Kilpatrick & Kilpatrick
[2017] FamCA 432
•22 June 2017
FAMILY COURT OF AUSTRALIA
| KILPATRICK & KILPATRICK | [2017] FamCA 432 |
| FAMILY LAW – CHILDREN – With whom a child spends time – Where the litigation devolved into an argument over parenting arrangements for only the youngest child – Where the mother seeks a positive finding the youngest child was at unacceptable risk of psychological harm by reason of the father’s conduct – Where the evidence established the risk – Concluded that although permanent supervision would eradicate any risk of his sexual abuse by the father, it could not satisfactorily attenuate the risk of his psychological harm from exposure to parental conflict – No order for the youngest child to spend time or communicate with the father FAMILY LAW – PROPERTY SETTLEMENT – Where at the commencement of cohabitation neither party had any asset or liability of significant value – Where the mother’s income was significantly more than the father’s – Where the mother’s parents large monetary gift accounts for a considerable proportion of their current wealth – Where the mother will have very little financial assistance from the father in form of child support – Concluded the mother’s contribution-based entitlement should be measured at 60 per cent – Concluded the relatively modest value of the parties’ property and superannuation warrants an adjustment in the mother’s favour being expressed as a lump sum to alleviate the financial burden of the children over the next five years |
| Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 68P, 68Q, 75, 79 Family Law Rules 2004 (Cth), r 15.41 |
| Betros & Betros [2017] FamCAFC 90 Bevan & Bevan (2013) 49 Fam LR 387 Hepburn & Noble (2010) FLC 93-348 Lester & Lester [2014] FamCAFC 209 Marriage of Clauson (1995) 18 Fam LR 693 Marriage of Phillips (2002) 29 Fam LR 128 Marriage of Sedgley (1995) 19 Fam LR 363 Michaels v Commonwealth (2002) 124 FCR 473 NSW Bar Association v Somosi (2001) 48 ATR 562 Parrott v Public Trustee of NSW (1993) 17 Fam LR 785 Rogers v The Queen (1994) 181 CLR 251 Saffron v Federal Commissioner of Taxation (1991) 102 ALR 19 Stanford v Stanford (2012) 247 CLR 108 |
| APPLICANT: | Ms Kilpatrick |
| RESPONDENT: | Mr Kilpatrick |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Blackman, Legal Aid Gosford NSW |
| FILE NUMBER: | NCC | 1686 | of | 2016 |
| DATE DELIVERED: | 22 June 2017 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 29, 30 & 31 May 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Boyd |
| SOLICITOR FOR THE APPLICANT: | Kernick Law |
| COUNSEL FOR THE RESPONDENT: | Ms Carty |
| SOLICITOR FOR THE RESPONDENT: | CBD Law |
| SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O'Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Blackman, Legal Aid Gosford NSW |
Orders
The mother shall have sole parental responsibility for the children:
(a)B, born … 2000; and
(b)C, born … 2004.
The children shall live with the mother.
Pursuant to s 68B of the Family Law Act, the father is restrained from:
(a)Approaching or contacting the mother other than through a legal representative, save as to comply with Order 7 hereof; and
(b)Entering upon or approaching within 100 metres of:
(i)The mother’s residence;
(ii)The mother’s place of work;
(iii)Any school attended by either child; and
(iv)Any place of work of either child.
Each party is restrained from denigrating the other in the presence or hearing of the youngest child and from permitting the youngest child to remain in the presence or hearing of another person denigrating the other.
The mother shall notify the father of any medical emergency, illness or injury suffered by the children whilst in her care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.
The mother shall authorise and request the principals of any schools attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number.
The mother shall pay to the father the sum of $69,337 within two months of the date hereof.
Subject to compliance with Order 8 hereof, and in consideration of that payment, the mother is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier Lot … DP …, being the property more commonly known as D Street, Suburb E, NSW (“the property”), and the father shall do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the property to the mother contemporaneously with his receipt of payment pursuant to Order 8 hereof.
Subject to compliance with Order 9 hereof, and in consideration of that transfer, the mother shall indemnify and keep indemnified the father against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to the property.
In default of Order 8 hereof, the mother shall do all such acts and things and sign all such documents as may be necessary to list the property for sale by public auction on the following terms:
(a)The property shall be listed for auction sale within six weeks of the date of default;
(b)The auctioneer, in the event of disagreement between the parties, shall be the auctioneer chosen by ballot from the respective choices of the parties;
(c)The reserve price shall be as agreed between the parties, and in the event of disagreement between the parties, the reserve price nominated by the auctioneer;
(d)In the event the property is not sold by auction, or private negotiation within a further seven days, then the property shall be submitted to successive auctions within further six weeks periods until sold, otherwise on the same terms and conditions as applied to the first auction;
(e)The mother is restrained from charging, mortgaging, or otherwise encumbering the property, save as to enable her compliance with Order 8 hereof.
Upon completion of the sale of the property pursuant to Order 11 hereof, the mother shall ensure the proceeds of sale are disbursed as follows:
(a)First, to pay all costs, commissions, and expenses of the sale and to pay any Council and water rates outstanding in respect of the property;
(b)Secondly, to pay:
(i)The sum of $77,968 to herself;
(ii)60 per cent of the remaining balance to herself; and
(iii)The remainder to the father.
The father is declared the sole legal and beneficial owner (as between the parties) of the following items of personal property and, within 14 days hereof, the mother shall deliver such property to the paternal grandmother on the father’s behalf:
(a)Kite;
(b)Wall hanging – …;
(c)Items from TV cabinet – …;
(d)Statue on wood base – 20 cm high;
(e)Two German beer steins – …
(f)5 stack DVD player;
(g)Wood/glass pendulum wall clock;
(h)LPs – approximately 4 milk crates;
(i)Books – 30 years collection – in bookcase in main b/r walk in robe;
(j)Wedding ring – gold;
(k)Video camera;
(l)Necklace;
(m)Hand trolley; and
(n)Gum boots.
Otherwise:
(a)Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed in the possession of the superannuant; and
(b)Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession and any debts in their respective sole names.
In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of the orders made under Part VIII, the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that the orders made under Part VII create, particulars of the consequences that may follow contravention of those orders, and details of assistance to comply with those orders are set out in the attached Fact Sheet, which forms part of those orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs are reserved for 28 days.
Any and all other outstanding applications are dismissed.
Notation
(A)These orders intentionally make no provision for the children to spend time or communicate with the father. If, when, and how the children may do so are decisions to be made by the mother as an incident of her sole parental responsibility for them.
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 Kilpatrick & Kilpatrick 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 NEWCASTLE |
FILE NUMBER: NCC 1686 of 2016
| Ms Kilpatrick |
Applicant
And
| Mr Kilpatrick |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings entail disputes between the applicant mother and respondent father over both their children and the division of their property interests under Parts VII and VIII of the Family Law Act 1975 (Cth) (“the Act”).
