JAYCE & CARTER
[2013] FamCA 52
FAMILY COURT OF AUSTRALIA
| JAYCE & CARTER | [2013] FamCA 52 |
| FAMILY LAW - CHILDREN – PARENTING – Parental Responsibility – With whom children shall live and spend time – Best interest considerations – Where the children have a meaningful relationship with both parents –Where father’s poor behaviour raises concerns about him as a role model–Where parental relationship is poor –Presumption of equal shared parental responsibility applies –Where it is not in the children’s best interests for an equal time order to be made–Orders for children to remain in mother’s primary care with substantial time with the father FAMILY LAW - FAMILY CONSULTANT–Where Family Consultant’s assessment as to weight to be given to children’s views to be treated with caution – Where Family Consultant reluctant to consider factual matters that might detract from her report FAMILY LAW - PROPERTY –Application under s 79 for adjustment of matrimonial property –Whether it is just and equitable to alter parties’ rights and interests in property – Where father’s financial contribution exceeds that of the wife –Where mother post separation has greater responsibility of the children’s care and carries greater share of their necessary expenses –Where father’s child support is modest – Consideration of s 75(2) factors favours a 10% adjustment in mother’s favour |
| Family Law Act 1975 (Cth): ss 75(2), 79, 79(4), 81, 64B, 61C, 61DA, 60CA, 65AA, 60B, 60CC, 60CG, 65DAA Evidence Act 1995 (Cth): s 140 Child Support (Assessment) Act 1989 (Cth) |
| Collu & Rinaldo [2010] FamCAFC 53 Stanford and Stanford [2012] HCA 52 |
| APPLICANT: | Ms Jayce |
| RESPONDENT: | Mr Carter |
| FILE NUMBER: | SYC | 778 | of | 2011 |
| DATE DELIVERED: | 1 February 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 27 & 28 November 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Boyle |
| SOLICITOR FOR THE APPLICANT: | Selvaggio Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Norwest Family Law |
Orders
Property
Within 14 days of the date of these orders, the parties do all things necessary to pay the net sale proceeds of the former matrimonial home currently held in the controlled monies account with Selvaggio Lawyers as follows;
(a) to the mother $13,124.00;
(b) $21,876.00 to the father; and
(c)the balance remaining (if any) 58 per cent to the mother and 42 per cent to the father.
Within 14 days of the date of these orders, the father shall cause to be returned to the mother items A and J contained in Annexure “A” to her Amended Initiating Application filed 23 October 2012.
Within 14 days of the date of these orders, the father shall cause to be delivered to the mother items L, P, Q and R of Annexure “A” to her Amended Initiating Application filed 23 October 2012 so that the mother may make copies of items L, P and R, as well as retrieve her personal information stored in item Q. The items delivered pursuant to this order shall be returned to the father within eight (8) weeks.
If either party refuses or neglects to sign any document necessary to implement these orders, that a Registrar sign the necessary document on behalf of the defaulting party pursuant to section 106A of the Family Law Act 1975 (Cth).
Unless otherwise specified in these orders each party is solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age and working future provides the conditions for payment out of such payment.
Parenting
That Orders 1, 2, 3, 4 and 7 of the orders dated 21 December 2012 are remade as final orders.
In addition to Order 6 above, the children spend time with the father as follows:
(a)from the commencement of Term 1 in 2015, alternate weekend time during school term is extended so that it commences at 3.00 pm on Friday and continues to the commencement of school on Wednesday;
(b)for one half of each mid year school holiday period being the first half in odd numbered years and the second half in even numbered years and, for the purpose of this order, the following shall apply:
(i)the mid year holidays are deemed to commence at the cessation of school on the last day of term that students are required to attend;
(ii)the mid year holidays are deemed to conclude at 7.00 pm the day before the first day in the new term that students are required to attend;
(iii)changeovers shall occur at 7.00 pm on the second Saturday of the mid year school holiday period;
(c)for the Christmas holiday period commencing in December 2013 the children shall spend time with the father each alternate week from 7.00 pm Friday until 7.00 pm the following Friday commencing the second Friday of the school holiday period and, for the purpose of this order, the following shall apply:
(i)the Christmas school holiday period is deemed to commence at the conclusion of school on the last day of Term 4 that the children are required to attend;
(ii)the Christmas school holiday period is deemed to conclude at 7.00 pm Sunday prior to the first day of Term 1 in 2014 that students are required to attend;
(d)for the Christmas school holiday period commencing in December 2014 the father shall spend time with the children each alternate week from 7.00 pm Friday until 7.00 pm the following Friday, commencing on the first Friday of the school holiday period, and for the purpose of this order, the following shall apply:
(i)the Christmas school holiday period is deemed to commence at the conclusion of school on the last day of Term 4 that the children are required to attend;
(ii)the Christmas school holiday period is deemed to conclude at 7.00 pm Sunday prior to the first day of Term 1 in 2015 that students are required to attend;
(e)for all Christmas school holiday periods in odd numbered years commencing in December 2015, the father shall spend time with the children for the first half of the holidays and, for the purpose of this order, the following shall apply:
(i)the Christmas school holiday period is deemed to commence at the conclusion of school on the last day of Term 4 that the children are required to attend;
(ii)the Christmas school holiday period is deemed to conclude at 7.00 pm Sunday prior to the first day of Term 1 in 2016 that students are required to attend;
(f)for all Christmas school holidays in even numbered years commencing in December 2016, the father shall spend time with the children for the second half of the school holidays and, for the purpose of this order, the following shall apply:
(i)the Christmas school holiday period is deemed to commence at the conclusion of school on the last day of Term 4 that the children are required to attend;
(ii)the Christmas school holiday period is deemed to conclude at 7.00 pm Sunday prior to the first day of Term 1 in 2017 that the students are required to attend;
(g)all changeovers that cannot take place at the children’s school shall take place at McDonalds Restaurant, B Street, Suburb C.
That in the years when the children are in the mother’s care during Christmas the father will spend time with the children from 12.00 noon Christmas Day to 12.00 noon Boxing Day.
That in the years when the children are in the father’s care during Christmas the mother will spend time with the children from 12.00 noon Christmas Day to 12.00 noon Boxing Day.
That the mother spend time with the children on the first Sunday of November each year for the purpose of attending the Jayce Family Gathering from 9.30 am on Sunday.
That the mother spend time with the children on the first Sunday of December each year for the purpose of attending the Jayce Family Christmas Party from 9.30 am on Sunday.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
BY CONSENT IT IS ORDERED
That the parties are both entitled to attend all events involving the children including:
(a) sporting fixtures;
(b) extra curricular activities that allow for parental attendance;
(c)school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions;
(d) any out of school activities that allow for parental attendance;
And the party who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from that event.
That both parties shall ensure that the other parent is kept informed of:
(a)any serious medical problems or illnesses suffered by the children while in their care;
(b)any medication that has been prescribed for any of the children;
(c)any social, school or religious functions which any of the children is to attend;
(d)his/her contact telephone numbers, including landline numbers, his/her residential address and particulars of the others who may reside with the children, and will notify the other parent of any change to these details within seven (7) days of such change occurring;
(e)any other matter relevant to the children’s welfare.
That the mother authorise the children’s schools to provide the father with copies of all school reports, any other reports on school progress and behavioural issues, any other school circulars, copies of all notices received from school and details of all functions, parent and teacher nights and other activities to which the parents are invited and applications for school photographs in relation to the children, and this order will operate as a sufficient authority for the school to provide the information requested without anything further from either of the parents.
That all parties shall do all things necessary to give effect to these orders including but not limited to signing all documents to give effect to these orders and if any such parties default then pursuant to Section 106A of the Family Law Act 1975 (Cth) as amended the Registrar of this Honourable Court shall be entitled to sign such document or documents on behalf of the defaulting party or parties.
