JAMES & MARA
[2014] FCCA 490
•14 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JAMES & MARA | [2014] FCCA 490 |
| Catchwords: FAMILY LAW – Property orders. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(2)(a) and(b) and (3)(a), (b), (c) and (d), 60CG, 61DA, 61F, 65DAA, 65DAC, 65DAB, 75(2), 106A Mental Health Act 1986 (Vic), s.10 |
| Carpenter & Carpenter [2007] FMCAfam 16 Godfrey & Sanders [2007] FamCA 102 Markham & Markham & Ors [2010] FamCA 460 O’Loughlin & O’Loughlin (No.2) [2007] FamCA 1546 AJO v GRO (2005) 33 FamLR 134 P & P [2006] FMCAfam 518 M & K [2007] FMCAfam 214 M & S [2006] FamCA 1408 |
| Applicant: | MS JAMES |
| Respondent: | MR MARA |
| File Number: | MLC 846 of 2012 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 26 and 27 August 2013 |
| Date of Last Submission: | 27 August 2013 |
| Delivered at: | Melbourne (by telephone) |
| Delivered on: | 14 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Richardson |
| Solicitors for the Applicant: | Waters & Co Lawyers |
| Counsel for the Respondent: | Mr Allen |
| Solicitors for the Respondent: | Lampe Family Lawyers |
ORDERS
That the Father and the Mother have equal shared parental responsibility for the long-term decisions regarding the care, welfare and development of the children, [X] born [in] 2003, [Y] born [in] 2005 and [Z] born [in] 2005 (“the Children”).
That the Children live with the Mother from after school Thursday until the commencement of school on the following Wednesday, such that the Children live with the Mother for 6 nights per fortnight.
That the Children shall live with the Father from after school on the following Wednesday until the commencement of school on the following Thursday, such that the Children live with the Father for 8 nights per fortnight.
That the Children spend time during school holiday periods with each party as agreed, but failing agreement as follows:
(a)with the Mother for one half of all gazetted school holiday periods, being the first half in odd-numbered years and in alternate years thereafter and the second half in even-numbered years and in alternate years thereafter;
(b)with the Father for one half of all gazetted school holiday periods, being the second half in odd-numbered years and in alternate years thereafter and the first half in even-numbered years and in alternate years thereafter; and
(c)in the event that any provision for time in this order is inconsistent with school holiday time, then such time shall be suspended.
That during the second half of the Christmas school holiday period the parent with whom the Children are then spending time may take the Children overseas for not more than fourteen (14) continuous days, and the other parent must sign all documents necessary to enable the Children to so travel.
That the Children spend time with each party during the Christmas period as agreed, but failing agreement as follows:
(a)with the Mother from 4.00pm Christmas Eve until 4.00pm Christmas Day in the year 2013 and each alternate year thereafter;
(b)with the Father from 4.00pm Christmas Day until 4.00pm Boxing day in the year 2013 and each alternate year thereafter;
(c)with the Mother from 4.00pm Christmas Day until 4.00pm Boxing Day in the year 2014 and each alternate year thereafter;
(d)with the Father from 4.00pm Christmas Eve until 4.00pm Boxing Day in the year 2014 and each alternate year thereafter; and
(e)in the event that any provision for time in this order is inconsistent with Christmas period time, then such time shall be suspended.
That the Children spend time with the Father for no less than four hours on the Father’s birthday, Father’s Day and each of the Children’s birthdays to be agreed, and in default of agreement, from 11.00am to 3.00pm. Any provision under this order that is inconsistent with this paragraph be suspended.
That the Children spend time with the Mother for no less than four hours on the Mother’s birthday, Mother’s Day and each of the Children’s birthdays to be agreed, and in default of agreement, from 3.00pm to 7.00pm. Any provision under this order that is inconsistent with this paragraph be suspended.
That for the purposes of telephone communication pursuant to these orders:
(a)each party shall provide the other party with a telephone contact number and prompt notice of any change;
(b)both parties shall ensure that the Children are available for telephone contact as is reasonably requested by the other; and
(c)both parties shall permit the Children to telephone the other parent at all times as the Children reasonably request or the parties agree.
Changeover for the purposes of these orders shall occur at the Children’s school during school terms and otherwise the Father shall deliver the Children to the Mother’s residence at the commencement of the Mother’s time with the Children and the Mother shall deliver the Children to the Father’s residence at the conclusion of her time with the Children.
The Father and the Mother are hereby restrained from denigrating the other in the presence or hearing of any of the Children.
For 24 hours immediately prior to the commencement of any time spent with the said Children, and during all such time spent, the parties be restrained by injunction from injecting, consuming or using, or otherwise being under the influence of, alcohol, and/or any legal or illegal drug or substance (or having a blood alcohol content above 0.00), save and except for:
(a)any legal medication prescribed for the relevant parties by a registered medical practitioner, and taken or used by the relevant party strictly in accordance with such prescription; and
(b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets, and taken or used by the relevant party strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
That the parties shall each inform the other as soon as is reasonably practicable of any serious illness or injury sustained by any or of the said Children whilst in their care and further provide particulars of any treatment required or received by any one or more of the Children together with the name and address of the treatment provider and of any location in which the child or those Children are hospitalised.
That each party shall promptly provide the other party with the information about the health and wellbeing of the Children so that they both have the opportunity to be involved in any discussions which may arise with their Children’s medical advisers.
That each party shall provide to the other the Children’s clothing, footwear, sporting wear, accessories, toiletries, musical and sporting equipment and any other items that may be in their possession that the Children may require while in the other party’s care.
That if the Children have an opportunity to attend or participate in a special event during the other party’s time with the Children the other party shall be promptly provided with such information as is relevant to enable them to attend or respond on the Children’s behalf as they consider appropriate.
That the party who receives the Children’s school reports shall forthwith provide copies thereof to the other party, or if the school is agreeable, authorise the school to provide copies of such reports directly to the other party at their cost.
That each party shall upon receiving notification of any school or extra-curricular activities including but limited to concerts, parent-teacher interviews, excursions and camps promptly provide the other party with a copy of such notification or otherwise ensure that the other party receives notification in writing of such events.
The provisions of ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) apply hereto.
In relation to the property matters, and having regard to the Reasons for Judgment, the parties either:
(a)file a minute of consent orders; or
(b)each file a minute of proposed orders,
within 28 days.
If the parties file a minute of proposed orders pursuant to order (20)(b) above the matter will be listed for further mention within 14 days of such filing.
