KEEFE & THACKER
[2019] FamCA 992
•20 December 2019
FAMILY COURT OF AUSTRALIA
| KEEFE & THACKER | [2019] FamCA 992 |
| FAMILY LAW – PARENTING – Where there are two children of the marriage – Where the parents have poor communication – Where the father works on a 28 day roster that requires flexible parenting arrangements – Where the parents have been unable to provide consistent parenting arrangements for the children – Where the father can be unresponsive and non-communicative with the mother regarding the children – Order for sole parental responsibility for the mother – Order for the father to have 10 nights per calendar month, selected by the mother in accordance with the father’s work availability. FAMILY LAW – PROPERTY – Where contributions during the marriage were assessed as equal – Where the father had greater initial contributions than the mother – Where the mother’s contribution after separation exceeded that of the father – Where contributions are assessed as 60 per cent to the father and 40 per cent to the mother – Where the mother receives 20 per cent adjustment for s90SF(3) factors. |
| Family Law Act 1975 (Cth) ss S90SF(3), 90SM Family Law Rules 2004 |
| McCall & Clarke [2009] FamCAFC 92 |
| APPLICANT: | Ms Keefe |
| RESPONDENT: | Mr Thacker |
| INDEPENDENT CHILDREN’S LAWYER: | S P Nasti & Co Solicitors |
| FILE NUMBER: | SYC | 459 | of | 2017 |
| DATE DELIVERED: | 20 December 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 2, 3, 4 & 5 December 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Weightman |
| SOLICITOR FOR THE APPLICANT: | Southern Waters Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Cairns |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray (NSW) Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Abdelraheem |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | S P Nasti & Co Solicitors |
Orders
IT IS ORDERED
PARENTING
That the mother have sole parental responsibility for the long-term care, welfare and development of the children, X born … 2010 and Y born … 2011 ("the children").
That before making any significant decisions in relation to the children’s education, medical care or cultural and religious upbringing, the mother shall:
(a) advise the father in writing by email of the decision to be made;
(b) ask for his response;
(c) consider his response before making any decision;
(d)advise the father, as soon as possible, by email of her decision before implementing the decision.
That the children live with the mother.
That during the school term the father spend time with the children for a cumulative period of 10 nights per calendar month, to be determined on the following basis:
(a)That within 48 hours of the father’s receiving his roster for the upcoming 28 day period (“the roster period”), he provide a copy of that roster to the mother, redacting only the flight times, flight number and destination.
(b)That within 28 hours of the mother’s receiving the roster, she shall advise the father by email of the days and nights upon which the children will live with him, ensuring, so far as is compatible with the roster, that the children spend two weekends with the father in each roster period.
(c)That in the event the father ceases a roster based employment, the father spend time with the children each alternate Thursday after school to Tuesday before school.
That if the roster covers only one week of school term, the children will spend three days of that week with the father; if two weeks, the children will spend five days in those two weeks with the father; if three weeks, the children will spend eight days in those three weeks with the father.
That the father, within 48 hours of receiving notification of his leave entitlements for the year, provide a copy of that notification to the mother.
That the school holidays at the end of the first three school terms of the year be divided equally between the parents and that the mother, within 48 hours of receiving the father’s roster for the period covering the holidays, advise the father when the children will be with him during the holidays.
That in the Christmas holidays at the end of 2019, the children shall spend a block period of two weeks with each parent and the remainder of the holidays shall be divided equally between them, the mother to advise the father within 48 hours of receiving the father’s roster for the period covering the holidays, when the children will be with him during the holidays.
That for the purpose of these orders, holidays commence when school ends on the last day of term and end at the start of classes on the children’s first day at school in the next term.
That in the event the father is working during his allocated time with the children during the school holidays, the father is to do all things necessary to make alternate care arrangements for the children and notify the mother of such arrangements.
That where practicable, for the purpose of these orders, changeovers shall take place at the children’s school if within a school term, and at a location nominated by the mother if the changeover is within a school holiday period.
That where practicable, if the children are not with the father on those days, the children shall spend time with him for two hours on each of their birthdays and on his birthday.
That the children spend time with the father on Father’s Day, if possible for the whole of the weekend encompassing that day.
That the children spend the Christmas period in 2019 and alternate years thereafter with the mother and, where possible, spend Christmas with the father in 2020 and in alternate years thereafter.
That each parent ensure that the children have reasonable telephone or Skype contact with the other parent.
That neither parent will unreasonably prevent the children from telephoning the other parent and each parent will facilitate at all times the children’s communication with the other parent in accordance with these orders.
That each parent is to notify the other as expeditiously as possible of any matters relating to the health or wellbeing of the children (save for common coughs and colds), which require the attention of a medical practitioner or health professional.
That the mother shall authorise any doctor, hospital and/or health professional to provide to both parents any information concerning the health of the children.
That the father shall ensure that the children attend any medical appointment of which he is notified when the children are in his care.
That the mother provide to any school that the children attend, a written direction to the children's school authorising them to send a copy of school reports, photographs and newsletters to each of the parents with such costs to be borne by each parent individually.
That the father be at liberty attend any school function to which parents are invited.
That the father and mother ensure that all school uniforms (including winter, summer and sport uniforms), school shoes and all clothing and accessories for the children’s extra-curricular activities are returned to the other parent at the conclusion of that parent’s time with the children.
That each parent is restrained from discussing these proceedings in the presence or hearing of the children.
That neither parent denigrate the other parent or any other future partner, family members or friends whilst in the presence or hearing of the children or allow, with their knowledge, a third party to do so.
That each parent is to advise the other of their current address from time to time, telephone number and each nominated email address.
That each parent provide to the other within 7 days of any proposed travel interstate (not including the Australian Capital Territory), and provide a detailed itinerary including but not limited to addresses and contact numbers, and copies of any flight details, if applicable.
That in the event that either parent wishes to travel overseas with the children the following will occur:
(a)The parent wishing to travel will provide the other parent with four weeks’ notice of any proposed travel in writing;
(b)The parent wishing to travel will provide an itemised itinerary of the proposed travel, such itinerary to include all necessary contact details as well as a copy of the airflight details;
(c) The other parent will not deny any reasonable request to travel;
(d)The mother will retain the children’s passports and upon any travel by the father the mother provide the children’s passports to the father and the father shall return the children’s passports to the mother within 7 days of returning from such travel.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these Orders.
PROPERTY
That within three months of the date of these orders the father shall pay to the mother the sum of $838,025.
That upon payment of the sum in Order 29, the mother shall sign all documents required to transfer to the father her right, title and interest in the property at B Street, Suburb C being the property in folio identifier …/… (“Suburb C”).
That in the event that the father does not pay the whole of the sum in Order 29 by the due date, then the parties shall each do all things required to sell Suburb C and to distribute the net proceeds of the sale, after discharge of the mortgage and payment of costs of sale, in the following manner and priority.
(a)in payment to the mother of the sum of $838,025 together with interest thereon from the due date until the date of payment at the rate prescribed by the Family Law Rules 2004;
(b) in payment of the balance to the father.
That the parties cause the sum of $85,279 (plus any accrued interest) held in NAB account #...18 to be paid as to 60 per cent to the mother and 40 per cent to the father.
That other than as provided in these orders, each party is solely entitled to any asset in his or her possession.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keefe & Thacker has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 459 of 2017
| Ms Keefe |
Applicant
And
| Mr Thacker |
Respondent
REASONS FOR JUDGMENT
Ms Keefe (“the mother”) and Mr Thacker (“the father”) commenced co-habitation in June 2009. They physically separated in October or November 2016. After separation, the father remained in the jointly owned home in Sydney and the mother lived in rented accommodation.
They have two children, X aged nine and Y aged eight.
The proceedings before the Court relate to competing applications in relation to the parenting arrangements for the children and to the distribution of their property.
THE TRIAL
This matter had been listed for hearing for four days commencing 19 August 2019. The parties were not ready and those dates were vacated.
On 19 November 2019 directions were made permitting each party to file a short updating affidavit in relation to parenting matters.
The mother relied on two affidavits sworn by her, her trial affidavit sworn 30 November 2018 and an updating affidavit sworn 25 November 2019. She swore a Financial Statement on 25 November 2019.
The father relied on an affidavit sworn by him on 14 December 2018 and a Financial Statement sworn on 2 December 2019. He did not file an updating affidavit although he was permitted to do so.
PARENTING
The mother seeks sole parental responsibility for the children and orders which permit her to live with the children in D Town. She proposes that the children spend alternate weekends with the father. She proposes that, in the event that the father is not available on a scheduled weekend, because he is working, she will nominate an alternate weekend when, according to his roster, he is available. The mother proposes that the children live with the father for half of all school holiday periods, in seven day blocks until Y is 12. She proposes time on special days.
The mother’s proposal remains the same if she remains in Sydney.
The father opposes the relocation to D Town. He seeks equal shared parental responsibility and time with the children for up to 15 nights in each month, not exceeding seven nights at a time.
In essence, the father proposes that the children live with him for approximately half of the time, subject to his availability to care for them, which is determined by his work roster.
The issue of the roster, and the father’s insistence that the arrangements for the children, and thus the whole family, be made to suit his roster, have been the central issue of discontent since shortly after the parents separated and throughout these proceedings.
The father is an airline pilot and his roster is subject to a complex bidding system where he can ask for particular days or periods of time off, but has no guarantee that he will be successful. His roster is issued about seven days before the commencement of each 28 day roster period. The roster period starts on the Monday of the first week of the roster period so that, for example, the roster for December 2019 starts on Monday 2 December 2019. The roster for October 2019 started on Monday 7 October. Rosters appear to cover a four week period.