In respect of their children: the eldest is now an adult and is not the subject of the proceedings, the father acknowledged that for the foreseeable future he would have no involvement in the middle child’s life, and so the litigation devolved to an argument over parenting arrangements for the youngest child. The mother did not want to share parental responsibility for him with the father and she was opposed to him spending any time or communicating with the father. That dispute was underpinned by a vigorous contest about whether the father posed an unacceptable risk of harm to the youngest child.
The parties’ dispute over their modest property interests, the total net value of which equated to little more than $600,000, distilled to an argument about their proportional entitlements. Despite very little factual controversy, there was a surprisingly large disparity between their proposals.
Background
The parties commenced their cohabitation in about October 1990, married in 1994, and separated in January 2015, so the relationship subsisted for about 24 years.
The children were born in 1998, 2000, and 2004. At the time of trial, the two youngest children were aged 17 and 13 years respectively.
The parties separated on 26 January 2015, following the middle child’s revelation to the mother of her sexual abuse by the father over preceding years. The mother believed her and ordered the father to vacate the family home, which he duly did. Following the involvement of the police, an apprehended violence order was made against the father for the protection of all three children. The order was made by the Local Court of NSW on 5 February 2015 for a period of two years, with the father’s consent, and its terms precluded any interaction at all between him and the children. Although the order expired in February 2017, none of the children has since resumed their relationship with the father.
These proceedings were not commenced until July 2016, about 18 months after separation, when the mother sought orders determining arrangements for the children and the division of the parties’ property interests. No interim orders were made prior to the trial in May 2017.
Evidence
The mother relied upon her affidavit and financial statement, both of which were filed on 2 May 2017.
The father relied upon:
(a)His affidavit filed on 28 April 2017;
(b)His financial statement filed on 28 April 2017;
(c)The affidavit of Ms F, clinical psychologist, filed on 28 April 2017;
(d)The affidavit of Ms G, psychologist, filed on 9 May 2017; and
(e)The affidavit of Ms H, occupational therapist, filed on 17 May 2017.
There was no argument about the admissibility of the affidavits of Ms F, G, and H, even though the father called them as adversarial experts and their evidence arguably strayed beyond that permitted by r 15.41 of the Family Law Rules 2004 (Cth).
In relation to the parenting orders sought by the parties, they and the Independent Children’s Lawyer relied upon:
(a)The Magellan Report prepared by the NSW Department of Family and Community Services (“the Department”), dated 4 October 2016; and
(b)The Family Report prepared by the Family Consultant, dated 30 November 2016.
Children
Proposals
The mother’s proposals in respect of the children have been steadfast since she commenced the proceedings. She sought orders investing her with exclusive parental responsibility for the children, for the children to live with her, and for there to be no interaction or communication at all between them and the father. Those orders were set out in the minute of orders she tendered,[1] which effectively replicated her Initiating Application filed on 4 July 2016.
[1] Exhibit M1
Unlike the mother, the father’s proposal evolved over time. In summary:
(a)When he filed his Response in September 2016, he sought equal shared parental responsibility for both children and his graduated re-introduction to them over a period of months, but maintained the arrangement should culminate in the children living with the parties for “equal time” on weekly rotations.
(b)When he conferred with the Family Consultant in November 2016, his position was fluid. He apparently abandoned his proposal for graduated re-introduction to the children, acknowledged the middle child did not wish to see him, and told the Family Consultant he would “settle for anything [he could] get” in respect of the youngest child.[2]
(c)When he filed his Amended Response in March 2017, he abandoned any attempt to see the middle child and modified his proposal in respect of the youngest child. He proposed equal shared parental responsibility and that the youngest child spend one day per fortnight with him, following an introductory period of three months under professional supervision.
(d)In his affidavit filed in April 2017, he deposed:[3]
…I believe it is in the children’s best interests for them to have a relationship with me as their father. What form that relationship may take is now a matter for the Court.
(e)On the third day of trial in May 2017, he conceded the mother should have sole parental responsibility for both children, but pressed his application for the youngest child to spend time with him. He tendered a minute of the orders he sought,[4] but submitted his fall-back position was “identity contact” with the youngest child in a contact centre.
[2] Family Report, paras 11, 18, 52, 54
[3] Father’s affidavit, para 104
[4] Exhibit F10
At least implicitly, the father recognises he is now wedged and the restoration of his relationship with the youngest child hangs on the Court’s favourable exercise of discretion against the weight of the evidence.
The Independent Children’s Lawyer endorsed the mother’s proposal, but tendered her own minute of orders.[5]
[5] Exhibit ICL7
Legal principles
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
Best interests (s 60CC(2)(a))
It was accepted that both children have meaningful relationships with the mother, which need to be fostered. The Family Consultant observed them to have “warm and loving” relationships with her and the father conceded the children should remain living with her.
The deterioration of the children’s relationships with the father was also uncontroversial. The Family Consultant did not observe the children with him. There was an existing apprehended violence order forbidding their interaction. The father admitted his relationships with them had fallen into disrepair due to the suspension of all contact for more than two years. The father deposed he would like to “repair” his relationships with the children, as he believed he formerly enjoyed “very close bond[s]” with them.[6] While he was “hopeful” he could re-establish a meaningful relationship with the youngest child, he was doubtful he could with the middle child.[7]
[6] Father’s affidavit, paras 119, 123
[7] Father’s affidavit, paras 105-106
In circumstances where only the nature of the youngest child’s future relationship with the father was contested and required determination, the issues to emerge were whether the father posed an unacceptable risk of harm to him and, if so, whether the risk could be satisfactorily ameliorated to permit the restoration of the relationship between them.
The mother considered the risk of harm the father posed to the youngest child far outweighed any benefit the child would derive from restoration of his relationship with the father,[8] which view the Independent Children’s Lawyer shared. When pressed in cross-examination, the Family Consultant strongly endorsed the mother’s opinion about the risk of harm posed by the father. To evaluate the validity of those views, the evidence under both ss 60CC(2)(b) and 60CC(3) of the Act needs to be engaged.
[8] Family Report, para 39; Mother’s affidavit, para 27
Best interests (s 60CC(2)(b))
The mother did not seek any positive finding that the father sexually assaulted the middle child, but she did seek a finding that the youngest child was at unacceptable risk of psychological harm by reason of the father’s conduct. She contended such harm could arise in one of two ways: either the father might sexually abuse the youngest child or regale him with information that would place him in an intolerable situation of conflict between the father on one side and his siblings and her on the other.
In either situation, the risk was asserted to arise from an accumulation of circumstances, including the father’s criminal record, the history of the parties’ relationship, the father’s alleged conduct towards adolescents during the parties’ relationship, the more recent allegation by the middle child of her sexual abuse by the father, and the father’s ardent denial of any impropriety.