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jayce & Carter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 778 of 2011
| Ms Jayce |
Applicant
And
| Mr Carter |
Respondent
REASONS FOR JUDGMENT
These are proceedings for property settlement and parenting orders. The parenting orders relate to the parties’ two children, J who is nine and S who is six.
After the parties separated in June 2010, the children continued to live in the family home with the mother. The father returned to live with his parents. Notwithstanding his desire to share the children’s time week about, by agreement, arrangements were established whereby they lived with the mother and spent time with the father each alternate weekend from Friday after school until Sunday. Although it is the father’s stance he had no choice other than to give in to the mother’s unreasonable restriction on his time with the children, her approach was appropriately influenced by the children’s ages and developmental needs. Again by agreement, the children’s time with the father was twice extended so that when this hearing commenced they spent time with him each alternate weekend from after school Friday until before school Monday, each Wednesday after school to 7.00 pm and half school holidays. Primarily because of S’s age, the school holiday arrangements have been week about. The point being, it was agreed that S would not cope with being separated from his primary carer (the mother) for longer than seven days.
The family home was sold about five months after separation as a consequence of which the mother and children moved into a rented townhouse which is about 12.5 km from the paternal grandparent’s home. Because the parties live in reasonably close proximity, the father’s proposal that the children eventually live week about is reasonably practical. For her part, the mother says the father’s equal time proposal is not in the children’s interests. She points to difficulties the parties have communicating, the father’s lack of regard for her as the children’s parent, bullying behaviour towards her and the children, his failure to help with the children’s expenses and therapy as well as their close attachment to her as reasons why increases no greater than she proposes should be ordered.
A Family Consultant, Ms F, was appointed to investigate and report upon the family circumstances. The Family Consultant met the parties and children in mid 2011 and again in October 2012. In her report, dated 20 November 2012, the Family Consultant made the following recommendations:
56.In the absence of any later conflicting evidence, the following is recommended:
57.It is recommended that the parents have equal shared parental responsibility for [B] and [S];
58.It is recommended that the children live with the mother;
59.It is recommended that the children’s time with their father increase to five nights each fortnight and this could be done in either of two arrangements:
· As part of the current weekend block that the children spend with the father from the Friday after school to Wednesday morning before school or
· Increasing the weekend by one night to Tuesday morning before school plus overnight in the alternate week on Wednesday after school to Thursday morning;
60.It is recommended that when [S] begins Year 2 at school, the boys could begin to spend an additional night with their father;
61.It is recommended that [S] be referred for further cognitive speech and language assessment and that both parents are involved in this. This could be done at the school in 2013 or the parents could organise for [S] to be assessed at a Child and Family Service of the Department of Health;
62.It is recommended that [J] be referred for further counselling. (Family Report, 20 November 2012, pp 21 – 22)
As she had in her meeting, the Family Consultant said J presented as a sad boy who struggled at school. At both meetings J said he wants to spend more time with his father who he missed when he was not with him. J spoke in favour of the father’s week about proposal. He was observed to be warm and affectionate with both parents both of whom responded affectionately.
S was described as a shy but friendly and cooperative boy. He has speech difficulties and has struggled with his first year at school. He has been recommended for participation in a special learning intervention stream at school and it is agreed he requires regular speech therapy. In her observations, the Family Consultant saw comfortable and warm interaction between S and his parents.
It is the Family Consultant’s opinion that S is closer to his mother in relation to which she said “… moving straight to equal shared time may be unsettling for [S] due to his speech and language issues and possible slower comprehension of the changes and because he may miss his mother”. Thus, the Family Consultant recommended a graduated increase in the children’s time with the father which balanced J’s desire for more time with S’s need to become accustomed to changed arrangements.
Ultimately it was agreed that commencing with the resumption of school in 2013, the children’s time with the father would increase to four night alternate weekends. In relation to term time, the essential differences between the parties’ proposals are whether two to three months after four night alternate weekends commence this should be increased to five nights (as recommended by the Family Consultant) or whether this increase should wait until 2015 (the mother’s proposal). Although the father did not formally abandon his equal time application, through his solicitor he indicated his support for the Family Consultant’s recommendation that once S begins Year 2, term time is extended to six nights per fortnight with no further adjustment.
For the next couple of years, school holiday arrangements are broadly agreed. There is an issue about whether equal sharing should ultimately take the form of uninterrupted block periods (the father’s proposal) or continue week about (the mother’s proposal).
The property settlement application requires consideration of a modest property pool, the focus of which is whether the mother receives what remains of the proceeds of sale of the family home ($70,869.39) or whether this amount is divided equally. To this end, at the end of the hearing agreement was reached that orders would be made for the mother to receive the undisputed one half of the sale proceeds (as well as those parenting orders which were agreed). These consent orders were received and made on 21 December 2012.
Excluding minor issues in relation to the formulation of the property pool, the parties’ assets are worth about $124,000.00 plus $79,000.00 superannuation and liabilities in the amount of $25,500.00. However the property pool is structured, it is agreed the mother is entitled to a 10 per cent adjustment pursuant to s 75(2) of the Family Law Act 1975 (Cth) (‘the Act”). Where the parties differ is in relation to the significance of the father’s greater initial contribution and the mother’s contributions following separation, the range for which is two per cent (the father) and five per cent (the mother).
The parties agree, as do I, that by reason of the manner by which they conducted their marriage, which has now irretrievably broken down, it is just and equitable that their interests and rights in property are altered. Where they disagree is in relation to what that adjustment should comprise.
Background Facts
Throughout these reasons, contentious findings of fact will be determined upon the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
The father was born in 1972 and is 40 years.
The mother was born in 1973 and is 39 years.
In September 2001, the father purchased a home and land package in his sole name at Suburb K. The combined purchase price was $291,566.00 of which he borrowed $252,000.00 from the Commonwealth Bank. When the cost of non-contract improvements to the Suburb K property are taken into account, the total acquisition cost is $310,000.00. Thus, the father contributed $61,000.00 from his savings to the Suburb K purchase.
In October 2001, the parties commenced cohabitation and moved into Suburb K. At that time, the mother had the following assets:
·Nissan motor vehicle worth $16,000.00
·D Superannuation worth $12,792.10
·E Superannuation worth $2,547.70
·G Superannuation worth $85.23.
The mother was mistaken when she said she had a car loan in the amount of $10,000.00; it was paid out prior to the commencement of cohabitation. Shortly before the parties moved in together, she sold NRMA shares for $2,238.00. This money was used to buy furniture and household goods for their home.
The father had the following assets and liabilities:
·Suburb K
·Savings - $6,000.00
·Ford F100 motor vehicle - $5,000.00
·Ford Laser motor vehicle - $8,000.00.
It is inferred that Suburb K was worth what the father paid for it and thus had a net equity of about $58,000.00.
When the parties commenced cohabitation the father was employed full-time in the automobile industry. Although he has changed places of employment, he continues to work as a full-time employee in that occupation. The mother was employed full-time in an office position which she maintained until shortly before the parties’ first child was born. At all times the father earned more than the mother. From the outset, both contributed their income and assets for their mutual benefit.
In November 2001, the mother inherited $9,281.51. These funds were contributed to joint matrimonial purposes, albeit the parties disagree on the precise nature of the expenditure. As will be discussed later, the mother was a far more reliable witness than the father. She made an obviously genuine attempt to engage with the evidence taking process. She was responsive and in essence gave a coherent account of the matters under consideration. The same cannot be said about the father. It is no understatement to adopt counsel for the mother’s description of his evidence as being extraordinary. The father was variously monosyllabic and too often he all but grunted answers he deigned to give. This alternated with word games apparently designed to either avoid giving an honest answer or demonstrate his disdain for counsel and her client. Unfortunately it was necessary to intervene and remind the father that if he continued in this manner it might be said his behaviour corroborated the mother’s evidence about how obnoxious he is towards and about her. This resulted in short term improvement before he reverted. Not only did the father’s behaviour reinforce how difficult it is for the mother to deal with him, it raised concerns about him as a role model and resulted in my comfortable satisfaction he had so little regard for the importance of the evidence taking process that where his and the mother’s uncorroborated testimony conflicts, hers is accepted as being more reliable.