IT IS NOTED that publication of this judgment under the pseudonym James & Mara is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 846 of 2012
| MS JAMES |
Applicant
And
| MR MARA |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant mother, Ms James,[1] filed an application under the Family Law Act 1975 (Cth)[2] which sought:
a)a change in the time spent arrangements between the Mother and the father, Mr Mara,[3] in relation to the children of their relationship,[4] namely, that she have equal time rather than the existing six nights with the Mother and eight nights with the Father per fortnight, but at hearing the Mother only sought final orders in terms of the existing time spent arrangements; and
b)orders in relation to property, requiring that the Father pay to the Mother a sum equal to 45%, changed at hearing to 35%, of the property pool, and a superannuation splitting order in similar terms.
[1] “Mother”.
[2] “FL Act”.
[3] “Father”.
[4] “Children”.
The Father responded by proposing that:
a)there be a change in the time spent arrangements so as to reduce the Mother’s time spent with the Children to three nights per fortnight; and
b)the Father pay to the Mother a sum equal to 20% of the property pool.
Other ancillary orders are also sought by each of the parties. There are extant interim orders of the Court made in November 2012 reflecting the present time spent arrangements. Those arrangements were, on the evidence, in existence informally for approximately two years prior to their formalisation in the interim orders of this Court.
At the outset of the hearing it was suggested by Counsel for the Mother that the proceedings ought to be adjourned to allow for a psychiatrist’s report and alcohol and drug testing to be conducted as recommended in a family report dated 4 August 2013[5] by Mr U, the Family Report writer. The Court’s view was that the hearing ought to proceed, and the adjournment application was not pressed. In any event, by the time final submissions were made the next day Counsel for both the Mother and the Father urged the Court to make final orders, notwithstanding the matters adverted to in the Family Report.
[5] “Family Report”.
Evidence
The written evidence relied upon at hearing was as follows:
a)affidavit of Ms James sworn 25 September 2012;[6]
b)Family Report;
c)affidavit of Mr M[7] sworn 8 August 2013;[8]
d)Mother’s affidavit sworn 13 August 2013;[9]
e)Mother’s financial statement sworn 25 September 2012;[10]
f)Father’s affidavit sworn 7 November 2012;[11]
g)Father’s affidavit sworn 19 August 2013;[12]
h)affidavit of Ms A[13] sworn 19 August 2013;[14]
i)Father’s financial statement sworn 19 August 2013;[15] and
j)various financial statements, bank and financial records (particularly as to superannuation), and a Victoria Police criminal record in relation to the Mother (all tendered as exhibits in the proceedings).
[6] “Mother’s September 2012 Affidavit”.
[7] “Mother’s Current Partner”.
[8] “Mother’s Current Partner’s Affidavit”.
[9] “Mother’s August 2013 Affidavit”.
[10] “Mother’s Financial Statement”.
[11] “Father’s November 2012 Affidavit”.
[12] “Father’s August 2013 Affidavit”.
[13] “Father’s Current Partner”.
[14] “Father’s Current Partner’s Affidavit”.
[15] “Father’s Financial Statement”.
The Mother, the Mother’s Current Partner, the Father and the Family Report writer also gave oral evidence.
Basic facts
The Mother was born [in] 1976 and is 37 years of age.
The Father was born [in] 1963, and is 50 years of age.
There are three children born as a consequence of a relationship between the Father and Mother:
a)[X], born [in] 2003;
b)[Y], born [in] 2005; and
c)[Z], born [in] 2005.[16]
[16] “[X]”, “[Y]” and “[Z]” respectively, collectively the Children, and also referred to as the “first child”, in the case of [X], and the “twins” in the case of [Y] and [Z].
There is a dispute about the precise time at which the relationship commenced, and in particular as to when cohabitation commenced, and as to when separation occurred, following the marriage of the Mother and Father on [date omitted] 2005. The disputes with respect to the tenure of the relationship, cohabitation and marriage are dealt with further below, as are various other disputed issues.
The Mother has re-partnered,[17] and has cohabited with the Mother’s Current Partner since in or around December 2010 or January 2011.[18]
[17] “Mother’s Current Partner”.
[18] “Mother’s Current Partner’s Affidavit”, para.3.
The Father, who has also re-partnered, and his current partner, have known each other for about three years, during which time their friendship developed into a relationship, and the Father’s Current Partner eventually moved in with the Father on a full-time basis in October 2012.[19]
[19] Father’s Current Partner’s Affidavit, para.3.
In relation to earnings:
a)the Mother earns $210 per week and has an additional $73 per week in family tax benefits; and
b)the Father earns $1262 (net) per week, and has an additional $168 per week in family tax benefits.
Observations on credit
The Mother, as will be further examined below, suffered from a significant alcohol abuse problem from at least April 2005, and probably beforehand, until 2010. Such was the nature of that problem, and the vague and imprecise nature of the evidence that the Mother gave in relation to questions associated with the period from 2002, when she alleges cohabitation with the Father, to 2010, that the Court has taken the view that where there is conflict in the evidence between the Mother and Father as to events in the period 2002 to 2010, the Father’s evidence is to be preferred over the Mother’s, unless the Mother’s is independently corroborated. Despite some allegations of substance abuse, essentially drug use, by the Father, his evidence of events in this period appeared both honest and plausible.
The course of the relationship
Marriage
There is no dispute that the Mother and Father were married [in] 2005.
Cohabitation
The Mother contends that the parties commenced cohabitation in or around January 2002, and separated on 31 December 2008.
The Father contends that the parties commenced cohabitation in or around December 2002 or January 2003, and separated in about December 2006.
There are academic and student records which indicate that the Mother recorded her residence as being at an address at Property [L][20] from the outset of 2002. The Father was, at that time, buying the [L] Property, which was subject to a mortgage. The Mother says that she was five months pregnant with the first born child, when she moved to the [L] Property. That would mean that, on her evidence, she moved in in about September 2002. The Father asserted that the Mother began cohabitation at, or shortly before the time that the first child was born, that is, around Christmas 2002 or early 2003, and until that time she was “sharing Property W”.[21]
[20] “[L] Property”.
[21] Transcript at 65.
On the birth certificate for the first born child, who was born [date omitted] 2003, and whose birth was registered [date omitted] 2003, the Mother’s address, as an informant, was listed as Property W, whilst the Father’s address as an informant was at the [L] Property. The Mother denied that this indicated that she was not living with the Father at the time that the first child was born. The Mother was not cross-examined as to why she listed a separate address on the first child’s birth certificate, nor was she re-examined to explain that matter.