The father was convicted of the offence described as “peep and pry” when he was a teenager, for which he was placed on a good behaviour bond.[9] His denial of that conviction to the Family Consultant must be rejected as false,[10] since the conviction is conclusive proof of the offence (see Saffron v Federal Commissioner of Taxation (1991) 102 ALR 19 at 21; Rogers v The Queen (1994) 181 CLR 251 at 274; NSW Bar Association v Somosi (2001) 48 ATR 562 at [80]; Michaels v Commonwealth (2002) 124 FCR 473 at [31]-[49]). Although the father, during cross-examination, refuted his earlier denial to the Family Consultant, that evidence is rejected as false. In her cross-examination, the Family Consultant confirmed his denial of the offence during their consultation. The facts of the offence were not revealed by the evidence but, inferentially, given the nature of the offence, he must have engaged in some form of covert or furtive observation of another person.
[9] Family Report, para 3; Exhibit ICL3
[10] Family Report, para 50
The parties began their relationship in 1990, when the mother was only 16 years of age and still a secondary school student. The father was then aged 26 years. The mother was only barely old enough for their sexual relationship to be lawful and their disparate maturity implies the father enjoyed the balance of power in their relationship, at least at its commencement. The parties began their cohabitation at the end of that year and, shortly thereafter, the mother found the father in another room watching her 15 year old sleeping sister. The mother suspected his salacious interest in her sister and they argued, but the father dismissed her concern.[11] The father said in cross-examination he could not recollect the incident. It probably occurred as the mother alleged.
[11] Mother’s affidavit, paras 20-21
Over the next few years, on several occasions, the father was challenged about the exposure of his genitals to adolescent girls as they walked past the front of the parties’ home. While the father denied any impropriety, both to the Family Consultant and in his evidence, he admitted he was challenged by the police and other strangers on several occasions when such behaviour was alleged against him.[12] It follows that other persons were sufficiently concerned about the probity of his conduct to confront him about it.
[12] Mother’s aff, paras 22-24; Family Report, paras 4, 50; Father’s aff, paras 109-112; Ex ICL2
In late January 2015, the middle child told the mother the father had been “touching” her, over her clothing, over the preceding four years at times when the mother was absent from the house.[13] There can be no doubt the middle child actually made the allegation or that the mother genuinely believed it, because her reaction was instantaneous. She immediately confronted the father and, with raised voice, ordered him to leave the home. She then telephoned the paternal grandmother to inform her, though it is unclear whether that happened before or after the father departed. After he left, the mother notified the police. Two officers attended the home that evening to speak with the middle child and she was formally interviewed some days afterwards.[14]
[13] Mother’s affidavit, para 9
[14] Exhibit ICL1; Mother’s affidavit, paras 10-12; Father’s affidavit, para 12
The audio-visual recording of the middle child’s interview was tendered in evidence and played in open court.[15] During that interview she alleged that, over several years, the father touched her breasts and genitals, forced her to touch his penis, and “tried” (or more accurately, “said he wanted”) to “put his dick into her”.[16] The father’s counsel contended the middle child’s demeanour was not commensurate with the allegations and her descriptions lacked precise detail, so it should be inferred her allegations were fabrications, but that submission was conjectural not inferential. She was hesitant and anxious during the interview, but her presentation and her generalised descriptions could be plausibly explained by her embarrassment at having to describe to strangers her sexual molestation by the father, just as readily as by her embarrassment over fabrication of the story. In any event, contrary to the father’s submission, the middle child’s allegations were attended by some surrounding detail. She appeared to answer questions by reference to her memory rather than by recitation of a rehearsed story.
[15] Exhibits F2 and ICL4
[16] Magellan Report, pages 2, 3; Exhibit F2
Despite the middle child’s allegations, the father was not prosecuted. He maintained that was because the middle child’s allegations against him were rejected by the investigating authorities, but more likely it was because she was reluctant to give evidence in court about the allegations because of her fragile emotional state. The police told the mother they believed the middle child’s allegations, but she would not cope with the stress of a criminal trial, so the mother signed a “discontinuation statement” on the middle child’s behalf.[17] The Department reported to the Court the allegations were substantiated by the investigation.[18]
[17] Mother’s affidavit, para 12, Annex B; Exhibits ICL5 and ICL6
[18] Magellan Report, pages 2, 3; Family Report, para 6
Although the father was not prosecuted, the police successfully applied for an apprehended violence order against him. The order was made for the protection of all three children, not just the middle child. The order precluded any contact at all between the father and the children for a period of two years.[19] The father could have initiated proceedings under the Act to procure parenting orders that overrode the effect of the apprehended violence order (ss 68P and 68Q), even though consistency between orders is desirable (s 60CG(1)(a)), but he chose not to do so. He deposed he “wanted things to settle and be stable” and he decided to “let the children take some time to recover their stability after all that had occurred”,[20] but that motive only logically accounts for a temporary suspension of their relationships. It was the mother who commenced these proceedings, some 18 months later, to formalise arrangements for the children.
[19] Father’s affidavit, paras 175-179, Annex E
[20] Father’s affidavit, paras 15, 18
The father consistently denied his sexual abuse of the middle child, both to the Family Consultant and in evidence,[21] but his denials do not stand in isolation from other inculpatory evidence which tends to diminish the weight otherwise attributable to his protestations of innocence. The mother alleged he made contemporaneous admissions of guilt to her[22] and, although she was challenged in cross-examination about the accuracy of that evidence, she credibly adhered to it. The father obfuscated during his cross-examination on that and other topics, but he conceded “my memory comes and goes – it is not 100 per cent reliable”. His evidence was not as convincing as the mother’s. He also falsely denied his conviction for “peep and pry” to the Family Consultant, which tends to demonstrate his willingness to fabricate if it suits his purpose.
[21] Family Report, paras 22, 49; Father’s affidavit, para 7
[22] Mother’s affidavit, paras 10, 14-16
In aggregation, the evidence is sufficient to establish the youngest child is at risk of sexual abuse by the father. The middle child’s allegations of her sexual abuse by the father are quite potent. She was nearly 15 years of age when she first made the allegations, at which age she was probably sufficiently mature to withstand any pressure exerted by the mother to falsely accuse her own father of such serious misconduct. She repeated the allegations to police during formal interview, the surrounding conditions of which must have made plain to her the gravity of the situation. The mother was not present in the interview and it is unlikely the middle child was then acting under her duress. Her allegations were not made in a vacuum. She maintained the father’s sexual interest in her persisted over several years, against the backdrop of the father’s apparent sexual interest in other adolescents that stretched back over some 25 years. Even though the father refuted the allegations, he did not contest the apprehended violence order made against him when its proposed terms eliminated him from the lives of all three children, not just the life of the middle child. It is difficult to conceive how a father in that situation would capitulate so meekly if confident of his innocence. The evidence of the father’s admissions to the mother shortly after their separation was also persuasive, because it plausibly explains why his voluntary withdrawal from the children’s lives might have been motivated by the plan that, if left alone, there was less chance of the mother pressing for his prosecution.