The issue of the provision of the roster was significant in the proceedings. The father drew a distinction between the “roster” which is the document that is provided by the airline that shows flight numbers, destinations and flight times and the “calendar” which he prepares that simply colours in blue the days when he is not working.
The mother said that the provision of the roster would assist her because she would know, for example, if the father had an afternoon flight and could take the children to school before he left for work.
The father in cross-examination said that he objected to the provision of the roster because the mother might telephone with a bomb threat to a flight he was piloting, or she might “plant” a passenger on a flight who would shout remarks about him. That evidence needs only to be articulated to demonstrate its absurdity.
The situation in relation to holidays is different. The holiday schedule issues at the beginning of each year and the father knows in March when he can take holidays for the whole year. It appears that he seldom has allocated holidays during school holidays. He expects the mother to make arrangements for the care of the children when he is working during school holiday periods.
The mother complains that the father does not provide her with his roster when he receives it and simply messages her on an ad hoc basis saying he will have the children, giving her little notice and, on occasions, collecting the children from school before telling her he intends them to be with him for a period of time. She gave evidence that, on occasions, he has retained the children and refused to return them, on one occasion for as long as three weeks.
The mother’s case is that the children need certainty and stability and routine and that can only be provided by a regime of alternate weekend time which the father can exercise if he is not working.
The father’s case is that the children want and need the maximum of time with him that he can provide, subject to his roster.
It is clear on the evidence that the attempts by the parents to negotiate a shared care arrangement, structured around the father’s roster, have been little short of calamitous and have given rise to a high level of hostility and conflict.
Although the father, in both his affidavit evidence and in cross-examination, attempted to blame the mother entirely for the failure of their negotiations, and suggested that she was deliberately withholding the children from him, it is apparent from the record of their communications that she made great effort to ensure that the children spent time with their father and was conscious of the fact that they wanted to see him.
The parents’ negotiations about the Easter 2017 school holidays, which commenced on Saturday 8 April and ended on Sunday 23 April, are a good illustration of their unsuccessful attempts to arrange a mutually acceptable regime for the children.
On 29 March 2017 the mother sent an email to the father stating:
My proposal for April is as follows as you can’t seem to agree or disagree on anything else that has been put forward.
You pick up Thursday 30th after school
I will pick them up after school the following Thursday 6th April
I will keep them for the first week of the holidays until Sunday 16th at 12pm I will hand them over to you at [E Park]
You will keep them for the second week of the school holidays and return them to me via [E Park] on 3pm on Sunday 23rd
After that I’m guessing your roster will be out and you will be back at work?
Let me know what you think about that
On 30 March 2017 at 9:36am the father sent an email to the mother stating:
As discussed, my availability does not allow me to comply with your plan exactly. In keeping with your proposal as close as possible, I propose:-
I pick the children up from school 30 March 2017
You pick the children up from school 31 March 2017
I pick the children up from [E Park] 3pm 9 April 2017
You pick the children up 3pm from [E Park] 3pm 23 April …
The father’s proposal would have seen the children with him for the whole of the school holiday period.
On 30 March 2017 at 12:12pm the mother responded:
You can have the children tonight and you should have them over the weekend as you have not much weekend time with them. I am unsure as to why you want them for 1 night.
I do not agree with the school holidays been [sic] spent entirely with you. The children do not want to be away me [sic] for 14 nights. How do you think I can organise any time off or plan any holiday activities when you will not agree nor disagree
[the mother then included some information about minor health problems suffered by the children]
So I will drop them off to you at 230. I expect that you will just allow the children to enter the house and I will leave without the need to talk to you. If you have any questions email or text me.
I will pick them up from school tomorrow pm.
I don’t agree that you have them for the whole 2 weeks
I feel that the proposal I put forward with no idea of your “excellent” availability as you haven’t forwarded it to me as you have said in the previous email, was a fair and equitable one.
The father responded:
This is all just so crazy. We are all suffering. Whatever is happening at your place is badly affecting the children’s health. Lawyers are milking our wealth but only one of us realises it. The only time anything really gets done is when we arrange it ourselves. I want to help you but you won’t let me. You trust that your lawyer will help you more than me. Their job thrives on conflict, ideally all the way to trial in two years. There is a due process, then we just cut a deal. By which time I have nothing to help you with and the lawyers will stop giving you those big comforting hugs (like at the court house) and move on to the next torn family and desperate mother.
Can’t lose - lawyers
Can’t win - us
I won’t be going to mediation until you recognise the children have two equal parents. I won’t ever agree on your rolling 9/5 plan you expressed to me so let’s not waste each other’s time and money.
Parents at school have been telling me the backbone of your story and real orders sought and that will never happen either. I strongly suggest you stop talking about me and our situation around the school. It is not nice and no one will benefit. I saw you pointing at me and sniggering with other parents yesterday and I please ask that you show some maturity on this issue. Please stop!
I hope that you will find a way to stop this fire from burning before we pass the point of return. Your lawyer will never give you this advice, it is not in her best interest! But it is in ours.
I am desperate to spend time with the kids this afternoon and miss them so much. I am happy to pick them up from your place at 3pm if you wish.
Following that you will pick them up from school tomorrow if I assess them as capable of attending based on your list of medical issues.
After that I will collect the children from [E Park] 3pm 9 April 2017.
On 30 March 2017 at 1:15pm the mother emailed to the father stating:
I do not agree to your arrangements for the holidays. I want one week with them preferably the first week as outlined in my proposal of yesterday’s date.
The children will be absolutely fine to go to school tomorrow.
I need to be somewhere at 3 so therefore request that I drop them off at 230-245. If that time better suits.
On 9 April 2017 at 8:20am the mother emailed the father:
You may recall that I actually said in my email that I did NOT agree to you having the children for the entire holidays. It is not fair to me nor the children. The children have never been away from me for that long ever in their entire lives, and at their age I don’t think it is appropriate or in their best interests.
The proposal I have put forward to you would be most enjoyable for the children.
If you have suggestions on any other way we can share the Easter holidays I would like you to put them forward.
I have actually offered you to have the children over the last week which you declined. So do not say I have withheld them from you in that time.
You have been uncontactable over the last week. If you were I’m sure you would have replied when Y lost her tooth.
I am not comfortable with you talking to them today as historically you speak to them inappropriately and would cause them undue stress.
Make a fair and equitable arrangement with me so that we can have some certainty and I will freely allow them to talk to you.If we cannot reach agreement, I again urge you to contact [the lawyer] on Monday and we can try to get something sorted as soon as possible
At 11:42 the father replied:
I smell a rat and am once again concerned for the welfare of the children. Not allowing them to talk to their father is very suspicious. Please let me speak with them, I need to know where they are and if they are ok.
Please handover the children over today as arranged and discussed. I have arranged for them to see their grandparents and cousins and organised fun activities for them.
On April 9 2017 at 7:42pm the mother sent an email to the father stating:
I’m not trying to keep them away from you… I have not yet seen one counter proposal from you to compromise and share the holidays equally.
I would have been willing to take the second week of the holidays but am very sure that you would not return them.
I have come up with at least two proposals but you are only willing to accept your one and only proposal. I have actually been trying to engage you in this discussion of holidays for weeks prior to their commencement as can be shown by my previous emails.
…
Of course I want you to spend time with them so if you are willing to compromise I want to hear your thoughts.
I do not want to deny the children the opportunity to see their cousins etc on your side. But they also have the opportunity to seek cousins on my side. If you were heading to Canberra for Easter then we could organise to meet there on Sunday. Let me know what you are planning maybe we can work together to make this a bit easier.
There was no response to the email and the mother emailed the father on 12 April 2017 stating:
I would like you to confirm with me that you are going to take the children on Sunday the 16th at 12pm. I would like you to confirm also where this may take place. If you are going to Canberra to be with your family for Easter I could meet you there. Otherwise they will meet you at [E Park].
I also want you to confirm with me that I will pick them up after the first day of school which is the 26th April. This allows you 10 days with them.
At 3:39pm on April 14 the father responded:
I wish to confirm with you that on April 9 you have once again broken a written agreement for the children to be with their father. I have informed you on multiple occasions, I had made plans for the children to be with their family and enjoy activities over their holiday break. But you continue to unilaterally make and break plans throws the children and myself into complete disarray.
You have ceased to allow me to speak to my children over the telephone. The children have expressed a feeling of being held hostage by you. Their medical condition is deteriorating under your regime and I have serious doubts over your ability to care for them. As such I will be seeking an order of the court to have all these issues rectified as soon as possible.
As you have dismantled all lines of communication between the children and their father, I require of you to report to me immediately with a statement of the children’s physical and medical condition.
You continue to place random and increasingly difficult demands on me. You now express a preference to hand the children to me in Canberra when we live in Sydney. This cannot continue. In the interests of returning the children to my care, I will accept your unusual proposal on this one occasion, whereby I will receive the children at 12pm Friday 21 April 2017 at Suburb F shops [Canberra]. Please bring the children’s school bags with you.
What can be seen from this exchange is the inability of the father to negotiate and his assumption that his proposal is a concluded agreement.
The father then made a proposal for the period 27 April 2017 to 19 May 2017 and the email continued:
It is very difficult for me to allow you such extensive time with the children while you are unsupervised. I have had to contact police and the school to conduct welfare checks on the children when I am deeply concerned for their condition and safety.
You contend that you have been receiving ongoing counselling and therapeutic care regarding your mental condition. My lawyer and I continue to make repeated requests to view such reports of your psychiatric condition which you continue to ignore. I cannot safely ascertain how much time we should allow you to be with the children until we are able to make a thorough assessment.