The Court, doing the best it can with the available evidence, is left with the Mother’s assertion that she moved to the [L] Property in about September 2002, and the Father’s assertion that she moved to the [L] Property in late December 2002 or early January 2003. No particular assistance is to be obtained from the Mother’s academic and student records or the first child’s birth certificate, as both give contrary indications. For reasons set out above, in relation to this period of time, the Court relies upon the evidence of the Father to determine that cohabitation began no earlier than late December 2002. Likewise, the Father’s evidence that cohabitation formally ceased in December 2006 is to be preferred. There is some evidence that the Mother returned to the home, but only briefly, thereafter, and only for a matter of a few weeks in 2007.
Mother’s drinking
The Father asserts that the Mother had a drinking problem before their relationship began, which the Mother denies. The Mother’s police record indicates that in 2000 the Mother was charged with, amongst other things, being drunk in a public place and assaulting police or a person assisting the police, and that case was adjourned without conviction in June 2000, and ultimately dismissed, following compliance with a bond or undertaking.[22]
[22] Exhibit 5.
The Mother’s evidence as to when she began to drink heavily was confusing. Initially, she said that she did not drink heavily until the twins were born in [omitted] 2005. Later, she said that she began drinking after the first child was born. The Father’s clear evidence, which is preferable, is that the Mother began to drink heavily after the first child was born, and before the twins were born.
The Mother admits that after the twins were born she would go drinking and stay away from the home for a day or two, on “blinders”, during which time the Father would have to look after the Children. The Mother also admits being aggressive and abusive to the Father whilst drunk, and that there was at least one occasion, and possibly more, during the relationship when she overdosed on medication and called an ambulance whilst under the influence of alcohol.
The Mother says that she has no recall of an allegation that she put vodka in the Children’s drink bottles in the freezer, but says that it might be a possibility, but she denies that the Father found empty wine bottles hidden in her clothes. Again, the Father’s evidence about these events, and the fact that they did occur, is to be preferred. The Mother concedes that prior to going into a rehabilitation clinic in December 2006 she was abusing alcohol.
Around mid-December 2006 the Mother came out of what was variously described as “detox” or “rehab” after a period which was at least three days, and probably five, but also as possibly as many as eight days. On the first evening that the Mother was home, she went to a Robbie Williams concert for which she had prepaid tickets prior to her going into the rehabilitation clinic. Rather than forgo the Robbie Williams concert on her first night home after the time spent in the rehabilitation clinic, the Mother went, with friends, to the Robbie Williams concert. It is not in dispute that she drank, became drunk, and did not come home that night. On her own evidence she subsequently went to live in [C] with a friend, and the Children were brought from their home by the Father to see her in [C]. It would appear that the Father, perhaps not unreasonably, expected that the Mother, on her first night home from rehabilitation, would stay home rather than go to a concert and go out drinking with her friends. When she indicated she did not intend to do so, the Father went out for a ride on one of his motor bikes, but this did not ultimately prevent the Mother from going to see Robbie Williams or going out drinking, and failing to come home.
The Mother was cross-examined as to whether she was in fact drinking up to four bottles of wine a day before her admission to [O] in March 2007. Asked to clarify the position by the Court she did not directly deny such significant drinking, but asserted that she thought that four bottles a day was “a bit much”.[23]
[23] Transcript at 39.
The Mother admits that after the twins were born “she really hit rock bottom”,[24] and that her drinking continued until about three years ago, that is until about 2010. The Mother’s admission that she had hit rock bottom after the twins were born does indicate that, as the Father says, there was drinking problem prior to the birth of the twins.
[24] Transcript at 44.
The Mother seeks to blame the Father, even now, for her drinking problems. In evidence, she pointed to the fact that one of the Father’s friends occupied a bungalow on the [L] Property, and that that person was an alcoholic or, at least, a heavy drinker. It would appear that this person was in the bungalow for a period of about six months in and around the end of December 2006. It is relevant to note that by this stage, on the Mother’s own evidence, she had long since hit rock bottom.
The Mother was admitted to [O], an alcohol and drug addiction assessment, intake and rehabilitation clinic, in March 2007 and remained there until June 2007. The Mother admits that prior to her admission to [O] she had been drinking up to 20 drinks a day of beer and vodka. Whether this was in addition to the wine referred to above is not clear. The Mother does not dispute that on intake to [O] she indicated that she had been drinking heavily and that her family life had broken down. During her time at [O] the Father brought the Children to see her, and she admits that he was very supportive.
The Mother gave evidence that when she was discharged she believed that she was better than when she went in, but:
a)in August 2007 she sought re-admission to [O] (but it is not clear if she was re-admitted); and
b)in late 2007 she committed a drink driving offence.
The Mother admits a long history of alcohol abuse, and indicates that she still drinks occasionally. The Mother’s Affidavit material indicates she has not drunk in the presence of the Children, and in her oral evidence (under cross-examination) she asserted that in accordance with the interim orders, she had not drunk in the presence of the Children, but that she does drink occasionally, socially, and with her family. The Mother’s Current Partner, however, said that both he and the Mother have drunk, but not been drunk, in front of the Children, and had done so as recently as a couple of weeks before the hearing, at their local football club. That the Mother drinks in the presence of the Children is also corroborated to an extent by the Family Report in which the Children indicated that the Mother has drunk at a champagne breakfast in the presence of the Children. There is no reason to disbelieve the Mother’s Current Partner in relation to his evidence. The Mother does have an interest in not disclosing that she has been drinking contrary to the current interim orders. The Court believes the evidence given by the Mother’s Current Partner in this regard, and notes that there is some corroboration of that by the Children. The Court therefore finds that the Mother has been drinking in the presence of the Children contrary to the interim orders of the Court.
The Father asserts that the Mother has reverted to her old ways, and that her drinking is a problem in the context of this case. There is, however, no proof that the Mother is drinking to anywhere near the extent that she was in the period from around 2003 to 2010, or that her drinking has been other than in a social context, or of a type which has latterly affected her ability to parent the Children whilst they spend time with her.
Despite the history of significant and long-term alcohol abuse, and since being in rehabilitation, for one short, and one quite long period, and a period away from the home immediately after the first short period of rehabilitation, the Mother does not agree that the Father had to be home to undertake domestic tasks and child care. The Father says that he did, and had to take significant time away from his employment to do so. In the circumstances, where the Mother admits drinking heavily following the birth of the twins in [omitted] 2005, that is up to 20 drinks of beer and vodka a day, was often not home following her drinking, and spent time in rehabilitation, it is inconceivable that it was not the Father providing care to the Children at home. Even if the Mother was home, it is likely, in the Court’s view, that her level of capacity to provide and carry out home and domestic duties would have been significantly impaired by the level of her drinking. In the Court’s view it is likely that the majority of the burden of providing home and domestic care to the Children fell upon the Father, at least following the birth of the twins in April 2005 until separation, and probably even before the birth of the twins from the time of the birth of the first child in January 2003, and that the Mother’s ability to parent was significantly compromised during this period.
