KIRKLAND & GORMAN
[2016] FCCA 104
•17 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIRKLAND & GORMAN | [2016] FCCA 104 |
| Catchwords: FAMILY LAW – Property – where father’s contribution is substantially greater than that of the mother – where Court rejects father’s contention about meaning of High Court’s decision in Stanford – where Court rejects a mathematical approach to assessment of contribution – where minor s.75(2) adjustment in father’s favour. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79 |
| Bevan & Bevan [2013] FamCAFC 116 Eufrosin & Eufrosin [2014] Fam CAFC 191 Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395 Kennon & Kennon [1997] FamCA 27 MRR v GR [2010] HCA 4 Pierce v Pierce (1998) FLC 92-844 Singerson & Joan [2014] Fam CAFC 238 Stanford & Stanford [2012] HCA 52 Williams & Williams [2007] FamCA 313 |
| Applicant: | MS KIRKLAND |
| Respondent: | MR GORMAN |
| File Number: | BRC 7341 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 30 November 2015 – 2 December 2015 |
| Date of Last Submission: | 2 December 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 17 March 2016 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
ORDERS
Parenting
The parents have equal shared parental responsibility for the Children, X born (omitted) 2003 and Y born (omitted) 2005 (“the children”).
The party with whom the children are living with at that time is to be responsible for the day-to-day decisions concerning the care, welfare and development of the children.
The children live with the Father.
The children spend time with the Mother as follows:
(a)Commencing from the first Thursday following the date of these Orders, in week 1, from Thursday after school to before school on Tuesday, and each alternate week thereafter; and
(b)In week 2, on Thursday from after school until before school on Friday, and each alternate week thereafter;
(c)If the children are not otherwise spending time with the Mother, on Mother’s Day from 9:00am until 6:00pm;
(d)If the children are not otherwise spending time with the Mother, on their respective birthdays in even numbered years as follows:
(i)If the child’s birthday falls on a school day, from after school until 8:00pm;
(ii)If the child’s birthday falls on a non-school day, from 9:00am until 8:00pm;
(e)Commencing from the first school holiday period following the date of these Orders, for the first half of each school holiday period in even numbered years, with such period to commence at 6:00pm on the last day of term and to conclude at 6:00pm on the date that is established by calculating the number of days starting from the first day after the end of the school term to the last day before the commencement of the next school term, multiplied by 0.5 (and rounded up by one day if the resulting number is above 0.5);
(f)For the second half of each school holiday period in odd numbered years, with such period to commence at 6:00pm on the date that is established by calculating the number of days starting from the first day after the end of the school term to the last day before the commencement of the next school term, multiplied by 0.5 (and rounded up by one day if the resulting number is above 0.5), and to conclude at 6:00pm on the last day before the commencement of the next school term;
(g)Orders 4(a) and 4(b) above be suspended during such times as specified in Orders 4(e) and 4(f).
If the children are not otherwise spending time with the Father, on Father’s Day from 9:00am until 6:00pm.
The children communicate with the Mother at any reasonable time when they are living with the Father, by any available means of communication.
The children communicate with the Father at any reasonable time when they are spending time with the Mother, by any available means of communication.
For the purpose of changeover, except where changeover is to take place at a child’s school, the Mother is to collect the children from the Father’s residence at the commencement of her time and return the children to the Father’s residence at the conclusion of her time.
Property
Within 30 days, the Mother do all acts and things and sign all necessary documents to transfer her right interest and title in the (omitted) Bank joint account ((omitted)) to the Father.
Within 60 days, the Father shall do all acts and things and sign all necessary documents so as to discharge the mortgage in respect of Property I (being the whole of the land contained in certificate of title reference (omitted)), and refinance the mortgage into his sole name, and the Father shall otherwise indemnify and keep the Mother indemnified against any and all other liabilities relating to that property including but not limited to the payment of rates, taxes, mortgage repayments and insurances.
Within 60 days and subject to the Father refinancing the mortgage in his sole name, the Mother shall do all acts and things to transfer to the Father her entire right title and interest in the property at Property I (being the whole of the land contained in certificate of title reference (omitted)).
Within 60 days, the Father shall do all acts and things and sign all necessary documents so as to discharge the mortgage in respect of Property P (being the whole of the land contained certificate of title reference (omitted)) and refinance the mortgage into his sole name, and the Father shall otherwise indemnify and keep the Mother indemnified against any and all other liabilities relating to that property including but not limited to the payment of rates, taxes, mortgage repayments and insurances.
Within 60 days and subject to the Father refinancing the mortgage in his sole name, the Mother shall do all acts and things to transfer to the Father her entire right title and interest in the property at Property P (being the whole of the land contained certificate of title reference (omitted)).
The Father shall be the sole owner and solely responsible for:
(a)the Honda (omitted) motor vehicle;
(b)any amount contained in the Father's (omitted) Super superannuation fund;
(c)the coin collection;
(d)fthe art collection;
(e)any funds contained in the Father's (omitted) Bank Accounts (a/c (omitted) and a/c (omitted));
(f)the mortgage against the property at Property I;
(g)Property P; and
(h)the debt owing to (omitted) Orthodontics.
The Mother shall be the sole owner and solely responsible for:
(a)any funds contained in the Mother's (omitted) Bank Account (a/c (omitted));
(b)any funds contained in the Mother's (omitted) Bank Accounts (a/c (omitted) and a/c (omitted));
(c)the (omitted) bond;
(d)the (omitted) Kia Rio motor vehicle;
(e)any debt owing against the MasterCard credit; and
(f)the Mother’s superannuation (but for the provisions of order (8) below).
The base amount allocated to Mr Gorman, the non-member spouse in these proceedings, out of the interest held by Ms Kirkland in (omitted) Super is $49,371.
Pursuant to s.90MT(1)(a) of the Family Law Act 1975, whenever the Trustee of (omitted) Super makes a splittable payment from the interest held by Ms Kirkland member number: (omitted), the Trustee shall pay to Mr Gorman or his administrators, executors beneficiaries, heirs or assigns the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement Ms Kirkland would have had in (omitted) Super but for these Orders.
Order (14) have effect from the operative time and the operative time shall be deemed to be 2 weeks from the date when these Orders are served upon the Trustee.
This Order binds the Trustee of (omitted) Super.
Except as otherwise set out in these Orders, the parties have the sole right, title and interest in any other property which is at the date hereof in their possession or control and they shall be solely liable for and indemnify the other against any and all personal liabilities.
In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to s.106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
IT IS NOTED that publication of this judgment under the pseudonym Kirkland & Gorman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 7341 of 2013
| MS KIRKLAND |
Applicant
And
| MR GORMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the Orders that the Court has made in this case. It is both a parenting dispute and a property dispute. There are two children. X was born (omitted) 2003 and is 12 years old. His sister, Y, was born (omitted) 2005 and is 11 years old. The Mother is the Applicant and the Father is the Respondent.
Both parents are highly intelligent and articulate professional people. They are both (occupations omitted) by background. The Mother now works in a senior position in a (employer omitted). The Father is a retired (occupation omitted) and works part time as a (occupation omitted). They both love X and Y very much, but cannot agree about how the children’s time should be divided between them. The parents also cannot agree about how the property they have between them should be divided.
Both parents represented themselves in these proceedings. Neither had any significant previous experience in family law matters. Both allowed their emotional involvement and investment in this case to cloud their thinking and general approach to this litigation. That is understandable. These proceedings are very important to both of them, and indeed to the children. Their lack of objectivity, however, resulted in there being much irrelevant evidence placed before the Court, and it also resulted in both making quite serious allegations against the other that were ultimately not established, but made the process both for them, and for the Court, much more difficult than it needed to be.
Notwithstanding these preliminary observations, X and Y are both very fortunate to have the parents they have. Both have so much to offer their children. The future looks bright for X and Y, whatever the outcome of this case might be for their parents.
Background facts
Unless specifically indicated to the contrary, the following represents the Court’s findings from all the available evidence about the background facts. Most of these facts are uncontentious, but where there is an issue, some comments will be made about the same.
The Father is 71 years old. The Mother is 44 years old. The Mother has another child, Z, who is 16 years old. Z has never had a meaningful relationship with her biological father. Indeed, for all practical purposes she has regarded the Father in these proceedings as her psychological father. The evidence indicates that for most of Z’s life she has enjoyed a good relationship with the Father but, regrettably, that appears to have broken down. No Orders are sought in respect of Z, but she remains an important person in this case because she enjoys a good relationship with both X and Y who, together, form a sibling group.
Z lives with her mother. X and Y live with their father and spend 5 nights out of each 14 with their mother, together with one evening each fortnight.
The parents commenced their relationship in about 2000, but this did not involve permanent cohabitation, and the commencement of a formal de facto relationship occurred in about 2003. The Court is satisfied that by the time the Mother became pregnant with X, the relationship had started. Nothing turns on this.
At the time the Father was working as a (occupation omitted) in Brisbane and the Mother was studying. She was also working as a (occupation omitted). Even on the Mother’s case, the Father’s assets were considerably more valuable than her own at the time the relationship commenced.
The parents purchased a property at Property P in August 2003 for $375,000. That transaction was settled in October or November that year. The parents borrowed about $300,000 in their joint names. The Father provided the balance of the purchase price, including the expenses relating to the transaction and stamp duty. The Mother agreed that the paternal grandmother gave to the Father $60,000 to put towards the purchase of Property P and that he had a about $25,000 that he put in.