Even if the evidence was regarded as insufficient to prove the child is at unacceptable risk of harm by reason of his subjection to sexual abuse, the father’s position in this litigation was little better. The evidence still capably proved the youngest child is at unacceptable risk of psychological harm through his exposure to the parties’ insoluble dispute over the father’s alleged sexual abuse of the middle child. The mother and the two eldest siblings either believe or assert the father’s guilt and he loudly proclaims his innocence. He declared he has had “no opportunity to prove his innocence” and he feels as though he has been “convicted and sentenced in the court of public opinion”.[23] The youngest child is aware of the schism within the family, but not of the reason for it.[24] The mother has not told him yet because she is worried how he will react,[25] but he will learn the details of the middle child’s allegations against the father soon enough because he is 13 years of age and it cannot be kept secret from him indefinitely.
[23] Father’s affidavit, para 19
[24] Family Report, paras 27, 34, 70
[25] Family Report, para 34
The father is desperate that the youngest child should not believe in the truth of the allegations. He maintains the mother deceitfully coaxed the middle child’s allegations,[26] which he told the Family Consultant he would remedy by giving the youngest child “all the evidence to help him understand exactly what the mother has done to them”. He described the mother to the Family Consultant as a “thief” and a “sociopath” and informed her he intended enlisting the youngest child’s support to identify and recover his personal possessions from the mother, which would entail the child walking around the family home identifying such items of personal property.[27] The Family Consultant gently suggested to him that would likely place the youngest child in a “very difficult position…right in the middle of the parental conflict”, but the father was dismissive. It was his intention to ensure the youngest child “knows the truth”[28] – which simply means the father’s version of the truth.
[26] Family Report, paras 37, 47
[27] Family Report, paras 51, 56
[28] Family Report, para 57
The father deposed he “realise[d] now how it would be wrong and harmful to [the youngest child] to give him any information or documents from these proceedings”,[29] which evidence he repeated in cross-examination, but it is difficult, if not impossible, to resist the inference he could not contain himself in that way. His volubility with the Family Consultant and the intensity of his evidence about his innocence leaves little room for doubt he would try and convince the child of it. Almost inevitably, his protestation of innocence to the youngest child would involve sharp criticism of the mother and the middle child for fabricating the allegations against him. The Family Consultant reached the same conclusion.[30] Even the father’s own psychologist opined he “may experience a limitation with impulse control” which might lead to him making inappropriate comments to the youngest child.[31]
[29] Father’s affidavit, para 141
[30] Family Report, para 28
[31] Affidavit of Ms G, Annex A
The conflict by which the youngest child would then be confronted is patent. He would know the mother and his older siblings, with whom he lives and whom he trusts, harbour deep resentment of the father for his alleged sexual abuse of the middle child, whereas the father would deny his guilt and try to win his loyalty. Of such an unpalatable predicament, the Family Consultant said, and I accept:[32]
If [the youngest child] were to be placed in a position whereby loyalty demands were being made of him by a parent, or if he were to be given negative information about a parent or sibling by another parent, this would result in a high level of cognitive dissonance which would have a negative impact on him, both emotionally and psychologically.
[32] Family Report, para 27
There is room for reasonable argument about whether the psychological harm the youngest child would thereby suffer is “serious psychological harm” of the type that qualifies for description as “abuse” (s 4(1)) from which he needs protection (s 60CC(2)(b)), but that argument is needlessly fastidious. If the harm does not qualify as “abuse”, meaning discussion of it under s 60CC(2)(b) of the Act is inapposite, the father’s conduct that would likely cause such psychological sequelae for the child is still relevant to the assessment of his parenting capacity under s 60CC(3) of the Act. In either case it is a powerful consideration which militates strongly against any order that aspires to restoration of the youngest child’s relationship with the father.
While permanent supervision of the youngest child in the company of the father would eradicate any risk of his sexual abuse by the father, it could not satisfactorily attenuate the risk of psychological harm the child would suffer through being thrust into the centre of the parental conflict. In any event, orders for permanent supervision should usually be avoided (see Betros & Betros [2017] FamCAFC 90 at [13]). The value of supervision is normally transient, particularly when the subject child is adolescent. The child will likely wonder what parental defect requires his or her supervision and want an explanation for it, the provision of which is liable to cause the child’s resentment of one parent or the other, depending upon whether or not the child thinks the supervision is warranted. Moreover, both the supervised parent and child are likely to become disillusioned by the way in which their activities are indefinitely curtailed by professional supervision, so eventually the child (and sometimes the parent) resists having to attend.
In this case, the father only ever seriously entertained the idea of his supervision with the youngest child for a relatively short period of months to facilitate their re-introduction. He did not contemplate the youngest child spending time with him under the yoke of supervision for the next five years until he attains his majority. Only at the very end of the trial was his fall-back proposal of permanent supervision floated, but it was unsupported by any evidence given by the father about his willingness to commit to it and so there must be some doubt about his willingness to do so over so many years. The evidence did not reasonably permit a finding he would, so orders for the permanent supervision of the youngest child’s interaction with him would be inapt, even if he could be trusted not to emotionally engage the child in the parental conflict.
Conversely, the father alleged the mother perpetrated family violence upon him[33] and physically abused the children,[34] but such evidence is easily addressed. Regardless of its truth, the father accepts both children should live with the mother. He cannot assert they need protection from the harm they may suffer through their abuse by the mother or their exposure to family violence she commits, while simultaneously maintaining they should live with her. The two propositions cannot logically stand together. Either he was exaggerating and the evidence is unreliable or he has no real interest in the children’s protection from harm. The Family Consultant noted his allegations were not corroborated by the children,[35] so the former is more likely true. The evidence does not establish the children need protection from harm caused by their subjection or exposure to abuse, family violence, or neglect by the mother.
[33] Family Report, paras 21, 47; Father’s affidavit, para 172
[34] Family Report, paras 12, 52; Father’s affidavit, paras 115, 174
[35] Family Report, para 23
Best interests (s 60CC(3))
The significant aspects of the evidence worthy of consideration under s 60CC(3) of the Act were the views expressed by the children (s 60CC(3)(a)), the father’s parenting capacity, as influenced by his insight and ability to provide for the youngest child’s emotional needs (ss 60CC(3)(f) and 60CC(3)(i)), and the family violence orders previously made against the father for the protection of the mother and children (ss 60CC(3)(j) and 60CC(3)(k)).
