislett Solicitor for the Applicant: Ressan Lawyers Counsel for the Respondent: Ms Fisken Solicitor for the Respondent: KPA Lawyers ORDERS
DGC 2602 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JACOT
Applicant
AND: MR JACOT
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
22 DECEMBER 2021
THE COURT ORDERS THAT:
Parenting
1.The parties, MS JACOT ('the mother') and MR JACOT ('the father') have equal shared parental responsibility for the children W born in 2004 ('W'), X born in 2006, Y born in 2007 and Z born in 2010 ('the girls').
2.The child W live with the father and spend time with the mother according to his wishes.
3.X born in 2006, Y born in 2007 and Z born in 2010 ('the girls') live with the mother.
4.The girls spend time with the father as follows:
(a)In week one, from immediately after school Friday to the commencement of school on Wednesday, or 3.00 pm if a non-school day;
(b)In week two, from immediately after school on Wednesday, or 3.00 pm if a non-school day, for dinner, with the girls to be returned home no later than 8.00 pm;
(c)For half of all term school holidays, as agreed to between the parties in writing, and in default of agreement from the conclusion of school on the last day of term until the middle Saturday at 5.00 pm in even numbered years, and from the middle Saturday at 5.00 pm until the commencement of school on the first day of term in odd numbered years;
(d)For half of the long summer school holidays, as agreed between the parties in writing, and in default of agreement from the conclusion of school on the last day of term until the following Saturday at 5.00 pm and each alternate week thereafter.
(e)Where one of the girls' birthdays, or the father's birthday does not fall on a day when they are with the father, then from immediately after school, or 3.00 pm if a non-school day, until 8.00 pm;
(f)From 5.00 pm the Saturday preceding Father's Day until the commencement of school, or 9.00 am if a non-school day, the Monday following Father's Day.
(g)From 2.00 pm Christmas Day to 5.00 pm Boxing Day each year;
(h)From 12 noon New Year's Eve to 12 noon New Year's Day each alternate year, commencing 2021;
(i)From immediately after school Maundy Thursday to 3.00 pm Easter Sunday in 2022, and from 3.00 pm Easter Sunday to 5.00 pm on the Tuesday immediately following Easter Sunday in 2023, and alternating accordingly thereafter.
5.The Father's time be hereby suspended as follows:
(a)Where one of the girls' birthdays, or the mother's birthday does not fall on a day when they are with the mother, then immediately after school, or 3.00 pm if a non-school day, until 8.00 pm.
(b)From 5.00 pm the Saturday preceding Mother's Day until the commencement of school, or 9.00 am if a non-school day, the Monday following Mother's Day.
(c)From 2.00 pm Christmas Eve to 2.00 pm Christmas Day.
(d)From 12 noon New Year's Even to 12 noon New Year's Day each alternate year, commencing 2022.
(e)From immediately after school Maundy Thursday to 3.00 pm Easter Sunday in 2023, and from 3.00 pm Easter Sunday to 5.00 pm on the Tuesday immediately following Easter Sunday in 2024, and alternating accordingly thereafter.
6.Changeovers occur at school where possible, and if a non-school time as agreed between the parties in writing, and failing agreement with the parent whom is to spend time with the children to collect the children from the other parent's home.
7.The mother and father do not discuss the Family Law matters, including their own preferences, or denigrate the other parent, or permit any other person to do so in the hearing of the children.
8.Each party shall notify the other as soon as practicable in the event of the children or any of them suffering any serious illness or injury while they are in their respective care and each shall authorise any medical or allied practitioner who treats the children or any of them to communicate and consult with the other parent.
9.Each party shall advise the other of any medication prescribed for the children or any of them, including the dosage prescribed, and ensure that such medication travels with the children.
10.The mother shall authorise any school or the organisers of any extracurricular activities in which the children are enrolled, to provide to the father at his expense, if any, all information, notices, photographs, reports and like materials and he shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the children or any of them.
11.The parties shall be at liberty to provide a copy of these orders to the children's schools.
12.Both parties, their respective partners if any, and the children's grandparents shall be at liberty to attend any school functions, extra-curricular activities or events to which parents and/or grandparents are usually invited.
13.The parties shall each use their best endeavours to ensure that all children attend school on a regular basis, except where genuinely ill, and arrive at school prior to the commencement of the school day.
14.The parties shall share the costs of all school fees for the girls, including any associated or other school related costs, including uniforms, and the reasonable costs of all extra-curricular activities.
Property Orders
15.Within thirty (30) days of the date of this order, or such further time as may be agreed to in writing between the parties, the husband shall transfer to the wife all his right, title and interest in the property known as B Street, Suburb C ("the B Street, Suburb C property");
(a)Prior to or contemporaneous with the aforementioned transfer, the husband is to discharge any mortgages encumbering the said property at his own cost;
(b)The wife pay the costs of and incidental to the aforementioned transfer
16.Within thirty (30) days of the date of this order, the parties place the property known as D Street, Suburb E in the United Kingdom ("the D Street, Suburb E property") for sale;
17.The net proceeds of sale following be applied in the following manner:
(a)Firstly, to discharge the F Bank mortgage secured over the D Street, Suburb E UK property;
(b)Secondly, in payment of any costs of sale;
(c)Thirdly, in payment of any Capital Gains Tax by the parties in relation to the sale of the D Street, Suburb E UK property;
(d)Fourthly, to be paid into Ressan Lawyers' Trust Account ("the sale funds").
18.Within 3 business days of the sale funds being received into Ressan Lawyers' Trust Account, the parties provide their consent to the distribution of those funds in the following manner:
(a)To the wife such sum as to achieve an overall payment to her of 55% of the asset pool as set out in the schedule provided in His Honour's Judgment (at page v) with the value of the Suburb E Property to be calculated using the sale funds received into Ressan Lawyers' Trust Account;
(b)The balance to the husband.
19.The wife shall retain for her own benefit and use altogether:
(a)her superannuation and pension entitlements;
(b)any furniture or household item in her possession; and
(c)the funds standing to her credit in any bank account in her sole name;
(d)her motor vehicle;
20.The husband shall retain for his own benefit and use altogether:
(a)his superannuation and pension entitlements;
(b)the Motor Vehicle 1. Motor Vehicle 2, Motor Vehicle 3, Motor Vehicle 4 and Motor Vehicle 5,
21.The wife shall retain, to the exclusion of the husband, the funds standing to the credit of both parties in the F Bank account.
22.The parties be permitted to provide a copy of these orders to their solicitors in the United Kingdom for the purposes of the sale of the D Street, Suburb E UK property and distribution of funds.
23.Each party shall do all things necessary including providing all consents to give effect to these orders in the time periods prescribed in these orders.
24.Should either party fail to comply with these orders, then pursuant to s.106A of the Act a Registrar of the Federal Circuit and Family Court of Australia at Melbourne shall be appointed to sign any and all such documents on his or her behalf as may be necessary to give effect to these orders, and the Registrar shall be satisfied as to his or her authority under this order upon the complying party or his/her legal representative filing an Affidavit setting out the defaulting party's failure to comply.
THE COURT NOTES THAT
A.Pursuant to Section 81 of the Family Law Act 1975 (Cth) the parties intend these Orders to finally determine all financial relations and issues between them and avoid further proceedings between them.
B.It is the father's intention to retain and reside in his own accommodation, consisting of no less than three bedrooms, separate to his mother's home, when the girls are in his care.
SCHEDULE
The B Street, Suburb C property $950,000 Suburb E property E $950,000 Husband’s Motor Vehicle 1 $12,500 Husband’s Motor Vehicle 4 $25,000 Total $1,937,500 Wife’s 55 per cent $1,065,625 Payment to wife $115,625
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Jacot & Jacot has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is both a parenting and property dispute between a couple who were together, effectively, for 21 years. So far as parenting issues are concerned, the father seeks that the three younger girls (the eldest son will turn 18 soon) live with the parents in an equal time regime whereas the mother seeks to reduce the extant nine/five regime in her favour to a twelve/two outcome with a meal in the alternate week. So far as property is concerned the father seeks an adjustment in his favour of 57.5 per cent of the property pool to him and 42.5 per cent to the wife. The wife by way of contrast seeks an adjustment of 65 per cent in her favour and 35 per cent to the husband.