In 2004 the loan was increased, and the money used to purchase a Toyota (omitted) motor vehicle.
After X was born, the Mother returned to work part-time. By then she was working as a (occupation omitted) with a (employer omitted).
In (omitted) 2004 the parents married.
The Father continued his work as a (occupation omitted), whilst the Mother moved to a number of different (occupation omitted) positions.
By about 2007, the Father appears to have started winding down his (employment omitted). He says it was, in effect, because he was not coping due to depression. Indeed, in the Father’s case he contends that the depression was caused by the unhappy state of their relationship. The Court finds, on the evidence, that the relationship was both unhappy and dysfunctional by 2007, and that this contributed to his depression.
In 2007, the Father commenced receiving an allocated pension from his superannuation entitlement.
In 2007 and 2008, the Father had received an offer from the then (employer omitted) for an appointment to the (position omitted), which the Father declined due to his depression. The Court finds that the Father, firstly, did in fact receive the offer that he alleges, and secondly, that he did in fact decline based on what he described as his belief that he could not cope, and which was probably attributable to his depression. To the extent, therefore, that the Father’s depression was, at least in part, attributable to the unhappy relationship with the Mother, it could be said that the unhappy relationship contributed to the Father declining the appointment to the (employer omitted). The matter can be taken no further, however. Indeed, as will be discussed in these reasons below, the Father’s contention that, in effect, the Mother’s conduct in the relationship that caused him to be so unhappy, and ultimately depressed, and thus declining the (position omitted) appointment, is somehow a matter of conduct that needs to be reflected in the outcome of the property proceedings, is a bridge too far.
In any event, the Father was appointed to a number of (positions omitted) including the (employer omitted).
In 2008 or 2009 (nothing turns on this), the Father received an inheritance of $261,583 from his mother. This money was used, initially, to reduce the mortgage owing in respect of the Property P property. As part of the inheritance, the Father also received a Mazda motor vehicle. The Mother also received, at about the same time, a gift of $4,000 to assist her with her HECS debt, but instead she used it to reduce the Property P mortgage.
The parties made improvements to the Property P property, including a new kitchen and painting, and this was funded from the redraw facility in their mortgage.
In 2009, a Holden (omitted) was purchased for $34,500, again probably using the redraw facility which came into existence, of course, primarily because of the inheritance received by the Father.
Also in April 2009, the parties contracted to purchase the Property I property for $750,000. They borrowed $600,000 from (omitted) Bank, with the rest put in using the redraw facility, the source of which has already been noted. The Property I property was then rented out.
By about 2010, the Father’s work as a (occupation omitted) was tapering off. He sold his (business omitted) and car park in about April 2010, and then in May 2010, received about $468,000 in total. In addition, he cashed in his personal superannuation of $78,945 and received $7,000 from his (omitted) superannuation account. This money was paid into the mortgage accounts.
In early 2011, the marriage difficulties that had existed right throughout this relationship came to a head and there was a short separation. Both parents withdrew monies from the redraw facilities, but ultimately paid them back. They then resumed their cohabitation. From about the time that the Father sold his (business omitted) he became the principal carer for the children, as the Mother was working. Indeed, this continues to be the case.
On 30 June 2011, he retired as a (occupation omitted).
Later on in 2011, the parties entered into an unsuccessful business venture involving (omitted). They recovered some money, but in general terms, appear to have lost about $30,000. Nothing turns on this.
Also in 2011, the Father received $9,496 from a (omitted) superannuation policy, and $17,744 from an (omitted) investment, both of which were paid into the mortgage account.
In early February 2012, the Father received a settlement from his bank arising from fraud perpetrated by a former employee. The sum of $50,705 was also paid into the mortgage account.
In 2012, the maternal grandfather gave to the Mother a Toyota (omitted) motor vehicle which may well have been worth the $9,000 that the Mother contends. Also, at about that time, the Holden (omitted) that had been purchased in 2009 was sold for $20,000, and the sale proceeds paid into the mortgage account.
In August 2012, the maternal grandfather paid to the Mother as a gift $50,000 which was initially deposited into the mortgage account, but then subsequently withdrawn by the Mother and retained by her. In December 2012, the Father purchased a Honda (omitted) vehicle for $19,900 using the redraw facility.
The final separation took place in December 2012. The redraw facilities were frozen, up to a limit. The Mother moved into separate accommodation that she was renting, and the Father and the children remained in the former matrimonial home which is where they currently live. For a period, however, there was shared care of the children but it seems that the parents agree, and the Court finds, that by about 2014 the children started living predominantly with the Father, and seeing the Mother each alternate weekend. By about 2015, they commenced spending five days each fortnight with her. That is the current arrangement.
Both parents live in suburbs of Brisbane. The geographical distance between them is not such as to create any issues of reasonable practicality of the children spending time with each parent. X has commenced year 7 at a state high school which is close to where his mother lives. Y attends a state primary school in the suburb where she lives with her father.
The Mother works full-time, but apparently has a flexible work arrangement. The Father works part-time, at most two days per week, but the regularity of that is not consistent.
After separation, there were a number of other relatively minor financial transactions that do not need to be set out as they do not influence the outcome of this case.
A number of findings can be made about the health of each parent. The evidence of Dr A, consultant psychiatrist, in his Affidavit filed by leave of the Court on 30 November 2015, establishes that the Father suffers from adjustment disorder with depressed mood. Dr A believes that with respect to causation of this adjustment disorder, there appeared to be a fairly close relationship between the Father’s psychiatric disorder and the deteriorating state of his marriage. Dr A was of the opinion that his adjustment disorder probably led to a significant deterioration in his ability to function as a (occupation omitted). From cross-examination it emerged that the Father had not told Dr A, who was not his treating psychiatrist but one engaged in a medico legal capacity, that he had previously been diagnosed with depression and had taken antidepressants. In the absence of any further evidence, however, it is not possible to thereby conclude, as the Mother contended, that the Father actually suffers from depression or a depressive disorder.
In relation to the Mother, the confidential psychological report dated 9 October 2014 produced on subpoena by her treating psychologist, Dr L, leads the Court to conclude that she was assessed at that time as “being moderately to severely depressed and mildly stressed.” A reading of the report in question creates the strong influence that the diagnosis was in a background of “long term relationship difficulties with her husband.” There is no other evidence about the Mother’s mental health. Specifically, the Court rejects the Father’s contention that she suffered from some other form of personality disorder or that she was psychotic. Indeed, when the Father put that to Dr A, Dr A specifically rejected that.
Returning briefly to Dr A’s report, to the extent that Dr A prognosticates about the Mother’s mental health (putting aside his rejection of the suggestion that she was psychotic), the Court places no weight on it. Dr A did not meet the Mother. He did not have the benefit of her side of the case. To the extent that he was hypothesising about causation issues relating to the Father’s adjustment disorder, the Court is comfortable with his suggestion that it was attributable to the deteriorating state of his marriage. The Court does not accept any contention that it was some aspect of the Mother’s behaviour or conduct that was the causative factor. What may not have been apparent to Dr A, but what is plainly apparent to this Court, is that this was, regrettably, a profoundly unhappy relationship from its earliest days.
The unhappiness may not have developed, either qualitatively or quantitatively, in the same way or at the same time. It is more likely than not that the Mother became unhappy with the relationship much earlier than the Father, but at some point (as if it were somehow possible to qualitatively assess the state of unhappiness) the Father’s unhappiness appeared to surpass that of the Mother’s. As is so often the case, based on this Court’s experience, unhappiness and dysfunction in family life form a vibrant partnership. Thus, for example, it is plain to the Court beyond any doubt that there were high levels of conflict between the parents after the children were born, and that as time went by they were increasingly exposed to both subtle and overt demonstrations of that conflict. Where it is necessary and relevant, examples will be set out below.
The Orders sought and proposals made
In relation to the parenting aspect of the case, by the time of closing submissions the Father had adopted as his proposal the recommendations contained in the Family Report, which will be discussed below. The Mother, however, proposed that an equal time arrangement be implemented, failing which, the children should live with her and spend each alternate weekend with their father.
In relation to financial matters, the Mother proposed an overall split of 57.5% and 42.5% in favour of the Father. This did assume, however, that the children would be living predominantly with her. The Father’s proposal in relation to property matters was that he should receive everything except one quarter of the Mother’s superannuation interest, which she could retain.
Despite the fact that both parents were (occupations omitted), neither could express their respective proposals in relation to financial matters in terms of percentages for contribution and future needs.
The evidence
The Mother relied on the following documents:
·Amended Initiating Application, filed 4 August 2014;
·Financial Statement, filed 30 September 2015;
·Affidavit of Ms Kirkland, sworn/affirmed 6 May 2015;
·Affidavit of Ms Kirkland, sworn/affirmed 13 May 2015; and
·Affidavit of Ms Kirkland, sworn/affirmed 12 October 2015.