There are many other deep concerns that I have with you spending time with the children that will soon be brought to attention of the court. Once all these issues have been dealt with, I am hopeful that we can settle on a more permanent solution as to how we spend time in the interests of the children.
It is difficult to understand the father’s assertion that the mother has broken a written agreement about how the children would spend their time. Clearly, there was no agreement.
The result of that correspondence was that the children did not see their father over the Easter school holidays. He went on a cruise. He did not explain why he was unable to care for the children for a week of the holidays.
In August 2017 the father sent an email to the mother’s solicitors stating, inter alia:
The children’s routine going forward will be extremely stable as they return to their home at Suburb C and will sleep here 20 nights out of each 28 days as my availability permits. I will notify [the mother] of the 8 nights that the children are to be with her well in advance and the children will also be notified by marking their calendars with which they are completely familiar and able to understand.
Over the Christmas period in 2017 it was agreed that the children would be with the father. He collected them on 22 December and took them to Queensland where his mother and sister live. The mother understood that they would return to her care on 26 December 2017 so that they could go on a camping holiday with her family. The mother deposed that the father was rostered to work from 26 December until 30 January and that the holiday arrangements had been made around his roster. The mother had taken leave to care for the children from 26 December.
The mother spoke to X on the telephone on 24 December and X told her “Mum we are thinking about staying here with the cousins, we don’t want to go the dam, we might get sick, like an ear infection or something.” The mother told X that he was coming home. The father then spoke to the mother and said:
Don’t talk to the children about plans and given [sic] them false information. You never put in writing that you would return the children on the 30th, so I’m keeping them here. You don’t have the right to control everything...
The mother called the children on Christmas Eve, Christmas Day and Boxing Day. In one of those conversations, the father intervened and said to the children, in the mother’s hearing:
Tell mummy you are having a fantastic holiday, a wonderful childhood, and don’t let anyone especially you know who tell you otherwise.
In cross-examination, the father said that the reference to “you know who” was a reference to the mother’s solicitor and that he believed that the solicitor was talking to the children. I do not accept that evidence. It was clearly untrue. The reference was to the mother.
The father worked between 26 and 30 December 2017 and the children were cared for by his family.
They were eventually returned to the mother’s care on 8 January 2018.
The children spent Christmas 2018 with the mother.
On 26 December 2018 the mother texted the father saying:
The children have been trying to call you yesterday (Xmas day) and today with no success. I would like you to confirm that you will receive the children on New Year’s Eve at 4 pm. Please let me know if you might like them a bit earlier if you plan to travel. I need to know within the next 24 hrs as we will be out of service for the most part of the next 4 days. Please try call the children if you can.
There was no response.
On 31 December 2018 the mother texted the father:
We are back in service and I have noticed that you have not attempted any contact regarding your new roster nor your confirmation of taking the children today, New Year’s Eve. Please confirm with me as a matter of urgency your willingness to spend time with the children.
There was no response.
On 5 January 2019 the mother emailed the father:
Are you planning on spending any time with the children during the holidays? Maybe you could forward your availability so we can work out some time.
On 6 January the mother texted the father asking him to call X.
There was no response.
On 8 January 2019 the mother emailed the father:
If you don’t get back to me regarding the children, I can only assume you hold no interest. The children would love to see you. If I haven’t heard from you within the next 48 hrs I will be forced into organising care for the children for next week as I have to return to work.
Please provide your availability as I will be reluctant to handover the children without a clear plan in place as to when they will return.
I will not continue to approach you in regards to the children.
There was no response.
On 9 January 2019 the father sent an email to the mother’s solicitor:
Please confirm that your client is willing to hand X and Y to me at 9am 12 January 2019. I propose to return the children to your client 5pm 16 January 2019.
On 11 January the mother sent a text to the father:
I understand you want to take the children tomorrow? What time? And when will they return to me? Please provide your work/availability so we can formulate a care plan for the children for the remainder of the holidays.
The mother sent a further text:
You have had your new roster now since about Xmas day. What is your impediment to formulating a care plan for the children? It would take you two minutes to respond to my repeated requests regarding tomorrow. I need to book vacation care and organise myself and the children for the rest of the holidays if you can’t find the time to parent. Please, the children want to see you, please respond.
On 12 January at 9:18 am the mother texted:
I can drop the children at E Park at about 1030 today if you like. Please respond urgently. Please let me know when the children will be returning so as I can make arrangements… You can see your children… you can spend some time with your children… all this time away from them has been of your own volition. Let me know what time you would be able to collect them and when they will return to me and we can get this sorted. Simples!!
On 14 January 2019 the father sent an email to the mother’s solicitors stating:
I refer you to my letter dated 9 January 2019 and confirm that I have not yet received a response.
Please advise if [the mother] is willing to take X and Y at 5pm Wednesday 16 January 2019 as discussed. I then propose to resume care of the children at 5pm Friday 18 January 2018 noting that [the mother] is required to work and cannot care for the children herself…
On 14 January 2019 the mother sent an email to the father stating:
I cannot urge you enough to stop using my solicitors to make small day by day care arrangements for the children, this is costing us and will continue to cost us, as long as you continue to use this form of communication, instead of communication with me directly.
I have emailed and text you and tried to engage you in discussions relating to the children’s care throughout the holidays since the 18th November. You refused to discuss at all with me in any form the care of the children. You sent me a text message on the 6th December that the children should remain with me until further notice. That advice came on 18th December whereby “we” demanded the children the following day and were very threatening and aggressive. You then refused to provide me with any reassurance the children would return to me for christmas. The behaviour demonstrated by you towards me and the children in 2017 was unacceptable and I certainly was not going to let us be treated like that again.
You then have failed to communicate with me after repeated attempts by myself by text message and email to again engage you in discussion related to the time with the children, and these can be produced as evidence, if required, but you have failed on every level to respond to me. Your communication with the children has been encouraged, in fact I believe we tried to call you twice on xmas day as you seemed too busy to call them. We again called you on Boxing day, and the following day, we left you voice and text messages also to let you know what we were doing and that we had tried to call you.
I sent you messages asking you if would accept the children on New Years Eve, I even asked if you would like them earlier than 4pm if you had plans to travel anywhere, but you never responded. We came back to Sydney in time to facilitate the handover but you never responded. The children, having not heard from you since about 22 December, wanted to call you on the 2nd January. Which they did, you were in Queensland and you said to them you wished they were there, and I couldn’t work out why they weren’t.
You then spoke to the children on the 6th January, you were in Western Australia I believe, and you spoke at length with X. You then spoke to the children again on Thursday night the 10th January, when you were still in Western Australia. All of this I can produce evidence of if required. Please don’t say that I have cut off your communication with the children. I have been the one ensuring the children have been able to call you when they hadn’t heard from you for so long…
Now as far as handover on Wednesday the 16th January, I am attending a course, it is due to finish at 1630, I don’t believe I will make it to the park until 6pm at the latest. So I ask you if we can meet then at E Park at 6pm.
There was no response. The children were not returned to the mother on 16 January.
On 18 January 2019 the mother sent an email:
It is noted that you failed to return the children to me on Wednesday afternoon after your letters dated 9th and 12th January requesting such and my reply which agreed to your request.
I would like to know when the children will be returning to me. I would ask that they return on Friday 25th at the latest.
On 18 January 2019 the father sent an email to the mother’s solicitors stating:
Is your client going to agree on a method of care for our children? In the alternate I am forced to take action in court.
Please respond by close of business today.
The solicitors responded:
We note our client has attempted to engage with you directly regarding the day to day care of the children, including their proposed time with each parent, and to date no agreement has been reached. We are instructed by our client that you have advised her that you will not engage with her directly and that you have no legal obligation to do so. We again urge you reconsider such approach and to discuss with our client directly the care arrangements of the children.
…
Please confirm your proposal regarding the reminder of the school holidays and your proposal for the time the children spend with each parent upon the commencement of Term 1 2019.
On 24 January 2019 the mother sent a message to the father stating:
I would like the children to return to me tomorrow, Friday the 25th January, noting you have had them in your care since 12th January.
The father did not respond to the mother but sent an email to her solicitors stating:
… we note that [the mother] retained X and Y from 3 December 2018 through to 12 January 2019 and refused my contact with the children in this time.
Particularly in circumstances where [the mother] remains increasingly concerned by the ever depleting pool of funds, I am certain that you will see the need to advise your client of the need to make arrangements rather than demands as the best way to finalise our separation.
Despite the above, if [the mother] insists on changing our parenting arrangement before it has begun, she is welcome to collect the children from the Tram Station tomorrow. Please advise the time that your client will collect.
If [the mother] declines to comply with the proposed amendment then I kindly ask that she leave me and the children in peace. Such whimsical demands are selfish and dictatorial and made with the intent to disrupt the children’s enjoyable school holidays in Queensland with me and their family…
(Emphasis in the original)
The father, from time to time, insisted on corresponding with the mother through her solicitors, despite the fact that both she and they asked him to communicate directly with her about arrangements for the children and despite the fact that he was aware that the mother was being charged legal fees.
On 13 February 2019 the mother sent the father a text stating:
I have sent you an email 12/2 regarding time and the interim care arrangements you have discussed with my solicitors. I have asked you to respond to me directly in regards to that. Please do so immediately.
I did not see any missed calls from you on Monday the 11th whereby you have accused me of not allowing the children to speak to you. The children did try to call you last night 12th but there was no answer and I did not see that you have tried to call back. Please refer to my email dated 12th Feb for my response to your request.
The father did not respond.
On 14 February 2019 the mother sent another text:
I am unsure as to why there is a lack of response to the interim care arrangement I have given to you on a clean piece of paper just like you asked and appeared to agree with last week. Please refer to my email sent to you on the 12th Feb for my care proposal to get us through into a final hearing.