For the reasons that follow I am going to order that the children live with the mother and spend time with the father in accordance with the recommendations of the family report writer Ms H. I am also going to order that the property of the parties be divided as to 55 per cent to the wife and 45 per cent to the husband.
AGREED OR UNCONTROVERSIAL MATTERS
The husband was born in 1970 and came to Australia as I understand it at the age of four from Country J with his parents. The wife was born in the United Kingdom in 1971. The parties met and commenced cohabitation in about 1997. They were married in 1999 at City K (I infer in England and not in Australia). They lived with the maternal grandparents at the latter's property in Suburb E between 1998 to 2003 rent free and were able to save £79,000 as a result. This was committed to the purchase of a property at D Street, Suburb E which the parties still own. The property at D Street, Suburb E was bought for £269,000 pounds with a mortgage of £190,000.
The parties' children are W born in 2004, X born in 2006, Y born in 2007 and Z born in 2010.
The husband had completed his apprenticeship but not done his journeyman years when he went to England where he met the wife. He worked while he was in England as did the wife. She was employed by Employer L and was able to take paid maternity leave when W and X and indeed even Y were born. She earned more than the husband did throughout.
When the parties relocated to Australia they lived for five years with the paternal grandmother in a two-bedroom property which on any view of the matter must have been very overcrowded. There was a period during which the husband was not able to work as he had, in effect, to requalify as a tradesman although there is some dispute as to how long that lasted. The husband obtained employment which ceased in 2009 whereafter he set up his own business. The wife complains bitterly about him purchasing a Motor Vehicle 1 for $60,000 for use in the business.
In 2012 the parties bought a home in B Street, Suburb C for $541,000 with a deposit of $141,000 from their combined savings. The wife and the children moved into the B Street, Suburb C property but the husband remained with his mother. The wife has complained bitterly about the inadequate accommodation. It seems common cause that there was no stove and she had to cook on a barbecue until 2018. There was an electric hot water system which the husband turned off. She had to use rainwater for the washing machine. The husband moved in with the family in early 2014 and the wife asserts that she was assaulted by him in August 2014 (he says he pushed her and she fell over). There was no internet at the B Street, Suburb C property although there was, paid for by the husband, at his own mother's property. The husband spent increasing time at his own mother's property and on 2 November 2018 he and W moved out and went to live with his mother.
The wife had returned to work in 2014 and continues to work in a clerical capacity. The husband has continued to work for himself although his work has naturally been affected by the COVID emergency.
The husband's father died in 2014 and ultimately he received an inheritance of $230,000 with which he effectively paid out the mortgage on the B Street, Suburb C home. The husband has asserted without any significant challenge that his mother provided $54,000 towards the purchase price of the B Street, Suburb C property. It is the husband's case that the mortgage was significantly paid down between 2012 to 2016 as a result of his application of his wages to the mortgage.
The parties went to mediation in November 2018 at which a parenting plan was agreed between them. W was to live with the father and spend five nights a fortnight with the mother. The girls were to live with the mother and spend five nights a fortnight with the father. The girls have indeed spent time with their father essentially in accordance with this arrangement but W has spent no time at all with the mother. It is the mother's case that W has been alienated from her and that the father continues to seek to alienate the other children, something the father vehemently denies.
It should be noted that although the parties have itemized considerable numbers of property interests, it appears to be common cause that the non-superannuation pool is presently largely constituted by the D Street, Suburb E and B Street, Suburb C properties.
THE PARTIES' AFFIDAVITS
The parties have filed not been shy of affidavit material in which each and every assertion made by the other party is traversed in detail. The salient parts of the matter are essentially set out in the agreed matters above. It should be noted that following the release of the family report the father took fairly rapid steps to obtain rental accommodation (the family report was extremely critical of the sleeping arrangements of the children when they stayed with the father and grandmother) and he moved it would seem into a rental in Suburb M close to where both his mother and the mother live in April 2021. It is not necessary to traverse the parties' affidavits in further detail.
THE FAMILY REPORT OF MS H
Ms H set out the relevant background, noting that the mother alleged that the father had systematically alienated W by taking him to the home of the paternal grandmother where there was technology available that was attractive to him. Ms H also noted that the father alleged that the mother abuses the children by yelling and hair pulling.
Ms H identified the issues in dispute and noted at paragraphs 22 and 23:
Identified at interview: Mr Jacot using a victim persona to gaslight Ms Jacot
Identified at interview: The children's overwhelmingly similar language about the parenting arrangements suggesting they had been prepared for interview and possibly manipulated.
In the interview with Ms Jacot (paragraphs 24 to 28) Ms H noted the mother's worry that the children might report that they wanted to live in an equal shared care situation as a result of paternal manipulation. At paragraph 28 the report noted:
In relation to whether Ms Jacot abuses the children as alleged by Mr Jacot, she responded that she yells on occasions and she gave the example whereby the children were tardy in the morning and she needed to get them off to school and herself to work. Ms Jacot denied abusive yelling or hairpulling.
When recording the interview with Mr Jacot, Ms H noted at paragraph 29:
Mr Jacot spoke in a gentle and lilting voice. He is a slim man who presented as overly polite and a victim. He cried on occasions during the interview when there were exploratory questions about possible changes to the children’s times to better provide for their adequate sleep and privacy and he immediately interpreted any change as a loss of the children in his life. There was a distinct lack of congruence between Mr Jacots emotional displays and the content of the discussion.
At paragraphs 31-32 the report continued:
Mr Jacot denied the family violence towards Ms Jacot as she had described it. He gave reasons such as that the power at the home they finally bought could not be used because it was not legally installed and not that he did not want to pay the power bills.
In relation to whether Mr Jacot considered that a 17- year- old son sharing his bed was appropriate, and his almost 15- year- old daughter sleeping in the same bedroom suitable, he claimed that he has no other options. Mr Jacot reported that he cannot afford a more suitable home and that when a property settlement occurs, he is unlikely to obtain a large enough mortgage to buy a suitable home for the children to have better sleeping arrangements. Despite this information Mr Jacot continued to insist that the children should live with him in an equal shared care arrangement.
At paragraph 33 Ms H observed that Mr Jacot appeared unable to prioritise the children's wellbeing ahead of his own priorities.
The interview with W revealed at paragraph 36
W reportedly could not identify any positive characteristics of his mother. He made a string of vague allegations about her that are typical of children who have been manipulated to resist a parent. While W is aged 17 years, he seemed emotionally immature.
Paragraph 37, the report continued
It was very apparent from W that he has been subject to adult conversations about his father’s wishes in relation to his sisters.
X reported that she had her own bedroom at her mother's home (paragraph 40). She was able to identify good characteristics of both her parents (paragraph 42). There was nothing about her father that was not so good but her mother yelled "but that it is as her mother had described that she might be trying to get everyone moving to get to school and herself to work. X is reportedly not scared of her mother” (paragraph 42).
At paragraph 46 Ms H reported:
X reported that all the children and her father want to spend time equally with their parents, although she denied they had discussed it. She was unable to say how she knew that was what they all wanted. X reportedly thought that equal shared care would be fair and that it would stop the conflict between the parties.
Y was able to think of good things about both her parents (paragraph 49). At paragraph 53 the report noted:
When hypotheticals were explored Y spontaneously reported that “we all want it to be 7 nights and 7 nights” with each parent, although she could not explain how she knew that her siblings wanted that because she denied there had been any discussion about it with her father or her siblings. Later Y reported they had “sort of talked about it”.
Z was likewise able to think of good things about both her parents (paragraph 56) which continued
she considered it was not so good that her mother does not sit with her to do her homework. It appeared this may have been something she had heard from her father that this was the right thing to do because he does that at his home. There were strong indicators the family court matters had been discussed in the presence of or with Z in her father’s home.