The Father relied on the following documents:
·Amended Response, filed 4 November 2014;
·Financial Statement, filed 25 November 2015;
·Affidavit of Mr Gorman, sworn/affirmed 18 November 2013;
·Affidavit of Mr Gorman, sworn/affirmed 3 November 2014;
·Affidavit of Mr Gorman, sworn/affirmed 23 July 2015;
·Affidavit of Mr Gorman, sworn/affirmed 5 November 2015;
·Affidavit of Mr L, affirmed, 19 November 2014;
·Affidavit of Mr G, sworn 21 November 2014;
·Affidavit of Mr K, sworn 26 May 2015;
·Affidavit of Mr S, sworn/affirmed 15 September 2015;
·Affidavit of Ms L, affirmed 25 November 2015; and
·Affidavit of Dr A, sworn 10 May 2015 and filed in Court with leave on 30 November 2015.
The following documents were tendered into evidence:
·Exhibit R1 – (omitted) Bank statement for account number (omitted) dated 26/10/12 – 25/11/12;
·Exhibit R2 – two photographs of the children dated 2009 and November 2015;
·Exhibit R3 – email of 29 November 2015 from Ms A;
·Exhibit R4 – speech and language reassessment report;
·Exhibit R5 – two (omitted) Bank statements, account (omitted) dated 17/03/04 – 17/09/04 and 24/11/05 – 17/03/06;
·Exhibit R6 – (omitted) Bank statement, account (omitted) dated 16/03/07 – 17/09/07;
·Exhibit R7 – two (omitted) Bank statements, accounts (omitted) and (omitted) dated 17/03/05 – 16/09/05 and 24/03/05 – 23/09/05;
·Exhibit R8 – home loan account statement dated 24/03/09 – 25/09/09;
·Exhibit R9 – letter dated 01/05/13 from the Mother to the Father;
·Exhibit A10 – bag of cheque butts of the Respondents bank accounts;
·Exhibit A11 –folders containing tax returns from 2007 – 2013, and a list of the Applicant’s coin collection and value;
·Exhibit R11 – Affidavits of the Applicant Mother dated 30/08/13, 04/08/14 and 20/11/14; and
·Exhibit A12 – two documents produced under subpoena by Dr L.
Additionally, a Family Report was prepared by Family Consultant Ms E and is dated 20 May 2015.
The Father, Mother and Ms E were all cross-examined. None of the other deponents of Affidavits were required for cross-examination.
The applicable law
In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) 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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Regarding the property matter, this is also an application under s.79 of the Act which relevantly provides:
Alteration of property interests
(1) In property settlement proceedings, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 79(4) incorporates the provisions contained in s.75(2) of the Act, which states:
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52, which provided guidance on how s79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395, but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a statutory edict. The four steps articulated in Hickey at paragraph 39 are:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
The decisions in Stanford and Bevan also emphasise the importance of making findings that any order is just and equitable for the purposes of s.79(2), independent of the s.79(4) process. In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests exercise. Even if the just and equitable consideration were treated as a threshold issue in this case the parties have, by their actions (separation, and re-ordering of their financial lives since then), and claims (divergent claims about their property under s.79 of the Act), indicated that they themselves consider it just and equitable that some order be made under s.79 adjusting their property interests as presently held. It is clearly just and equitable in this case to make an order.
Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. This is not inconsistent with step one in Hickey.
Another issue in this case is how, precisely, the Court should weigh and assess the initial contribution made by the parties. In this regard, the Court needs to consider the decision of the Full Court in Pierce v Pierce (1998) FLC 92-844. A useful recent decision of the Full Court examines its earlier decision in Pierce v Pierce together with a later case. In Williams & Williams [2007] FamCA 313, the Full Court states as follows at paragraphs 26, 27, 28, 29 and 32:
26. We think there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
27. In Pierce v Pierce when speaking of the relevance to be paid to initial contributions the Full Court (Ellis, Baker and O’Ryan JJ) referred to Fogarty J in Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814 at 816:
…respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
28. The Full Court (Ellis, Baker and O’Ryan JJ) then said at [28]:
In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
29. Pierce v Pierce was a case in which the husband brought in $200,000 cash into the relationship. He applied that money towards the purchase of a matrimonial home. He was employed throughout the marriage and supported the wife who, whilst in some paid employment primarily attended to domestic tasks and taking care of the children. The Full Court assessed the parties’ respective contributions to a pool of $320,000 as 70 per cent in favour of the husband and 30 per cent in favour of the wife at the end of a 10 year relationship.
32. In Hunt v Zuryn (2005) FLC 93-226; (2005) 34 Fam LR 169 the Full Court (Kay, May and Boland JJ) allowed an appeal in a property case where a pool of assets of $1.12million had been assessed for contribution purposes as 75 per cent in favour of the husband and 25 per cent in favour of the wife. The Court in allowing the appeal indicated that an assessment of 75:25 fell outside the realms of an acceptable range saying at 79,730; 170:
Such an assessment ought adequately recognise that much of the parties’ wealth can be attributed to the capital growth in the assets introduced by the husband at the commencement of the marriage but at the same time bringing into consideration a myriad of other contributions each made in the course of their relationship.
Accordingly, the Court must not only identify the contributions of each party, but also assess the weight to be attributed to these contributions having regard to many factors, including what has occurred afterwards.
The Father made a number of important submissions about the law to be applied in property cases, and it is necessary to deal with those submissions here. The Father submitted that the High Court’s decision in Stanford, and subsequent Full Court decisions including Bevan (both referred to above), go much further than has hitherto been reflected in the jurisprudence after those cases. The Father contended that Stanford in particular was authority for the proposition that alteration of property interests under ss.79 and 75 now have to be conducted strictly in accordance with the rules of equity and common law, and not in accordance with the “palm tree justice” that he, inferentially, submitted was reflected in the case law. This meant, for example, that the Court needed to look at actual contribution and, in effect, to adopt a mathematical approach to assess the contribution that each party to a relationship has made. He submitted that the exercise became an accounting exercise, whilst not ignoring non-financial contribution. A corollary of his interpretation of Stanford was that the length of the relationship was largely irrelevant to the assessment of contribution.
The Court pressed the Father to refer to those paragraphs in the High Court’s judgment in Stanford, or indeed any subsequent case law at all, that supported his submissions. He was unable to do so.
The Court rejects the Father’s interesting interpretation of the contemporary law. As recently as 2 October 2014, the Full Court in Eufrosin, & Eufrosin [2014] Fam CAFC 191 specifically rejected the contention that assessment of contributions is a mathematical exercise, and discussed at length the significance and reasoning for this: paragraphs 25-28:
As this Court has reiterated on a number of occasions, the assessment of contributions is not a “mathematical exercise”. We consider the following extract from this Court’s decision in Bolger & Headon [2014] FamCAFC 27 to be apposite:
23. This Court said some 20 years ago in Aleksovski v Aleksovski (1996) FLC 92-705, per Baker and Rowlands JJ at 83,437:
It is therefore necessary that trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.
It really comes down to questions of weight. Whilst weight would and must be given to a contribution which a party makes shortly before the separation, less weight may be given to a contribution made by one of the parties to a marriage early in the cohabitation period of a long marriage, particularly in circumstances where the contribution has gone into the parties’ assets or been used up in the payment of family expenses.
24. Kay J held at 83,443:
What is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship. Just as early capital contribution is diminished by subsequent events during the marriage, late capital contribution which leads to an accelerated improvement in the value of the assets of the parties may also be given something less than directly proportional weight because of those other elements.
25. Of considerable significance to the approach of the trial Judge, this Court said in Dickons & Dickons[2012] FamCAFC 154:
23. We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
24. There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
26. In passages which resonate with the arguments in this appeal and the trial Judge’s reasons to which they relate, this Court went on to say:
25. Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “…giving over-zealous attention to the ascertainment of the parties’ contributions…” (Norbis v Norbis (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26. The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
27. In the same year, in Lovine & Connor and Anor (2012) FLC 93-515, this Court said:
42. As part of the process of ultimately determining just and equitable orders under s 79 there is included a complex of discretionary assessments and judgments of many components of contribution, only some of which are capable of measurement in money terms and then often only in historical, rather than present, money terms. Any dictate to the effect that in the course of assessment each disparate component part or kind of contribution must be assigned a discrete and identifiable value or percentage is antithetical to the nature of the discretion involved.
28. We seek to respectfully repeat and emphasise the reference in Lovine to such an approach being “antithetical to the nature of the discretion involved” and the reference in Dickons to such an approach being avoided in the usual course of events. Doing so, we repeat, is not consistent with a holistic assessment of the parties’ contributions which is what s 79(4) requires.
In our view, the arguments advanced on behalf of the husband (primarily, a weighting in favour of specific initial contributions) suggest an approach to assessing contributions which, as the authorities just quoted make plain, is at the least “…antithetical to the nature of the discretion involved” and “…should be avoided”.
Her Honour plainly had regard to the fact that the husband had interests in a number of real properties as well as an interest in a corporate entity (Eufrosin Pty Ltd) at the commencement of the marriage (at [97]). It was open to her Honour to find that he had little equity in those properties as at the date of marriage (at [99]). Her Honour similarly had regard to the fact that at least some of those properties were used to secure borrowings which were, in turn, used to purchase further properties, including the former matrimonial home (at [26]) and that the parties used the sale proceeds from at least one of those properties for the purposes of the marriage, including to purchase investment properties (at [32], [37]-[38] and [105]).