There is also evidence that during the period of the relationship the Father was addicted to marijuana. The effects of that do not appear to have been as severe as the Mother’s alcohol abuse.
Mother’s mental health
The Mother also has a history of self-harm: as indicated above there were occasions when she was drinking and overdosed on medication and an ambulance was called.
The Mother’s Affidavit evidence is that she has not self-harmed post separation, but under cross-examination she admitted that she recalled one incident where she had done so. In 2009 the Mother was twice sectioned under s.10 of the Mental Health Act 1986 (Vic),[25] and the hospital notes, which she concedes are possibly correct, are that she threatened to kill herself, and threatened to kill the Father.
[25] “MH Act”.
The Mother’s evidence was that she has now moderated her alcohol intake, is not taking anti-depressant medication, and has not taken any medication for the last three years.
Consideration – Children’s issues
Presumption of equal shared parental responsibility – s.61DA
Both parties led evidence to suggest that they are unable to communicate effectively with each other in order to carry out their responsibilities as parents.
The lack of effective communication between the parties was also observed by the Family Report writer, and commented upon in the Family Report. A negative view of the parties’ ability to communicate is taken by the parties, the Family Report writer, and reflected upon in submissions by Counsel, particularly for the Father, by reference to O’Loughlin & O’Loughlin (No. 2).[26]
[26] [2007] FamCA 1546 at para.139 per Strickland J.
In this case, the practical reality, as opposed to the theory, is that that effective lack of communication has not particularly impacted upon the exercise of parental responsibility in this case. The principal effect appears to have been to effect a failure on the part of the Father, and also the Children whilst in the Father’s care, to be able to travel overseas. That is a matter which the Court can cure by an order, which allows for both parties to take the Children overseas for an extended period, and for the Children to spend time with the other parent following their return. It appears that the Mother and Father communicate primarily by means of sms text messaging, but today that is not an unusual phenomenon in any relationship. It would appear that from time to time the tenor of the messages is abusive. The abuse is seemingly not one-sided. That said, the nature of the communication needs to be distinguished from its affect upon parental responsibility, and aside from complaints about the Father discussing material matters with the Children, and the Mother failing to take the Children to birthday parties when spending time with her, there is nothing in the nature of the communication per se which appears to have adversely affected the exercise of parental responsibility.
The Mother asserts that the Father has discussed these proceedings, as well as other matters, with the Children, and that by disclosing unnecessary information to the Children that they have become unsettled and confused in relation to their attitude towards the Mother. The Mother points to the discussion in the Family Report on this issue.
The presumption of equal shared parental responsibility under s.61DA of the FL Act should apply in this case.
Equal time and substantial and significant time – FL Act, s.65DAA
The Mother abandoned her claim for equal and substantial parenting time and submitted that there should be no change to the existing eight nights with the Father and six nights with the Mother per fortnight split.
The Father maintained his claim that the Children should live with him, and that the Mother’s time spent with the Children should effectively be halved, that is, reduced to three nights per fortnight.
The Mother believes that allowing her substantial time with the Children would allow them to better develop and maintain the relationships between her and the Children, and she submits that they already share and enjoy a number of activities together, and that the Children demonstrate that they are happy and safe with the Mother.
Neither the Mother nor the Father seeks equal time. The primary issue to be addressed, therefore, is whether the Mother’s time ought to be substantially reduced as is sought by the Father. The Family Report writer observed that the present time spent arrangement has been in place for more than two years, and now probably about three years. The arrangement is one that the Children know, and are familiar with. To so significantly change the existing arrangements would, as the Family Report writer observes, “impact on the quality of the relationship the children enjoy” with the Mother.[27] It might also affect the quality of the relationship between the Father and the Father’s Current Partner. Furthermore, there appears to be no compelling reason (again as the Family Report writer observed)[28] for such a significant change to occur at this point in time. The evidence with respect to the Mother’s drinking, whilst concerning, and whilst a non-compliance with Court orders, needs to be considered in the whole context, and as such, it does not appear, at this stage, to have had an adverse effect warranting such a significant change in the orders with respect to time spent with the Mother. A continuation of the Mother’s conduct of drinking in contravention of Court orders, or any relapse into her former drinking habits (or anything like them) would no doubt constitute a change of circumstance which might warrant variation to any time spent orders that the Court now makes. At this stage, there is no sufficient evidence for the Court to take the view that the Mother will relapse into her former drinking habits, or that, having been caught out once, she is likely to continue to fail to comply with any Court order with respect to drinking in the Children’s presence.
[27] Family Report, para.73.
[28] Family Report, para.74.
In the above circumstances, and also for reasons set out below in relation to the nature of the relationship between the Children and the parents, and the risk of harm to the Children, the Court is of the view that there ought be no change to the existing live with and time spent arrangements.
Benefit to the Children of having a meaningful relationship with both parents – FL Act, s.60CC(2)(a)
There can be no doubt that the Children ought to have the benefit of a meaningful relationship with both parents. The question here is how that is to be achieved.
The Mother submits in general terms that the Children would benefit greatly from having a meaningful relationship with both parents, but caveats that by expressing a concern about the need to protect the Children from any form of harm or abuse, given a “history” of family violence against the Mother.
The Father says that he has attempted to promote a meaningful relationship between the Children and the Mother by agreeing to significant and substantial time, but now strongly feels he was misguided in agreeing to the current time spent arrangements as it has placed the Children at the real risk of suffering physical and psychological harm when with their Mother.
A meaningful relationship does not mean an optimal relationship.[29] There are however a number of factors which might facilitate, or provide the opportunity for, an ongoing meaningful relationship with both parents. For present purposes some of these are helpfully outlined in P & P,[30] and include the following:
[29] Godfrey & Sanders [2007] FamCA 102 at para.36 per Kay J.
[30] [2006] FMCAfam 518 (“P & P”).
a)time spent with a child;
b)the extent of time spent with the child, but more importantly the:
i)quality; and
ii)utilisation,
of the time spent;
c)the distribution of time spent (which may impact on quality and utilisation), and whether time spent includes:
i)weekends;
ii)holidays; and
iii)weekdays,
and particularly, time allowing parental involvement in:
iv)daily routine; and
v)occasions of significance.[31]
[31] P & P at para.257 per Brown FM.