I am happy to drop the children off this afternoon if you want, as a compromise. Are you working from next Wednesday?
Are you able to enter this weekabout care arrangement you seemed so keen on just last week? I am not interested in making short term arrangements with you.
You cannot continue to communicate via my lawyers as this is an added unnecessary cost to us both and I thought we had come to some sort of compromise, so I am confused by your aggressive responses sent to [my lawyers]. Please respond and let me know if you are willing to collect the children from E Park at 5pm… Are you going to accept the children if I bring them to Wonder?? Do you want me to bring them to yours? Will you be at home? Let me know what you would like to do. I will collect the children on Wednesday after school. Please work with me on this the kids want to see you.
The father responded to the mother’s solicitors:
I refer to prior correspondence this week and confirm I asked for X and Y to return to my care yesterday.
Needless to say that did not happen.
It is not right that you encourage [the mother] to run her own agenda for the children. It is for that reason that I need the court to make an interim order to afford some fair paternal time without all the resentful acrimony and histrionics your client displays.
I request that you consult with your client and confirm whether [the mother] will allow me to care for the children today. I will then look after the children until Wednesday 20 February 2019 when I shall return them to school. [The mother] will collect the children from school as I am required to work Wednesday.
Let’s see if we can make an agreement on this, the most rudimentary element of any parenting matter.
I look forward to your urgent response.
The solicitors responded:
We confirm that our client emailed you directly on 12 February 2019 with respect to parenting arrangements for the children. Our client then sent you a text message on 13 February 2019 when she did not receive a reply to her email. We are instructed that you have not responded to either her email or her text message.
As noted in prior correspondence, our client has instructed us that she intends to correspond with you directly with respect to the arrangements for the children. As such, our client looks forward to receiving your reply, direct to her, regarding the children.
The father replied to that email:
Leaving [the mother] in charge of parenting arrangements is like leaving the children in charge of the candy shop.
If [the mother] and I could resolve the parenting plan between us we would not be in court. As such, please advise if the children will return to me today. If not today, then when?...
It is difficult to discern, in the father’s correspondence, a genuine attempt to come to any arrangement with the mother.
There was a further attempt to make an arrangement in April 2019.
On 6 April 2019 at 12:49 the mother emailed:
Can you please provide me with your availability/roster so we can work out some time with the children. I’m completely unsure as to why I should even have to ask you for this.
School holidays commence at the end of next week and Easter is in the middle of holidays. The children spent Easter with you last year.
I would like the children to spen [sic] Easter weekend with me so we can go away for the weekend.
We need to sort this out as soon as possible so as plans can be put in place and our time organised…
On 6 April 2019 at 1:47pm the father emailed:
I though you’re happy to mediate?
In the past when I have provided my availability, you have paid no respect to it with regards to childcare. Rather, you tell me to change my availability and put the children first. With that in mind, please advise why you continue to ask for my roster.
If you think we have some solution here, put it to me and we will formulate consent orders.
I have tried and tried and tried to resolve something with you but you deliberately make it impossible.
…
The email concluded:
I feel so sorry for you that you only want to talk about this with your lawyer and have nothing to do with your children’s father.
On 6 April 2019 at 1:54 the mother emailed the father:
So how do you expect to put care arrangements In place with me moving into the future, if I have no idea what your work commitments are? Or if you are unwilling to roster yourself around the children’s routine? You do not make any sense.
I’m only willing to mediate if you have legal representation, I’m not willing to have the same discussions with you that get us nowhere. It is a waste of time and money.
You cannot have a reasonable discussion with someone who is hell bent on being unreasonable.
Can you send me a proposal for care that you are comfortable with? One that does not involve us having a decision that goes nowhere every month, because you are unwilling to divulge your work roster.
On 6 April 2019 at 6:51 the father emailed the mother:
Read my orders sought for my proposal.
You have subpoenaed my workplace twice so far. Read the EBA [Enterprise Bargaining Agreement]. I don’t get to “roster myself.”
I do have 20 out of 28 days minimum, totally free from duties. I have ample leave and other benefits as well.
You tell me how you want to work it and why you keep asking for my roster.
In cross-examination, the father said that the proposal to which he was referring was that contained in his Application in a Case filed 7 February 2019 in which he sought, inter alia, orders requiring him to provide his roster.
On 7 April 2019 the mother sent an email to the father stating:
We cannot agree on a permanent care arrangement for our children. If we could we wouldn’t be in court. You refused to provide any stability, predictability and certainty for the children. You are always blaming your roster. I do not agree that your proposal is anywhere near the children [sic] best interests…
For the past two years I have had the children 60% of the time. Please look over your calendar. My proposal to you for a 9/5 routine which equates exactly to the same time over the year, 60/40 split, provides the children with the routine they need and deserve…
I know your roster will sometimes not accommodate this routine strictly, and I will allow a degree of flexibility, but it requires me knowing your roster. And there has to be a limit to that flex, for the children’s sake.
So I offer you the 9/5, where by the children will spend 5 nights per fortnight with you. Thursday thru to Tuesday and we share school holidays.
If you really want the children and I to remain in Sydney, then you are going the wrong way about it.
You should be looking at making this work both for the children and for ourselves, and it also needs to be financially viable for the both of us.
I do not really see how we can get by without knowing your work hours. Something needs to be in place first so that we can adapt it from there. You are extremely lucky I am not working shifts, and a roster.
The children need stable consistent time with you, not what is happening now, with such prolonged periods of separation that is completely unnecessary.
The children deserve much better than this.
Are you able to commence the 9/5 routine from Thursday the 11th April, I would prefer to hand them over to you at E Park at 1530. As it is school holidays from the 12th, you could keep them in your care until the following Friday the 19th April 9am handover E Park.
I need to sort out how I will manage over the school holidays if you refuse to take the children. I know they would love to spend some time with young [sic] possibly go to QLD.
On 8 April 2019 the father responded:
I will not be able to comply with the 9/5 routine, ever.
Are you open to all of us moving to Queensland where I have substantial family support?
If you insist on your application to relocate to D Town and selling [Suburb C] and become successful (which I cannot envisage) I will be asking the court to grant my application to relocate to Queensland.
I believe the court will see that there are many substantial advantages of us moving to Queensland as compared to you going with the children on your own…
In cross-examination, the father said that this exchange may have been lacking in sincerity on his part.
The last time that the father provided the mother with a calendar showing his available days was for the April/May 2019 roster period. In cross-examination he said that he didn’t provide the calendar because the mother ignored it.
In early May 2019 the father suffered an eye problem and was unable to work. The mother agreed to his having the children on a week about basis which was continuing up to the July school holidays. The holidays started on Saturday 6 July and ended on Sunday 21 July. I assume that Monday 22 July was a pupil free day.
The children went to the father’s care on 1 July.
On 3 July 2019 the mother’s solicitors sent an email to the father’s solicitors (he now being represented) stating:
So as to ensure that there is appropriate arrangements in place for the care of the children pending the final hearing, and noting your client’s requests to have a weekabout arrangement for the children (which our client does not concede is in the best interests of the children on a long term basis) we are instructed to propose the following:
·that the children be in your client’s care from 2 July 2019 (being yesterday) until 3.00pm on 12 July 2019. In respect of this, we are instructed that our client has advised your client that she has made arrangements to take the children camping in the second week of the school holiday period with friends and family and accordingly proposes that the children be in your client’s care for a period of 10 days, which includes the first week of the school holiday period and thereafter, be in her care for a period of 10 days.
·that the children be in our client’s care from 3.00pm on 12 July 2019 to before school on 22 July 2019 (noting that the children return to school on that date)…
There after the mother proposed a continuation of the week about arrangement.
On 8 July 2019 the mother texted the father:
It would be greatly appreciated if you could clarify with me when the children will return to my care. I have made it abundantly clear to you my compromise to your request for week about. As you are on sick leave at the moment you are the one who can make the compromises happen, whereas in the past it has always been me. I understand that you [sic] new nephew has been born and this week with the children would provide you with an opportunity to meet the baby.
I as you know need the children back by 3 pm Friday the 12th, so as we can embark on our little adventure. I know Y really wants to go to Z’s birthday party. Would you be able to drop her off there slightly earlier and I will collect her from there at the last minute to give her some time. Please work with me on this… If you are not available I’m happy to take them but I need to know before 930 tomorrow morning so as I can arrange care for them for the rest of the week. Thanks. I look forward to hearing from you soon.
The father did not respond.
On 9 July 2019 the mother texted to the father:
I take it from your lack of response that you will hand the children over to me on Friday. I will pick X up from yours if you like and Y from Z’s. Does that sound ok for you? Please let me know. It would be most beneficial to the children if they knew what was happening and also me so that I can plan my time. The children were really looking forward to this trip with me.
The father did not respond.
On 10 July 2019 the mother’s solicitors wrote to the father’s solicitors indicating that the children had been in the father’s care since 1 July 2019 and asking for confirmation that they would be returned to the mother on 12 July 2019. The solicitors stated:
We are instructed that our client contacted the children on 9 July 2019 and had a conversation with your client. During this conversation your client sought particulars in relation to the arrangements that our client had made in relation to her camping holiday and we are instructed that the information requested by your client was provided. However during the course of the conversation your client advised our client that the children would not be going camping with her and he would not be returning them into her care. He thereafter indicated that he was travelling with the children to Canberra today (being 10 July 2019) and thereafter would be travelling with them to Queensland. Your client gave no indication as to when the children would be returned to our client’s care.