At paragraph 59
Z also reported spontaneously that she thinks the time with the parties should be equal because that is fair. Z denied that her father or paternal grandmother had discussed this with her, and she maintained she just knew her father would want it to be equal.
In detailing the observations of the children with the mother at paragraph 62
Ms Jacot appeared anxious, but she was appropriate with the children. There was a quite strong sense of lack of genuineness by the children and a degree of disdain towards their mother which was disturbing and seemed incongruent with their interviews.
At paragraph 64 detailing the observation with Mr Jacot, relevantly Ms H observed
Mr Jacot appeared to lack genuine engagement, but rather to emphasise himself as the fun parent. He appeared to have knowledge of the children’s individual personalities and strengths and used primarily an invitational parenting style.
The report continued at paragraphs 65-67:
The children appeared to be in the thrall of their father. The children love him and there was clear warmth and affection from him towards them. The bond appears strong but also characterised by the children's awareness of their father's needs, rather than any prioritisation of their needs.
The children appeared to be resisting their mother's humour and attempts to engage with them although it was clear from all of them that they have a strong bond with her, including W. Their complaints about her did not support their behaviour which was interpreted as intended to demonstrate to the Family Consultant that they prefer their father.
W appeared to assume a parental role with his sisters, and he directed them in his father's presence several times and appeared jealous that they had their father's attention. W has lived apart for his sisters since about 18 months prior to the final separation.
In the evaluation section at paragraph 68 Ms H opined:
The issue of alleged emotional and psychological abuse of Ms Jacot and manipulation of the children is the primary issue of concern in making recommendations for the children with the parties. It was clear that Mr Jacot attempts to emotionally manipulate adults as he attempted with the Family Consultant. Given the observations during the Family Report interview it is assumed that Mr Jacot does not contain his emotional displays in the presence of the children and seems likely to convey to them his devastation if they were to have anything less than equal time with him. This invites unsophisticated children to prioritise his needs over their own. It may have the negative effect of delaying the children’s individuation which is a developmental stage of adolescence and their early twenties.
The report noted that Y appeared to be about expected maturity for her age but was not old enough to determine what arrangements were most beneficial to her because she did not seem to consider the sleeping arrangements problematic or lack of private space to study in the father's home as a negative to her (paragraph 69).
W was noted to be immature and naïve for his age and was unable to make choices that support his needs as a priority. Rather he appeared to prioritise his father's needs and appeared to have been influenced by Mr Jacot's victim presentation (paragraph 70).
X was found by Ms H to appear oblivious to her own needs as a young woman and seemed emotionally mature for her age. X was not capable of determining what was most beneficial for her given that she has accepted that she does not need private space in her father's home, her father was a victim and is incapable of providing suitable accommodation. Ms H expressed concerns that X's education is not prioritised in her father's home (paragraph 71).
Ms H expressed low confidence that Mr Jacot would prioritise education for Z given his failure to do so for W and noted at the end of paragraph 72
Z’s criticism of her mother was not something an 11-year-old would usually care about, and in fact generally children are happy to avoid homework if possible unless school is a strong protective factor for them, and they are highly academically motivated. It appeared to be an adult opinion about her mother, unlikely in my opinion to have come from Z’s assessment of her mother.
At paragraph 73-74 the report continued:
Mr Jacot impressed as having difficulties prioritising what would most benefit the children in terms of basic needs for sleep, privacy and education. Mr Jacot cried when there was information provided by the Family Consultant about what is known about children's needs at the ages of his children. He appeared either unsophisticated or to be distracting from the direction of the questions and the discussion. There are concerns that if Ms Jacot's account of Mr Jacot's behaviour with W 18 months before the final separation, is even only partially accurate, there was little support of W's education and even less of his relationship with his mother from Mr Jacot.
Mr Jacot was explicit at interview about the property matter being in his view intimately related to the parenting issues. This raised the question whether his strong emphasis on equal shared care of the children may be related to the property matter in so far as Mr Jacot had reportedly had no compunction about living separately from the children in the past while he continued to reside in the home of the paternal grandmother for 2 years and the children and Ms Jacot were living in her current home.
Ms H went on to note that W would turn 18 in 12 months and would likely live with the father whatever the Court ordered even though it was to his benefit from living primarily with the mother. The report went on to recommend that until the father had a suitable home with at least three bedrooms and a study that the girls live with the mother and spend time with the father from Friday to Sunday in one week and week two for dinner on a Wednesday, home by 8.00 pm. In the event that Mr Jacot did obtain a suitable home the children should live with him in the extant nine/five arrangement.
THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT
What follows is taken from my notes. Self-evidently, it is not a transcript but records matters I found of note. While such recitations may be laborious and tedious to read, the distillation of the evidence and submissions in this way assists me in forming my views and producing a more timely judgment.
The Opening and Evidence of the Mother
Counsel gave a relatively extensive opening outlining the background to the matter traversing a number of the matters recorded in the agreed section above. He laid particular emphasis upon the extremely basic nature of the accommodation at B Street, Suburb C. Water was not connected and neither was the toilet. The husband had effectively gone back to his mother in 2016 with W and there had been separation under one roof in April 2018 before final separation on 2 November 2018. Counsel traversed the five/nine arrangement. The mother sought this be scaled back to alternate weekends whereas the father was seeking equal time. The girls were submitted to be enmeshed in the conflict and say that equal time is because it is fair. Counsel referred to the inappropriate sleeping arrangements at the grandmother's home with the father and W sharing a bed and X in the same room and Y and Z sharing a room with the paternal grandmother. Counsel pointed out that the father had told the family reporter he was going to wait until there was a property settlement but now rents a property.
Counsel traversed the property pool. The mother seeks that the contributions be assessed as equal. She is the primary carer and is employed as a clerk. It was conceded the husband inherited $230,000 but it was submitted that the mother's future needs were greater. Counsel noted that he was running a Kennon & Kennon (1997) FLC 92-757 argument given the hardships the mother had had to endure and submitted there should be a 15 per cent adjustment in the wife's favour producing a 65/35 result.
The mother was called and adopted her most recent financial statement and trial affidavit as true and correct.
Under cross-examination the mother confirmed that she was seeking a payment of $535,000 from the sale of the UK property. She confirmed that the extant parenting arrangement of five/nine and a Wednesday dinner in the off week and shared school holidays had been in place for about three years. This was done through a parenting plan and not by Court order she confirmed that she was now seeking to reduce the father's time to Friday to Sunday in one week and a Wednesday dinner in the other week. When asked if she had made this change because of the release of the family report the mother said yes and no. She was not particularly happy with how things were. Her position changed after the family report. She realised about the extent of the alienation. She asserted the father was always with his mother when the children are with him. Alienation is a concern. She does not see W.
She conceded there could be an order for the father to have appropriate accommodation. The property at D Street, Suburb E would have to be sold. She seeks to retain B Street, Suburb C where she has been living since November 2018. The property is worth $960,000 with a mortgage of about $1000. She said the mortgage was discharged in 2016 and conceded that this was from the father's inheritance. She confirmed that a sales memorandum from October 2021 gave the price of the D Street, Suburb E property as £625,000. This has down slightly from a prior valuation. The property was bought while they were together and then tenanted after they moved to Australia. The mortgage would be paid out to a value of about $100,000 and would produce a net total of about $1.1 million. With payment of one per cent commission and capital gains tax there should be a total of about £10,000-£15,000. She had worked this out for herself. The resultant likely net total was about $950,000. She confirmed that she wants $530,000 from that amount.
Counsel traversed the loan from her father. This started in 2018. The first thing she had to get was the car. The loan is just between her and her father and he is still loaning her £400 per month which comes in through her sister. This is for the car, legal fees and living expenses. Counsel put it that the date for repayment in the loan in 2020 had passed. The wife conceded that this was the case and said she has not been able to repay. She will have to pay the money back. She now intends to keep B Street, Suburb C. She was aware that the husband wants a property split of fifty-seven and a half percent and when it was put that this would require a payment if she was to keep B Street, Suburb C the wife said this was news to her. When asked about any capacity to borrow the mother said she had none. Her earnings are low and only about $40,000. When it was put that the only way she could repay was to sell B Street, Suburb C the wife said she had not thought about this. Her dad understands her position. When it was put that she would have to repay her father the wife said at some point she would probably have to repay him. She had talked about this with her father and he was helping her at the moment.