The middle child is strongly opposed to any form of re-introduction to the father. She made that plain to the mother and the Family Consultant. She even wants that enforced by injunction.[36] The Family Consultant said her views deserve significant weight,[37] which is undoubtedly true, given she is now 17 years of age and emotionally fragile. She presents with symptoms of Post Traumatic Stress Disorder, for which she is medicated and counselled.[38] She maintains she was sexually abused by the father. If her allegation is true, it would affront common sense to force her interaction with the father. If her allegation is false, it is doubtful she could cope with the acute embarrassment and guilt of having to try and mend her relationship with him. The father’s abandonment of any application concerning his future interaction with the middle child acknowledged as much.
[36] Mother’s affidavit, paras 28, 131; Family Report, paras 33, 62, 63, 80
[37] Family Report, para 80
[38] Family Report, para 26; Mother’s affidavit, paras 128-130
The youngest child is not opposed to contact with the father, but now presents as ambivalent about their relationship. He told the Family Consultant he was confused about the precise cause of the father’s departure from the family, missed the father a lot at first, but now seldom thinks about him.[39] The mother affirmed that was the youngest child’s attitude towards the father.[40] Other than to express a wish that the family could return to its pre-separation state, the youngest child did not express any views about the nature of the orders that should be made. He was content to just “leave it up to the adults to sort out what should happen next”.[41] The youngest child is autistic, which impedes his ability to regulate his emotions.[42] While it could be reasonably inferred he would like to resume his relationship with the father, the evidence suggests he would have too much difficulty trying to manage the conflicted loyalties thrust upon him in that situation.
[39] Family Report, paras 70-71, 81
[40] Mother’s affidavit, paras 28, 138, 139
[41] Family Report, para 72
[42] Family Report, paras 27, 34, 69; Mother’s affidavit, para 44
Unfortunately, the father does not have the insight to realise that. The Family Consultant’s opinion to that effect was clear and robust. She opined:[43]
The father appears to have very limited insight into the impact of his behaviour on the mother and children and his capacity to parent the children appears to be severely compromised.
[43] Family Report, para 23
The Family Consultant’s opinions about the father’s probable inability to abstain from imparting adverse views about the mother and middle child to the youngest child have already been discussed and need not be repeated.[44] The mother holds to precisely the same view.[45] Even the father conceded during cross-examination he was occasionally “irrational” and lacked “impulse control”. His obsessive intention to convince the youngest child of his innocence and enlist his help to recover items of personal property from the mother, even when the Family Consultant sought to dissuade him, reeked of his lack of insight.[46]
[44] Family Report, para 28
[45] Family Report, para 37; Mother’s affidavit, para 150
[46] Family Report, paras 51, 56, 57
Ultimately, the Family Consultant observed of the father:[47]
He presented as significantly lacking in empathy and more focused on his own needs and wishes than on the needs of his children. At no time during the father’s interview did he ask about the children or enquire as to whether he would be spending any time with them. His focus, at all times, was solely on himself.
…
The father’s behaviour post-separation, along with his presentation during the current Report Interviews, raises serious concerns in regard to his current level of functioning. His inability to focus on the needs of the children, together with a disturbing lack of empathy or understanding of their current predicament, appears to indicate impairment in regard to parenting capacity.
[47] Family Report, paras 60, 78
The father’s diagnosis with Autism Spectrum Disorder might, in part, explain his presentation but the diagnosis does not alleviate the problem. If anything, it serves to demonstrate there will likely be little change in his behaviour. The therapy thus far provided to him by his psychologist has been of “limited efficacy” because of his health conditions and limited concentration.[48] There is little room for optimism the father will experience any material improvement in the foreseeable future.
[48] Affidavit of Ms G, Annex A
The father’s limited insight deprives him of the capacity to view the family’s problems from different perspectives. He steadfastly maintains the mother has deliberately aligned the children against him,[49] but there was no objective evidence to vindicate his belief. On the contrary, the mother has promoted the children’s relationships with other members of the paternal family, from whom the father is also now estranged.[50] He was impelled to admit those facts in cross-examination. The Family Consultant observed that the successful reunification of a parent and child depends upon the parent having good insight into the child’s needs and the capacity to meet those needs.[51] The father does not have either that insight or capacity.
[49] Family Report, paras 37, 47, 52; Father’s affidavit, paras 105, 114
[50] Family Report, paras 40, 53; Father’s affidavit, para 19
[51] Family Report, para 83
The Act expressly directs the Court to consider the occurrence of family violence and the existence of past and present family violence orders when reaching conclusions about the orders that meet children’s best interests (ss 60CC(3)(j), 60CC(3)(k), and 60CG(1)(b)). Relevantly, two apprehended violence orders were previously made against the father. The first was made in February 2015 for the children’s protection and the second was made in November 2015 for the mother’s protection. The genesis of the first was the allegation of the father’s sexual abuse of the middle child, but the genesis of the second was the father’s intimidation of the mother. He would go to the former matrimonial home, even though the first order for the protection of the children prohibited it, wait outside her place of work, leave notes on her car, write her letters, and send her text messages. The mother gave the father fair warning, by text message, to leave her alone but after he left a voice message on her answering machine saying “I have nothing left and therefore I have nothing to lose” the police obtained a separate apprehended violence order for her protection.[52] The father conceded the order was made because of his “attempts at contacting” her,[53] which attempts he conceded were unintentionally “poor”.[54] The mother deposed she felt “intimidated, scared and anxious” so the father’s behaviour capably amounted to “family violence” (s 4AB).
[52] Mother’s affidavit, paras 30-36; Family Report, para 24
[53] Father’s affidavit, paras 181-184
[54] Father’s affidavit, paras 163-171
The apprehended violence order protecting the mother expired in November 2016, but the apprehended violence order protecting the children did not expire until February 2017. Within only one day of the latter order’s expiry, the mother was informed the father was skulking around the former matrimonial home,[55] which understandably alarmed her. She was challenged about the truth of that evidence in cross-examination, but she named the neighbour who notified her and her offer to produce evidence of his telephone call on her mobile telephone was not taken up. The father’s denial in cross-examination of attending the home on that day is rejected as false. At about 5.30 am on the day before the trial commenced, while the mother and children were asleep, the father attended the mother’s home and affixed a letter to her front door imploring her to compromise the dispute and avoid a hearing.[56] The father did admit his attendance at her home on that occasion. Despite the passage of time, the father is still prone to act in a way that frightens her, so the orders should aspire to the protection of her and the children from him.