On 10 July 2019 the father’s solicitors responded saying:
...Further, we are instructed that in accordance with the week about arrangement that the parties have been facilitating for the past 6 weeks, this week was to be the week that the children were to be with your client. As such, our client arranged several medical appointments for this week. Next week, being his week of the school holidays, our client made plans with his family to travel to Canberra and then on to Queensland.
As your client was required to work this week and had no alternative but to put the children into vacation care, our client offered to take the children for your client. Our client, at no time, made such a proposal on the basis that he would be giving up the second week of the holidays. Your client was aware of our client’s plan to take the children to Queensland to meet a new member of the family.
As would be the usual routine, our client will return the children to your client at 3 pm on Monday 22 July 2019 and thereafter to continue with the week about arrangement…
The children remained with the father and did not spend time with the mother over the July school holiday. The mother went camping with friends.
On 22 July 2019 the mother texted the father:
We have had a minor delay and it looks I won’t be home until 4pm. If this causes any problem for you please let me know as soon as possible so I can organise an alternative handover solution. Otherwise please confirm you are happy to drop off at 4pm. I am happy to come and collect them from Suburb C as an option. Thanks for your cooperation.
About an hour and half later the mother sent another text:
Looks like we will be home by 330pm. Are you able to confirm you have received this message and you are able to delay the hand over 30 minutes. Thankyou.
The father responded:
Sounds like you need some time to recover. Would you prefer that I prepare the children to return to school.
The mother replied:
No… I wouldn’t. I would prefer if X and Y were returned to me. I will come and collect them if it is too much trouble for you. Thanks
The father responded:
You’re welcome.
The mother replied:
Your [sic] welcome? I am unclear as to what that means. Please confirm if you will drop the children of to my home.
The father replied:
You broke the arrangement our lawyers made two weeks ago. As to why, I don’t know. Your call from the pub last night said you would be there to accept the children. When your your [sic] rock festival party fortnight is over and if you feel well enough to take the kids, give me a call and we can make a new arrangement. If you are too tired, sick or just need to recover, I can prepare and take the kids to school. X says he’d prefer to stay here. We will fit around you… That’s why I say you’re welcome to your sincere thanks.
In cross-examination the father said that his reference to the mother having “broken” the arrangement “our lawyers made two weeks ago” was a reference to the fact that she was not available to take the care of the children at 3pm.
The mother replied:
I will pick the children up when I get back. I will see you at Suburb C at 330pm.
The father responded:
No more texting. Give me a call later and keep it between layers [sic] please and thank you.
The mother arrived at the Suburb C property at 3:30pm and rang the doorbell. The father didn’t answer. She telephoned and spoke to the father. The father refused to return the children. The mother said:
… if you don’t bring the children down, I will have to call the police, you have kept them from me for three weeks, I want the children back.
And the father replied:
Go on then, call the police.
The children eventually came downs stairs and got in the mother’s car.
In cross-examination, the father said that he had withheld the children from the mother because she had broken their week about arrangement, I infer, by proposing a different arrangement for the school holidays.
The father retained the children for three consecutive weeks.
The father was well aware that he had leave due in November but he did not tell the mother in advance. Rather he notified her shortly before leaving the country that he would not be seeing the children for the next few weeks.
On 17 November 2019 the mother sent an email to the father stating:
The school holidays are fast approaching and I need to be able to sort our leave to care for the children. Can you please give me an idea as to what your availability is like for the holidays.
It is your turn to have the children for Christmas this year, and me new year.
Please let me know your plans within the next 7 days otherwise I will have to go ahead and make appropriate arrangements so as I can provide care and supervision for the children over the 6 week school holiday period.
The father responded on 18 November 2019:
As you know, it’s unknown and will remain that way for the next 7 days before your demand expires! When you’re ready to cooperate on a method of care that works for all of us (including the children) rather than independently suiting yourself, let me know.
The father received his roster for the period covering December 2019 on 25 November 2019. He did not provide the mother with a copy of the roster or tell her what his availability was to care for the children. In cross-examination he said that he was overseas on holidays and had difficulty getting access to the roster.
The roster was only made available when I asked the father to provide it when the hearing commenced on the second day.
It is clear from the narrative of their attempts to negotiate the arrangements for the children that leaving to the parents to agree on the arrangements is futile.
That it is necessary to prescribe a regime with no flexibility or need for compromise is confirmed by the evidence of Dr J to which reference is made later in these reasons.
THE MOTHER’S PROPOSAL TO MOVE TO D TOWN
The parties agreed that the travel time between Suburb C and D Town is about two hours by car. It is also possible to fly between Sydney and Canberra but there was no evidence that this would reduce the overall travel time.
The children will have to travel for four hours on each weekend they spend time with their father.
The most obvious consequence of the move to D Town is that the children would not be able to spend time with the father other than on weekends, whereas they now have the ability to spend time with him during the week and for extended weekends.
The benefits to the mother of moving to D Town are enunciated in her trial affidavit where she deposed:
I have no family in Sydney and no support network. My father and sister ...both reside in the D Town area. Both of them are settled in the D Town area and enjoy a wonderful relationship with the children.
There is no evidence about where the mother’s father and sister actually live or what practical support they would be able to provide.
What practical support is required is also not clear.
The mother currently works during school hours and she deposed:
I would like to continue to work school hours so I can continue to be there as much as possible for the children. I want to be present for the children in the morning, take them to school and pick them up for [sic] school and be there for them in the afternoon.
Her current position fulfils those criteria.
I accept, and it was not disputed, that the mother could buy a house in D Town more cheaply than she can buy in the Suburb S area where she presently rents. However, if the mother were to buy in Suburb T or Suburb U, as she said in cross-examination, the children would still be able to spend time with their father during school weeks and over extended weekends.
The significant difficulty with the mother’s proposal to move to D Town is the restriction of the father’s time with them. If he is rostered to work on a scheduled alternate weekend, he may not be available on the next weekend and may only see them on one weekend for that roster period. There is no possibility of making up for the missed weekend during the week.
While the mother suggested that the father could put forward an alternate weekend should he be rostered to work on his weekend, this would require negotiation and good faith between the parties. There has been no evidence so far that the parents are capable of such communication when it comes to time with the children.
THE FATHER’S DRUG USE
The significance of this issue is not that the mother alleges that the father continues to use drugs. She does not.
The significance is the impact of his denials on the mother’s ability to rely on his veracity in her dealings with him about the arrangements for the children. His denials, as explained, are not accepted.
The mother deposed that in about June 2013 when the family were in Queensland and the mother was attending a training course she came home one afternoon and observed that the father and his brother appeared to be under the influence of a substance, with extremely blood shot eyes and laughing inappropriately. The mother deposed that she said to the father “Are you smoking dope? Seriously?! When you’re caring for the kids?” to which he replied “You don’t know what you’re talking about, we haven’t smoked anything”. When the mother continued to question the father he said to her “We were smoking Cherry Pipe, it’s just incense”. The mother understood that the father was referring to synthetic marijuana.
The mother deposed that she said to the father “you can’t do this, you are looking after the kids, promise you won’t do it again” and the father replied “it’s nothing, it’s just incense, it’s fine. You don’t know what you’re talking about, it’s cherry pipe”.
The mother deposed that the next day she arrived home to the same situation. She collected the children and took them back to Sydney without the father.
The mother deposed that she observed the aftermath of the father using marijuana intermittently after 2013, most often when he had been visiting a friend. She deposed that on those occasions his eyes were blood shot and she could smell marijuana on him. The mother deposed that the father started to use synthetic marijuana in about May 2016. She deposed that the father when she pleaded with him to stop said to her “I am allowed” and “It’s not illegal”. The mother deposed that she said to the father “It’s just as bad as normal marijuana. Maybe even worse. It’s highly addictive and I have seen you and it affects you negatively”. And the father responded “it’s herbal, you don’t know what you’re talking about”.
She deposed that when the father took synthetic marijuana she observed that he appeared to have red eyes, was slurring in his speech, appeared lethargic on occasions and on other occasions over energetic, would sometimes complain of chest pain and, would be confused and disoriented.
The mother deposed that on 15 October 2016 she was outside the house gardening when she heard yelling and banging coming from the ensuite bathroom of the main bedroom (the bathroom used by the father). She ran upstairs and found the bedroom door was locked. She could here items falling in the bathroom and she kept yelling out to the father to open the door and asking if he was ok. The mother ran downstairs to collect a screwdriver so she could open the door and asked X to collect her phone and bring it to her. She went back upstairs to try and break in but was unsuccessful. The mother deposed:
After about 5 minutes, [the father] opened the door and blocked the doorway so I couldn’t enter into the room. He was flushed but had stopped yelling. His demeanour was strange and I immediately was concerned that he had taken synthetic marijuana again. I pushed my way inside and as I was surveying the bathroom I heard [the father] say to me words to the effect of “I’m sorry I just need to go for a run”. When I looked back I observed that [the father] couldn’t stand still, stepping from one foot to the other. I saw that his face was bright red, his eyes appeared blood shot and he was wiping a runny nose and I also observed him to be covered in a substance which I identified as incense or synthetic marijuana.
At the time X was standing next to me, so I asked him to go downstairs and he did. I had asked X to bring my phone so I could call for help if necessary. I subsequently used it to record what was going on. I recall I looked around the bathroom and I saw that the synthetic marijuana was all over the floor and vanity in the bathroom, and a bag of synthetic marijuana was on the bench almost empty.
The mother told the father that she was going to call an ambulance and he asked her not to.
The mother deposed that she said to the father “You can’t do this shit… It’s no good for the children. I’m leaving with them, they can’t be exposed to this. How dare you do this to me again after the last time.”