The parties married in November 2002.
It is common ground that while the parties lived together they spent more than they earned.
In January 2003, the mortgage secured on Suburb K was refinanced; thereby consolidating credit card and other liabilities.
In February 2003, the mother received $4,728.50 by way of an inheritance from her maternal grandmother. Those funds were applied towards joint matrimonial purposes.
During 2003, the parties traded in the mother’s Nissan motor vehicle and the father’s Ford Laser for a Holden. The amount of $15,000.00 was received for the father’s car and $10,000.00 for the mother’s.
The mother ceased full-time employment in December 2003.
Following J’s birth in January 2004 she returned to work on a part-time/casual basis until February 2006.
In 2005, the parties again refinanced their overall borrowings so that credit card and other liabilities were incorporated into their increased mortgage.
In about 2005, the father’s grandmother gave him $4,000.00 which he spent improving Suburb K.
S was born in March 2006. Having stopped work in February 2006, the mother then stayed at home to care for the children and run the home. She returned to paid employment on a casual basis three months prior to separation.
Suburb K was sold in November 2007 for $520,000.00. The net sale proceeds amounted to about $200,000.00.
With Suburb K sold, in mid January 2008, the parties and children moved in with the father’s parents. Other than sharing the costs of food, electricity and water the parties did not pay an occupation fee. As they had before the family moved in, the children continued to attend day-care three days a week.
In August 2008, the parties purchased a house and land package at H street, Suburb C, for $480,000.00. This was funded by the Suburb K sale proceeds and a bank mortgage.
The parties moved into Suburb C in April 2009. It would seem they again refinanced their mortgage so as to consolidate liabilities.
In March 2010, the mother obtained a full-time office position. She worked Monday to Friday between the hours of 9.30 am and 5.00 pm for $400.00 per week. On Tuesdays, Wednesdays and Thursdays S was in day-care and on Mondays and Fridays he was cared for by a friend of the mother’s. J was at school and attended after-school care on Tuesdays, Wednesdays and Thursdays and was cared for by friends on Mondays and Fridays.
In late May 2010, the parties purchased a Toyota motor vehicle for $23,860.95, the total of which was borrowed from Esanda. Excluding the mortgage, this meant the parties owed $6,400.00 on the mother’s credit card, $7,700.00 on the father’s credit card and $23,860.00 to Esanda. Notwithstanding that the mother claimed she was unaware of this purchase and thus the Esanda loan should be excluded from the property pool, it is clear she was involved in the decision to purchase a car albeit not this specific one. Ultimately it was agreed that the Toyota motor vehicle and the Esanda loan would be excluded from the property pool.
The parties separated on 22 June 2010. As was earlier mentioned, the father moved in with his parents and the mother and children remained in the family home which the parties agreed to sell. By agreement the father paid out the loan on the mother’s car, the next month’s mortgage and thereafter half the mortgage payments.
Although the father wanted the children’s time to be shared equally (week about) he reluctantly accepted the mother’s proposal that they spend time with him each alternate weekend from 3.00 pm Friday until Sunday evening and week about during school holidays and on other special occasions. Telephone contact was agreed but has proved somewhat problematic.
On three occasions in the months following separation, the father surreptitiously entered the family home and took furniture, financial information and personal items. While there is no doubt he was entitled to receive his personal items and a share of joint property, the mother is rightly disturbed by his unilateral removals.
J was troubled by his parents’ separation and in August 2010 he commenced counselling which was arranged by the mother. This continued for two months.
Suburb C sold for $640,000.00 on 20 September 2010. After payment to the mortgagee of $401,141.00, the net sale proceeds amounted to $224,247.00. The sale proceeds were initially held by the conveyancer and later transferred to a controlled monies account operated by the mother’s solicitor.
After the sale of Suburb C, the mother and children moved into rental accommodation at I Street, Suburb A.
The father purchased land at Suburb L for $405,000.00 in February 2011. His mother paid the deposit and has made all loan repayments in relation to the mortgage raised by the father in order to complete the purchase. The parties appropriately agreed that this asset and the associated liability would not be included in the property pool.
The mother sold her motor vehicle for $10,000.00 in April 2011. She purchased much needed furniture, repaid a loan advanced by her mother and otherwise used these funds for her and the children’s living expenses.
Two months later, the mother’s employment was terminated. She then went onto a single parent pension.
J commenced counselling in late July 2011 for issues with anger. At about the same time, the mother completed a PPP Parenting Program.
J ceased counselling early September 2011. As with all counselling he has received, this was arranged and paid for by the mother. So that it is clear, although she is entitled to government rebates, she must first pay the cost of attendance before she is entitled to reimbursement. In this regard, it is accepted she has been in real financial difficulty and her evidence that she has been unable to afford more extensive therapeutic intervention is accepted.
Based on financial hardship, the mother applied to her superannuation trustee for the release of funds. Her trustee released $7,859.00 in October 2011 which she used for her and the children’s necessary expenses.
Between November 2011 and 16 March 2012, the mother obtained casual office and hospitality work. She worked Wednesday to Friday from 9.30 am until 2.30 pm for an average $330.00 per week net. Again unemployed, the mother became eligible for a single parent pension which, along with family assistance from Centrelink, gave her a weekly income of $559.00.
On 25 May 2012, the parties agreed to distribute $50,000.00 each from the controlled monies account. A further $25,000.00 each was released by agreement on 25 September 2012, in addition to $8,800.00 paid for an outstanding landscaping liability.
From his $75,000.00, the father paid legal fees and repaid his mother some of the money she advanced for his purchase of Suburb L.
Other than approximately $39,000.00 for legal expenses and $21,500.00 for a car, the mother spent her funds on hers and the children’s expenses. So that it is clear, after the mother sold her Subaru, she was not able to afford another car and thus borrowed her mother’s until she was able to buy this one.
General principles for the adjustment of matrimonial property
The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52. The question which ultimately must be answered is whether it is just and equitable to alter the parties’ rights and interests in their property. The power to make a property settlement order must be exercised in accordance with legal principles, including the principles which the Act itself lays down. In this case the parties agree (as do I) that by reason of the manner by which they conducted their marriage, which has now irretrievably broken down, it is just and equitable that their interests and rights in property are altered. Where they disagree is in relation to what that adjustment should comprise.
Thus, it is necessary to first identify the nature of the parties’ interests in their property, liabilities and financial resources at the time of the hearing. After those interests are identified, the contributions made by the parties can be evaluated, taking into consideration the matters as set out in s 79(4)(a), (b) and (c) and the effect of any proposal order upon the earning capacity of either party. I must then evaluate the matters contained in s 75(2) insofar as they are relevant, including any other order made under the Act affecting a party or child and any child support under the Child Support (Assessment) Act 1989 (Cth) (“CSAA”) that a party to the marriage is to provide, or might be liable to provide in the future, for a child of the marriage. Lastly, consideration of whether it is just and equitable to alter the parties’ interests so as to effect a property settlement order, is required. So that it is clear, the first question must not be conflated with the outcome of the s 79(4) and s 75(2) deliberations, albeit these may inform the justice and equity determination.
Section 81 imposes on the Court an obligation, that as far as practicable, the orders will finally determine the financial relationship between the parties and avoid further proceedings between them.