With respect to the husband, we consider that her Honour properly recognised the contributions of each party and, more specifically, her Honour “…weigh[ed] and assess[ed] the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation…” As this Court opined in Aleksovski (1996) FLC 92-705 at 83,437 “…less weight may be given to a contribution made by one of the parties to a marriage early in the cohabitation period of a long marriage, particularly in circumstances where the contribution has gone into the parties’ assets or been used up in the payment of family expenses” (emphasis added).
Even more recently, in Singerson & Joan [2014] Fam CAFC 238, at 61 the Full Court said, “distilling contributions by means of a calculation or mathematical equation is generally unhelpful.” Moreover, at paragraph 66 they said:
Section 79(4) of the Act is clear. There is nothing to suggest that any category of contributions needs to be quarantined and applied solely to particular assets. The court is mandated to look at the totality of what the parties have contributed in a financial and non-financial sense, including contributions to the welfare of the family and to the acquisition, conservation and improvement of assets. The court is required to evaluate the significance of all the various contributions to the property, notwithstanding there may be different categories of that property.
The other important submission the Father made, and which needs to be dealt with firmly at this early stage in these reasons for judgment, is the submission he made about the Full Court’s decision in Kennon & Kennon [1997] FamCA 27. To put this in context, the Father’s submission was that he declined the appointment to the District Court of Queensland, thus losing $360,000 per annum, due to the Mother’s conduct.
As it turns out, and as will be dealt with briefly below, the Father’s argument fails because he has not established to the satisfaction of the Court what, exactly, the Mother’s conduct was, let alone that the conduct was causative of anything, making his contribution more arduous. The Court has already made findings that this was an unhappy relationship which caused both parents to suffer depressive-type disorders, but that falls well short of the “course of violent conduct by one party towards the other during the marriage” that was contemplated by the Full Court in Kennon.
Moreover, the Father ignores those other passages in the Full Court’s decision where it warns that, “it is important to consider the ‘floodgates’ argument”. That is, these principles which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct, a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost. The Court rejects the Father’s claim based on Kennon, or that somehow the Full Court’s decision supports the contention he makes.
Observations about the evidence of the parties generally
The Court has already described these parents as being both highly intelligent and articulate, but emotional, and thus lacking objectivity. Their inability to communicate as parents permeates their evidence. What was interesting, however, was their civility to each other in Court, even in cross-examination. The fact is, however, that they frequently said wildly divergent things and both demonstrated an ability to exaggerate and catastrophise, which was certainly unbecoming for them, quite unnecessary, and made the Court’s task even more difficult. They both immersed themselves in irrelevant detail and, indeed, seemed to engage in a competition as to who would provide the densest Affidavits pertaining to the most irrelevant minutiae of their relationship. It does not matter who started it. Both demonstrated superlative skills in doing so.
What must be noted, however, is that that Court believes they were both acting in what they considered to be good faith. Most self-represented litigants do not fully understand what is relevant and what is irrelevant in family law cases. This case demonstrates that even legally trained self-represented litigants suffer from the same malady. Notwithstanding that, these are both good parents and good people, performing (or having performed) at very high levels in society. The temporary insanity that is relationship breakdown obviously impairs even the most intelligent and articulate people from focusing on what counts. Both should have taken much more care with the evidence that they adduced. A few examples will be given from the evidence of both parents.
In the Mother’s Affidavit of 6 May 2015 at paragraph 69, she makes a potentially important and serious assertion about the Father’s superannuation fund. She says, no doubt in an attempt to minimise the Father’s case about the contribution that he made, that his superannuation fund statements show a payment to his ex-wife of $78,799.98 in 2010. The Father’s case is that he came into the relationship with superannuation of about $138,000. But the Father provides the explanation at paragraph 356 of his Affidavit of 5 November 2015, explaining that his wife was a member of the superannuation fund and made her own contributions and was entitled to her own share of that account.
Moreover, and this is the important aspect, the very same document that the Mother relies on establishes the source of the funds used by the Father’s former wife to make the withdrawal. It was a careless allegation to make in any case, let alone a case like this that is mired in detail.
Another example is found at paragraph 38 of the Mother’s Affidavit sworn 13 May 2014. She says at paragraph 38, again on the issue of contribution, that when she first met the Father:
…he had a huge tax debt to pay to the government which meant he had to sell his home.
Again, this is a potentially important and serious piece of evidence. It had the potential to undermine the Father’s case about his contribution at the commencement of the relationship. The Father deals with this comprehensively at paragraph 401 of his Affidavit sworn 3 November 2015. He asserts, and the Mother subsequently did not cross-examine about this, that the Mother knew full well about the existence of the tax debt that arose from an investment that was supposed to be tax effective. The tax debt was paid at a very early stage of the relationship using the sale proceeds of a property that formed no part of the Father’s contention about his initial contribution. Again, and with great respect to the Mother, it was a cavalier allegation to make in circumstances where she probably knew, or certainly should have known, that it was an irrelevant allegation in circumstances where it did not affect the Father’s claim for contribution.
The Father was not to be outdone, however. At paragraph 29 the Father deposes that the Mother, “did not ever during this period pay anything into the mortgage”. To be precise, the period that he refers to is set out at paragraph 28 and covers 2005 to 2009. He was cross-examined about this. He accepted that the Mother did, in fact, pay money into the mortgage. He then made the rather startling admission to the effect that, at the time he did this Affidavit, he did not have the bank statements. The Father, of course, was such a highly regarded (occupation omitted) that he was offered an appointment to the (employer omitted). It beggars belief that he would swear on oath that which he did, without checking the bank statements. It demonstrates a cavalier approach to the evidence.
At paragraph 65 of the same Affidavit, referring to the time when the Mother was the (occupation omitted) of a (employer omitted), he deposed, obviously on oath, that the level of assistance that he provided her amounted to the following:
It almost became the case that I virtually ran the (employer omitted) by remote control.
It is a gross exaggeration of the reality. What evidence there was on this topic demonstrated that the Mother asked his advice from time to time, and he willingly offered it. When a witness exaggerates to the extent demonstrated here, and does so on oath, the Court becomes increasingly careful about assessing the weight to be given to the evidence of that witness.
In his Affidavit of 23 July 2015 at paragraph 241, the Father makes the assertion that the Mother gave to the children:
Zydol, Buscopan, Redipred, Gastrolyte, Polaramine, Fexo, aspirin and Paedamin whenever they claimed to be feeling ill or whenever Ms Kirkland thought they might be sick, whether they had actual symptoms or not.
Unsurprisingly, the Mother cross-examined him about this. It was put to him that, in fact, he had no idea what the medication was for, and that he had simply gone through the medication box. The Father agreed. It was put to him he had no idea if the medication had been prescribed. He agreed. He said he did not see any prescription. He then made the following admission to the effect that he was:
…not saying that you gave them to the children all the time … I knew these medicines were there during the time we were together.
It beggars belief that the Father would depose to the contents of paragraphs 241, knowing full well of the implication that it carried about the Mother’s capacity to meet the children’s needs, given the answers that he gave in cross-examination. Why make the allegation in the first place, one wonders?
Later in cross-examination the Father admitted that he had become “obsessed” with the litigation. In submissions, however, he tried to explain that whilst he may have been obsessed in the period leading up to the hearing, he was not obsessed for all of the period of the litigation. The Court does not accept his explanation. He clearly had the opportunity at the time that he gave the answer to explain that he was only obsessed with the litigation for a finite period only. He did not. Regrettably, the evidence that he gave at paragraph 241 and his answers in cross-examination lend support to his own admission about his obsession with this litigation, an obsession that might be prepared to sacrifice the truth.
At paragraph 287 of the same Affidavit, the Father deposes to a transfer of $105,000 in the mortgage account “for no apparent reason”. It must be recognised that the Father’s case was that the Mother had not fully disclosed what she had done with her income and had not explained various transactions in the period they were together. In short, part of the Father’s case against the Mother was one based on non-disclosure. In cross-examination, the Father was reminded that the effect of the transfer to which he referred at paragraph 287 was merely to transfer money from the offset account to the mortgage account, which created no financial detriment to them at all.
The Father agreed that there was no detriment. His complaint was that the Mother “didn’t discuss it with me.” And yet the context of the evidence, and the allegation that the Father makes, clearly has nothing to do with the Mother not discussing transactions with him, and everything to do with what he perceived as an irregularity in their financial affairs. If the Father knew that there was no detriment, indeed something inherent in his own evidence, why put it in at all? Was it point scoring? Was it muddying the waters? Was it exaggeration, or yet another example of a cavalier, frivolous approach to making allegations and to the evidence generally?
There are other examples from the evidence that would merely reinforce the Court’s concern, but it is not necessary to set them out. The fact is, that having observed the parents give evidence and studied the evidence that they deposed to, both were prepared to engage in exaggeration, but the Father in particular manifested such a degree of indifference to the truth in the allegations that he made, it casts a pall of uncertainty over much of what he says. The Court is not saying that either parent is lying. Both appear to be guilty of reinterpreting history in a way that now suits them. This is especially true of the Father in terms of seeking to attribute the declining years of his career to what he believes was the Mother’s conduct, but what was in reality just another deeply unhappy relationship that eventually resulted in separation.
Whilst it is important to record the matters set out above, ultimately, most of the Court’s findings are based on less contentious, or uncontentious, matters.