To these factors might be added:
a)the ability of a parent to spend time with a child overnight;[32]
b)allowing a child to spend sufficient time with a parent to facilitate visits, and the development of relationships, with relatives (including, where appropriate, interstate or overseas relatives);
c)the capacity to communicate by proper means (including, for example, post, telephone, email and webcam) with a child when not spending time with a parent;[33] and
d)allowing a parent to properly exercise a level of parental responsibility in relation to a child so as to facilitate the development of emotional bonds and a parenting style of benefit to a child.[34]
[32] Carpenter & Carpenter [2007] FMCAfam 16 at paras.26-40 per Altobelli FM (“Carpenter”).
[33] M & S [2006] FamCA 1408 at para.45 per Dessau J; M & K [2007] FMCAfam 214 at paras.12-13 and 20 per Altobelli FM.
[34] P & P at para.258 per Brown FM.
The Court considers that the benefit to the Children of a meaningful relationship with both parents would best enhanced by:
a)continuation of the existing eight/six time spent split which:
i)allows for significant blocks of time to be spent with each parent, and other significant persons in that parent’s and the Children’s lives;
ii)allows the Children to experience daily routine and activities and special occasions with, and in the home of, each of their parents; and
iii)will allow the Children to develop emotional bonds with each parent;
b)the ability to spend one period of up to 14 continuous days away from each of the parent’s usual place of residence during the Christmas holiday break, including holidays overseas, and for that purpose the parents must sign any relevant travel documents for the Children; and
c)allowing the Children the ability to communicate freely with each of the parents by telephonic or electronic means of communication at any reasonable time.
This is subject to the various further factors and considerations set out below, and in particular, the questions of risk of harm to the Children and family violence.
Risk of harm to the Children – FL Act, s.60CC(2)(b)
The Mother gave evidence that her statement that there had been family violence in the relationship from its commencement was wrong, and that the violence did not start until “later”.[35] The Mother admits to having had an affair with a male person called “M”, with whom she went drinking. This affair occurred in 2006, and the Mother told the Father that she loved “M”, and the Mother alleges that the Father hit her with considerable force when she told him this. The Father candidly admits having called the Mother “a stupid bitch” and having slapped her when she told him that she loved M. The Mother says that she did not mention the 2006 incident of family violence when she was admitted to [O], or during her time there, because it was difficult to secure an intake to [O], and one of the criteria for admissions was not having a negative view, or expressing negative views, about partners.
[35] Transcript at 10.
The Mother specifically referred to an incident in June 2009 in which she says that the Father hit her with a piece of wood, and she subsequently complained to the police. The Father asserts that this occurred against a background of the Mother being drunk, arriving at the [L] Property, acting aggressively toward the Father, and smashing a window in his boat with a piece of wood. The Father says he pleaded guilty to the lesser of four charges, that being most likely unlawful assault, on the advice of a legal aid lawyer present at the Court and because he wished to get the matter over and done with. The Father says that he had tackled the Mother to the ground causing her bruising, scratching and soreness when she presented at the [L] Property in a manner which was fiery, argumentative, and that she was demanding money, and he wanted her to leave. There is no dispute that the assault followed the Mother causing property damage to the Father’s boat.
The two incidents of physical violence were both committed by the Father, the first (in 2006) not being in any real dispute as to its timing and content, whilst the second incident (in 2009) is also admitted, but the extent of the assault by the Father is in contest. For reasons set out above, the Court prefers the Father’s account of this event, and it follows that the assault, whilst still serious, was not as serious as suggested by the Mother, and this might, to some extent, be confirmed by the fact that the three more serious charges were not proceeded with. Whilst it is no excuse for physical violence, the Court notes that the Mother acted in each case in a manner which was provocative.
The Court notes that there has been no allegation of physical family violence since 2009 as between the Mother and the Father. In the present circumstances, it appears unlikely that there would be further future physical violence between the Mother and Father.
The Mother and Father nevertheless continue to behave in a somewhat aggressive manner toward each other, albeit by telephone, and in particular sms text communication.
The Father has raised allegations that the Mother’s Current Partner has hit two of the Children. He raised these allegations with the Mother, but did not take it further.
When the matters were raised with the Mother’s Current Partner he, following discussion with the Mother (but without her immediate knowledge or concurrence) sent a text message to the Father in the following terms:
Hey, dickhead. You accuse me of hitting your kids. Why don’t you go to the police and have them charge me with assault or have the balls to come out and sort me out yourself, you weak cunt. You can’t do anything because everything you say is bullshit. You need to see a psychiatrist. Good luck in court. You’re going to lose everything and everyone.
The Mother says that the Mother’s Current Partner’s sending of the message was stupid, that he knows that, and that he did the wrong thing out of anger, but that “it could have been a lot worse”.[36] The Mother went on to indicate that the Mother’s Current Partner does regret sending the text message.
[36] Transcript at 35.
The allegations that the Mother’s Current Partner had hit or assaulted the Children, or any of them, are not true on the evidence.
The Mother’s Current Partner’s sending of the sms text message was ill-advised. The Family Report writer agreed with a leading question put by Counsel to the effect that there was a subtext of violence in the sms text message from the Mother’s Current Partner to the Father. Be that as it may, the Mother’s Current Partner now accepts that the message ought not to have been sent, is sorry for it, and regards it as wrong. In any event, the degree of contact between the Mother’s Current Partner and the Father appears to be absolutely negligible, and the Mother’s Current Partner’s evidence was that he had not “really met” the Father.[37]
[37] Transcript at 53.
There is no evidence of any risk of physical harm from the Mother’s Current Partner disciplining the Children. Insofar as allegations of past physical harm arising from the Mother’s Current Partner disciplining the Children, those events did not, on the evidence, occur. There is no reason to suggest that they would occur in the future. There is, therefore, in the Court’s view, no discernible risk of physical harm to the Children by the Mother’s Current Partner.
The Mother submits with respect to the risk of harm that there is a “history” of family violence by the Father against the Mother, but that this history has, since separation, “slowly deteriorated”, but not completely. In context, it appears that “deteriorated” here means lessened, as that was consistent with the Mother’s evidence.
The Father submits that the Children are at a real risk of suffering physical and psychological harm when with their Mother, primarily as a consequence of what the Father perceives to be:
a)the Mother’s relapse into drinking and possibly alcoholism; and
b)a risk of physical harm from the Mother’s Current Partner disciplining the Children.