Assets, liabilities and financial resources at the date of hearing
The parties reached agreement as to the value of most assets and liabilities.
The value and identity of the parties’ property, liabilities and financial resources at the date of hearing are as set out in the table below:
ASSETS Ownership Description Agreed/Not Agreed Value Joint Proceeds of sale of family home Agreed $70,869.39 Mother Westpac Banking Corporation account #75 Agreed $1.61 Mother St George Bank account #18 Agreed $3.77 Mother St George Bank account #63 Agreed $300.00 Mother Mitsubishi motor vehicle Agreed $22,500.00 Father F100 motor vehicle Agreed $15,000.00 Father Tools Not Agreed $1,000.00 Father Westpac bank account #77, #469 & #77 Not Agreed $800.00 Father Westpac bank account #07 Not Agreed $10.00 Father IAG shares Agreed $1,042.00
Total $111,526.77
ADDBACKS Father Sale proceeds of Hilux motor vehicle Not agreed $1,950.00
Total $1,950.00
LIABILITIES Mother Citibank Visa Card Not Agreed $6,490.00 Mother HSBC Classic credit card Not Agreed $1,736.00 Father Credit Card debt Not Agreed $3,900.00 Mother Westpac bank account #391 Agreed $82.53
Total $12,208.53
SUPERANNUATION Member Name of Fund Type of Interest Agreed/Not Agreed Value Mother M Super Accumulation Agreed $35,951.00 Father N Super Accumulation Agreed $43,055.00
Total $79,006.00 Total non superannuation assets $101,267.00 TOTAL NET ASSETS $180,274.24
There are a number of matters that require explanation. First it is common ground that the earlier property distributions and paid legal expenses would not be included in the property pool.
The mother does not admit the balance of the father’s Westpac accounts. The amounts asserted by him are accepted as admissions against interest.
The mother initially argued for the inclusion of the father’s Hilux motor vehicle at $10,000.00. The father sold this car for $1,950.00 in a transaction which the mother was unable to impugn. Ultimately she conceded that taken at its highest the evidence supported the inclusion of the sale proceeds as a notional asset. I agree there is no sound evidentiary basis upon which the Court could conclude that the Hilux was worth more than the father achieved. In circumstances where he had sufficient income to meet his necessary expenses, the disposition of this car is a premature property distribution and thus included in the property pool as the father’s asset.
Nor is it accepted that the Court would include the value of parts removed from the Hilux prior to its sale. According to the mother, the father stripped $5,000.00 worth of parts for which he has not accounted. The father’s evidence that he used parts from the Hilux for his later model Hilux is accepted. Thus, not only were the parts accounted for but the mother did not establish that she had the expertise to attribute a value to those parts which were removed. Ultimately it is understood that the mother conceded there is no proper basis upon which the amount could be included as the father’s asset; irrespective of her concession this is my decision.
The parties erroneously agreed on the inclusion of a debit balance in the mother’s Westpac account #91 as an asset. This is a liability and included as such.
It will be recalled both parties owed money on credit cards at separation. The father has been able to reduce his liability to its current level. The same applies to the mother albeit she has made less progress. In relation to the mother’s HSBC credit card, this was acquired after separation with the funds withdrawn used to purchase a computer for the children and minor household expenses. It is accepted that the mother’s purchase of a computer for the children was reasonable as was the use of the balance of the credit card for household bills. In short, all credit card liabilities have a sufficient connection to the marriage to justify their inclusion in the property pool.
The mother seeks to include the father’s tools at $10,000.00. This is the amount in April 2011 he told Westpac they were worth. However, his evidence is that the tools are worth $1,000.00. Although this issue could be resolved by ordering the tools be sold, the father needs them for work. A sale would potentially jeopardise his employment and thus his capacity to contribute to the children’s support. Although it is accepted that by telling the bank on
4 April 2011 his tools were worth $10,000.00 and three days later swearing a financial statement in which he said they were worth $1,000.00, he has undermined his reliability, greater weight is placed on his sworn evidence rather than representation to the bank. Thus, the tools are included at $1,000.00.
Section 79(4) – Evaluation of contributions and other factors
The submissions were made on the basis that contributions should be assessed globally and this approach will be adopted (Norbis and Norbis (1986) 161 CLR 513).
Section 79(4) requires that the Court looks at the entirety of the contributions, both financial and non-financial, to the welfare of the family, as well as to the acquisition, conservation and improvement of assets. Contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense (Farmer and Bramley (2000) FLC 93-060). In Ferraro and Ferraro (1993) FLC 92-335, the Full Court highlighted the difficulty involved in evaluating and balancing fundamentally different contributions. It also reinforced that the Court’s task includes evaluating the significance of the various contributions, the weighing of which is ultimately a matter for the Court.
The evaluation of financial contributions is more complex than the mere calculation of the funds introduced by each party. This point is reinforced by the often quoted comments in Pierce v Pierce (1999) FLC 92-844 where, in relation to initial contributions, the Full Court said at 85,881:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution…
Findings have already been made in relation to initial contributions. In this regard, there is no doubt that at the commencement of cohabitation the mother had modest non superannuation assets and the only asset of significance is the father’s significant contribution of Suburb K. In circumstances where it is accepted that throughout cohabitation the parties spent more than they earned, that the father introduced an asset which increased in value and is directly referable to the sale proceeds which constitute the largest tangible asset warrants considerable weight.
The father appropriately concedes that during cohabitation the parties’ contributions were equal. Thus, while he earned more than the mother which, when his inheritance is taken into account, increases the margin by which his financial contribution exceeds hers, when her greater role as a homemaker and parent is taken into account, equality is achieved. Submissions against the notion of equality of contribution during cohabitation were not pursued by the mother. In this regard, it is accepted both parties contributed all income they earned during cohabitation to the betterment of the family and essentially they agreed to arrange their roles within the family which saw the father primarily responsible for earning income and the mother primarily responsible for the children’s care and as a homemaker. The words “primarily responsible” are used advisedly because it is clear when he was not at work the father was also involved in the children’s care and worked to improve the homes in which the parties lived. In addition to her responsibilities for the children’s care and the parties’ home, the mother had part-time work for the periods outlined earlier. In light of the father’s appropriate contention that during cohabitation the parties’ contributions were equal, it serves no useful purpose to continue to tease out the contributions made by and on behalf of each of the parties.
In relation to superannuation, the evidence does not establish that the father had superannuation at the commencement of cohabitation whereas the mother had superannuation worth about $15,000.00. In the intervening period her superannuation increased to $35,951.00 and the father acquired superannuation worth $43,055.00. The value of the mother’s superannuation at the commencement of cohabitation needs to be taken into account in assessing the significance of the parties’ initial contributions. Growth in superannuation during cohabitation is taken into account in my findings as to equality. It is not clear what, if any, increase in superannuation has occurred since separation. The effect of this is that the mother’s greater initial contribution is afforded some weight and moderates to a small degree the father’s greater initial contribution to non superannuation assets.
As was mentioned earlier, it is common ground that post-separation the mother’s contributions exceed the father’s. Essentially, this reflects her greater responsibility for the children’s care and that she has carried a greater share of their necessary expenses. In this regard, for example, the mother paid for S to have his adenoids removed ($4,000.00), for J’s counselling and the like. S’s day-care costs are met by her and other than modest child support; the mother has had no financial assistance from the father towards the children’s expenses. Thus, for example, she has paid for the children’s school uniforms and when the father has decided that a school hat or school shoes required replacement, rather than contribute himself he has instructed the mother to do so.
The small adjustment proposed by the father does not do justice to the issue and it is accepted that the 5 per cent adjustment sought by the mother should be given.
The orders will not affect either party’s earning capacity.