The evidence of the Family Consultant
Ms E's Report is dated 20 May 2015 and was based on interviews held at Child Dispute Services in the Brisbane Registry of the Court on 23 April 2015. At the time, the Mother was proposing a week-about arrangement, but as an alternative, that the children live with her and spend substantial and significant time with their father from each alternate Thursday after school to Tuesday before school. The Father’s proposal was for the current arrangements to remain in place, that is, that they live with him, but spend each alternate Thursday after school to before school on Tuesday, together with the alternate Thursday evening with their mother.
Having now heard the evidence of the parties, it is interesting to observe how each made the serious allegations they have made against each other in front of the Family Consultant.
Ms E, of course, met with both children and records the following about these matters in paragraphs 42-57:
42. Y aged ten was a friendly but shy child. Y’s presentation suggested that she functioned at the level of a younger child, specifically in terms of her language construction and articulation. Y started crying early in the interview because“This place is scary”. Y did not know the purpose of her interview. She told me “My mum read the book”, referring to the ‘Why am I going to see a family consultant?’ booklet. She could not remember the contents.
43. Y told me she enjoyed her school. She liked “Art, my friends (and she has a) good teacher”.
44. Y thought her mother and father were not together anymore because “They fight”. She could not remember any times her mother and father fought. Y told me her mother and father sometimes talked well and other times not so well with each other now. But, Y could not remember a time when they spoke badly to each other. Y told me her mother and father do not talk about each other to her.
45. Y described good things about her mother and her father and talked about activities she did with them. She did not want to change anything about either her mother or father. She told me that her mother and father “Send me to my room” when she is naughty. Y liked sharing a room with X at her mother’s home.
46. Y described her sister Z positively. She liked that Z helped her with her homework and presentations.
47. Y told me Mr T sometimes stayed with them at her mother’s and they sometimes go to his house which was “Good”. Y told me “Don’t know” what she disliked about Mr T.
48. Y told me that the time she spent with her mother and father was “Good”. She thought it would be “Alright” to spend either more or less time with her mother than she does now.
49. X aged eleven was a polite and friendly child. X though the purpose of his interview was about “Mum and dad. Where I living. If I like things how they are”. X told me his mother and father individually asked him “How are you finding the arrangements”.
50. X told me he enjoyed his school. He particularly liked sport and his friends. He said he was bullied in the past but told me this has stopped. X was uncertain about whether he would go to (omitted) High School or (omitted) High School in 2016. He told me his mother was applying for a rugby scholarship for (omitted) High School and she might move house so he could go there. Otherwise he will go to (omitted). X thought his mother and father were ok with both schools.
51. X described his mother and father positively. He disliked nothing about either of them. X described similar disciplining in each home, which was that his mother and father “Shout (and then) make us go to our room”. But, X thought his mother disciplined him unfairly when he and Y because he always got into trouble, even if Y kicked him.
52. X thought Z lived with their mother because it was easier for her to get to school. X told me he did not see Z much because she was at a different school, she had athletics and worked. He thought this was “Not good”. But, X also told me that Z could get “Annoying. She gets really angry about nothing…(in a) bad mood”.
53. X did not remember telling his father he “Hated” Mr T. X thought Mr T was “Annoying sometimes….The things he does like (doing) accents”. X told me he did not see Mr T much.
54. X told me his mother and father separated because they “Fought…Just shout(ed)” with each other. X told me his mother and father talk “A little bit now” with each other and they have stopped fighting.
55.X told me that he and Y leave for school at 7.45am when they are with their mother, and, 8.15am when they are with their father. X told me he did not want to go to afterschool care. He thought it was “Boring (and) I don’t know anyone most of the time”.
56. X told me he used to live “mostly with dad but it’s pretty much even now”. He thought the current arrangement was better because it was “A bit more even”. But, X wanted less time away from each of his parents. X said he was always allowed to speak to his mother and father on the phone when he wanted. He also felt comfortable asking his mother or father if he could call his other parent.
57. Z aged fifteen was a confident and friendly teenager. Z referred to Mr Gorman as her father throughout the interview. Z told me she had read the booklet about seeing a family consultant. She thought the purpose of her interview was to “Talk about family life, what was good about mum and dad and help find resolution (as well as so) we gave a say”.
Ms E also met with Z. She records that Z referred to the Father as “her father throughout the interview” (paragraph 57). Consistent with both X and Y, she reported that she had observed the high conflict between the parents, and specifically, she recalls an incident that will be discussed in the evidence below about a fight over where to assemble some drawers. It was clear that Z has her own life, unsurprising given her developmental stage. She appeared to enjoy the time that she spends with Y and X, which happens when they are at the Mother’s home. It was clear that Z’s relationship with the Father was under strain and she thought that he had treated her poorly, was rude, aggressive and angry with her and treated her differently. The significance of this evidence is that it assists to assess the validity of the Father’s contention that it is the Mother who has undermined his relationship with Z. From what Ms E records, Z seems to have formed her own assessment based on her experiences of the Father’s behaviour to her. There is nothing in the Family Report to support the Father’s contention. Indeed, there is no other evidence to support the Father’s contention.
Ms E records the observations of the children with both their parents at paragraphs 64-69. All the observations were positive, except, perhaps unsurprisingly, that neither parent acknowledged the other.
Ms E’s evaluation commences at paragraph 70:
EVALUATION
70. It is my opinion that the key issue underpinning this dispute is Mr Gorman and Ms Kirkland’s non-existent communication and their dominant construct that the other hates them and cannot be trusted. It is my opinion that the allegations raised by Ms Kirkland with regards to Mr Gorman perpetrating violence against her and the children should be viewed within this context. Similarly, it is my view that Mr Gorman’s allegations with respect to Ms Kirkland’s mental health be equally understood in this vein. That Mr Gorman and Ms Kirkland cannot agree upon which school X attends in high school in 2016, and, that Mr Gorman is abdicating his decision making about this to the Court illustrates the extent of their problematic communication. If Ms Kirkland and Mr Gorman’s communication deteriorates further X and Y’s emotional development may be compromised, as well as, harm their relationships with the children.
The evidence undisputably supports Ms E’s contention about the non-existent communication between the parents. Likewise, as regards her contention that each believes the other hates them and cannot be trusted. Interestingly, the parents did agree about X attending high school in 2016. In a case where both parents propose equal shared parental responsibility, notwithstanding the obvious problems confronting them, there is some reason to be hopeful about their capacity to make important joint decisions.
At paragraphs 71-72 Ms E reports:
71. In my opinion, and, as reported by the adults and children, X and Y share close relationships with Ms Kirkland and Mr Gorman. This was reflected by my observation of their positive interactions with one another. As X and Y did not identify a clear preference for one parent, or express strong views with regards to their parenting, it is my opinion that their views should be accorded significant weighting by the Courts.
72. Mr Gorman and Ms Kirkland both identified that X and Y have adjusted well to the current parenting plan They described X and Y were happy and thought this was reflected in their more settled behaviour, particularly over the past year. Whilst Mr Gorman and Ms Kirkland both outlined past issues with the other’s parenting of the children, they reported no current concerns. Indeed, Mr Gorman and Ms Kirkland complimented each other, and, highlighted improvements in their parenting.
The parents need to understand that the Court is obliged to consider and give appropriate weight to the views of the children. The only objective evidence about their views is contained in Ms E's Report. The Court cannot place weight on what either parent contends X or Y have said that they want. Experience demonstrates that the parents’ evidence about this is inherently unreliable.
The observation of paragraph 72 that, notwithstanding the past issues the parents had referred to, neither had current concerns about the other’s parenting capacity, is a matter that was reflected in the cross-examination of both parents. There is clearly hope for these parents, and for these children. There are times when they can see clearly. The end of the litigation might only assist that.
Ms E did not support the Mother’s proposals. At paragraphs 73-75 she states:
73. In my opinion Ms Kirkland’s proposals X and Y to live with her week about or primarily with her would not provide them with a more conducive environment in which to meet their physical and emotional developmental needs. In my opinion Mr Gorman and Ms Kirkland’s refusal to cooperatively parent the children and communicate with each other about their needs precludes them from forging a successful shared care parenting arrangement, as, this is a necessary component of such a parenting arrangement, particularly for Y. Because Y has learning difficulties and operates at the level of a younger child Mr Gorman and Ms Kirkland would be required to communicate more closely and share information with each other to convey and meet her parenting needs.
74. Ms Kirkland’s work commitments would require her to enrol Y in childcare. X would be ineligible for this once he reached high school and Ms Kirkland did not identify what afterschool care arrangements she would put in place for him. Whilst only a relatively minor thing, Mr Gorman is always available to care for the children after school.
75. Nor would it in my opinion provide them with the opportunity to strengthen their relationship with Z. Both Z and Ms Kirkland remarked upon Z building a very busy and separate life for herself. Z also perceived she saw them a lot now which suggests the opportunity for them to maintain their relationship with her already exists.
As will be seen below, the Mother had the opportunity to challenge these observations in cross-examination.
Ms E’s recommendations are found on the final page of her Report. She states:
RECOMMENDATIONS
On the basis of this assessment and subject to any findings by the Court it is respectfully recommended that:
1. The current parenting arrangement for the children continues to remain in place on a final basis. That is, X and Y live with Mr Gorman and spend time with Ms Kirkland every second Thursday after school to Tuesday before school, and, the alternate Thursday for dinner. Mr Gorman and Ms Kirkland may wish to consider that the children spend every Thursday overnight with Ms Kirkland, as this is likely to increase predictability for the children.