Cross-examination turned to the question of the husband's tax returns. She said he had tools worth $35,000 and there were things like the scaffold which had not been valued but were in his tax returns. She was adamant that the husband had been buying more tools. Her own car had been bought with funds from her father.
I interpose and say that Counsel for the father accepted that the wife's car should be excluded if the debt to her father was also excluded from the pool.
Cross-examination turned to the father's Company N shares. The wife accepted that he had brought these shares into the relationship. They lived rent free with her parents for five years which enabled them to save about £70,000 but she said it was a little bit more than that. They had bought furniture and the like. The property in D Street, Suburb E was bought for £269,000 in 2003 with a mortgage of £190,000. They came to Australia in 2007 when they had two little ones and one on the way. His trade qualifications were not accepted and it took him six months to study to get a journeyman's licence. He earned a modest income as a tradesman working for Employer O. The wife was receiving maternity pay for those six months. The mother conceded that they lived with the paternal grandmother between 2007 and 2012. They were not paying rent. She would have preferred to have lived in rented accommodation. They saved money and bought B Street, Suburb C in 2012. She did not remember the deposit but did not quarrel with $140,000. She conceded that the paternal grandmother gifted $54,000 in addition to the $140,000 savings for the deposit. The mother said it was hard to live in the circumstances in the property. She was the primary carer for longer than 2014. She obtained part-time work in 2014 as a cleaner working from 9 till 3. It was put to her that the mortgage had gone down by $130,000 between 2012 and 2016. The wife said that the husband's money went into the mortgage and she paid all the bills and shopping from her earnings. The conditions in the home were appalling. She conceded the husband's inheritance of $230,000 in 2016 paid out the mortgage. Their combined incomes from 2015 onwards were about $100,000 a year. The children were at Catholic schools. W was at P School till 2010 and the paternal grandmother helped with additional tuition at weekends. X and Y are at Q School.
It was put that she chose to live with the paternal grandmother at her home. The mother said was that these were not her choices. She could not leave. She had no family in Australia. She was frightened to leave and would not leave her kids.
Asked about travelling, the wife said she came to Australia in 2007 and went home in 2009 for a few weeks. In 2010 Z was born and her mother was dying. Her parents paid for her to go back. She has not been back since as she cannot afford it. She wants to remain in the B Street, Suburb C property for her children. The husband now has to pay rental. He did not want to buy a house. He wanted to take over the property. She confirmed that she thinks the husband can make more than he discloses. She conceded that the husband had disclosed in his tax return money he had made selling scrap metal. She said he likes to save money. She was not able to say whether or not additional income had not been disclosed. When it was put she had similar earnings to the husband she said she was a clerk. The husband does not contribute to the children. He pays no child support.
W lives with the father. She sees him when he drops off the girls. W is working now. When she sees him they chat and it is lovely. They talk about music and have pleasant conversation. W's phone has been broken for about a year and she cannot contact him. It was put she had not paid child support for W but the mother said he had been working for the last two years and she had bought him clothes. She was not aware if there was still a debt to P School. She had been to P School and is paying agreed amounts since W left at the end of year 10. The girls spend time with the father in a nine/five arrangement with a dinner on Wednesdays. The girls are at R School and each of them pays half. It is about $8000 per year for each child. She has a plan with the girls' school and they get separate invoices. Z's primary school fees are $4000 a year but she will be at R School next year. The father pays for the children on private health. Originally, she paid until he took it over last year because she could not afford to keep it going. Z has soccer this year and she paid the fees. She had already bought a uniform and he bought another. Books are invoiced in November and she has to meet the deadline and also purchase the uniforms. She emails him the invoices.
The wife confirmed that she thinks W was alienated. He has been removed from her. Before that they were strong. Someone comes in between. Their actions and words remove him from me and also his mother is involved. She disagreed it was a strained relationship before separation. When it was put that the father said there were problems in the relationship from 2014 the mother said W was about 10. To do his homework they needed the internet. There was no internet at B Street, Suburb C but only at the grandmother's. She had to drop W off to do homework and it was a long process. When she had to take him to high school in 2016 it became more strained. He was going out late and it was hard to get him up. The computer was at the other house.
Counsel cross-examined about the argument in 2014. She had worked all day and collected the children and had to go past the grandmother’s home. W wanted to go to the grandmother's house but she said, "No. I am tired." W went. She telephoned but she got no backing from the father. When W saw there was no backing her, this was part of the alienation. She felt the father did not prioritise the children's education. She agreed that it was a longstanding issue to get W to school. There had been a meeting with the year 10 coordinator and W and the father about an apprenticeship. She had spoken to the school about it as well. She expected the children to try to do better than their parents and wanted them to earn well. The way they had to live came at a cost. W is a hard worker and she would have liked him to have finished year 12 and have more options. The girls are with her during the school terms. She was concerned about the father's accommodation and lack of attitude about school. The children were often at her mother-in-law's until late. They adore her. The mother conceded that X's attendance at school had improved. All the children are doing well. Z has ADHD but she does not fully accept that the father gives her her medication. Z is still at school during COVID and has had one-on-one schooling for the last two years. School nights are predominantly with her.
The mother confirmed she had read the family report. She had said in the past that she wanted equal time but it is not always what is best for them. She has reservations about equal time. She has concerns about how much time the children spend with the father. They enjoy it but it is not what is best for them. They go out to the city until 11 o'clock and it is fun. They are happy but it is not always what is best for them. There are no orders in place. She has mentioned she is not happy that they are out until 9.00 at night. They return late all the time. It is not just about the bed times. It is about having them settled. Most of the time they are with the grandmother. Then at 10.00 or 11.00 pm they go to the father's house. It is not so much of an issue on the weekends. She always goes home past the grandmother's house and when three cars are there she knows the children are all there. And she also knows this from phone calls. An equal time regime would not cover all the issues. She agreed that the girls wanted more time with the father and that they were close to W. They have a close relationship with the father and a close relationship with her. They have a close relationship with the grandmother. They are good kids. They are doing well at school and popular. It was put that reducing their time with the father would make them unhappy. The mother said if that happened initially, there would be benefits as well. It would be hard initially.
There was no re-examination.
The Evidence of the Father
The father was called and adopted his affidavits and financial statement as true and correct.
Under cross-examination the husband confirmed that they had lived with the wife's parents in the United Kingdom between 1998 and 2003. He said they saved £80,000 not £129,000. The wife worked in the Employer L and he was a tradesman. She earned more than him. They came to Australia in 2007. She came three months before him. He did not work for six months. They lived on assistance from his mother and father and the wife had maternity leave. She also received family tax benefits. She had been to the United Kingdom in 2009 and 2011 and her parents or her brother paid. They offered to pay for it and he said why not. Counsel put it that he had been financially controlling but he denied this. He said they were working to buy the property and bought B Street, Suburb C in 2012. His mother gave them $54,100 which was a gift to both of them. His mother has never had a commercial business and does not have a commercial kitchen. There was a two year delay before he moved to B Street, Suburb C. He had dinner there but he had to go home to sleep. Counsel put it that the water was disconnected and the wife had to use rainwater to wash clothes. The husband said the hose was replaced by a pump. It was put that the toilet was not connected but the husband said you have to use something else because it takes half an hour to fill up. It was put that these were onerous living conditions and the husband said he just did not have time to put things right. It was put that the whole family lived in one room when they were with the grandmother but he said the girls and the two of them were in one room. He moved in 2014 because his Uncle Mr S came from the UK. He denied that the wife had cared for his father before he died.
Counsel traversed the incident in 2014 to which reference has already been made. It was put that the wife had put clean clothes on the bed, that he had thrown a photograph and pushed her over. The husband said it did not happen like that. It was 9.30 at night and W was at Scouts. He fell asleep. She was agitated and angry. She carried on for an hour. She shouted that they needed to talk. He woke up and did not know what was going on. He told her she was upsetting the children. He could not take it anymore and had to push her away and she landed on the bed but not hard.