The Father’s history of alleged family violence relates to two incidents, one in 2006 and another in 2009, when he assaulted the Mother. On both occasions, the Court accepts that the Mother was the initial aggressor, and whilst that is no excuse for the Father’s subsequent assault, it must be viewed in the context of the Mother’s aggression, and the Mother’s significant alcohol abuse, at those times. It is significant that there is no allegation of physical family violence subsequent to 2009, which corresponds with the earlier cessation of cohabitation between the Mother and the Father, and since 2010 with the moderation of the Mother’s drinking habits. Whilst it would appear that the sms text messages between the Mother and the Father remain abusive, and whilst that is not ideal, the risk of harm to the Children arising from them appears negligible. Indeed, there is no, or no sufficient, evidence of any risk of harm to the Children from any family violence since the events of 2009. It is highly likely that the Children have no, or that the first child has limited, memory of those incidents of family violence which occurred in 2009.
As discussed above, the Mother has moderated her drinking habits, on the evidence, but is still drinking in the presence of the Children, at least on occasions, contrary to the Court’s orders. The Court will, again, order that the Mother not drink in the presence of the Children. The Court is entitled to assume, in all the circumstances, that the Mother will comply with that order, bearing in mind that the Mother will be aware that there are possible consequences, both in terms of possible changes to time spent arrangements and applications for contravention of the order, which might arise, if she contravenes any final orders made by this Court.
Based upon the Family Report the Children seem to be relatively well adjusted, and based on both the Family Report and the evidence of the Father, are progressing reasonable well at school, and unlike in many situations such as this, the family circumstances does not appear to have had an adverse impact upon the Children’s academic progress or behaviour at school.
In all the circumstances, the Court does not consider that a continuation of the existing 8/6 split time spent arrangements, and equal time on holidays, with appropriate provision for special occasions, will result in any foreseeable risk of harm to the Children.
The views expressed by the Children – FL Act, s.60CC(3)(a)
The Mother submits that the Children’s view that they would like to spend as much time as possible with their Mother ought to be had regard to, but otherwise refers to the Family Report in this regard.
The Father submits that the Children’s views should be considered in the context of them not having a full understanding of the issues to be determined.
The eldest child is 10 years of age. The two younger children, who are twins (one boy, one girl), are eight years of age.
The Family Report indicates that the female twin is accepting of the current time spent arrangements and would prefer for it to remain unchanged. The male twin and the first child are apparently less committed to the existing time spent arrangements, but the older child was unsure if he wanted to spend less time with the Mother. There is no basis for making an order for different time spent arrangements to be applied to one or other of the Children, and the Court is of the view that the time spent arrangements should be the same for all of the Children.
There is a suggestion in the Family Report that the Children are not as active when they are with the Mother as they are with the Father, and that they might complain to the Father of boredom, when with the Mother.[38] Boredom, as much as happiness, excitement, sadness and grief, is a normal human condition which the Children need to learn to deal with. There is no indication that the boredom is having any adverse effect on the Children.
[38] Family Report, para.68.
The Court ultimately has some regard, albeit slight, for the views expressed by the Children, bearing in mind their ages. Ultimately, their views are, because of their ages, to be given less weight than evidence in relation to other factors which the Court has to consider.
Relationship with the Children to parents and other significant persons – FL Act, s.60CC(3)(b)
There does not appear to be any dispute that the Children are fond of both the Mother and the Father. The allegations of physical harm in relation to the Children having been disposed of above, the evidence, and in particular the Family Report, suggests that the Children have an appropriate relationship with the Mother’s Current Partner, and at least the oldest child appeared to indicate to the Family Report writer that there were no difficulties with the Mother’s Current Partner, or his Children.[39]
[39] Family Report, para.46.
There was no indication that the relationship between the Children and the Father’s Current Partner is anything other than appropriate.
To the extent that there are other family members of both the Mother and Father involved in the Children’s lives, the existing time spent arrangements, if continued, will allow the Children proper opportunity to develop those relationships.
Parental facilitation and encouragement of a close and continuing relationship between the Children and the other parent – FL Act, s.60CC(3)(c)
The Mother’s evidence was that she does not denigrate the Father in the Children’s presence. Albeit that she did so in her evidence to the Court, there is no evidence that she does so in front of the Children.
The Father submits that he has often, in great adversity, demonstrated a willingness to facilitate the relationship between the Children and the Mother. The Father points, in particular, to his regularly taking the Children to [O] when the Mother was in a detoxification programme, and also to his consent to the Mother spending significant time with the Children at a time prior to any Court intervention. The Father deserves significant credit for the steps he has taken to maintain the Children’s relationships with their Mother, in what must have been very difficult circumstances arising from her alcohol abuse.
There is some implied criticism of the Father by the Mother, and in the Family Report, for discussing matters associated with these proceedings with the Children. Those discussions have been indirect, rather than direct, in the sense that issues have been indirectly referred to, rather than directly referred to by reference to the proceedings. Nevertheless, the matters raised have been critical of the Mother, and whilst the criticisms are comparatively minor at this stage, were there to be a change in the time spent arrangements as sought by the Father, it is possible that those criticisms would take on more significance in the minds of the Children, as a change in the time spent arrangements might be seen as vindicating the Father’s criticisms. The Court is prepared to accept that the Father has not engaged in these activities deliberately, or with a view to influencing the Children, particularly given his evidence that he seeks to encourage, and has done so in the past (as set out above), a proper relationship between the Mother and the Children.
The likely effect of changes in the Children’s circumstances – FL Act, s.60CC(3)(d)
The Mother relies upon comments in the Family Report as to the likely effects of any changes in the time spent arrangements.
The Father asserts that a reduction of time spent with the Mother by the Children will not affect the Children.
For reasons set out above, the Court is of the view that a change in time spent arrangements from the existing 8/6 split, and in particular the Father’s proposal that the Children’s time spent with the Mother be reduced to three days per fortnight, would have an adverse affect on the Children, and upon their relationship, certainly with the Mother.
Practical difficulty and expense of Children spending time communicating with parents – FL Act, s.60CC(3)(e)
Within the no more than modest means of both parents there does not appear to be any practical difficulty, or additional or undue expense, in the Children spending time communicating with the parents.
Capacity to provide for the needs of the Children – FL Act, s.60CC(3)(f)
The Father has, over more than a decade, met the Children’s emotional and intellectual needs. The Father says that the Mother, due to her history of substance abuse and attendant mental health problems, does not have the capacity to meet the Children’s emotional and intellectual needs. The Mother, however, has met those needs over the past three years, and the evidence does not point to any diminution in her capacity to do so in the future, other than in respect of what has been observed above about the Mother drinking in front of the Children. Within the Father’s modest, and the Mother’s less than modest, means, each has appropriate capacity to provide for the needs of the Children.
Maturity, sex, lifestyle and background of Children and Parents – FL Act, s.60CC(3)(g)
These matters are discussed above.