[55] Mother’s affidavit, para 29
[56] Exhibit M2
The mother’s counsel contended any order providing for the youngest child to spend time or communicate with the father would cause the mother such emotional distress that her capacity to properly care for the children would be impaired and so, for that reason if for no other, there should be no interaction between the youngest child and the father (see Marriage of Sedgley (1995) 19 Fam LR 363 at 371). For that conclusion to be reached, there must be a sound evidentiary basis for it (see Hepburn & Noble (2010) FLC 93-348 at [43], [49]-[64]), but the evidence was not so sound in this case. The mother deposed she “acknowledge[s] and accept[s]” the father’s paternity of the children and would support them re-establishing contact with him in the future if that is their desire,[57] which evidence mirrored her earlier remarks to the Family Consultant. Her concerns were only for the children, not herself.[58] She would certainly be worried if the youngest child was to spend time with the father, as the Family Consultant forecast,[59] but she would not likely collapse emotionally. She admirably gave the impression of her willingness to accept the outcome of the litigation stoically.
[57] Mother’s affidavit, paras 152-153
[58] Family Report, paras 33, 38, 39
[59] Family Report, para 84
Conclusions and Orders
Given the nature of the father’s conduct that caused the apprehended violence order to be made against him for the mother’s protection, there are reasonable grounds to believe he engaged in family violence, so the presumption of equal shared parental responsibility does not apply (s 61DA(2)(b)). Even if it did, the evidence rebuts the presumption because it establishes it would not be in the children’s best interests for the parties to have equal shared parental responsibility for them (s 61DA(4)). That conclusion flows from evidence given by the Family Consultant, the father, and the father’s expert witnesses.
The Family Consultant said there are “significant trust and communication problems [between the parties] that would make co-parenting or shared decision making extremely difficult”,[60] the father admitted he had “communication problems”,[61] his clinical psychologist said he lacked the ability to “take another’s perspective” and he had “excessively rigid patterns” of thought,[62] and his occupational therapist said his “ability to listen effectively was impaired”.[63] In the face of such evidence there was no sound basis to conclude he would be capable of consulting and negotiating with the mother over decisions related to the children in the co-operative way required by law (s 65DAC). The mother would prefer to avoid all contact with the father by reason of her belief in his sexual abuse of the middle child and her anxiety about his past intimidation, which is why she sought sole parental responsibility for the children. That proposal was supported by the Independent Children’s Lawyer’s, recommended by the Family Consultant, and ultimately conceded by the father during the trial. The mother should be vested with exclusive parental responsibility for the children and there was no contest the children should live with her.
[60] Family Report, para 19
[61] Father’s affidavit, paras 152, 171
[62] Affidavit of Ms F, Annex A
[63] Affidavit of Ms H, Annex A
In that event, s 65DAA of the Act is not engaged and there is no obligation to consider regimes of “equal time” or “substantial and significant time”. The father did not seek either of those types of regime in respect of the youngest child anyway. He sought that the youngest child visit him under supervision for several hours each alternate weekend for three months and, thereafter, the child spend time with him on alternate Sundays and on some other special occasions. His fall-back position was for indefinite “identification contact”, described to be about four visits per year under professional supervision at a contact centre, which service is available.[64] However, the father’s proposals did not engage with or dissolve the risk of psychological harm he poses to the youngest child.
[64] Exhibit F9
For the reasons discussed under the rubric of s 60CC of the Act, there is no satisfactory way in which to attenuate the risk of harm posed to the youngest child by the father, so there is no feasible option but to make no provision for the youngest child to spend time or communicate with him. That conclusion coincides with the Family Consultant’s recommendation, if the father is found to pose an unacceptable risk of psychological harm to the youngest child,[65] which finding is made. In any event, on the available evidence, the conditional safeguards for permanent supervised visits, recommended by the Family Consultant, were not capable of satisfactory implementation.[66] The Family Consultant said in cross-examination she “spent a lot of time thinking about” the viability of an order for “identification contact”, but was against it. The evidence did not suggest she was in error to reach that conclusion, which I accept.
[65] Family Report, para 82
[66] Family Report, paras 83-90
Perhaps the father would, as his counsel submitted, acquire greater insight with the assistance of psychotherapy, which might then diminish the prospect of him subjecting the child to the parental conflict during either supervised or unsupervised visits, but that prospect could not be pitched any higher than a “possibility”. It was surely not probable. Orders cannot be rationally formulated on the basis of mere hope that everything will work out for the best. The orders must reflect expectation.
There is no need to positively restrain the youngest child’s future interaction with the father, as the mother and Independent Children’s Lawyer both proposed, so long as he is restrained from approaching her home, her places of employment, the children’s schools, and the children’s places of employment. During the trial, the father admitted he would submit to such an injunction. An injunction in those terms will give the mother and the children sufficient protection. Her investiture with sole parental responsibility for the children enables her to decide if, when, and how they spend time or communicate with the father prior to their attainment of majority. The mother said she would be open to facilitating future interaction between the youngest child and the father if that was the child’s desire and she considered he had attained sufficient maturity to make that decision. Of course, once the children are adults they can make their own decisions.
The mother argued that the absence of any injunction precluding interaction between the youngest child and father would leave her exposed to the nuisance of his repetitive requests for her to relent and agree to some form of interaction. That was a viable concern, but entirely cured by the father’s willingness to submit to an additional injunction that restrains him from contacting her other than through a legal representative.[67]
[67] Exhibit F10, Order 4.1
The absence of any orders regulating the youngest child’s interaction with the father will, in all probability, effectively eliminate the father from his life for the remainder of his minority. The loss of that filial relationship is liable to cause the youngest child some grief. As the Family Consultant agreed in cross-examination, he will potentially suffer long-term psychological harm as a result, but that risk needs to be balanced against the risk of psychological harm he would suffer through retention of his relationship with the father. The latter risk of harm weighs more heavily than the former.
No orders are made for the youngest child to communicate with the father. Despite the father’s admission in his cross-examination of having a “phobia to phones”, he sought an order that permitted him twice weekly telephone communication with the youngest child, but that proposal is rejected for the same reasons they cannot safely have face-to-face contact. The father made no separate application for written communication between them, but the Family Consultant recommended against it anyway. The father’s tendency to frequently write to the mother about his grievances implies he would adopt much the same attitude to written communication with the youngest child.
The orders restrain both parties from allowing the youngest child to be exposed to denigration of them. The youngest child’s best interests are advanced by such an order.
The mother is obliged to keep the father informed about medical emergencies in relation to the children and to allow him to remain informed about their scholastic progress. There is no need to deprive the father of that information as its release to him will not compromise the safety of the mother or the children.
The orders require the parties to keep one another informed of their mobile telephone numbers so there is a line of communication between them should it be needed. By reason of the injunction to which the father willingly submitted, the mother could only be called on that number by the father’s legal representative.
The father’s application for the injunction restricting the mother’s choice of place of residence for her and the children is refused.[68] There was no legal or factual basis for such an order.