The Mother cross-examined Ms E. Thus, Ms E was made aware that the parents had agreed about X attending the high school that the Mother had proposed. She became aware that it was the Mother who was taking Y to speech therapy and that her relationship with Mr T had ended.
The Family Consultant agreed that if the Mother had, by agreement with the Father, assumed the responsibility or the primary responsibility for attending to Y’s learning difficulties, partly because of the parental communication problems, this might be a factor pointing towards the Mother having more time. The same conclusion followed if it were the case that the Mother had assumed responsibility for school assignments.
The Mother explained the after school arrangements proposed for X, with the Family Consultant observing that much depended on issues of practicality and logistics.
The Family Consultant explained that the Father had not told her about his adjustment disorder and depressed mood, but she was not concerned about any impact on parenting capacity because, as she pointed out to the Mother in cross-examination, both parents had complemented each other’s ability to look after the children and neither had raised concerns about this.
The Father cross-examined Ms E. She agreed that she had observed nothing in the Father, nor heard the children say anything of concern, about the Father’s psychological state. She agreed that, in effect, the nature of X’s relationship with Z, and indeed Y too, suggested a level of ambivalence. She also agreed with the Father that Y would not favour changing where she was going to school for fear of missing her friends.
The evidence of the Family Consultant in the Family Report and her cross-examination is important evidence. Both parents clearly acknowledged this, for example, in their closing submissions. Ms E’s evidence is both independent and expert.
In her closing submissions, the Mother submitted that the Family Report should nonetheless receive less weight than it might otherwise receive because of a number of changes that had occurred since the Report. Thus, she contended that factors such as X attending a state high school near the Mother’s home, that she had established good after school arrangements for him, that the children get their own bedroom, that the Mother has more flexible and better work arrangements, and that she is involved much more in the children’s lives so far as speech therapy and assignments are concerned, all had the cumulative impact as to leave it open to the Court to conclude that the Mother’s proposals for equal time, or for the children to live with her, were still proposals that the Court could find to be in the children’s best interests.
The Court observes that there is an element of truth in the Mother’s submission. The changes that she set out have in fact taken place. The Family Consultant, when questioned by the Court, agreed that the children could benefit from an arrangement where they had up to 6 out of 14 nights with their mother, and thus the possibility of converting the Thursday evening dinner into an overnight was open to the Court.
The Court does not consider the changes that have taken place to be as profound as the Mother contends, such that the Report’s recommendations would not be considered influential in this case. One of the Family Consultant’s biggest concerns was about the inability of the parents to communicate and their lack of trust in each other. However, the fact is that they have agreed about where X goes to school in 2016. Whilst there is substance in the Mother’s contention that she has assumed a greater responsibility for Y’s speech therapy and assisting both children with their assignments, the fact is that the Father contends, quite plausibly, that he agreed to the Mother’s greater involvement, partly because he was obsessed with the case and partly based on financial circumstances. But this case will end, hopefully sooner than later. And this Court will find that the Mother’s financial circumstances are, in fact, better than the Father’s. His explanation, therefore, is quite plausible.
The Mother’s case always emphasised the importance of keeping the three siblings together. This is understandable. A more objective appraisal of the evidence, however, suggests that Z is asserting an autonomy and independence that is entirely developmentally appropriate, and both of the younger siblings expressed a level of ambivalence about their older sister. In other cases, keeping siblings together might be somewhat more important than in this case.
As recorded above, after hearing the Family Consultant’s evidence, the Father in closing submissions agreed to accept her recommendations.
Subject to matters that follow in these reasons for judgment, the Court accepts the evidence of Ms E.
Discussion of section 60CC considerations
Both parents have a meaningful relationship with these children and nothing will change this, whatever order the Court makes.
The evidence before the Court leads it to conclude that there is no need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. Even when the concerns expressed by each parent against the other in their voluminous Affidavits are taken at their highest, there is still nothing to protect the children against. Even in cross-examination, when given an open opportunity to raise concerns about the other’s parenting, none of the concerns went as high as to suggest there was a need to protect the children. What is obvious, however, is that the children need to be protected, as much as possible, from the adverse effects on them of being exposed to parental conflict. The separation itself has achieved this. Ensuring the changeovers avoid face-to-face contact between the parents will also help.
The children’s views are an important consideration. Y was open to either more, or less, time with her mother than she does have now. X wanted less time away from each of his parents. The Court interprets those views as meaning that the children prefer that no significant changes be made, but that does exclude increasing the time that they spend with their mother to another overnight.
The children have a good relationship with each of their parents, but the Court’s impression from the evidence overall is that it is a different relationship. What they do with each parent, is slightly different. There seems to be a sense in which they enjoy their father’s unpressured and more spontaneous availability for them, whereas their mother provides more structure. It was obvious from the evidence of the parents that they had very different parenting styles. When this is compounded with an inability to communicate and a lack of trust, it creates potential problems, but not, seemingly, in terms of the nature of the relationship that each parent has with the children. Any of the proposals before the Court would not interfere with the good relationships that exist.
Despite the obvious difficulties that exist between the parents, they seem to have taken advantage of the opportunities that were there to participate in such decisions as they could, and to spend time and communicate with the children. Much to the credit of both parents, there is no evidence of either seeking to undermine the other’s relationship with their children.
The Mother is currently paying child support. In addition, she has taken on the responsibility for Y’s speech therapy. Each is doing what they need to do as parents in terms of their obligations to maintain the children. The overall impression is that the Mother probably is in a better financial position than the Father, but not such as to make any significant difference in the children’s lives.
The proposal before the Court that is likely to bring about the most significant changes in the children’s lives is the proposal of the Mother. Her proposal for the children to live with her is assessed by this Court as not being in their best interests. Given the nature of the relationship that each child has with their father, it would be too much of a change for them, in circumstances where the evidence simply does not point to the need for such a change. The Court recognises that X is already going through a significant change in his life this year by starting at a new high school.
To accede to the Mother’s proposal of both children living with her would mean that Y would also change schools, something she clearly does not want at this stage. The Family Consultant’s reasons for not favouring equal time are both compelling and demonstrated by the evidence. The parents cannot communicate. Their lack of trust for each other is palpable. The Family Consultant says that these are strong contraindicating factors towards equal time. The Court agrees. In any event, the Mother simply has not made out any case for the benefit to the children of spending equal time with her. None of the concerns that she expresses about the Father’s household are such that would warrant the Court’s intervention. This is not to suggest there is any onus of proof on her, but rather, that on an objective appraisal of the facts, no change is warranted.
This case appears to present little or no issues about practical difficulty and expense of the children spending time with and communicating with the other parent.
Ultimately the Court finds that there are no issues of parental capacity such that the Court would be concerned about the ability of the parents to provide for the needs of the children, including their emotional and intellectual needs. Just because the Father is 71, and nearly 30 years older than the Mother, does not mean that he has been, is now, or might in the future be, less likely to meet their needs. Age, per se, is neither a qualifying or disqualifying factor. A very interesting feature of this case is that the parents appear to have confined the very toxic feelings that they have towards one another to themselves, particularly since separating, though the children are clearly aware about the conflict and the lack of communication. This does suggest, however, an insight into the children’s emotional needs.
The absence of any evidence of undermining relationships between one parent and the children is, again, consistent with good parental capacity. The evidence that the Mother specifically raises about the Father’s parenting deficits, for example, insufficient clothing and an untidy home, cluttered drawers and closets, depression, and financial difficulties, are simply not borne out by the evidence. Moreover, her concerns about these matters are inconsistent with her own proposal for equal time. Likewise, the Father’s concerns about the Mother’s parenting capacity are not borne out, and in any event he conceded this by indicating his willingness to adopt the Family Consultant’s recommendation.
There are no significant issues about the maturity, sex, lifestyle and background or other characteristics of the children that are relevant. They have two highly articulate and intelligent parents who have much to offer them, particularly once this litigation is over.
Whilst both parents have demonstrated a very appropriate and positive attitude towards their children, and even to the responsibilities of parenthood, both need to be criticised for the manner in which they have conducted this litigation. The Father agreed that he has become obsessed with it, even to the point of conceding that perhaps he did not attend to Y’s speech therapy needs. Even this litigation will, one day, come to an end. Both parents need to understand how irresponsible it is to expose their children to conflict, bearing in mind how easy it is for children to become aware of parental conflict and its subtle, insidious potential impacts on them.
Amidst all the allegations that the parents each make against the other, the only finding about family violence that can be made actually plays little, indeed hardly any, role in this decision. There was an incident in 2006 or 2007. It was a minor incident about where a pre-packed desk needed to be assembled. For all practical purposes, the Mother agreed that she assaulted the Father. Nothing turns on this. Both contributed to this incident and grossly overreacted. The Court is confident that the risk of family violence is negligible.
The Court is required to make an order that would be least likely to lead to the institution of further proceedings in relation to the children. The risk of further proceedings may well be dependent on the extent to which either parent accepts the outcome of the litigation and is prepared to get on with the rest of their lives. The other obvious issue, of course, is that the children will, in time, progress into developmental stages where they will, like Z, seek to assert their autonomy and independence. Whether the parents can manage these changes in their children’s lives is yet to be seen.