Aboriginal and Torres Strait Islander Children – FL Act, s.60CC(3)(h)
Not applicable in this case.
Attitude to the Children and parental responsibilities – FL Act, s.60CC(4)(i), (4) and (4A)
The Father has been the Children’s primary carer for the majority of their lives. In the Father’s view, the Mother’s acute substance abuse has negated her ability to act as a responsible parent. The Father’s view might have been correct up until at least 2009 when the Mother attempted self-harm on two occasions and was sectioned under the Mental Health Act. However, since the institution, albeit informally, of the existing 8/6 split arrangements, there is no evidence that the Mother has been acting as other than a responsible parent in relation to her attitude to the Children, save for the evidence that she has, on occasion, had a drink in front of the Children. That behaviour will in the Court’s view be unlikely to recur, for reasons set out above.
Family Violence or Family Violence Orders involving the Children or a member of the family– FL Act, s.60CC(3)(j) and (k)
The issue of family violence has been discussed above.
Children’s issue – conclusions
The Court has concluded that the existing time spent arrangements with respect to the 8/6 split ought to continue. There ought to be equal time on holidays, with a facility during the Christmas holidays for the parents to take an extended 14 day break away from their usual place of residence, including a break overseas, and for each parent to sign appropriate documents to allow the Children to travel. There will also be orders with respect to the Children spending time with each parent on special days, such as birthdays, Mother’s Day and Father’s Day, and Christmas Day. There will be ancillary orders with respect to changeover, non-denigration, notification of illness, provision of clothes and equipment, copying of school reports and notification of extra-curricular activities, in the usual terms.
Consideration – property issues
The pool of assets
The assets and liabilities in this matter are as follows:
Description
Asset
Liability
Property [L]
$595,000.00
(agreed)
NIL
The Father’s superannuation entitlements
$65,216.06[40]
NIL
Father’s car
$2,500.00
(agreed)NIL
Mother’s car
$500.00
(agreed)NIL
Motorbikes, including but not limited to:
1. Suzuki GN 250
2. Kawaski 650
3. Kawaski 900
4. Kawaski 1100 side car
5. Triumph Trident 900
6. Chopper$9,500.00
(agreed)
NIL
House contents and furniture
$25,000.00
NIL
SUB-TOTAL
$697,716.06
NIL
TOTAL (less liabilities)
$697,716.06
TOTAL (less superannuation)
$632,500.00
[40] Exhibits 12 and 13.
The Mother drew down her superannuation of $1,500 post separation in 2009. The Mother was able to persuade the trustees of the superannuation fund that there was a reasonable basis for her superannuation to be drawn down because of her financial circumstances in 2009. That the Mother was able to persuade the trustees of the superannuation fund of that fact is probably sufficient to dispose of the contention that the amount of $1,500 ought to be added back to the pool of assets, but the Court further notes that this occurred during a year in which the Mother was twice sectioned under s.10 of the MH Act and was self-harming, and still had an alcohol abuse problem. In all of those circumstances, the Court does not consider that there was a premature distribution or waste of assets, and, therefore, no proper basis upon which to conclude that the Mother’s superannuation funds should be added back to the pool of assets and resources.[41]
[41] AJO v GRO (2005) 33 FamLR 134 at 146 per Holden, Warnick and Le Poer Trench at 146; Markham & Markham & Ors [2010] FamCA 460 at para.57 per Austin J.
The Children’s trust accounts
The Father set up three trust accounts, one for each of the Children, and made contributions to these trust accounts since the birth of each of the Children.
The Father opposed the inclusion of the monies in the trust accounts, which total $13 568.90, and the Mother initially said that those monies ought to be included in the property pool, on the basis that the accounts were in the Father’s name. When the account documents were produced it showed that whilst the accounts were in the Father’s name, it was as trustee for each of their Children. Ultimately, the Mother indicated that she did not oppose an order whereby the trust accounts were not included in the property pool, but that the Father be restricted from withdrawing monies from the Children’s trust accounts until the Children had turned 18 or 21 years of age.
In the circumstances, it is clear that the Children’s trust accounts had been established as a means to provide some form of future entitlement to the Children. It demonstrates, consistent with the evidence overall, that it is the Father who has primarily been responsible for looking after the Children’s welfare. The Court has determined that, consistent with the final position of both parties, the monies in the Children’s Trust Accounts should not be included in the property pool, and the Court will make orders which provide that until each child attains the age of 18 years, no monies are to be withdrawn from the Children’s Trust Accounts without the consent of both parties, or by further order of the Court.
Contributions
The [L] Property
The property at [L] was purchased for $110,000 by the Father and his sister in 1995. In 1998 the Father purchased the sister’s interest, and became the sole proprietor of the [L] Property, subject to a mortgage.
The evidence of the value of the [L] Property is scant. It was purchased in 1995 for $110,000. There is no evidence as to its value at any of the relevant disputed dates with respect to the relationship, cohabitation and separation. The parties are agreed that for the purposes of these proceedings, the [L] Property should have a present value of $595,000.
The Mother came into the marriage with no property. At no stage did the Mother make any payment on the mortgage.
The balance of the mortgage in March 2002 was $41,000. A bank statement dated 31 December 2002 shows an outstanding mortgage balance of $31,489.64 to the Bank of Melbourne as at that date. There is no evidence before the Court as to the value of the [L] Property in December 2002, and the Father deposed that he had no idea as to the value of the [L] Property.
The mortgage on the [L] Property was paid off on 8 October 2004, the Father having received a redundancy payment from which he made two substantial payments, one in June 2004, and a final payment in October 2004.
Payment of household expenses and contribution to the household
In relation to the period of cohabitation the Father concedes that there were times at which the Mother made a contribution by reason of her being engaged in domestic activities, including cooking and cleaning. She looked after the first child after his birth, and at least until around middle to late 2004 when the Father took a redundancy package. The Father says that he took the redundancy package in part so that he could be at home, because as early as the latter half of 2004 the Mother was exhibiting signs of not being able to cope in the house. The Father worked during the period after his redundancy on a casual or agency basis for limited periods of time, and there was no reason to doubt his evidence that it was about a week in every two months at or about this time.