The husband confirmed he has three work vehicles. When asked why he could not lend one of them to the wife he said she could not use them as they could only take one passenger. All the regos are costing him a fortune. He cannot sell them till the financial settlement. He confirmed that there is internet only at the grandmother's. The children do not have mobiles. There would be mobile coverage in B Street, Suburb C. He had a computer at his mother's house but could not afford one at home. It was put that he was at his mother's place all the time in 2016. He said he was coming back at 11.00 pm because he was working very late.
He agreed that the mother was the primary career. She cooked all the meals and bathed the children and did the shopping. He did not go to parent teacher nights because he was always out at work. They separated under one roof in 2018 and final separation was on 2 November 2018 when he moved out. There was mediation the same day and the girls were to spend five/nine with him and W five/nine with the mother. W has not spent any time. In the beginning they discussed getting a psychologist for the children but this did not progress. Counsel put it that there was no backup from him but the husband said he was at work. All he was told was that she did not know where W was. He did not say “you have to obey your mother”. She said “get out of my sight”. He still does not know why he walked away. It was very hurtful that W had nothing to say about the mother. He took the Xbox off W and all his games were removed. He had suggested counselling for W and he went. He had suggested a private counsellor and that the parents share the costs. He is very scared that the same thing could happen to the girls as they get older. He did not want this happening with the girls. He had never alienated W but he could not force him. He said he had not spoken to the girls about the case. They are always asking “when are we going to get our home?”. He does not show the girls Court documents. He was questioned about the text he had sent where he said “I have a lot of money to fight for you”. He said he does not have any money. He lied when he said he had money. He said he had the law on his hands because he had a solicitor. He conceded that his texts to X were inappropriate but tried to explain these away.
W completed year 10 and is a second year apprentice with him. He used to sleep in the same bed as W. They moved to a rental at the beginning of this year. The previous arrangements were not appropriate but he did not have the financial capability to get everything done. He conceded that X would sleep in the same room. Y and Z were in the same room as his mother. There were two single beds side by side. It was put that the family report had recommended time Friday to Sunday till he had accommodation. The father said he then went and got accommodation. He said he cannot afford it. He is in debt. Counsel put it that X had nowhere to study. He said there two dining tables. There is one used for the business and one other one. They can use either. He denied that he would go back to his mother after the case was over. The children were so happy having their own room. It was put that the children come back between 10.00 and11.00 pm on Wednesday nights in the off week but the father denied this. He aims for 9.00 to 9.30 and it is usually by 9 o'clock. Getting them into the car is difficult. Wednesday night stops him from running his business. They do not want to leave. He appeared to agree that a curfew of 9 pm would be a good idea. He had seen them doing their homework. He only helps Z. X and Y are too academic for him.
Counsel put it that both W and X had been substantially late or absent from school when in his care in 2018. He said this was correct. W does not want to go to school. Alternatively he had taken him to work with him. He does not want the girls to be tradesmen. The two older girls are academic and only Z is practical. He agrees that Z has ADHD. He has not been given any of the costs of the paediatrician and has never contacted the paediatrician. When Z is with him he gives her medication only on school days. He denied teaching the children to be disrespectful to anyone. He cares for his mother. His mother's garage is his work bench. He calls her every morning. He wants more time. It is what his children want. He pays no child support. He owes money to Q School and owes the Australian Tax Office. He does not know how that proceeds. He pays half the school fees. Extracurricular matters are not an issue. He can pay half. He has just bought basketball uniforms. He said that these go backwards and forwards and it was better to have a uniform at each house. He paid the mortgage and she paid the everyday costs. He does not pay for Scouts. He cooks for the girls, mostly barbecues. There is not enough time to cook on Wednesdays. There was cross-examination of an incident at the cinema on 29 June 2018 but in my view this was of no moment.
Counsel put it that communication with the mother was important. He agreed 100 per cent and said it was a lot better now. It is getting better now but was terrible at the beginning. They now get on much better. Counsel put it to him that he had told the girls to tell Ms H that they wanted equal time. The father said he told them to tell her what makes them happy, what makes them sad. He cannot work 80 hours a week any more. He went back to his mother's and returned to get some sleep. He was cross-examined about paragraph 46 of the family report. He said he did not think that they had conflict. He did not believe there was any conflict with his ex-wife. He cannot persuade the children what to say. He asks them to be honest. It is hard to get W out of his mother's house.
The father said he worked 60 to 80 hours a week during the marriage. Now he works 35 hours per week. He has taken on work until the cold water brings more G Store work. He does not want less work. G work is profitable. He was sacked in 2009 when he was accused of stealing. When asked how his income had remained the same the husband did not really answer. He said he cannot do it fast any more. It is all jobbing work which you have to do immediately. W is not getting paid. He has not been paid at all this year. He did not seek JobKeeper last year. When Counsel put it that it would have been better for W to be paid the father said he can train him 100 per cent. Others use him as cheap labour.
Counsel cross-examined about the father's income. His financial statement says $807 a week but the father said this was not every week. He accepted his tax return showed an income of $37,057 for the last year. Council taxed him with a number of credits in his records but the husband said he has to buy product. He gets more work in the cold season. Now it is right down. He shops at Dan Murphy's once every fortnight. He cannot afford it. He intends to buy his own home when the case is finished.
There was no re-examination.
The Evidence of Ms H
Ms H adopted her family report as exhibit C1.
Under cross-examination by Counsel for the mother Ms H said the father appeared somewhat enmeshed with the children. He needed to be with them in conditions that were inappropriate given their ages. He wanted equal time. She was not certain that he would have suitable accommodation even after the property settlement. The father was tearful but about his needs. Ms H confirmed that he had said that the property matters were closely related to the parenting issues as recorded in her report. Counsel asked about the texts sent to X about having a lot of money and fighting for you guys and asked what effect these would have. Ms H said this was completely inappropriate. It would influence her in some way. One of the children has said she expected that they would move into the family home with the father.
When asked about paragraph 46 of her report and X saying that equal time was fair Ms H said there had been quite some discussion with the father about equal shared care. The children had denied such discussion but they used the same words. Counsel asked if a seven/seven arrangement was feasible. Ms H said this was not in the children's best interest. She recommended the girls live with the mother. She did not form the view that the father had the children's best interest in mind. He was enmeshed. This can cause harm to the children. If a parent uses children to win, the children think their value is not intrinsic. She expected the father to suggest the children live with the mother rather than him. She expected his circumstances would not change even after settlement. There was conflict between the parties insofar as the mother felt degraded and humiliated by him to the children. The children were aligned with the father around that. When asked if there should be communication with the mother through the children Ms H said it depends on their age. There was a strong sense from her observations that the children were very aligned with the father. The girls should not be a go-between.
Counsel traversed the mother's suggestion to reduce time from nine/five to Friday to Sunday. Ms H said this was correcting the father's attempts to have the children align with him. The mother's accommodation meets their needs better. Counsel asked if with VCE coming up it would be better to have one residence for school days. Ms H said it would work well for the children. Private space is a significant matter for her. When asked about W's attitude to the mother Ms H said this was concerning. Also, it was not congruent. He seemed more open to his mother than his words suggested. There was more of a connection with his mother than he wanted to let on.
Counsel for the father commenced with a rolled up question noting that the interviews had taken place in March and during the course of a morning, the girls still say they want more time with the father, they were settled in the nine/five arrangement, the father had rental accommodation, the father would buy a house after the property settlement and attendance at school was high and the children were doing well academically and socially. Counsel then asked Ms H if her concern was about the father's accommodation. Ms H said it was. The father has said that after settlement he still was not able to get a loan because of his income. He did not anticipate being able to get a home. The girls are in thrall of him and the father was quite manipulative. When asked if it was a comfort that he had obtained accommodation Ms H said that this was not what he had said at interview but it was a positive step. Ms H confirmed that she was not aware of the parties' positions in respect of property.