The mother deposed that on 27 October 2016 she again heard loud noises coming from the bedroom and tried to get into the bedroom but the door was locked. The children were asleep. She broke into the room by prying the lock. The mother deposed:
When I walked into the bedroom I saw [the father] laying on the floor having what looked to be some kind of seizure and his body was convulsing, however [he] was conscious. I recall he said to me words to the effect of “I don’t know how to make my body move. It’s not doing what I want it to do. I don’t know what is happening. I don’t know how I got here”. I tried to calm [him] down and surveyed the room. I observed an object which I identified as a home-made bong made out of a plastic water bottle and part of a garden hose in a plastic bottle and a mug full of a substance which appeared to be synthetic marijuana. The room was also thick with smoke.
I said to [the father] words to the effect of “I need to call an ambulance” and I recall [the father] again pleaded with me and said words to the effect of “Please don’t call an ambulance” and so I again stayed with him to check his vital signs and observe his behaviour. [He] slowly regained control of his movements and his breathing slowed to a point where I felt comfortable leaving him. I immediately disposed of the drugs and paraphernalia as I was concerned the children would wake up and see it.
The next morning the mother took the children and stayed with her family in D Town for two nights. She deposed that she had a conversation with the father where she said he needed to get professional help and suggested that he see the Cannabis Clinic at G Hospital.
The father in cross-examination denied the suggestion that in June 2013 he had used any substance when caring for the children. He said that his eyes were red because he had been swimming in a pool with high levels of chlorine, and had stayed up late watching cricket. He denied any conversation with the mother which suggested that he had been using any substance.
The father said he had never used synthetic marijuana and did not, until he read the mother’s allegations in the course of these proceedings, know what synthetic marijuana was.
In relation to the incident on 15 October 2016 the father denied that he had been using any substance and said that he had locked the door because he and the mother had had an argument.
In relation to the incident on 27 October 2016 the father again denied that he had been consuming any substance. He said that he had knocked some items of the vanity in the course of a bit of a temper tantrum and some sort of attack or panic attack reaction. He cried yelled and hit items of the vanity and then fell down and got back up after a little while, he estimated about three minutes.
The father denied that he had had a seizure or was convulsing but said that he was frightened and cowering and crying.
In relation to the mother’s evidence that he said “I don’t know how to make my body move” and the following conversation the father said that he may have said somethings like that but he did not remember.
The father admitted that there was a home-made bong in the ensuite bathroom but said that he did not know how it got into his bathroom and that he had not seen it before that day. The father said that the bong was still on the vanity when the mother came into the bathroom and that she removed it. The father denied that he had used any substance on that occasion.
The father however admitted that in August of 2016, in the company of friends, he had smoked a substance not knowing what that substance was and that he had told the mother about that. He said that the mother was very angry at his disclosure of having smoked an unknown substance.
The notes of the Cannabis Clinic were produced on subpoena.
On 28 October 2016 there was an intake interview performed by a registered nurse over the telephone. The notes record:
Smoking since age 18, sporadic then. Consistently using now for four months, about one ounce in that time. Smokes bongs.
Also using synthetic cannabis for last two weeks (though had tried before). Two occasions last week where client has experienced “fits”. States partner witnessed the end of both, when client awoke.
The notes record that the primary substance used was cannabis.
Under the heading “Social and Legal”, the notes record “Client lives with partner and two kids (6 and 5). Partner very much against drug use, client says she does not understand”.
On 7 November 2016 a registered nurse conducted a drug and alcohol assessment with the father noting the reason for presentation as “seeking treatment for cannabis problems”.
The father saw a psychologist, Mr H at the Cannabis Clinic on 7 November 2016. He recorded “Client does not smoke in presence of children. No current use” and in answer to the question about arrangement and storage of drugs he noted “Outside of the house”. The psychologist noted that the presenting problem was relationship problem and cannabis use and that father would like to continue with his abstinence and attend counselling.
On 7 November 2016 the psychologist noted:
No withdrawal concerns reported.
Discussed risk of smoking synthetic THC
Discussed craving nature and management plan
Client believes he has “everything under control”
Would like to attend one more session. Will call writer after checking his working roster for next week or after.
In relation to the four weeks immediately prior to the assessment the record states:
No. of Days used – Cannabis – Wk4: 0
No. of Days used – Cannabis – Wk3: 3
No. of Days used – Cannabis – Wk2: 3
No. of Days used – Cannabis – Wk1: 3
Under the heading “Subst Use History”, the notes record:
Age 1st Used: 17
Age 1st Problem Use: 18
Last Used: 8 days
No. Days Used: 9
Avg Daily Amount: .3 gram
Duration and Nature of Use This Episode: on and off for 25 years
Client Considered Problem: Yes
Under the heading “Subst Use Summary” the notes record:
Long history of THC use – intermittently
Has had periods of long abstinence up to 5 years
Play sports
Recent synthetic use
Believes had two fits 3 weeks ago
Wife left last Thursday with two children
The notes record:
Principal Drug of Concern: Cannabinoids and related Drugs…
Method Of Use: Smoke (including bongs)
Injecting Drug Use: Never injected
On 9 November 2016 there was a discussion between the treating psychologist and a senior medical officer about whether or not the father’s situation should be reported to his licensing body. It was also noted that there had been no call from the father in relation to ongoing counselling.
On 14 November 2016 the father returned a positive urinalysis test for cannabinoids. The father asserted that the result was inaccurate but there was no expert evidence in relation to the reliability of the test.
On 5 December 2016 there was a conference between the father’s treating psychologist, a clinical psychologist and the unit manager at which the three people present discussed the father’s presentation and the need to ascertain whether there should be a further report made “given that this client has had two seizures that have not been investigated medically”.
On 12 December 2016 a letter was written to the father by the Cannabis Clinic stating:
I write in relation to your recent attendance at our service for seeking assessment and treatment for your cannabis issue, and in particular your synthetic cannabis use. In the course of our consultation you mentioned that you had experienced two seizures. I understand that you believed that there is a link between your use of synthetic cannabis use and these seizures, however the link had [sic] not been investigated. Whilst seizures have been reported following synthetic cannabis use in some individuals, further investigation (by neurologists) is recommended to exclude other potential causes.
You advised us that you were employed as an international pilot. As you would understand there is a potentially serious threat to public safety if a seizure occurs while you are flying. If you are still flying, it is recommended that you cease flying until your seizure activity has been appropriately investigated. I also recommend that you inform your employer. I also strongly recommend that you avoid future use of synthetic cannabis.
I would be grateful if you could contact us by the 6th January 2017 so an appropriate referral for assessment of your seizures can be made. In the event that I’m not present at work, please request to talk to the manager...
In the event that we’ve not heard from you by the 6rd January 2017 we will contact your General Practitioner, in the first instance to follow up our concern.
I note that the reference in the letter to the father being an “international” pilot is in error and that the record indicates that the father is a pilot.
The father’s explanation for the records produced by Cannabis Clinic was that they were concocted.
I do not accept that explanation.
The more likely explanation is that the notes kept by the Cannabis Clinic actually record what the father told them.
I accept that the father used drugs as the mother alleged and that his denial of his drug use was knowingly false.
The mother does not assert that the father is currently using drugs.
THE EVIDENCE OF DR J
Dr J saw the family in October 2018 and, before she was cross-examined, had the opportunity to read the parties’ trial affidavits and the mother’s updating affidavit.
In her report, Dr J commented on the children’s views about the roster driven arrangements. X said that he wasn’t concerned that he didn’t know when he was next to spend time with his father because “I don’t really need to know”. X told Dr J about the calendars that his father prepared and that he would spend 14 nights a month with his father. X said “I really like the calendars dad makes. It’s fair”. X explained how the calendar worked:
we know when dad is at work as it’s got black around it. Dad makes two copies and gives one to me and Y. He shows mum and he shows the judge.
X told Dr J that he did not think the system should change and that his parents were “doing their best” not to make it confusing for him and Y.
X told Dr J that his father sometimes talked to him about court and that “he says that it is going pretty well” but X said that when his father tries to talk about court, he tells his father that he doesn’t want to hear about it. X said “mum tells me that dad shouldn’t talk to me about court. I think mum is right”.
Y said that she did not know when she would be seeing her father next because:
daddy makes a calendar but daddy hasn’t been making the calendar and it’s very frustrating, so I don’t know when I’m seeing mummy and daddy.
Y said “Daddy makes sure everyone has fourteen days”.
Dr J reports that the children have a warm and affectionate relationship with each of their parents. However, she said, the most emotionally damaging aspect of the children’s experiences is their exposure to the conflict between their parents.
In cross-examination, Dr J stressed that it was the exposure to continuing conflict that was her greatest concern for the children.
She said that the children love both of their parents and seem happy and settled with each parent. It was the endless debate about parenting arrangements that was damaging to the children.
Dr J said that she did not know whether the parents had the capacity to be flexible and accommodating and that it appeared to her that there had been enormous struggles in accommodating the father’s roster.
Dr J said that the children are bright and well-adjusted and they would adjust to a change of school with relative ease.
She said that as the children get older, and particularly in their teenage years, regularity and routine will become more important to them in negotiating high school, books, equipment, extra-curricular activities and social engagements. This is particularly so when the parents find it difficult to co-operate and negotiate. “Children like to know where they’re going”.
However, she said, children are quite adaptable and cope with separations and shift work. What they don’t cope with is the struggles over the arrangements which are a cause of chronic stress to the children that is damaging.
She said that the children are better off with more predictability and less stress than more time with a parent and higher levels of background stress. Dr J said that the focus should not be on the number of nights that the children spend with each parent but on a process that will stop the “niggling and sending emails and having disputes – feeling resentful”. She said “It’s not the number of nights, it’s what happens around the nights”.