Since separation the father has paid modest child support in accordance with assessments issued by the Child Support Agency. For example, in early 2012 he paid about $52.00 per week which by the hearing had increased to $61.00 per week. There are no child support arrears.
When one stands back and evaluates the significance of these contributions and other s 79(4) factors, a number stand out. Namely, that throughout their marriage the parties filled different key roles and together worked hard to advance their family’s financial interests and their children’s welfare. Their efforts bore fruit and notably resulted in property acquisition, a comfortable standard of living and children who were well cared for.
But, it is the father’s initial contribution and the use to which it was put that favours him. His initial contribution provided the financial backdrop for the family and is the platform upon which much of the property pool was achieved. On the other hand, the mother’s post separation contributions require an adjustment in her favour in the manner discussed.When these matters are weighed with all other relevant contributions and factors discussed above, expressed as a percentage of the net value of the parties’ property as at the date of hearing, they favour him 52 per cent compared to her 48 per cent.
Section 75(2) factors
The parties agree that having regard to all of the s 75(2) factors, it is appropriate that there is a 10 per cent adjustment in the mother’s favour. I agree that an adjustment of that magnitude is within the range that could be ordered and see no reason to interfere. Simply put the mother’s primary responsibility for the children’s care (which is the outcome that will be ordered), the father’s greater earning capacity and the likelihood she will contribute a larger share of her modest income for the children’s support, justify this adjustment. This adjustment puts in the mother’s hands a further $18,027.00. Albeit small, in the context of this case, this is reasonably significant.
Section 79(2)
Reference has already been made to the manner in which the parties conducted their marriage, their intermingling of finances and their common stance that now their marriage has irretrievably broken down, it is just and equitable that their interests and rights in property are altered.
The form of alteration is driven by matters discussed above and the outcome of the s 79(4) and s 75(2) findings. It is unnecessary to slavishly recite findings already made. It is sufficient when one stands back and looks carefully at the outcome of the s 79(4) and s 75(2) process, to refer to the quantum and nature of the father’s greater initial contribution, that during cohabitation both parties contributed in a real way in their respective roles and the mother’s primary responsibility for the children’s care since separation and in the future. The effect of this is that to the extent necessary, the father must pay the mother an amount which achieves an alteration that gives her 58 per cent of the net assets.
Structure of the orders
Section 81 imposes on the Court an obligation that, as far as practicable, the orders will finally determine the financial relationship between the parties and avoid further proceedings between them.
Excluding the sale proceeds of the former matrimonial home this means that the mother will receive:
Assets
·Westpac account #75 $1.61
·St George account #18 $3.77
·St George account #63 $300.00
·Mitsubishi motor vehicle $22,500.00
·Superannuation $35,951.00
Total $58,756.38
Liabilities
·Westpac #91 $82.53
·Citibank Visa Card $6,608.00
·HSBC Credit Card $1,736.00
Total $8,426.53
Net Balance $50,329.85
Excluding the sale proceeds of the former matrimonial home, the property pool is worth $109,403.00. Fifty eight per cent of that amount is $63,454.00. It follows, that from his share of the sale proceeds, the father must give the mother $13,124.00.
Thus, from the sale proceeds the mother will receive $48,124.00, together with the adjusting amount. She has already received $35,000.00. Accordingly, the remaining proceeds will be distributed thus:
·$13,124.00 to the mother;
·$21,876.00 to the father;
·Any balance 58 per cent to the mother and 42 per cent to the father.
The mother also sought personalty, some of which is hers, some belongs to the children and the balance to the parties jointly. There is no evidence which would justify the children’s items being in the mother’s rather than the father’s possession. The only items which she identifies as hers are items A and J of Annexure “A” of her Amended Initiating Application filed 23 October 2012. There is no basis upon which the Court could adjust the mother’s title to that property so as to enable the items to be retained by the father. Accordingly, orders will be made for him to deliver them to her. Nor in relation to the few jointly owned items contained in Annexure “A” is there evidence which would enable the Court to adjust the parties’ interests in property such as to order their return to the mother. As I understood it, the father conceded the mother should have copies of the children’s portraits and access to stored photographs and personal information so that this can be copied. Orders will be made to that effect.
The General Law in Parenting Cases
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B). They arise in proceedings conducted under Pt VII of the Act. Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. ‘Parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children”. Section 61DA requires that when making a parenting order in relation to a child, “the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.” Essentially, the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2), the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus, if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements.
Section 60B sets out the objects of Pt VII and the principles, which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1. The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3. For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
To the extent they are relevant to the particular case, the Court must consider thirteen additional considerations set out in s 60CC(3). Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities (s 60CC(4)). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence (s 60CG).
If the Court is satisfied parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with his or her parents (ss 65DAA(1)(b) and (2)(d)) and whether doing so would be in the best interests of the child (ss 65DAA(1)(a) and (2)(c)). The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in ss 65DAA(3) and (4).
Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests (Goode & Goode (2006) FLC 93-286).
By virtue of s 60CA, the Court will determine the weight to be given to the various factors, be they primary or additional considerations or considerations as identified as issues arising in the particular case but not specifically referred to in the Act. Ultimately, the weight attached to each factor is a matter of discretion.
Primary and additional considerations
In Collu & Rinaldo [2010] FamCAFC 53 the Full Court pointed out that a number of s 60CC(2) and (3) considerations potentially overlap. For example, in relation to s 60CC(2)(a) and s 60CC(3)(b) it may be necessary to make findings in relation to the nature of a child’s relationship with his or her parents before the Court could determine whether there is the potential for a meaningful relationship or whether there is no benefit for the child from a relationship with a parent. Their Honours explained that where considerations overlap it could be appropriate to consider the additional considerations first. This is the approach I will adopt and where considerations overlap, they will be dealt with concurrently.
The Family Consultant explored the children’s views about what they would like the outcome of the proceedings to be (particularly J) and their relationships with their parents. She first met the parties and children in June 2011 for an Issues Assessment.
J, who was then aged 7, was emphatic that he wanted to spend more time with his father. When J made those remarks, he was spending each alternate weekend from Friday after school to Monday before school with his father. He wanted his parents to reconcile but understood this was out of the question. During the brief observation session, J happily engaged with his father and they were seen to be mutually physically affectionate. He was similarly close to his mother and based on her observations, the Family Consultant said they seemed to have a warm relationship.
A more complete assessment was undertaken by the Family Consultant in October 2012. J was then 8 years and 10 months.
The Family Consultant described him presenting as a sad boy, an impression she gained from their first meeting. J said he felt sad a lot but was unable to explain why. He correctly explained to the Family Consultant that he had few friends and disliked school where he was struggling. He told the Family Consultant he did not believe he was good at anything and that his sense of sadness had increased this year “because of the reading class he now attends on four mornings a week and the difficulty he is having with reading” (Family Report, 20 November 2012, p 8). J told her he wanted to spend more time with his father who he missed when they were apart.
By then the children’s time with the father had increased so that they spent each alternate weekend from Friday after school until Monday before school, each Wednesday after school until 7.00 pm and half school holidays with him.
This segued into J’s observation that he thought he would be happier if he lived week about. The Family Consultant reported that J said he believed he gets angry because his mother would not let him spend more time at his father’s home.
In the October 2012 observations, J was co-operative, responsive and affectionate towards his mother. She was similarly affectionate and is described by the Family Consultant as calm and helpful to J. J and his father were mutually affectionate and the warmth of their relationship was apparent.