Counsel put it that the husband is worried about what the net amounts might be for him was a reasonable explanation. Ms H said one of the children said they might move into a property with the father. Ms H said that there would be a benefit to the children in the context of VCE living primarily in one home. It would make sense to have one place to study. She did not think that more time would be of benefit to the children. Enough time was what was required. The father had emphasised empathy, but involvement with school was taking and collecting the children and parent teacher nights. The father works full time and cannot do these things. Counsel put it that the mother says the children are alienated but Ms H has said they were aligned and Ms H confirmed this. Counsel put it that the girls were positive about both parents and had not refused to go back to the mother with which Ms H agreed. Counsel put it therefore there was no alienation. Ms H said she would probably disagree. She referred to W. It was Ms H' opinion that he has been aligned with the father. This was an active process and he had rejected the mother. If the same thing happened with the girls they may well also be aligned with the father. Sometimes children align with the more powerful parent. She formed a view it was coercive and controlling behaviour by the father. The children are immature for their ages and she was not confident that what they were saying was in their best interests.
The girls gave express views about sharing a bedroom and their views were immature for their age. When asked if there was any other reason why X might be immature Ms H said that the overall impression she had was that she was very compliant with her father. This was unusual. It seemed orchestrated. Ms H had a definite impression it was for her (Ms H's) benefit. She undertakes many observations a year and accepts that this is stressful but this was an unusual situation. When asked what the downside would be with more time with the father Ms H said there would be a degree of damage if the children learned that the father's approach works in the end. They learn that they are only useful to other people and not of intrinsic value. They would only be useful as tools. Counsel asked if the current arrangement was working well why it should not continue. Ms H said what the children will take into their adult life. Who wins and what power is about. The fact that they were doing well in school was not necessarily indicative.
Final Submissions by Counsel for the Father
Counsel indicated that there was no dispute as to the property pool. The non-superannuation assets were the two homes. B Street, Suburb C is valued at $950,000 and this was in effect the same net amount as the property in Suburb E. The husband submits there should be an adjustment in his favour because of the contributions. His mother had gifted $54,000 towards the purchase of B Street, Suburb C and there was also his $230,000 inheritance which discharged the mortgage. So far as future needs were concerned both parties were in reasonable health. Neither had particularly significant income both being around about $50,000 per year.
The husband says parenting should be a shared care arrangement. He has paid for W since separation and pays half school fees and extracurricular fees and also the children's private health. He prefers separate invoices. Even if there was a five/nine regime there should be no adjustment in respect to future needs.
It was conceded that they lived rent free with the wife's parents in the United Kingdom and saved £80,000. That they had lived rent free in Australia from 2007 with the father's mother for five years and saved about $140,000. The wife would have preferred not to have scrimped so much but this did not amount to a Kennon argument. The wife retained her income, maternity payments, leave payments and statutory benefits. She paid household expenses and the husband paid the mortgage. This was not a Kennon case. The parties were just living frugally. The loans from the wife's father should be disregarded. It was post-separation. The car should not be included as an asset. The loans were also applied to legal fees. The loan agreement itself had not been adhered to as it was ostensibly repayable on 1 January 2020. The fourth step as to being just and equitable required that paying the father sufficient money to get a fifty-seven and a half percent outcome would require a payment but the mother cannot take out a loan. Counsel conceded, to an extent against interest, that one possible outcome might be that the husband was to obtain the property in Suburb E and the wife was to keep the home in B Street, Suburb C.
So far as parenting was concerned, it was agreed that there should be an order for equal shared parental responsibility. W lives in accordance with his wishes. The issue is with the girls who are 15, 14 and almost 12. The arrangements have been in place for three years and the mother accepts the children are happy and well-settled. They want more time with the father. The father's case is the wishes of the girls. The Court is obliged to consider equal time but if not substantial and significant time. There were no problems with equal time as the parties live close by each other and to the children's school. The current arrangements are substantial and significant time. The mother's proposals are not in accordance with the Act. Dinner in the off week is problematic and disruptive. Ms H says the father tried to present as warm and empathetic but Ms H did not see him as empathetic. There is a need to protect the children from harm. Counsel queried whether should be one primary residence.
Ms H' evidence that the father was coercive and controlling was not made out on the facts. The father spent much time away from the home. He was not coercive or controlling. The wife's evidence was the frugality of their lives. There was no evidence of the monitoring of her movements. Many factors contribute to W's relationship with the mother and it is good when he sees her. Ms H says there is a risk of harm to the children being perceived as utility or a tool. This was based on the notion that the children were overexposed to the dispute. The children want fair and equal outcomes and for the conflict to stop. Ms H assumed the father told the children to move back to the house but this could be for any reason. The children's views should be given some weight. The children are well-adjusted, competent children. When one reads the school reports its apparent Ms H was wrong. Her view was based on X not understanding her living arrangements, but that is what they are used to. The husband has got his own property and the children are very excited. The nature of the children's relationships are positive with both parents. There is a good relationship between the brother and particularly Z. They also have a good relationship with the paternal grandmother. There is no practical difficulty or expenses in the father's proposal and there is no reason to have a primary residence. Both parents have contributed financially. The orders the father seeks will not lead to future proceedings. They would be consistent with the children's views.
Finally, Counsel submitted that superannuation should not be included in the pool.
Final Submissions by Counsel for the Mother
Counsel submitted that W was obviously alienated. There was a computer and Xbox at the grandmother's home. Equal time needs a capacity for communication which is simply not present. There is high conflict. X says conflict would resolve if there was equal time. Ms H's evidence was compelling. VCE is coming and the parents cannot communicate. There should be a primary residence during the week. Children's wishes are part of the mix but the children's best interests are paramount and a twelve/two arrangement was the best outcome. There should still be half school holidays time. W has been alienated from the mother and the father may alienate the girls as well.
Turning to property, Counsel submitted that any money loaned by the wife's family after separation is not part of the pool and that includes the car. The payment of $54,000 was not conceded as a gift to the husband, but was a gift to both parents. The mother helped the grandmother in her business and the grandmother was not on affidavit. The inheritance was conceded in the sum of $230,000. Counsel referred to authority including Bonnici & Bonnici [1991] FamCA 86 as to the effect of inheritances. Here $230,000 is 10 per cent of the pool. It was a very small adjustment. The contributions should be assessed as equal. The wife did all the work in the home.
Turning to section 75(2) matters, Counsel submitted that the wife had a modest income and was too scared to ask for child support. There was a Kennon argument. The father conceded throwing her on the bed. Overall there should be an adjustment 65/35 to the wife on the basis of a twelve/two spend time regime.
THE LEGISLATIVE PATHWAY - PARENTING
Despite subsequent minor statutory amendment, the statutory pathway is still, in my respectful view, best illustrated by the decision of the Full Court in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.
PARENTAL RESPONSIBILITY
Both parents agree that there should be an order for equal shared parental responsibility and it is plainly in the children's best interest to make such an order in the circumstances. This is so notwithstanding that there has been some family violence as I shall explain.
The Spend Time Regime - The Primary Considerations
Everyone agrees that it is to the benefit of all of the children to have a meaningful relationship with both of their parents. In principle that is the father's position even in respect of W. The mother's primary concern in this regard, of course, is her apprehension that the father will manipulate the children so that they do not, in fact, have a meaningful relationship with her. Section 60CC(2A) requires the Court to give greater weight to the need to protect children relevantly from physical or psychological harm, from being subjected to family violence. There is no serious suggestion that either parent in any real way abuse any of the children and the only suggestions of neglect are really those arising from the inadequate sleeping arrangements that previously obtained when the children were living with the or spending time with the grandmother and the father in her house. Family violence pursuant to section 4AB of the Act "means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family". In my opinion the definition is broad enough to include manipulation such as to cause the children to be controlled.
While this aspect of the dispute could be dealt with under a number of other additional considerations pursuant to section 60CC(3) it is in my view appropriate, given the emphasis to it given by Ms H, to deal with it now.