In relation to the issue of parental responsibility, Dr J said that she did not know how the parents could resolve any disagreements. In her report she had stated:
Given the level of conflict it is difficult to envisage how they manage to exercise equal shared parental responsibility. However, they appear to be in broad agreement over many aspects of the children’s upbringing and do not appear to have had arguments over the children’s schooling, health or activities, but rather the actual time they spend with each of them.
In cross-examination, she said that, up to the present, the children had not had health problems and there has been no question about schooling. If there were a conflict about a major long term issue in the future, she could not see how the parents could reach a resolution.
In relation to the relocation proposal, Dr J said that the mother may be happier in D Town “but it’s not that she’s so unhappy here”. As to the proposition that relocation would result in the father spending less time with the children Dr J said, “this isn’t about time. It’s about the inability to negotiate”.
CONSIDERATION
The primary considerations in determining what parenting arrangements are in the best interests of the children are twofold.
Firstly, the Court must consider the benefit to the children of having a meaningful relationship with both of their parents.
It is significant that wording of the Act specifies that the relationship must be “meaningful” in the sense adopted by the Full Court in McCall & Clarke [2009] FamCAFC 92:
...a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
The second consideration, which takes precedence over the first, is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the present case, the evidence of Dr J is clear. These children have been subjected to psychological harm from the conflict between their parents arising from their inability to agree on appropriate living arrangements.
Whatever parenting arrangements are put in place in the orders which will be made, they cannot allow any flexibility or require any negotiation.
Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The parents both agree that the children do not want to leave their school and their friends.
There is no dispute that the children want to spend time with each of their parents.
X said that he wanted the arrangements to stay the same and it was his perception that he spent 14 nights each month with his father and that was “fair”. Dr J said that the concept of equal as “fair” was common in children of X’s age.
The mother asserts that, after separation, the father withdrew money from the mortgage accounts and paid those funds into his own accounts.
Between 28 February 2017 and 7 March 2017, the father made five separate withdrawals each of $20,000 from the #...31 account. The father deposed that he repaid a loan of $100,000 to his father.
On 12 May 2017 the father drew $28,000 from the mortgage account.
The mother asserts that in late June 2017 she became aware that the father had initiated the sale of both the O Town and M Town properties without notice to her.
On 17 August 2017 orders were made in the Federal Circuit Court which provided that the mother would receive $75,000 from the sale of O Town and restraining the father from dealing with the balance of the sale proceeds. The father was restrained from accepting any offer for the purchase of M Town without reference to the mother and from receiving or dealing with the sale proceeds of M Town.
The mother asserts that the father has not made any periodic loan repayments on the mortgages since 4 September 2017.
On 7 September 2017, on the sale of O Town, $75,000 was paid to the mother and the balance of $254,654 was paid into the mortgage account, in reduction of the mortgages.
On 25 October 2017 orders were made which provided for $112,000 from the proceeds of sale of M Town to be placed in a controlled monies account. The orders also provided that the parties confer about the sale of Suburb L and that the net proceeds of sale of Suburb L be held in a controlled monies account.
The mother did not proceed with the sale of Suburb L.
M Town was sold in November 2017. About $259,700 was paid to discharge the Suburb L mortgage. $53,689 was paid in reduction of the Suburb C mortgage and, from the balance of $112,000, the capital gains tax on the sale was paid and the remainder was paid into a controlled monies account. That account which is Item 2 in the balance sheet, now has a balance of $85,279. Thus from the sale of M Town the amount realised was about $395,000.
After the Suburb L mortgage was discharged, the rent was received by the mother and supplemented her income.
At the time of trial, the father remained living in the Suburb C property. Whether the father had paid the mortgage as it fell due, or arrears had accrued, is an issue in dispute.
The mother lived in rented accommodation paying $600 per week in rent.
From the narrative above, the following issues arise to be determined:
· When did the parties separate?
· Was the father required to repay $100,000 to his father?
· Has the father had the benefit of other funds since separation?
· Did the father lose money gambling?
· Has the father lived at Suburb C and not paid the mortgage since September 2017?
When did the parties separate?
The father deposed that the parties separated under the one roof in November 2015. The mother denies that assertion and deposed that they separated in October 2016.
I accept that in November 2015, the parents began to occupy separate bedrooms.
However, the evidence does not establish that anything else in their mode of living changed. Their financial arrangements appear to have remained unchanged.
They continued to parent their children together.
After November 2015, the parents and the children continued to holiday and enjoy activities together. In November 2015 they flew to Queensland for a family engagement party and visited the father’s grandmother.
In December 2015 they took the children paragliding together; hosted Christmas lunch together for the paternal grandmother and his partner; took the children camping and spent New Year’s Eve together with the children.
In March 2016 they took the children camping together.
In May 2016 they attended a surprise birthday party together in Q Town and travelled together as a family to Fiji for a holiday, staying all together in a family room.
In June 2016, they went as a family on an eight day cruise.
In cross-examination, the husband said that, after November 2015, there was no reason to stay together other than convenience and to care for the children.
However, the relationship persisted on that basis.
The father told the Cannabis Clinic in October 2016 that they had recently separated.
The parties separated in October 2016.
Payment of $100,000 to father’s father
The father deposed that between 1992 and 2000 he paid about $130,000 for pilot training and “My father loaned me approximately $75,000 over this period to contribute and encourage me towards my profession”. There is no evidence as to the terms of the asserted loan or whether any repayment was required of the funds asserted too have been advanced.
He further deposed:
To further assist me during this time my father purchased a house… so that my Auntie P, with whom I was living, and myself could rent inexpensively from my father. During this time my father and I had a verbal agreement that I would not pay rent and instead, would owe to him the sum of $5000 per year to be paid back at a later date when I could afford it. I lived in ...from 1993 to 1997 under this agreement and any money that I made from various jobs was to be put towards my flying qualifications.
The father deposed that, in 2002, his father lent him $20,000 towards the purchase of M Town. Again, there was no evidence of the terms of the asserted loan or whether, or when, the advance was to be repaid.
The father’s father did not give evidence.
In cross-examination, the father said that the loan had never been called in by his father. He said that his father had told him that, if he needed the money, he would ask for it. The father said, in relation to his claim that he owes his father a further $30,000 more recently advanced, “he says the same about the recent $30,000 loan”.
I am not satisfied on the evidence available that the advances to which the father deposed were repayable. If the money had been advanced by way of loan payable on demand, the period in which demand could have been made commenced on the day of the advance and expired after six years. If there were loans, they are statute barred.
The father had no obligation to repay $100,000 to his father.
The mother asks that the sum of $100,000 be added back. I propose to deal with it as a premature distribution to the father and take it into account pursuant to s90SF(3)(r).
Has the father had the benefit of other funds since separation?
The father redrew and removed $28,000 from the O Town mortgage account with the NAB #...44 on 12 May 2017 and paid those funds into his account #...44.
The father has deposed that he used those funds to supplement his living expenses.
The father was working full time in the aviation industry. There is no evidence that he was in any financial difficulties. To the contrary, he deposed that, in October 2016, he had $169,235 in his savings account.
The sum of $28,000 will be taken into account pursuant to s90SF(3)(r).
Did the father lose money gambling?
Although this matter was raised in the mother’s affidavit and denied in the father’s affidavit, no documents were tendered by either party to support her or his respective contentions and I am unable to make any finding.
Has the father lived at Suburb C and not paid the mortgage since September 2017?
The statements for the mortgage account with NAB #...94 were tendered.
No repayments were made from November 2017 until payments recommenced on 30 April 2019. The father paid $2,666 on 30 April and 31 May 2019. He then stopped paying.
On 3 September 2019 he was served with a default notice. On 24 September 2019 he paid $561.
Solicitors for the mortgagee wrote to the mother on 15 October 2019 claiming $925,753 including enforcement expenses of $1,058.
In October and November 2019 he paid $2,784. In cross-examination, he said that he is now continuing to pay that amount.
On 18 November 2019 the solicitors for the mortgagee wrote to the mother confirming an agreement that the bank would defer recovery action provided that the father made reduced repayments and noting that as at 15 November 2019, the notional arrears and enforcement expenses were $94,843.
From October 2016, the father has occupied Suburb C and the mother has paid rent. To the extent that the father did not pay the mortgage, that can be dealt with either as a contribution by the mother towards his living expenses or, preferably, pursuant to s90SF(3)(r).
THE BALANCE SHEET
The parties tendered an agreed balance sheet. The agreed values of their assets and their liabilities are set out below:
| ASSETS | ||||||
| Ownership | Description | Value | ||||
| 1 | Joint | B Street, Suburb C (NSW) | 2,450,000 | |||
| 2 | Joint | NAB account #...18 (balance as at 03/12/19) | 85,279 | |||
| 4 | Respondent | NAB account #...82 (balance as at 03/12/19) | 6 | |||
| 5 | Applicant | K Street, Suburb L, Melbourne (VIC) | 425,000 | |||
| 6 | Applicant | V Bank account #...92 (balance as at 03/12/19) | 1,164 | |||
| 7 | Applicant | NAB account #..58 (balance as at 03/12/19) | 82 | |||
| 8 | Applicant | Motor vehicle 1 | E 2,500 | |||
| 9 | Respondent | NAB account #...31 (balance as at 13/11/19) | 7,167 | |||
| 12 | Respondent | ANZ account #...57 (as at 23/11/19) | 12,209 | |||
| 13 | Respondent | ANZ account #..69 (as at 23/11/19) | 1,287 | |||
| 14 | Respondent | Motor vehicle 2 | 7,000 | |||
| 15 | Respondent | Moneys held in Watts McCray trust account | 37,500 | |||
| Total | $3,029,194 | |||||
| LIABILITIES | ||||||
| Joint | Mortgage on B Street, Suburb C loan account #...53 (as at 03/12/19) | 394,162 | ||||
| Joint | Mortgage on B Street, Suburb C loan account #...94 (as at 03/12/19) | 526,365 | ||||
| Applicant | MasterCard #..06 (as at 03/12/19) | 2,203 | ||||
| Applicant | NAB VISA #..89 (as at 03/12/19) | 1,724 | ||||
| $ 924,454 | ||||||
| SUPERANNUATION | |||||||
| Member | Name of Fund | Type of Interest | Value | ||||
| 32 | Applicant | Super Fund 1 (as at 30/07/19) | Accumulation | 77,538 | |||
| 33 | Applicant | Super Fund 2 (as 30/07/19) | Accumulation | 57,242 | |||
| 34 | Respondent | Super Fund 3 (as at 27/11//19) | Accumulation | 330,855 | |||
| Total | $ 465,635 | ||||||
The parties have net assets of $2,104,740. The mother has in her possession assets (including the Suburb L property), of $428,746 and debts of $3,927. She has net assets of $424,819.