The Court is given the opportunity to consider any other fact or circumstance that it consider relevant. In a case like this, the relevance of the depressive conditions that each parent suffers is potentially significant. It potentially explains behaviour. Ultimately, it does not change the outcome. It is more likely than not that each parent came into this relationship with the conditions that they now suffer. An unhappy relationship probably exacerbated those pre-existing conditions. It is somewhat naïve, perhaps indeed foolish, to seek to attribute blame for these matters at the end of such an unhappy and dysfunctional relationship.
The Mother’s use of diaries to record her deepest personal thoughts was her right, but it was irresponsible of the Father to access these records and to then elevate them into something far greater than what they probably were. The history of the relationship demonstrates that the Mother’s evidence about her diary entries is more likely than not quite correct, that is, that those entries reflected her feelings, but not her actions. The relationship between the parents continued for many, many years after she started to record her unhappiness in the relationship. They clearly had many happy times together, including holidays. They were clearly building a life together, including as parents and continuing their careers, albeit in different ways.
The Mother’s contention in cross-examination that when she was happy in the relationship, this was not necessarily being recorded in her diary, is not only consistent with the subsequent history of the relationship but is entirely plausible. All of the Father’s years as a (occupation omitted) clearly failed him when he could not see this reality. He catastrophised the significance of the diary entries and then, in effect, reconstructed an even unhappier history of the relationship than what it probably was. It is time to move on. The children need both parents to do so.
Parental responsibility
Neither parent contended with the presumption of equal shared parental responsibility. Indeed, there is every reason to apply the presumption, and no reason not to. This means, of course, that the Court must consider equal time, or substantial and significant time. As foreshadowed earlier in these reasons, neither the Family Consultant, nor indeed does this Court, believe that equal time is in the best interests of the children, nor is it reasonably practicable having regard to the struggle which the Court believes the parents would have to implement such an agreement as well as to effectively communicate.
Nonetheless, the Court is attracted to the Family Consultant’s acknowledgement that if 5 out of 14 is working for the children, then so could 6 out of 14, especially if what is an evening dinner on the alternate Thursday night is converted to an overnight. Indeed, there are obvious benefits to the children, as it avoids a changeover. In all the circumstances, the Court believes that such an order would be both reasonably practicable, and in the best interests of the children.
The schedule of assets and liabilities
At the commencement of the hearing, the following Schedule of Assets and Liabilities was provided to the Court, attached to the Father’s case outline document. The Mother seemed to adopt this document.
SCHEDULE OF ASSETS AND LIABILITIES
| No. | Description | Title | H’s Value | W’s Value | Adopt |
| ASSETS | $ | $ | $ | ||
| 1 | Property I | Joint | 750,000.00 | 750,000.00 | 750,000.00 |
| 2 | Property P | Joint | 560,000.00 | 580,000.00 | 560,000.00 |
| 3 | Honda (omitted) | Husband | 12,000.00 | 12,000.00 | 12,000.00 |
| 4 | Superannuation | Wife | 198,400.00 | 198,400.00 | 198,400.00 |
| 5 | Superannuation | Husband | 3,567.00 | 3,567.00 | 3,567.00 |
| 6 | Coin Collection | 2,500.00 | 2,500.00 | ||
| 7 | Art Collection | Husband | 20,000.00 | 25,000.00 | 20,000.00 |
| 8 | Bank Accounts | Husband | 315.00 | 315.00 | |
| 9 | Bank Accounts | Wife | 1,200.00 | 1,200.00 | |
| 10 | Joint Account | Joint | 8,212.00 | 8,212.00 | |
| 11 | Kirkland Family Trust | Wife | 80,000.00 | 80,000.00 | 80,000.00 |
| 12 | (omitted) Bond | Wife | 1,900.00 | 1,900.00 | |
| 13 | Kia Rio | Wife | 12,000.00 | 12,000.00 | |
| Total Assets | |||||
| LIABILITIES | |||||
| 14 | (omitted) Bank Mortgage - Property I (No. (omitted)) | Joint | 191,990.00 | 191,990.00 | 191,990.00 |
| 15 | (omitted) Bank Mortgage, Property P (No. (omitted) | Joint | 350,438.00 | 350,438.00 | 350,438.00 |
| 16 | (omitted) Orthodontics | Husband | 4,080.00 | 4,080.00 | |
| 17 | MasterCard | Wife | 960.00 | 960.00 | |
| 18 | Kia Rio Loan | Wife | 11,500.00 | 11,500.00 | |
| Total Liabilities | 558,968.00 | ||||
| NETT ASSETS | 1,091,126.00 | ||||
| NETT ASSETS IN JOINT NAMES (71%) | 775,784.00 | ||||
| NETT ASSETS IN HUSBAND’S NAME (3%) | 31,802.00 | ||||
| NETT ASSETTS IN WIFE’S NAME (26%) | 283,540.00 |
There were, fortunately, few issues in dispute between the parents. In fact, the column entitled ‘Adopt’ sets out an agreed value. In respect of items 2 and 7, the adopted values were, apparently, what the parents agree will be will be the net sale proceeds of the items in question.
The only contentious item was item 11, entitled ‘Kirkland Family Trust’. The Father contends that $80,000 should be treated as the value of the Mother’s interest in the trust. She says that she has an interest as a discretionary beneficiary in her father’s trust, but it certainly does not have the value attributed. The Father cross-examined her about it, and particularly in relation to the 2013 financial statements of the Kirkland Family Trust.
In cross-examination, it emerged that in 2012 she was the beneficiary of a trust distribution of $80,000 which was, according to the document, unpaid. In 2013 she was noted as the beneficiary of a trust distribution of $80,000, but this time it was drawn down. She gave evidence, however, that there was no trust distribution in 2014, and that she is currently expecting nothing from the trust.
In the circumstances, therefore, it is not possible for this Court to find that she has any present entitlement under the Kirkland Family Trust, let alone that it should be reflected as a line item in the balance sheet. Accordingly, item 11 in the balance sheet should read nil. Of course, the Mother has a financial resource in terms of her potential entitlement to receive a distribution under the Kirkland Family Trust. Whilst it is not an asset, it is a resource available to her that is not available to the Father, and which the Court must therefore consider under s.75(2) of the Act.
The final Schedule of Assets and Liabilities will therefore be as follows:
SCHEDULE OF ASSETS AND LIABILITIES
| No. | Description | Current Ownership | Value |
| ASSETS | $ | ||
| 1 | Property - Property I | Joint | 750,000.00 |
| 2 | Property - Property P | Joint | 560,000.00 |
| 3 | Honda (omitted) | Husband | 12,000.00 |
| 4 | Superannuation | Wife | 198,400.00 |
| 5 | Superannuation (to be treated as cash) | Husband | 3,567.00 |
| 6 | Coin Collection | 2,500.00 | |
| 7 | Art Collection | Husband | 20,000.00 |
| 8 | Bank Accounts | Husband | 315.00 |
| 9 | Bank Accounts | Wife | 1,200.00 |
| 10 | Joint Account | Joint | 8,212.00 |
| 11 | Kirkland Family Trust | Wife | NIL |
| 12 | (omitted) Bond | Wife | 1,900.00 |
| 13 | Kia Rio | Wife | 12,000.00 |
| Total Assets | 1,570,094.00 | ||
| LIABILITIES | |||
| 14 | (omitted) Bank Mortgage - Property I (No. (omitted)) | Joint | 191,990.00 |
| 15 | (omitted) Bank Mortgage, Property P (No. (omitted)) | Joint | 350,438.00 |
| 16 | (omitted) Orthodontics | Husband | 4,080.00 |
| 17 | MasterCard | Wife | 960.00 |
| 18 | Kia Rio Loan | Wife | 11,500.00 |
| Total Liabilities | 558,968.00 | ||
| NET ASSETS | 1,011,126.00 |
The net result is that the net assets available to the parties amount to $1,011,126. Out of this, $198,400 consists of superannuation assets, and $812,726 is treated as non-superannuation assets. In this regard, any superannuation entitlement in the Father’s name (item 5) is treated as equivalent to cash. It was conceded by the parties that as a result of the Father’s age, any superannuation he has or receives pursuant to a splitting order, can be cashed in without difficulty. That is clearly the case.
Assessment of contributions
The Court was unassisted by the polarised and emotionally driven views adopted by each party in this case. The Mother seemed to be proposing a 42.5 per cent split in her favour and the Father, that she receive considerably less. Even when the Father was pressed in closing submissions to put some estimate on the percentage value of what he was proposing the Mother get, he was unable to assist the Court.
Both parties engaged in rather creative attempts to explain their respective positions (as vague as that may have been in the Father’s case) to the Court. Both were confused about the difference between income and assets.
An interesting insight, however, is obtained by looking at the Mother’s case outline. At annexure L, for example, she purports to set out a summary of the financial contributions made by each party during the relationship, starting from the commencement of cohabitation, and including the most recent gifts received from external sources. The summary is clearly incorrect because, for example, it significantly understates what was received on the sale of the Father’s (business omitted) and car park, and ignores that the (omitted) investment was realised at a profit. Interestingly, these omissions are not present in the chronology that she herself attaches to the same document. What is significant for present purposes, however, is that she acknowledges (ignoring the mistakes referred to above) and ignoring income, that her financial contribution represented only 11 per cent of the total financial contribution in the relationship. On the corrected figures, that is, including the full value of the (business omitted) and car park and the (omitted) investment, her percentage becomes about 8.5 per cent.