The family report interviews and observations by Ms H which I have paraphrased or set out earlier are extremely concerning. She found the father to be enmeshed with the girls and seeking to subtly pressure them to adopt a position he desired that they adopt. I found the father myself gave the impression of being manipulating and conniving in the way he gave his evidence, particularly in respect of his endeavours to explain away the fact that the girls had quite obviously been discussing what they would say to Ms H before they saw her. While there may well have been elements of discord between the mother and W before W left the family, the net outcome of his living with his father is that W has a very unfortunate attitude towards his mother. It is clear from Ms H's evidence, which I should make it clear I accept, that W actually has a better relationship with his mother than he was prepared to tell Ms H. It is particularly concerning that he appears to have endeavoured to tailor his evidence to suit the outcome which it is reasonable to suppose he knows the father wants. Put shortly, the undoubted march of the events, the reservations and opinions of Ms H and my own observation of the father mean that the possibility of the father manipulating the girls to the same outcome as W is a very real one. It must be given considerable weight and greater weight by virtue of section 60CC(2A).
The Additional Considerations Section 60CC(3)(a)
The children have all expressed the same views and in the same terms to Ms H. They say they want equal time because it is fair. I have already set out Ms H's views about the weight to be attributed to the children's views however and repeat that I accept it.
Section 60CC(3)(b)
The children clearly have loving relationships with both parents. It is not necessary to traverse W's position in any further detail because he will be 18 by the time these orders have any capacity to seriously operate. The girls obviously love their mother and although she does shout at them from time to time, such exasperation in the face of adolescent reluctance to get started in the morning when the mother herself faces the need to go to work and the like is readily understandable even if regrettable. The children equally have a good and loving relationship with their father but it has this enmeshed quality that Ms H has described.
Section 60CC(3)(c)
The father has not, it would seem, taken much interest in the past in the children's schooling. I agree with Ms H that the father has done but little to press W to continue his education once W was living solely with him. He appears to work long hours but it seems equally clear that he had nothing of any moment to do with the children's schooling. All the decisions about these aspects of the children's lives has been left to the mother alone. She has plainly discharged these obligations entirely satisfactorily. It would appear that the decision to send the children to Catholic schools was a joint one and in that sense the father must be said to have had some small input but the clear picture that emerges from the evidence as a whole is that he has stood back and let the mother get on with it. So far as spending time and communicating with the children is concerned, however, there is no doubt that both these parents have taken and wish to continue to take every opportunity to spend time or communicate with their children. They have prosecuted their case to judgment which speaks for itself.
Section 60CC(3)(ca)
The mother appears to have done everything humanly possible to assist with the obligations to maintain the children. She paid a loan for the cost of X's dental treatment (something I have not traversed previously but in which I would call the father's responses as niggardly). She has the lion's share of organising extracurricular activities and paying for them. The husband has never contributed anything in child support notwithstanding that the girls are with the mother nine/five. Amazingly, he has not even paid W for working for him. This extraordinary parsimony speaks for itself. W is 17 and while he is undoubtedly to an extent at least being trained by working with the father, the idea that an apprentice should be paid nothing at all is quite extraordinary. It is an extremely telling indicator of a profound meanness on the father's part that he seems to regard such training as he was giving W as more than justifying not paying him anything at all for working for him.
Section 60CC(3)(d)
The change that the father seeks to an equal shared care arrangement (which the Court is required to investigate first pursuant to the decision in Goode & Goode) would, it would seem, undoubtedly be popular with the girls. They have said they want it. The effect upon the girls, however, of such a change is open to considerable question. The mother continues to doubt whether the father will not in fact move back to his mother's home once this proceeding is over. I should make it clear that I do not think that that is likely. Any endeavour to do so would immediately lead to further proceedings. Any endeavour to continue the previous sleeping arrangements would lead to the children being taken off him and might well give rise to a notification to the Department of Fairness, Families and Housing. I note that the accommodation he has presently obtained is itself by no means particularly outstanding and I note that the father has said that he cannot afford to rent a three-bedroom house. Once the property settlement is concluded, of course, it will be well open to him to do so and one would wish to think that he will, although his underlying meanness to my mind suggests that he will not. If the children remain in the accommodation that he presently has it should perhaps be regarded as at least adequate but in the face of the father's past efforts with W I have no confidence that the father will properly assist the children with their learning as their final exams approach. His own evidence is that he is not in a position to assist X or Y and although he says he does not want the girls to be tradesmen, this does not of course of itself indicate that he takes their academic studies as seriously as he should. The children are doing well at school and they are well-adjusted but like all adolescents will need extra assistance as VCE approaches.
The mother's desire to move to a twelve/two arrangement springs in the main from her fear of the possible alienation of the children. While Ms H suggested that there was something to be gained from spending the week of study in the one household and clearly there is some potential for that to be so, the fact is that the children have been in the current arrangement for the past three years and are doing as everybody agrees at least sufficiently well at school. This shows the weakness of the proposition advanced by the mother herself. Furthermore, it is reasonable to suppose that the children would be discomfited by a change to a regime with which they are familiar and have known for now quite some time.
There is nothing to say whether or not W will be discomfited if the girls come into his father's care. I note however that he seemed somewhat jealous of them during the interviews with Ms H.
Section 60CC(3)(e)
Given the proximity of the parents' homes and their proximity to the relevant school there is really no practical difficulty and expense in the spend time regime proposed by either party or indeed the existing one continuing.
Section 60CC(3)(f)
The mother plainly has the capacity to provide for the children's needs. She always done so. She did so for a protracted periods of time when the father was effectively not on the scene at all, most particularly, the first two years of living in B Street, Suburb C.
The father says he can no longer work the very long hours he used to work and appeared to suggest that some of the work he previously did is no longer available. His assertions of being well able to look after the children's needs need to be seen in the context of the history. He was not the primary caregiver at any point and appears to have been a largely absent hardworking parent. His capacity to provide for the children's needs in the past is accordingly somewhat limited. Furthermore, his capacity to provide for the children's emotional and intellectual needs need to be assessed also in the light of his controlling, manipulative personality. These are significant deficits.
Section 60CC(3)(g)
The children are relatively immature for their years (or at least some of them are). It is noteworthy as Ms H pointed out that X did not really seem to understand how inappropriate the arrangements at her grandmother's house were. W was assessed as young and immature for his years also. So far as the parents are concerned the mother struck me as being straightforward and honest but to an extent somewhat beaten down and certainly slightly naïve. Nonetheless she presented as a sincere person, living in circumstances that must have been very difficult for her bearing in mind the tyranny of distance from all her own immediate family. The father's parsimony is a matter I have already commented on. Counsel submitted that the parties lived a frugal lifestyle in effect to get ahead. Certainly they saved a lot of money off the mortgage by 2016. The father's desire to amass funds however meant that the mother was burdened with in effect the entire responsibility of bringing up the children while he worked long hours. She was not able to visit her family in the United Kingdom as she might reasonably have desired to do. Even now the father regards the property case as being deeply interrelated with the parenting issues. This suggests strongly to me, as it did I think to Ms H, that his desire for an equal shared care arrangement has much to do with a perceived financial benefit to the overarching outcome of this case. It speaks volumes for the father that he indeed would regard the best interests of his children as being a matter deeply interrelated with finances per se.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
While important this is a matter that has already been largely dealt with. The mother is a completely unexceptionable devoted parent. The father loves his children but has the deficits identified by Ms H and this judgment.
Section 60CC(3)(j)
Contrary to the father's denials there is no question that he assaulted the mother in 2014. He said himself in evidence that he could not take it any more and pushed her over. Nonetheless, in the context of what sounds like a thoroughly vituperative argument between the parents, it has to be said that in a continuum where all family violence is of course abhorrent this is at the very low end of the scale. Where there was family violence of course within the meaning of the expanded definition is the father's undoubted coercive control of the finances of the parties. I have no doubt that at all times, most particularly when the parties were in Australia, he sought to control the circumstances of the mother in the most extraordinary ways. I should make it clear that I completely reject the father's attempted explanations of the appalling accommodation circumstances that obtained in the B Street, Suburb C property. He said in evidence words to the effect that he simply did not have the time fix things up. In circumstances where you are saving hand over fist it would of course have been possible for him to have paid for any necessary adjustments to have been made to enable proper cooking, washing, toilet and bathing facilities to be available. That he did not do so is part of the coercive, manipulative behaviour and downright meanness that characterises his personality.