[68] Exhibit F10, Order 9
The Independent Children’s Lawyer sought costs orders against both parties, but all questions concerning costs are reserved for 28 days.
Property settlement
Proposals
The mother sought the orders set out in the minute of orders she tendered.[69] At trial, she contended for her entitlement to 80 per cent of the parties’ assets and superannuation interests.
[69] Exhibit M1
The father sought the orders set out in the minute of orders he tendered.[70] At trial, he contended for his entitlement to about 53 per cent of the parties’ assets and superannuation interests (and so, 47 per cent to the mother).
[70] Exhibit F10
As a consequence, the parties’ proposals were some 33 per cent apart. In circumstances where there was very little underlying factual dispute about their contributions and needs, the difference between their proposals suggested erroneous analysis by one or both.
Legal principles
Orders under s 79 of the Act altering the property interests of parties may only be made if the Court is first satisfied, pursuant to s 79(2), it is just and equitable to make such orders. The Act then identifies in s 79(4) the matters the Court must take into account in considering what order, if any, should be made (see Stanford v Stanford (2012) 247 CLR 108 at [22], [35]). While those two inquiries are not to be conflated (see Stanford at [35], [40], [51]), it is permissible for the factors within s 79(4) to inform the inquiry under s 79(2) (see Bevan & Bevan (2013) 49 Fam LR 387 at [83]-[89], [163], [169], [171]-[172]).
It is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying the existing legal and equitable property interests of the parties. It must not be assumed that the parties’ rights to or interests in marital property are or should be different from those that then exist or that a party has the right to have the parties’ property divided by reference to considerations set out in s 79(4) of the Act (see Stanford at [37]-[40], [50]). Commonly, however, it will be just and equitable for the parties’ property rights to be altered because the breakdown in their relationship will end their fiscal unity and deprive them of common use of their property (see Stanford at [42]; Bevan & Bevan at [68]-[70], [82], [164]-[165]).
If and once determined it is just and equitable for the property interests of the parties to be altered, the process of evaluating the proper orders to make is dictated by the factors enumerated within s 79(4) of the Act. The court must necessarily identify and assess the parties’ contributions within the meaning of ss 79(4)(a)-(c) and then take account of the relevant matters referred to in ss 79(4)(d)-(g) and 75(2).
Existing property interests
The parties tendered a joint balance sheet,[71] the contents of which represented agreed facts and therefore superseded any contrary evidence they adduced. The following findings are drawn from that document and were conceded to be correct by both parties during final submissions.
[71] Exhibit A
The mother’s existing assets, liabilities, and superannuation interests are:
No.
Assets
Value
Total
1
Former matrimonial home
540,000
2
Motor car 1
6,500
3
Furniture & personal effects
15,000
Sub-total
561,500
561,500
Liabilities
6
Mortgage
171,736
7
School and dental debts
6,506
Sub-total
178,242
178,242
383,258
Superannuation
9
First State Super
168,498
168,498
Net assets and superannuation
551,756
The father’s existing assets, liabilities, and superannuation interests are:
No.
Assets
Value
Total
4
Motor car 2
1,500
5
Furniture & personal effects
1,000
Sub-total
2,500
2,500
Liabilities
8
nil
nil
nil
2,500
Superannuation
10
3 separate unidentified funds
49,775
49,775
Net assets and superannuation
52,275
Both parties contended for their superannuation interests to be treated as property and for their contributions to property and superannuation to be evaluated globally. That is a satisfactory approach when neither party had any superannuation interest when they began cohabitation and, although the father sought superannuation splitting orders, it is unnecessary to make them.
Section 79(2)
Both parties contended that alteration of their property interests would be just and equitable, though they disagreed over how that should be fairly achieved. Adjustment orders should be made because, although the mother enjoys sole legal proprietorship of the former matrimonial home, the parties remain jointly liable under the loan secured by mortgage against the home. It is likely the mortgagee would only ever need to execute its security if it was necessary to enforce the debt and would not need to sue the father personally, but it is as well to formalise the mother’s acceptance of exclusive liability under the loan. In any event, the mother conceded she should pay some cash to the father in order to retain the assets and superannuation she currently owns.
Sections 79(4) & 75(2)
At the commencement of the parties’ cohabitation neither of them had any asset or liability of significant value. The parties each had cars and the mother’s parents purchased whitegoods for them once they commenced living together.
During the marriage, the mother worked on a full-time basis, save for periods of maternity leave, and the father worked on a part-time basis. The mother’s income was significantly more than the father’s. It was common ground the mother took on exclusive responsibility for managing the household finances because the father conceded “I have difficulty managing finances due to my autism/Asperger’s syndrome”.
Even though the father’s part-time work afforded him more spare time, both parties contributed to the performance of home duties and the care and supervision of the children. Each asserted greater contributions than the other in and around the home, but most likely their contributions in that regard were broadly equivalent, at least until the father suffered serious ill health from 2009 onwards after suffering a heart attack. The father implied he took on greater household responsibility from that time because he was not working at all, but that is unlikely, since he conceded the mother was his “carer” prior to their separation. He deposed the mother “had to care for me”, which he conceded placed “a lot of stress on our relationship”. The father unconvincingly tried to minimise the implication of that concession during his cross-examination. He has not worked at all since 2009. He applied for and was granted a Disability Support Pension, which he continues to receive.
In 2012, the mother’s parents gave her $50,000, which money was used to retire debt, improve the former matrimonial home, meet family medical expenses, and cover holiday costs. That capital contribution assumes considerable significance since it occurred towards the end of the parties’ relationship and accounts for a considerable proportion of their current wealth.
In 1996, the mother purchased vacant land and the parties later built the former matrimonial home upon it, funded by a joint loan secured by mortgage over the property. They moved into the home in early 1998, just before the birth of their eldest child, and remained resident there until separation. The property remains registered in the sole name of the mother.[72] Upon separation in 2015 the mother ensured that, after payment of some household bills, the mortgage re-draw facility was divided equally between the parties,[73] which she regarded as fair.
[72] Exhibit F3
[73] Mother’s affidavit, paras 94-97
The mother and children have remained in occupation of the former matrimonial home since separation and, as a consequence, the mother has made all mortgage repayments and paid all rates and utilities. The father lives in rented accommodation and receives a Housing Commission rent subsidy in addition to his pension.
The father pays child support of only $7.93 per week pursuant to assessment. Since separation well over two years ago, the father’s child support payments total only about $900. Over the same period, the mother estimates having spent about $50,000 on the children’s medical expenses and extra-curricular activities alone. The children are educated at a private school and the mother estimated her liability for school fees at $59,000 over the period from separation until the youngest child completes secondary education.