In relation to the payment of bills during the period of the relationship the Mother asserted that she paid the majority of the bills before she had Children. However, the Mother admitted that, particularly after the birth of the twins in 2005, the money that she was earning was being spent on alcohol, at least to a significant degree. The Court notes that on the evidence that would indicate a very limited period during which the Mother paid the bills, and so limited, that it is consistent with the Father’s assertion that the Mother did not pay any bills and that he was the sole financial contributor to the payment of the mortgage and household bills. In the Court’s view that is the better view, for a number of reasons, not limited to the Court’s preference for the Father’s evidence over the Mother’s during, and in relation to the period prior to 2009, as well as the fact that the Mother’s earnings, including any New Start Allowance, would have been necessarily limited, not the least because her employment was of limited duration, for limited hours, and at limited times. It appears that the Mother would not have worked for more than 30 hours a week at any time, and even then for a very limited time prior to the birth of the first child. After the birth of the first child, and more particularly after the birth of the twins, it is in the Court’s view likely that the Mother made no financial contribution given that any money that she earned, or a significant proportion of it, would have been spent on alcohol, given that she was, on her own evidence, drinking up to 20 drinks a day, or up to three bottle of wine a day.
If the Mother did, as a consequence of payment of New Start Allowance, and the limited income from her part time work, make a contribution to the household bills at any stage, it must necessarily have been very limited.
In all of the above circumstances, the Court is of the view that the Father has for the significant majority of the period between the birth of the first child in January 2003 and the Mother and Father ceasing to cohabit in or about December 2006 being the primary caregiver and homemaker for the Children. The Mother did make a contribution, at least initially, but it appears to the Court that her contribution was, after the Father quit full time employment by taking a redundancy in the latter half of 2004, relatively insignificant.
Having regard to the direct and indirect financial contributions of the parties, the non-financial contributions of the parties, and the contributions to the welfare of the family, including contributions as a homemaker or parent, the Court is of the view that a split of the property pool on the basis of 80% to the Father and 20% to the Mother, and a like superannuation splitting order, is appropriate. It remains to consider the s.75(2) factors under the FL Act, and whether or not any order to be made is just and equitable.
FL Act, s.75(2) – factors
The parties submitted that the factors set out below were relevant for the purposes of the Court’s consideration under s.75(2) of the FL Act.
FL Act, s.75(2)(a) – health and age
Each of the parties is presently in good health. The Father is 50 years old. The Mother is 37 years old.
FL Act, s.75(2)(b) – the income, property and financial resources of each of the parties and the physical and mental capacity of each for appropriate gainful employment
Both parties are currently employed. The Father earns substantially more than the Mother. The Father owns the [L] Property, and some personal property. The Mother has no real property and very little personal property. Although the Father is approaching his mid-50’s, and gave some evidence of minor ailments, there was no medical or other evidence which would indicate that either the Mother or the Father was incapable of obtaining and sustaining ongoing appropriate gainful employment.
In terms of future needs the Father submitted that because of his age and the nature of the work that he carried out his future needs would be greater than the Mother’s, who was of a significantly lesser age, and who had only obtained, for reasons unexplained, limited employment. It was submitted that the Father had greater needs in this respect and in respect of the care of the Children.
FL Act, s.75(2)(c) – whether either party has care or control of the children of the marriage who has not yet attained the age of 18 years
The Children currently reside with the Mother for six nights of the fortnight and with the Father for eight nights of the fortnight. Both parties therefore have substantial responsibilities with respect to the care and control of the Children, and will have under the proposed time spent arrangements for at least a further decade, in respect of the twins, and eight years in respect of the first child.
FL Act, s.75(2)(d) – commitments of each of the parties that are necessary to enable the party to support themselves or a child or another person that they have a duty to maintain
The Mother is currently employed part time and applies all her earnings to family expenditure, including satisfying necessary expenses in relation to the Children, whilst in her care.
The Father is also currently employed and applies a significant proportion of his earnings to maintenance of the family home and the Children.
FL Act, s.75(2)(e) – the responsibilities of either party to support any other person
The Mother’s Current Partner was previously unemployed, which the Mother submitted placed the entire financial burden of the family on her whilst the Children were in her care. The Mother however told the Family Report writer that the Mother’s Current Partner “looks after us financially.”[42] At the time of the hearing the Mother’s Current Partner was in employment, obtained through a [omitted] hire agency and, seemingly, for a limited term.
[42] Family Report, para.37.
The Father’s Current Partner does work, but her wage ($500 per week) is not substantial.
It appears that both parties have some responsibility for the support of their current partners, and in the case of the Mother that this responsibility varies from time to time. It is fair to observe that the financial circumstances in relation to both parties are no more than modest, and that being required to support their current partners at any time, and in any amount, would place a strain on the financial resources of each of the Father and Mother, but a greater strain on the Mother from time to time.
FL Act, s.75(2)(f) – eligibility of either party for a pension, allowance or benefit, including superannuation
Both parties are in receipt of family tax benefits. The Mother has no superannuation. The Father has superannuation, but, given his responsibilities (and the small amount of superannuation) is clearly not in a position to retire. The question of eligibility for a pension was not addressed, and presumably neither parent has an entitlement to any form of pension.
FL Act, s.75(2)(g) – reasonable standard of living
As previously indicated, the circumstances of both parties are modest, and whilst there is no indication that their standard of living is unreasonable, the Mother’s standard of living is, probably, in the circumstances less than that of the Father, by reason of her limited employment, and the seemingly sporadic employment of the Mother’s Current Partner.
FL Act, s.75(2)(m) – financial circumstances relating to cohabitation with another person
This is discussed above in relation to s.75(2)(e) of the FL Act.
FL Act, s.75(2)(n) – proposed property orders.
The Court notes that any distribution of property to the Mother will significantly improve her current financial position.
Having regard to the matters to be taken into consideration under s.75(2) of the FL Act the Court, noting that the period of cohabitation between the parties was relatively short, considers that there should be some further adjustment to the 80/20 property split, in particular to facilitate the Mother’s support of the Children during the significant and substantial time to be spent with them. That needs to be balanced against the fact that there appears to be no reason why the Mother cannot work more hours than she presently does, and the Father’s age and ongoing vulnerability to redundancy or diminution of work opportunities.
In the circumstances there should be a further 5% adjustment in favour of the Mother. That means that the property split would be 75% to the Father and 25% to the Mother.
Just and equitable
The Court, considering all of the circumstances of this matter, and of the relationship between the Mother and the Father, considers that a 75/25 split in favour of the Father is a just and equitable resolution of the property matters.
Property conclusion
The Court has concluded that there should be a property split of 75% to the Father and 25% to the Mother of the pool of assets identified above.
There should also be a further order reflecting the above split with respect to the Father’s current superannuation entitlement.
Conclusions and orders
The Court will make orders to reflect the conclusions reached with respect to the Children, as set out in these Reasons for Judgment. As to the property matters, the Court will allow the parties to consider the Reasons for Judgment, and bring in either consent orders, or further minutes of proposed orders (within 28 days), and if the latter the matter will be listed for further mention.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 14 March 2014
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