Section 60CC(3)(k)
There are no family violence orders in place.
Section 60CC(3)(l)
It is plainly preferable to make final orders and everybody seeks that that be done.
Section 60CC(3)(m)
There are no other relevant matters.
CONCLUSION UPON THE PARENTING DISPUTE
The father's application for an equal time regime may be dealt with shortly. It is plainly not in the children's best interests despite the wishes that they expressed to Ms H (or perhaps more accurately even because of the views they expressed and Ms H' views about that). If the children move to an equal shared care arrangement the children will in my view go the same way as W in respect of their relationship with their mother for the reasons I have already given. This is plainly not in their best interest. To the contrary, it is likely to have as Ms H said a damaging affect upon their sense of self and self-worth.
The mother's application to reduce time to twelve/two has somewhat to be said for it. It would mean that the children were in the same household during the school week and for the reasons expressed I have no doubt that the mother will encourage and foment the girls' study in a way that the father does not. Indeed, it is still not entirely clear to me that the children really have an appropriate study place in situ in the father's home. Nonetheless, for the reasons already expressed, the children are likely to respond badly to a reduction in their time with the father and as already indicated are doing at least adequately well at school notwithstanding that the nine/five arrangement has been in place for some three years. In the end it puts the matter shortly but I think that balancing all these competing considerations together, the nine/five regime's continuation is that which is in the best interest of the girls.
PROPERTY MATTERS - STANFORD & STANFORD [2012] HCA 52
The Court's first task is to ascertain the legal and equitable property interest of the parties and determine whether a property adjustment is appropriate. However in this case, as in so many cases, and as was foreseen by the High Court in Stanford & Stanford [2012] HCA 52, the position of the parties during their marriage has altered radically and both of them seek a property adjustment. It is plainly just and equitable that there be one.
THE PROPERTY POOL
From what emerged in submissions, rather than the parties' formal documentation, it seems that the property pool is not the subject of significant material disagreement. It is agreed that the property in B Street, Suburb C has a value of $950,000 and is effectively unencumbered. The net likely proceeds of sale of the Suburb E property are likely to be almost exactly the same. It is, I think, agreed that the loan from the mother's father and the car which she bought with those funds should both be excluded.
The husband appears still to have some Company N investments (the child endowments to which reference has been made) with some Company N shares but these were his before the relationship started and are now in any event of relatively small value. He has a number of vehicles which would appear to be in some instances almost valueless. From his affidavit sworn 19 July 2021 I note however that he attributes a value to his Motor Vehicle 1 motor vehicle of $12,500 and his 2014 Motor Vehicle 4 motor vehicle of $25,000. I will include these latter two vehicles at that value as a concession against interest.
The husband has superannuation worth around about $40,000 and the wife has superannuation of almost $22,000. Counsel for the husband submitted that superannuation should be omitted altogether from the pool (or more accurately that each party should retain what they already have). The wife has some sort of defined benefit pension in England but its value is unascertained. In these circumstances and noting the relatively small disparity in the parties' superannuation I think that the position contended for by the husband is correct. Indeed I do not think that the Counsel for the wife addressed the issue of superannuation in final submissions at all.
CONTRIBUTION
In terms of direct financial contribution the wife always earned more than the husband in Britain as he himself concedes. The parties had rent free accommodation with the wife's parents and this enabled them to save a very substantial amount of money. Whether it was as high as the wife puts it or as low as the husband puts it, it was plainly what enabled them to buy the property in Suburb E which now has a net value of $950,000.
On coming to Australia the position reversed itself. They lived rent free with the paternal grandmother for five years. This enabled them to save money to buy the property in B Street, Suburb C. The wife was not working until 2014 and only went back to work at that time because financial pressures made this unavoidable. The husband worked, obviously, very long and hard and they saved as I say a lot of money to buy B Street, Suburb C. They saved yet more again to pay the mortgage down substantially.
As against this however and during the period in Australia the wife had in effect all the household duties to perform. Extraordinarily, the husband did not even move in with the family until 2014, two years after the B Street, Suburb C property had been bought. This brings us to the wife's Kennon argument. As earlier indicated, I do not accept that the parties consensually lived frugally with the paternal grandmother. Rather the mother was coerced into this by the father. The circumstances of living with two small children and the parents in the same room must have been extremely difficult.
Things however got no better when they moved out. The property in B Street, Suburb C was plainly in a condition requiring substantial repair as the husband's own evidence indicated. For the reasons I have already given he was unprepared to do anything about this. The fact that in these modern times a woman is driven to have to fill her washing machine with rainwater, to fill the toilet separately and to do all the cooking on a barbecue for year after year speaks volumes. Of course this was conducted in conditions of considerable hardship if not even squalor. The case of Kennon stands as I understand it for the proposition that in circumstances where a party's contribution is rendered more burdensome than would be accepted as being within the bounds of being reasonable, it may be appropriate to give that contribution greater weight. I would give a five per cent adjustment to the wife in this regard.
Nonetheless, the fact is that the B Street, Suburb C house has been mortgage free since 2016 solely as a result of the $230,000 inheritance applied to it. In simple arithmetical terms this is over 10 per cent of the net pool.
In these circumstances, and giving appropriate weight as the Court should to treating the wife's contributions as a homemaker and housewife not in a tokenistic way, I would assess the contributions made by the parties as 55 per cent to the husband and 45 per cent to the wife (including the five per cent Kennon adjustment to which I have referred).
THE FUTURE NEEDS MATTERS SECTION 75(2)
The wife has put on affidavit medical evidence that shows she suffers from a number of significant medical issues including Hashimoto's thyroiditis. This evidence has not been the subject of challenge. I accept her evidence that given her lack of relevant qualifications - she has no formal qualifications which means that she is unlikely ever to earn much more than $40,000 or so that she presently makes. Her receipt of statutory benefits will obviously decrease as the children turn 18. This case involves the only serious presently envisaged capacity on her part to buy or obtain a home and provide that home for the children.
The husband's evidence does not suggest he has any remarkable medical illnesses or difficulties. I note that he say he is not now able to work the long hours he worked when he was younger, but he is only 51 which in the scheme of the modern world is by no means old age. There is nothing to suggest he will not be able, particularly as the COVID difficulties decrease, to earn at least $55,000-$60,000 a year on an ongoing basis. Given the ability with which he saved money in past times I would infer that he may well in fact earn substantially more than that once the financial clouds of this case have disappeared. It is completely impossible to put any precise figures on this aspect of the matter but it is sufficient to say that is always likely to earn somewhat more, and possibly a lot more, than the wife.
The wife will have the care and maintenance of the children for years to come. The father has never contributed anything by way of child support and I have no doubt will not do so in the future although of course it is to his credit that he has the children on his medical insurance.
Nothing has been said by either party as to the likelihood or otherwise of any further inheritances for either of these parties although seems reasonable to suppose that both the father's mother and the mother's father may be generous in times to come.
The wife owes her father over £30,000 (see affidavit of her father, Mr T, who was not required for cross-examination). I think both parties accept that a wholly post-separation liability it should not be included in the pool, but I accept that she may repay him (see paragraph 42).
In all the circumstances in my view the mother should receive a 10 per cent loading in respect of future needs.
CONCLUSIONS ON THE PROPERTY MATTER - JUST AND EQUITABLE
Counsel for the father’s submission that one possible outcome that might be thought just and equitable was for each of the parties to obtain one of the two properties. There is a superficial attraction to this. Nonetheless in my view an overarching outcome that gives the wife 55 per cent and the husband 45 per cent, with both sides retaining their superannuation, is indeed just and equitable. I have drawn draft orders that give some guidance as to how this outcome might be given practical effect but will give the parties an opportunity to consider them and confer before contemplating making final orders.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Dated: 22 December 2021
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