Although the Family Consultant knew J attended therapy in 2010 and again in 2011, she did not speak with those counsellors nor seek access to their notes. Had she done so, she would have seen that in August 2011 and July 2012 (with different therapists) J reported recurrent bad dreams of his father killing his mother which made him sad. He addressed this sadness by cuddling his mother. It is evident both therapists sought to work to assist J with his low mood and aggressive behaviour. He described to the 2011 therapist how he used to feel sad “when his mum and dad used to fight a lot” and spoke about getting into trouble at home (with his mother) and school for swearing and fighting. Both therapists worked to assist him with anger management strategies and tasks that would make school easier. To the 2011 counsellor, in August that year, J “reported he does not really want to stay at his father’s house more often”.
There is no doubt that J has struggled at school and for most of his school life he has had few friends. Although by late 2012 his situation at school had somewhat improved such that his teacher described him as getting along with the other boys; he name called and was involved in inappropriate behaviour to get a reaction. As had been explained to his therapist in July 2012, J thought his schoolmates were boring, observed they would not play with him and when they were mean, he punched and kicked them.
The significance of this is that the Family Consultant’s opinion that J is a well liked child who yearned to spend more time with his father and that his inability to do so was the cause of his low mood, is a simplistic gloss to a more complex situation. Without being too critical of the Family Consultant, in relation to J, there was information which deserved greater attention than she gave it and which suggests some caution in relation to her assessment of J’s views is appropriate. That said, it is important to highlight that J loves his parents and knows they love him. His relationships with both parents are strong and their implicit agreement that it is to his benefit that he is able to enjoy meaningful relationships with both of them is accepted.
S was 5 when he first met the Family Consultant. His poor speech and young age resulted in the Family Consultant deciding a formal interview would be inappropriate. She described him as “constantly active” and it is clear that like his older brother he is boisterous and energetic. The Family Consultant saw that both parents were able to understand S and assisted him in his speech. With each of them, he was physically affectionate and responsive, which both reciprocated.
The Family Consultant recommended that the parties organise for S to be assessed at Westmead Hospital and that having participated they jointly implement interventions needed to assist him before school started. In the end, although the mother arranged an assessment with her general practitioner, the general practitioner declined to make a referral to Westmead. The point being, although S has obvious developmental issues, an assessment at Westmead was contraindicated and would not, even if made, be accepted by Westmead. The Family Consultant was surprisingly critical about the mother’s failure to obtain a referral to Westmead. It is difficult to know what more the mother could or should have done. The father did nothing.
When the Family Consultant next saw S, he was 6 years and 8 months. On this occasion she was able to interview him and said he was shy, friendly and co-operative. His speech difficulties continued to be apparent with his responses limited to one or two words. It was also apparent he had difficulty with his verbal comprehension and, for example, was unsure about the days of the week. Although S liked school and his kindergarten class, he explained that not many children play with him. To the Family Consultant, S was able to communicate that he likes being with his mother and his father and liked his paternal grandmother. In his interactions with his parents mutual comfort and warmth was apparent.
From her discussions with S’s teacher, it is clear he has struggled academically. His end of 2012 year assessment revealed that he is developmentally behind and has difficulty processing instructions. His teacher said there are no behaviour problems in class and that he got along with other children. Commencing in 2013, the special learning intervention team is to be involved in his education.
Although she did not specifically say so in her reports, in her oral evidence, the Family Consultant agreed that S is primarily attached to his mother. This is a logical outcome from her greater involvement in his care prior to separation and significantly greater responsibility for his care thereafter. It is also clear he has a strong secondary attachment to his father and enjoys his time with him.
In making her recommendation for increased time for S with the father, the Family Consultant gave scant, if any regard to the effect on S of separation from his primary carer. Rather, she focussed on how one would plan to increase time for a child with impaired cognitive understanding; the thrust of which is that with use of calendars, preparation and planning S would become accustomed to changed arrangements. At its highest, her consideration of attachment issues is reflected in her opinion “[h]owever, moving straight to equal shared time may be unsettling for [S] due to his speech and language issues and possible slower comprehension of the changes and because he may miss his mother” (Family Report, 20 November 2012, p 20).
Although it is accepted that J has told his father, the mother and the Family Consultant he wants more, equal time with his father, there is evidence from his therapist to the contrary. J has also said things to his maternal grandmother similar to those reported to his therapist and to his mother that he wants to live with her. That J says different things to different people tends to suggest he is confused about the situation, which given his age and his parents’ poor relationship is understandable. Even if I was satisfied that J’s views in favour of equal time with his father were as reported by the father and Family Consultant, his young age and the difficult family situation is such that I would not be satisfied he had the maturity to understand the nuances of the various proposals; particularly in relation to how his emotional, educational and practical needs would be managed and met by his parents.
S was unable to express a clear view about what he would like to happen. His more extreme behaviour against leaving his mother (clinging to her leg, hand and refusing to leave her side) has passed and she is able to have him go to his father without undue upset. His age and immaturity also mean any views he expressed would warrant little weight.
What is apparent from the uncontroverted facts and supported by the Family Consultant’s observations of the children with their father, is that they have a meaningful relationship with him. Irrespective of whether their time is increased along the lines he proposes, along the lines proposed by the mother or stays the same, there is no suggestion this will change. Later in these reasons a number of troubling aspects of the father’s parenting and the implications of his behaviour towards the mother vis parenting will be discussed. So as to put those matters into context, it needs to be observed that the quality of the children’s relationship with their father means there is much about his parenting that they enjoy and is beneficial. For example, he reliably spends significant time with them during which they are the focus of his attention, with him they enjoy many outdoor and physical activities, he reads to them and tries to help S and through him they have extensive contact with their paternal grandparents who they love. These are all important reasons why the children’s relationship with their father is beneficial and I am satisfied it will continue to be meaningful. Similarly, irrespective of the outcome the children’s relationships with their paternal grandparents will continue to be strong and enjoyable.
The second primary consideration and a number of the additional considerations require that the Court considers issues of family violence and child abuse. The most significant issue raised arose from the maternal grandmother’s evidence she has seen the father physically mistreat the children, particularly J. The mother proffered some support for her mother’s concern and said that prior to separation she saw the father smack the children and drag them by their arms to their bedroom. Because she has not seen the father with the children since separation she does not know whether this continues. However, she remains concerned “that he will get carried away and lose his temper and cause an injury to the children”. She takes some comfort that the children have not returned injured or complaining of mistreatment.
The father denies mistreating the children. He and the mother agree that prior to separation both smacked the children and view measured corporal punishment as an acceptable method of discipline. According to the mother, where they differ, is in relation to what is measured and appropriate. This issue was not explored by the Family Consultant.
In her affidavit, the maternal grandmother gave evidence of conversations with J in which he complained about being hurt by his father and things she has seen the father do. She was sufficiently concerned about the situation that in May 2010 she basically told the mother that unless what she regarded as the father’s excessive physical discipline of the children stopped she planned to contact the Department of Family and Community Services. The mother asked her not to and explained she would try to have the father see a psychologist, which she did. As it transpired, this was a fairly fruitless exercise. In any event, this puts to rest any notion that the maternal grandmother made up allegations for the purpose of these proceedings. It is accepted she does so here because she is genuinely concerned by what she saw.
However, cross-examination showed some inconsistency in the maternal grandmother’s evidence. For example, she initially said she had never seen the father hit S yet at paragraph 17 of her affidavit and in her oral evidence, gave evidence he had. She saw fit to complain about the paternal grandmother’s role when, in March 2009, she tried to remove Lego from S’s mouth. The incident, which is set out at paragraph 20 of her affidavit, demonstrates that no criticism of the paternal grandmother was appropriate. She gave evidence about how the father held the children “really tight” and, in effect, tried to force them to sleep. Exhibit “B” is a photograph of the father nursing S at a camping ground. The maternal grandmother agreed that it depicts the type of behaviour which concerned her. There is nothing about the manner in which the father is holding S which justifies concern or criticism. She refers to a number of conversations with the mother where the mother told her about things said and done by the father. Evidence about some of those matters was not given by the mother and thus unless the mother herself gave evidence about the event no weight is given to the maternal grandmother’s evidence about what the mother said the father had done or said.