In addition, the mother has superannuation of $134,780 and the father has superannuation of $330,855.
The issues in dispute relate to addbacks for which each of them contends as set out in the table reproduced below. It was conceded by both counsel that, if the contentious items were taken into account pursuant to s9SF(3) of the Family Law Act 1975 (Cth) (“the Act”) the overall result should be the same as if they were added back and that is the position I propose to adopt.
| ADDBACKS | |||||||
| Ownership | Description | Applicant value | Respondent value | ||||
| 17 | Applicant | Monies withdrawn at separation | 0 | 20,000 | |||
| 18 | Applicant | Release of funds pursuant to Orders | 70,000 | 75,000 | |||
| 19 | Applicant | Paid Legal Fees | 10,140 | NK | |||
| 20 | Respondent | Monies withdrawn at separation | 54,298 | 0 | |||
| 21 | Respondent | Monies transferred to father | 100,000 | 0 | |||
| 22 | Respondent | Monies re-drawn from the mortgage on N Street, O Town | 28,000 | 0 | |||
| 23 | Respondent | Paid Legal fees (AA Firm) | 113,817 | 113,817 | |||
| 24 | Respondent | Paid legal fees (BB Firm) | 5,000 | 5,000 | |||
| 25 | Respondent | Arrears and enforcement expenses owing on Suburb C property (as at 20/11/19) | 94,843 | 0 | |||
| 26 | Applicant | Rental income received by Applicant from Suburb L from November 2017 (gross) | 0 | 44,040 | |||
| Total | $ 476,098 | $257,857 | |||||
I propose to deal with the asserted add backs separately.
$20,000 withdrawn by mother
At separation, the mother withdrew $20,000 from the mortgage account. She deposed that she used the money to pay legal expenses of $7,468 and that the remainder was used to pay her rehousing costs including purchasing furniture and whitegoods, paying rent and paying for the children’s expenses and general living expenses.
In so far as the funds were spent on legal fees, those funds should be taken into account pursuant to s90SF(3)(r).
I do not propose to take any further account of the approximately $12,500 spent on rehousing and living costs in circumstances where the father remained in occupation of their former home.
Mother’s interim property settlement
The orders made 17 August 2017 provided for a payment to the mother of $75,000 from the proceeds of sale of O Town. Of this sum, $70,000 was used to pay legal fees and $5,000 was used for day to day expenses. The mother does not dispute that the $70,000 used for legal fees should be accounted for but submits that the balance should not.
The mother’s income at that time was significantly less than the father’s and I accept that it was reasonable to use a small portion of the funds to pay living expenses.
$70,000 will be taken into account pursuant to s90SF(3)(r).
Mother’s paid legal fees in the sum of $10,140
The mother’s evidence is that this amount was paid either from her income or from a litigation funding loan.
It will be disregarded.
$54,298 withdrawn by father at separation
The father withdrew a total of $154,298 from the mortgage account after the mother took $20,000 from the same account.
Of the sum withdrawn by the father, $100,000 was paid to his father.
The balance of $54,298 has not been accounted for. There is no evidence from the father about what he did with the money. It will be taken into account as a distribution to the father from joint funds pursuant to s90SF(3)(r).
$100,000 paid to the father’s father
For the reasons set out above, this sum will be taken into account as a distribution to the father from joint funds pursuant to s90SF(3)(r).
$28,000 drawn from the O Town mortgage by the father
For the reasons set out above, this sum will be taken into account as a distribution to the father from joint funds pursuant to s90SF(3)(r).
Father’s paid legal fees of $118,817
The mother accepts that the father’s costs have been paid from income and from loans from his parents.
These amounts will be disregarded.
Arrears of mortgage and costs owed in relation to recovery $94,843
The father had the sole occupation of the Suburb C property at a time when the mother was paying commercial rent. He chose not to continue to make the mortgage payments giving rise to the action taken by the mortgagee and the costs incurred by the mortgagee.
There is no suggestion that his ceasing to make mortgage payments was by agreement with the mother.
The sum will be taken into account as a liability incurred by the father against a joint asset pursuant to s90SF(3)(r).
Rent from Suburb L received by the mother after November 2017
After the sale of the M Town property, the mortgage over the Suburb L property was discharged and the rent was no longer required to be applied to the mortgage.
The mother, as the registered proprietor, received the rent.
The amount would have been taxable in her hands.
The father seeks to have the gross rent added back or taken into account.
That position ignores the fact that the father received the rents from M Town until November 2017 and from O Town until September 2017.
It is assumed that the increase in the mother’s income, with the addition of the Suburb L rent, was taken into account by the Child Support Agency in determining the appropriate assessment of child support.
There is no evidence of the net amount received by the mother after tax or the effect on the child support assessment.
In those circumstances, it will not be taken further into account.
Thus the amounts to be taken into account pursuant to s90SF(3)(r) are $77, 468 in the case of the mother and $277,141 in the case of the father.
CONTRIBUTION
The father’s initial contribution greatly exceeded that of the mother.
She had about $47,000 equity in Suburb L and about $16,000 in superannuation.
While there is no evidence of the value of M Town at the commencement of cohabitation, the mother accepted that it was worth at least $300,000. The father deposed that the mortgage was $65,160. His equity was at least $235,000. He had a similar amount in superannuation.
The M Town property was retained throughout the parties’ cohabitation. It was used as security for the purchases of Suburb L, O Town and Suburb C and the rent was applied to the mortgages.
When M Town was sold, about $395,000 was applied to reduce mortgage debt or placed in controlled monies. That enabled the mother to receive the rent from Suburb L to supplement her income.
Some of the increase in the value of M Town would likely have accrued during the period of cohabitation.
Other than the disparity of initial contribution, the parties each worked throughout the relationship. The father was the higher earner but he was able to earn an income as a pilot because the mother was prepared to sacrifice her own career ambitions and take employment that enabled her to be available to care for the children when he was away from home.
Other than for their initial contributions, their contributions from their efforts during cohabitation were equal.
After separation, it was the mother who cared for the children most of the time and she continued to accommodate her employment to her need to care for the children when the father’s roster made him unavailable. The father had the children, on average, for about 11 days each month. The father paid child support, currently $96 per week but did not contribute to the children’s extracurricular expenses with the exception of X’s band costs.
The mother’s contribution after separation exceeded that of the father.
The disparities in contribution should be recognised by an adjustment of 10 per cent in favour of the father.
S90SF(3)
The Act requires that the Court take into account not only the actual earnings of the parties but their capacity to earn.
The father’s evidence was that he is currently earning 75 per cent of a full time salary, or $172,484. Although he said in cross-examination that he does not intend to return to full time work, he did not suggest that he was incapable of doing so.
The mother works on a permanent part time basis in order to be available for the children before and after school. She earns $62,400. There is no suggestion that she has any greater capacity to earn given her responsibilities to the children.
The disparity in their income earning capacities is significant.
The mother currently receives the rent from Suburb L of $420 per week but she may need to sell Suburb L in order to buy a home for herself as she wishes to do. If Suburb L is sold, it will be subject to capital gains tax.
In circumstances where neither party seeks a superannuation splitting order, there is also a significant disparity in their superannuation entitlements. The mother has $134,780 and the father has $330,855. Because of his higher income, he will be able to accumulate superannuation in the future at a rate not available to the mother.
Both parties will be required to provide housing for the children.
The father will continue to pay child support as assessed but there is no evidence that he will make any contribution to the children’s activities such as have been referred to earlier in these reasons. It is reasonable to assume that the mother will continue to bear the majority of the costs of the children as she now does.
The father’s legal fees have been paid from his earnings after separation. The mother has borrowed to pay the majority of her fees and will have to pay her outstanding costs of about $158,000.
As has been explained earlier in these reasons, the father has had the benefit of some $207,000 either in premature distributions to himself or by not paying the mortgage payments.
This is equivalent to about 10 per cent of the asset pool.
Taking all of those matters into account, I consider that an adjustment in favour of the mother of 20 per cent is appropriate.
CONCLUSION
The mother will receive 60 per cent of the asset pool or $1,262,844. She has assets in her possession of $424,819 so she will receive a further $838,025.
The parties agree that the father should be given the opportunity to keep the Suburb C property.
However, if he is given that opportunity it must be on the basis that he continues to pay the mortgage as it falls due and that the arrears of mortgage and legal costs do not exceed the amount outstanding at trial.
I certify that the preceding three hundred and ninety-two (392) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 December 2019.
Associate:
Date: 20/12/2019
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Remedies
-
Jurisdiction
-
Costs
-
Statutory Construction
0
0
2