After separation, the mother continued to make contributions to her superannuation interest. Just prior to separation, she had accumulated superannuation of $127,818.[74] Now, her superannuation is valued at $168,498, so it has increased by about $40,000 over the last 30 months. Some of the appreciation is due to capital growth, but some must also be due to her financial contributions. She formerly contributed about $7,000 per annum,[75] and so total contributions would approximate $17,500 since separation. There was no evidence about any countervailing material increase in the value of the father’s superannuation interests over the same period.
[74] Exhibit M3
[75] Exhibit M3
The father is quite unwell. He asserts, and the mother accepts, he will never have gainful employment again. Aside from his heart attack and cardiac surgery in 2009, he suffers from numerous diseases and disorders, which need not be catalogued. He consults a physician and psychologist regularly and he asserts his health is deteriorating. He expects, and it is likely, he will continue to receive a Disability Support Pension for the foreseeable future. He is currently 53 years of age.
The mother is now 43 years of age, but her health is not as robust as it once was. She is medicated for a thyroid complaint, which causes her fatigue and weakness, and she suffers from a frozen shoulder, which impedes her work and requires steroid injections. She was working only part-time,[76] but is now in full-time employment.[77] The continuity of her full-time employment is dependent upon her physical health, which she will need to manage carefully. She will also have exclusive responsibility for the care of the two youngest children until they maintain their majority, which is about one more year for the middle child, but five years for the youngest child. She will likely have very little financial assistance from the father in the form of child support over that time.
[76] Family Report, para 3
[77] Mother’s financial statement, para 4
Conclusions and Orders
Comparison of the parties’ contributions justifies the mother’s receipt of a larger share of assets and superannuation interests. Although their financial and non-financial contributions were broadly equivalent until 2009, the mother’s contributions thereafter were greater. For the remaining five years of their cohabitation, the mother helped care for the father, she took on a larger load of care for the children, and she maintained her paid employment. In addition, her parents gave her $50,000, which was dissipated for the benefit of the family. After separation in 2015, the mother bore exclusive responsibility for the care and supervision of the children and, save for child support payments of only $900 in total, she bore exclusive responsibility for their financial support. The mother also continued to build her superannuation interest.
The mother’s contribution-based entitlement should be measured at 60 per cent. She submitted for 75 per cent, which was too high. Her contributions were greater by half, but not by a factor of three. The father submitted for her contributions to be measured at 52 per cent, which was much too low and barely differentiated between them. A differential of 20 per cent is appropriate on account of the factors mentioned. The parties’ assets and superannuation interests have a combined net value of $604,031, of which 60 per cent computes to $362,419.
As for the future, the father is about 10 years older than the mother and his health is inferior. He is unlikely to ever regain paid employment and, while the mother will likely maintain paid employment, the level of her income is liable to vary because of her own health concerns. It is highly improbable the children will have any meaningful interaction with the father for the remainder of their minority, in which event the mother will continue to bear exclusive responsibility for their care and supervision and, given the father’s continuing reliance on a pension, she will also bear almost exclusive responsibility for their financial support. That situation will endure for another year until the middle child attains her majority, but for another five years until the youngest child attains his majority. On balance, those considerations merit an adjustment in the mother’s favour pursuant to the statutory considerations set out in ss 79(4)(d)-(g) and 75(2) of the Act.
As was pointed out by the Full Court in Marriage of Clauson (1995) 18 Fam LR 693 at 710, when referring to such adjustments:
…it is the real impact in money terms which is ultimately the critical issue.
The overall property adjustment between the parties must be just and equitable, not just the underlying percentage division of the net value of the parties’ assets (see Lester & Lester [2014] FamCAFC 209 at [76]-[81]; Marriage of Phillips (2002) 29 Fam LR 128 at 140-141). In cases where the net pool is relatively modest it is often preferable to express an adjustment as a lump sum rather than as a percentage (see Parrott v Public Trustee of NSW (1993) 17 Fam LR 785 at 790-791).
Given the relatively modest value of the parties’ property and superannuation, this is a case in which such a course is justified. An adjustment of $120,000 in the mother’s favour is warranted to alleviate the burden she will carry with the children over the next five years. The assessment of that sum takes into account the father’s poorer overall financial circumstances, but for which the adjustment in the mother’s favour would have been greater. The mother submitted for an adjustment in her favour of 5 per cent (equivalent to $30,202), but that submission is rejected. She over-stated her contribution-based entitlement, but then under-stated her adjustment, probably to avoid her overall proportional entitlement appearing excessive. The father submitted for an adjustment in his (not the mother’s) favour of 5 per cent, but that submission is rejected since the mother’s prospective needs outflank his own.
To achieve the appropriate outcome, the mother can retain her existing property and superannuation interest. She should assume sole ownership of the former matrimonial home, subject to its encumbrance, but that will require her to pay some money to the father so her overall entitlement is not exceeded. If she is to receive assets and superannuation with a net value of $482,419 (= 362,419 + 120,000), she will need to pay to the father cash of $69,337 (= 551,756 – 482,419). The father will then be left with the cash, his car, his personal belongings, and his superannuation interests, with a net value of $121,612 (= 69,337 + 52,275). In percentage terms, the mother will receive 79.87 per cent, which is remarkably close to the 80 per cent for which she ultimately advocated.
The mother will probably be able to raise the funds to pay out the husband, either from her parents or from a banking institution. She said in cross-examination she had already made some preliminary enquiries which led her to believe she would have no trouble, so she is allowed two months within which to raise the money. If she cannot, there will be no option but for the former matrimonial home to be sold and the net proceeds divided between the parties in the proportions necessary to protect them both against the misfortune of either a rising or falling real estate market. The orders so provide.
An order is made, with the mother’s consent, for her to surrender up to the father certain items of personal property she marked on a tendered schedule.[78] As she proposed, the order requires her to deliver up the property within 14 days to the paternal grandmother, from whom the father can collect it.
[78] Exhibit F8
The father sought an order requiring the mother to also surrender the residual items on the schedule, but that application is refused. In respect of the balance of the property, either the mother wanted to retain the items or the evidence failed to reveal whether she even retains possession of them. She deposed to her delivery of loads of personal property to the father after their separation.[79] Accordingly, any order in respect of the contested items would surely be productive of more litigation, which should be avoided. Ironically, in his Amended Response filed on 9 March 2017, the father sought a declaration that the parties should retain all items of personal property in their current possession and so the schedule of property only became an issue during the mother’s cross-examination. Despite the father’s apparent fixation upon his recovery of the items of personal property, during his cross-examination he admitted “I’ve nearly given up on it”. He did not formally make any application to recover the property until he tendered his proposed minute of orders immediately before final submissions commenced, after the evidence had closed, by which time the defects in the evidence could not be cured.
[79] Mother’s affidavit, paras 91-93
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 22 June 2017.
Associate:
Date: 22 June 2017
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