This brings into question the reliability of the maternal grandmother’s evidence. Not about her honesty but whether she views as excessive, physical discipline which others (including these parties) consider is reasonable. The mother’s failure to give evidence about incidents referred to in her mother’s evidence at which she was present, has resulted in my conclusion that these events did not trouble the mother for the reason that they were less dramatic than the maternal grandmother now recalls and that the mother agrees with the father that the incidents constituted reasonable and not excessive discipline.
However, at paragraph 41, the mother provided details of erratic and unnecessary discipline the father meted out to both children. There she gives evidence of him hitting J so hard he had a large welt mark on his leg and red marks on his arm. She corroborates the maternal grandmother’s evidence of him hitting both children with a thong; in his anger also her (she was seated between the children in the car). Also about J panicking after he made a hole in the wall and asking the mother to not tell the father because “he’ll beat me.” The mother’s evidence on these matters is accepted.
As has already been mentioned, the maternal grandmother also gave evidence about conversations with J which occurred in the absence of the parties and a number of incidents which the mother did not see. J told the maternal grandmother a number of times, both before and since separation, that his father beats him. She has heard the father hit J who screamed and cried in response. Unaware she was present, on one occasion years ago, she saw the father shove J so hard he landed on his face. Some months ago J complained to her about being hit by his father during which he said “[d]ad’s an arsehole; can you get a better one”. He also spoke about getting into trouble if S does something wrong. Her evidence is accepted.
J’s aggressive behaviour on the school ground raised questions about whether this is learned behaviour and thus corroborative of the evidence about excessive and erratic discipline by the father. In the end, I am unable to conclude that it is. This is because it may be coincidental or explicable for other reasons. Because the issue was not explored by the Family Consultant, the children’s account of these matters is not before me. Merely because, in the safe surroundings of the Family Consultant’s office, they did not display signs they feared their father does not provide a safe basis for concluding the mother and her mother’s evidence on this topic is unreliable. Nonetheless, it is accepted (as both parties agree) that both have physically disciplined the children and that on the occasions discussed above, the father’s discipline was inappropriate.
It is also accepted that the father has used foul language to the mother and the children. Too often in their presence he has spoken to her in demeaning terms, something he is also content to do with others. Albeit not in the children’s presence, he has said things like “you’re a useless slut”, “you’re a lazy bitch”, “you’re a good for nothing slut” and “you’re a low life slut”. At changeover he stuck his finger up at her in a rude gesture. Angered, he has called the children “you selfish little pricks”, J “a fucking cunt and a selfish little prick” and S a “dumb fuck”. As recently as November 2012 the father left a message on the mother’s telephone during which he called her a “whore slut”. Clearly he was unconcerned that the children may have overhead or retrieved his message. His remarks are offensive and belittling and raise questions about his influence on the children.
Lest it be thought his remarks about the mother could somehow be described as ill considered made in the heat of discussion, they are consistent with the types of exchanges the father has with friends about the mother on Facebook. Exhibit “G” is a summary of messages sent by the father which he was well aware would be conveyed to the mother. They are variously childish, offensive and of low tone. Where he refers to [an abbreviation of the mother’s first name], there is no doubt he means the mother. Rather than record those which are grossly offensive, it is sufficient to note that they convey the same sentiments as those discussed above. There, one also sees the father referring to the children as two young prisoners of war, the mother as their cruel dictator and her home as the enemy compound. When Exhibit “G” is considered in the context of the manner in which the father gave evidence and the mother’s evidence, it starkly demonstrates his ability and propensity for offensive behaviour towards and about the mother. If the children were exposed to this type of behaviour, there is no doubt they would be troubled by it and, if reasonably frequent, it may well disturb their relationship with the mother.
The father was highly critical about the mother’s complaint to Police in
March 2011 about his remark to the children during a telephone call “Tell your fucking mother if she keeps it up, I’m gunna fucking kill her.” The mother was worried about the call and asked Police for an AVO for her protection. An application was brought but dismissed, as the mother understands it, because by the time the case came on for hearing her evidence to the magistrate was to the effect she was not really afraid of the father. No criticism of the mother’s action is warranted. In my view she acted reasonably. It behoves the father to reflect on his actions.
The father’s disdain for the mother is also apparent from his complaint to Police in late July 2012. That afternoon he drove past a street adjacent to where she and the children live where he saw J and a friend riding bikes. J waved to his father who stopped. He then sent the mother a text “[w]here is [J] and why is he wandering the streets in [Suburb A]?” The father saw the mother come outside; she called out to him, whereupon he put J in the car and drove to a nearby Police Station. The father sent another text message and told her they were on the way to the Police Station where she could collect J. It is difficult to know what J would have made of the father’s explanation that it was better and easier if they went to the Police Station. The father saw marks and bruises on J and, in response to his questions as to causation, J told him he had fallen off his scooter. Yet, when the father arrived at the Police Station he complained about the bruises which resulted in Police interviewing J. The Police records note their conclusion “[i]t is of the opinion of Police that the P/R [the father] is attempting to use Police to build ‘a brief’ against the mother. The P/R goes straight to the accusatorial stage and not inquisitorial stage with the child’s mother about any possible injuries that he may have seen on the child” (Exhibit “F”).
I have no difficulty agreeing with Police that this was not a Police matter. There is no doubt that J was not at risk playing with his friend and that the father involved Police either out of spite or to cause the mother trouble. It is noteworthy that he directly involved one of the children in so doing. It is also apparent that the father was entirely unconcerned that J may have concluded (wrongly) that his mother’s behaviour was such she should get into trouble. It is conduct which bespeaks a lack of regard for the children’s relationship with their mother and an immature attitude to his parental responsibilities.
In cross-examination, the mother agreed she also used bad language to the father and called him demeaning names. There is no evidence this has occurred since separation or in the children’s presence. To the contrary, she has worked hard to promote the children’s relationship with the father and, for example, even when S has asked not to go to his father’s or on the telephone asked to come home early, she has encouraged him to be with his father. Unlike the father, she has not threatened to retain the children and they have been made available to him in accordance with their agreements. So that it is clear, although the father has two or three times threatened to keep the children (at least once in the children’s presence) he has not done so. But the point is his remarks are provocative, worrying for the mother and children and demonstrative of his too often bullying and demeaning approach to her.
The father conceded he knows how to provoke the mother until she reacts, which he does even in relation to matters about the children. For example, on 16 November 2011 she informed him by email that S needed to have his adenoids removed. He was to see an Ear, Nose and Throat Specialist and in the meantime required antibiotics to treat infection. This was followed up with emails about specialist appointments, dates for hospitalisation and costs. Finally, on 18 June 2012, the hospital date was confirmed for 19 July 2012 with this information communicated to the father. So was the $4,307.00 upfront fee to which she suggested he might contribute.
Yet, it was only on 5 July 2012 that he indicated for the first time his opposition to the operation. He said he would like to speak to S’s doctor to discuss other options. This is curious, because the father had been aware of the child’s appointments but did not attend. Having written the 5 July 2012 email, the father spoke with a specialist but not S’s. No explanation was given by the father for his months of inaction or why, having been given the date, he waited weeks before delivering his offhand opposition.