To be fair to the Mother, at all stages she conceded that the Father’s financial contribution was greater than hers.
Turning to the annexure Q of her case outline, the Mother purports to assess the financial contribution by way of income, and here she contends that her income from all sources amounted to $601,243, but the Father’s only $391,223. In the calculations of her income, she treats her superannuation contributions as income, but this misconstrues the fundamental character of superannuation and the fact that it has already been treated as an asset in the balance sheet.
She also treats the child support that she received throughout the relationship from Z’s father as income, totalling $90,000. Whilst it is not necessarily inappropriate to treat it in this fashion as it was, strictly speaking, income coming into the family unit, there was no evidence before the Court to suggest that the costs incurred in raising Z were met entirely from that source. In any event, the fairest way to treat this would be, for present purposes, to accept the Mother’s contention that it is income, but to recognise the fact that the Father has also made a contribution to the living expenses of Z, or it is otherwise a factor that must be taken into account, that Z has, for all practical purposes, been treated of a child of the relationship when it comes to financial matters.
Returning, however, to item Q the corrected schedule would mean that even if the Mother’s calculations were accepted in their entirety, her income would be about $501,243, and the Father’s $391,223. That is, with respect, hardly a significant discrepancy in income over the period of the relationship and certainly does not warrant a separate adjustment in her favour based on contribution.
The situation at law is more complex than can be reflected in a schedule and summaries. For example, in assessing contribution the Court cannot ignore the Father’s assertion that there was an increase in value of his (business omitted) and car park during the course of the relationship, but that any such increase was attributable to maintaining that asset which was probably paid out of household income.
An assessment of contribution by the Mother goes further, of course, to take into account non-financial contributions, as well as homemaking and parenting. The problem for the Mother in this regard is that she concedes during both before separation and afterwards, the Father played a not insignificant role in homemaking and parenting, a situation that has only increased since the date of separation, indeed since the date of his retirement.
From the Mother’s perspective, however, and even taking her calculations at face value, it is impossible to see how she arrives at the figure of 42.5 per cent, unless she has assumed that the children would be living primarily with her, and thus that there would be a substantial s.75(2) adjustment in her favour.
Turning now to the Father’s contentions about contribution, and doing the best the Court can to discern these from the evidence, some important findings need to be made. To the extent that the Father contended that there was no pooling of income during the relationship and that he, in effect, funded everything, with the Mother using her income for her own purposes, and indeed, funding personal expenses from his income, that is clearly not the case. He had the opportunity to test the Mother in cross-examination about this. The evidence she gave was firm, clear, and entirely plausible, let alone supported by the documents. The parties’ income was, at all relevant times until the date of separation, pooled. All those so-called “irregular” transactions that the Father contended for did not survive critical scrutiny. Quite frankly, the Father was deluded in his belief that he did everything in a financial sense and she did nothing.
However, it is unquestionable that he made the superior financial contribution, at least in a capital sense during the relationship. He was also guilty of treating income as assets. His approach was as flawed as the Mother’s and reflected lack of proper advice.
The Father may well feel that he has gone backwards in a financial sense as a result of the relationship. He may well feel that he was worth more before he met the Mother than he is now. He is probably right. But he forgets that they have raised two children, and raised Z (albeit with the assistance of child support from her biological father). They have purchased real estate with all the expenses associated with this. Both parents have travelled quite extensively during the relationship. His income declined once he retired. That is hardly surprising.
The Father perhaps does not even appreciate the significance of the fact that he has made a significant post-separation non-financial contribution in caring for the children.
Moving on from the parties’ respective views about their entitlements to an assessment on the evidence for s.79 purposes, the conclusion on the evidence is clear – the Father’s contribution in a global sense (financial and non-financial, direct and indirect, both before separation and afterwards) was significantly greater than that of the Mother. However, the Court rejects the Father’s Kennon claim. For reasons that have already been articulated elsewhere, there is no basis to it. An unhappy, dysfunctional relationship does not make for a Kennon claim. If it did, the “floodgates” contemplated by the Full Court in Kennon would well and truly be opened.
The Court has rejected the Father’s formulaic, mathematical approach to the assessment of a contribution. It is contrary to authority, despite the creative submissions the Father made.
Doing the best the Court can, the Court assesses that the Father’s contribution, financial and non-financial, direct and indirect, including as homemaker and parent, and both before and after separation, should be assessed at 80 per cent.
Section 75(2) of the Act requires the Court to consider a range of matters in assessing whether there should be a further adjustment to any contribution based assessment. The Father is considerably older than the Mother. Both have some mental health and other issues, but age is more likely to be an exacerbating factor for the Father. The conclusion of these proceedings may, perhaps, mitigate some of the mental health issues. Whilst he will come out of this case with most of the available property and financial resources, there is no doubt that she has a much greater capacity to work, earn an income, and thus recover in a financial sense from the relationship. He will primarily be responsible for the care of the children, but the Mother’s role will be both substantial and significant. Both will have commitments necessary to support themselves and their children, but the Mother’s capacity to meet these commitments is greater than his. He might have more assets, but she will have more income. The Mother is responsible for providing for Z, albeit with some assistance. The Father may well be entitled to a pension, the Mother not. Post-separation standards of living are irrelevant in this case. Both contributed in their relationship to the other’s earning capacity but, as his income declined, hers increased. The Father wishes to remain in a predominantly parental role, and the Mother gives every indication of wishing to pursue her career in (employment omitted). There is no relevant evidence of re-cohabitation. The fact that the Father will receive greater assets has already been noted.
The Court believes that a further adjustment is necessary. It will not, however, be a major one. The fact is that the Father will come out of these proceedings with the vast share of the available assets. The Court cannot ignore that there is a significant disparity between the parties earning capacities, particularly having regard to their age.
Of course, the fact that the Father will be primarily responsible for the care of the children is also a significant factor. His most important need will be to ensure that the children have, if possible, stability of accommodation. The financial resources available to the Mother through the Kirkland Family Trust cannot be ignored. The surplus that she has between income and expenses cannot also be ignored. The Court assesses the s.75(2) adjustment in favour of the Father to be 5 per cent.
A Just and Equitable Order
Having regard to the above, the Court finds that the Father should receive 85 per cent of the net asset pool.
15 per cent of the asset pool is $151,669. The Mother has her superannuation of $198,400, a bank account with $1,200, the (omitted) bond of $1,900 and her motor vehicle of $12,000; but then has her MasterCard debt of $960 and the loan in respect of her motor vehicle, $11,500. This means that the net assets available to her are $201,040.
Thus, to achieve the settlement contemplated by these reasons for judgment there would need to be a super split in favour of the Father, out of the Mother’s superannuation fund, in the sum of $49,371.
The Father would receive the remaining assets and he then needs to decide whether, and if so how, he can restructure the liabilities to (omitted) Bank, the mortgage over both the Property I and Property P properties, and how these debts can be serviced.
From the Father’s perspective, he is entitled to $859,457. In order to realise this, of course, he will probably need to sell one of the properties, but either sale will pay out the mortgage. There is no evidence before the Court about whether a sale will generate a capital gains tax liability. It is not certain that this will be the case. In any event, the Father will need to bear this liability if and when it arrives.
Stepping back from the proposed outcome, the Court reflects afresh whether the outcome is just and equitable? On the unique facts of this case, it is as just and equitable as practicable. The Father will have a roof over his head and over that of the children. He should be debt free. He will have some assets that are cash or can be converted to cash to meet the exigencies of life. He will exit this relationship with less than he perceives he contributed in a financial sense, a view no doubt shared by his wife. The Mother will have superannuation as her main asset, depleted as it is by the splitting order. She has a financial resource in the form of the Kirkland Family Trust. She retains her earning capacity, the value of which is not able to be estimated in the present context of assessing whether the outcome proposed is just and equitable. She will not have a home of her own, but the harsh reality of this case is that it was never likely that a result would be achieved resulting in a home for both parties.
These Orders are as just and equitable as the evidence allows.
Orders sought
The Applicant Mother sought Orders that both properties be sold in order to achieve the outcome sought by her. She herself proposed a superannuation split in favour of the Father of 57.7 per cent of her superannuation.
The Respondent Father, in his Amended Response filed 4 November 2014, proposed that the Property P property be sold, that the net sale proceeds be used to pay out the (omitted) Bank debts, and that any remaining balance then be paid to him. He also proposed a superannuation split in his favour out of the Mother’s superannuation as to 75 per cent. He did not seek an order for the transfer to him of the Mother’s interest in the Property I property (or the Property P property pending its sale), but the Court is prepared to presume that is what he intended.
There is simply no reason to order the sale of both properties in circumstances where the Father and children reside in the Property I property.
The Court has considered but rejected the option of adjusting the superannuation split so that the Mother received more cash but less superannuation. The only way to achieve this would be to utilise some of the net proceeds of the Property P property (which might result in insufficient funds to discharge the (omitted) Bank loans) or to cause the Father to pay back to the Mother some of her superannuation split in cash (as it will be cash in his hands) or liquidate some of his other assets. The Court believes that the Mother’s need for cash reserves is not as great as the Father’s needs.
The Orders to be made will thus reflect the result intended by these reasons for judgment.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 17 March 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Costs
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Fiduciary Duty
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Statutory Construction
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