In the context of parties who distrust each other so much they do not speak and communicate solely by SMS or email, the adenoid information shows the mother’s genuine attempts to inform the father and involve him in a significant health issue for one of the children. When the issue was raised with the Family Consultant she, in effect, sought to avoid the issue of responsibility and basically said both parties were responsible for the impasse. Only when pressed to identify what more could the mother have done did she agree that the mother’s actions were appropriate whereas the father’s were not. The sense I gained from this line of questioning was that the Family Consultant came to defend her report come what may and was most reluctant to consider factual matters which might detract from her ultimate recommendation. Thus, just as it was apparent that she gave little weight to attachment issues she also showed she was willing to inappropriately discount relevant matters in relation to the issue of time. The adenoids issue highlighted how problematic the parties’ communication about the children is and regrettably, hinted at the father’s inability to work cooperatively with the mother in relation to the children. It casts a serious shadow over the Family Consultant’s notion that notwithstanding the parties’ inability to speak to each other they could effectively “parallel parent”. It also demonstrates how she failed to fully appreciate the practical effect this would have on the children
The father was similarly offhand about the mother’s attempts to arrange the children’s time over the recent Christmas school holidays. In October 2012, she set out a fair and workable arrangement for his consideration. There, she pointed out that she would be taking the children on holidays and that the plan was designed to partly enable this to occur. It would have caused the father no inconvenience to accept her proposal. Yet, he refused to do so and it was only in the hearing that he agreed. Again, this shows how difficult it is for the mother to secure the father’s ready cooperation in relation to the children, his disdain and propensity to push her out of frustration to react.
Similar disdain and inadequate cooperation in relation to the children, is evident from the father’s repeated demands that the mother make appointments for the children with podiatrists, dentists and the like which she pays for but he does not attend. There are emails and SMS messages in evidence where he complains about the quality of the children’s shoes, clothes and hats but makes no offer to pay for them. In the context of questions about his attitude to parental responsibility and the children’s needs, he said he contributed to the children’s medical expenses. Pressed for detail, in relation to medical expenses, since separation he has bought one child a nasal spray. He complains about the children needing speech therapy and not attending organised sports but has failed to arrange anything or contribute to costs. These issues are dealt with by the father with a constant undercurrent that is sarcastic and demeaning of the mother. He is fully aware of her parlous financial circumstances and that even providing the children with the basics is a struggle. In short, the father’s approach to these issues reflects poorly on his attitude to his parental responsibilities. So that it is clear, although it is accepted that he has modest financial circumstances and has reliably paid child support, there is no doubt he could have done more to assist with the children’s expenses and be involved in therapy, extra curricular activities and the like.
Although it is pleasing that the father is interested in the children’s sports activities, J’s need for therapy and S’s need for a developmental assessment and speech therapy, for an effective co-parenting arrangement to work, much more is needed from the father than obtaining sight cards and books for S. He needs to not only support therapeutic intervention for the children, but to participate in it and cooperate with the mother in implementing the therapists’ recommendations. He has made promises to do so in the past which he has not kept. This is a poor portent for the future. This cavalier approach may have been discerned by J’s teacher which would explain the father’s evidence that he was unaware the school was concerned about J throwing stones on the playground. There is no doubt the school was concerned and that this issue was raised with both the Family Consultant and the mother. When the father was questioned about this in cross-examination, the gravamen of his evidence was that all boys throw stones and there was nothing about this which caused him to be concerned for J.
Eventually, it emerged that the father is correct when he says the parties have different approaches to childrearing and in effect their households function differently. Because the parental relationship is so poor it is almost impossible to see how they could come together to constructively address the children’s problems. Their difficulties are too complex to be comforted by the parties ability to deliver and collect the children on time (in public places) and address logistics by email and text message.
The children’s difficulties, as well as their emotional and developmental needs, are too complex for “parallel parenting”, which term I understood to mean the parents individually attending to the children’s needs but without the overarching cooperation which would ensure consistency and see relevant information communicated from one house to the other. It is the need for consistency that emotional, development and educational needs are to be addressed which makes an all but equal time arrangement contraindicated. It means, the children should be in the primary care of one parent for a sufficient amount of time to enable that parent to work constructively with therapists, ensure the children attend necessary appointments and have sufficient continuity to maximise the chance for successful intervention. Obviously that parent would have to be able to meet the children’s various needs. In this regard, the mother has demonstrated her real commitment to the children and has generally managed to meet their various needs. While there is no doubt additional therapies are required, she has not been able to afford the costs. She has sought assistance for herself and worked with those therapists who have been engaged to help achieve, for example, a better approach to the discipline of J and how to manage his aggression. She is constructively involved with the children’s school and in my view has shown herself to be the parent best able to meet the totality of the children’s needs.
Although the mother’s rationale for an eight/five split commencing 2015 was slightly different, her approach to the children’s time during term is more likely to achieve stability and ensure that the children’s needs are met than the Family Consultant or father’s proposals. Such an outcome would also ensure that her influence over the children would remain strong and ameliorate impact on the children of the father’s poor behaviour which raise concern about him as a role model.
Because both boys enjoy good relationships with each of their parents they should be able to accept the Court’s decision.
Although it is not a matter to which significant weight is attached, the mother’s term time proposal is assessed as more likely to limit the prospect of further proceedings than is the father’s. This is because hers is more likely to meet the children’s needs and thus less likely to create friction and recriminations between the parents.
There is considerable overlap between s 60CC(4) and s 60CC(4A) with s 60CC(3). There are no further matters which require consideration.
Conclusion and construction of the orders
When making a parenting order, the Court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility. The presumption does not apply in the circumstances specified in s 61DA(2) and may be rebutted if the Court is satisfied its application would not be in the child’s best interests.
The parties are agreed an order for equal shared parental responsibility is in the children’s best interests. It is not without real misgivings about whether they can make this arrangement work, that the order will be made.
Thus, equal time must be considered. As has already been explained, although an equal time order would be reasonably practicable, it would not be in the children’s best interests. In addition, my reasons are replete with findings which show how important it is for these children to continue in the mother’s competent primary care. The type of reduction in the time they would have with her which is necessary to achieve an equal time outcome or time during term as recommended by the Family Consultant (eight days/six days) would be particularly difficult for S and compromise the likelihood of success of consistent therapeutic intervention and attention to the children’s various needs.
Both parties agree that the children should have substantial and significant time with the father. This will give him the chance for involvement in their education and extra curricular activities. It will ensure that the children continue to have good relationships with their paternal grandparents, as well as their maternal grandmother. The mother’s term proposal strikes the right balance between ensuring the children have strong relationships with their parents who they love and people who are significant to them, with their need for consistency and to not have their interests unduly compromised by their parents’ inability to work constructively in relation to them.
The outstanding issue relates to school holiday time. As was earlier mentioned, the children have settled into week about time during holidays. However, it is only within the last few months that S has been reasonably settled with this. He is no longer asking his paternal grandmother how long it is before he returns to his mother and he has been less clingy with his mother before and after a week with the father than has been the case.
It is difficult to determine when or indeed if, S will be able to manage a consecutive two to three week period away from his primary carer. Although I have not accepted the Family Consultant’s ultimate recommendation about the children’s time being divided eight days/six days her evidence that S should be able to cope with half schools with each parent in an individual block by 2015 is accepted. This longer period will give the children the chance to have a period without moving between their parents’ homes and to be fully immersed in that parent’s family and holiday arrangements. This will enrich the quality of the holiday experience and should strengthen the children’s ties with their respective families. So that the children can have time to get ready for school, Christmas school holidays are defined and designed to ensure that they settle back in with the mother a few days before school resumes.
Otherwise there will be minor adjustments to enable the children to celebrate special occasions with both parents. The mother sought additional orders, for example, in relation to school (about which there is no issue) and other minor matters. I was variously not satisfied those additional orders were necessary or in the children’s interests.
For these reasons, I am satisfied the orders are in the children’s best interests.
I certify that the preceding one hundred and forty seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 1 February 2013.
Associate:
Date: 1 February 2013
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Family Law
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Property Law
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Procedural Fairness
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