L & L
[2005] FamCA 317
•5 May 2005
[2005] FamCA 317
FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA
AT CANBERRA CA 962 OF 2003
L
AND:
L
RESERVED JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE FAULKS
DATE OF HEARING: 13-17 December 2004
DATE OF JUDGMENT: 5 May 2005
APPEARANCES:
Mr Batey for the husband
Ms Tonkin for the wife
Mr Tallarita is the children’s representative
MATTER: L v L
CA 962 OF 2003
CORAM:Faulks DCJ
DATE OF HEARING: 13-17 December 2004
DATE OF JUDGMENT: 5 May 2005
CATCHWORDS:
FAMILY LAW - CHILDREN - CONTACT - Children had no contact with father for six months at time of hearing - BEST INTERESTS - s 68F(2) Family Law Act - Wishes - Allegations of Violence
PROPERTY - Cross Vesting of Domestic Relationships Act 1994 (ACT) - Addbacks including possible unenforceability of a judgment debt - Contributions Analogous to s 75(2) Family Law Act
CASES CITED:
Af-Petersens v Petersens (1981) FLC ¶91-095; Robb v Robb (1995) FLC ¶92-555
REASONS FOR JUDGMENT
CA 962 OF 2003
L v. L
IN CANBERRA
13-17 DECEMBER 2004
Background
The dispute before the court was about the contact (if any) the two children of the relationship BS, born in 1993 (12 this year), and JS, born in 1992 (13 this year) would have with their father and how the parties’ property should be divided between them.
The parties are both residents of the Australian Capital Territory and sought that their property be divided in accordance with the provisions of the Domestic Relationships Act 1994 (ACT). Such proceedings could not properly be brought before this court ordinarily unless there were also proceedings pending relating to another matter otherwise within the jurisdiction of the Family Court. In this case, these were the parenting orders sought in relation to the children.
The mother will be 51 years old this year and the father 56 this year.
The parties began to live together in about 1991. They separated for about twelve months between late 1998 and 1999 and finally separated in later 2002.
The mother has two children from a previous relationship being ES (who is about 22) and PB (who is about 26). The father has a daughter SL from a previous relationship (who is about 33).
At the time of the hearing the mother had re-partnered with a Mr F. The orders the mother sought about property appear as Endnote 1Endnote 1. The orders she sought about the children are Endnote 2Endnote 2. The orders the father sought about property are Endnote 3Endnote 3. The orders he sought about children are Endnote 4Endnote 4. The orders sought by the children’s representative about the children are Endnote 5Endnote 5. In her final address the mother effectively supported orders 1-5 sought by the children’s representative in substitution for the orders she herself was previously seeking.
Further Background
Since separation the children have lived with their mother but initially had contact with their father on a weekly basis for several hours on Saturday and for periods during the school holidays.
However an incident occurred in mid-2003 to which a substantial proportion of the evidence was directed. On that day the father is alleged to have assaulted BS and subsequently contact arrangements were changed by court order the following month in 2003 to provide for supervised contact for up to three hours each weekend. In early 2004 JS began seeing her father on a fortnightly basis for two hours.
However mid-2004 the assault allegation was heard in the Supreme Court and it appears that since that time the children have had no contact with their father.
The assault proceedings involved the children’s giving evidence in the Magistrate’s Court and subsequently in the Supreme Court. BS’s recollection of the events was significantly challenged by the father’s counsel and although after the first proceedings the children were still apparently anxious to spend time with their father, the second challenging of their veracity on behalf of their father apparently left them where the counsellor described their attitude to their father as one of “scorn”[1].
[1] Family report ¶ 5.5
Both children however reported to the counsellor that they may want to see their father when they are older or physically stronger[2].
[2] FR ¶ 8.5 and 8.6
The Issues
Understandably perhaps, most of the material about the children was centred on that incident and other asserted violent acts of the father. The father for his part denied hitting BS as BS asserted and blamed the mother for the children’s not wishing to have contact with him[3].
[3] See t final addresses p 5 l 8
The other incidents of alleged violence involved what was described apparently by the mother (although I doubt that she used the words) as holding a knife to JS’s throat and violence occasioned to the mother herself by slapping her in the face.
The knife incident was the subject of some evidence on all sides. It appears that the father was cutting lunches and pointed the knife across the room at JS. The father tends to belittle the significance of the incident. I suspect now that it has been somewhat embellished by time and a number of recountings by both the mother and by JS. By any measure it was a regrettable incident although I seriously doubt that any actual harm was ever intended by the father. Interestingly he, in the presence of at least BS, also destroyed a garden broom out of frustration at or about the same time. It was suggested during submissions[4] that the father appears to have
“no understanding, apparently of what constituted physical violence and no real understanding of any need for anger management”.
[4] T p 4 at lns 10-21
This might also be concluded in part from some interesting cross-examination of the father in which he asserted that slapping someone in the face did not, in his view, constitute violence.
In general I agree with the submission made about these matters. In my opinion the father demonstrated a complete lack of understanding of his need to control his anger and tended to be very self-forgiving about incidents where he either lost his temper or assaulted someone.
However, it was not really the violence that determined upon the children’s attitude towards their father. As appears from the statements, notes and reports of the two counsellors the children attended[5], the children still wanted to see their father after the incidents referred to and even after the first court hearing. However the second court hearing was something else again and the Family Court counsellor noted that JS recorded her views about the Supreme Court hearing on the basis that she felt that her father was paying someone “to tell… us we are little liars”[6]. BS also had become firmer in his views saying to the counsellor, “I don’t want to see him ever again”.[7]
[5] KM and SN
[6] ¶ 8.4
[7] ¶ 8.7
Until the time of the hearing the father continued to persist with an application seeking that the children live with him for a substantial part of the time. This demonstrated on his part an extraordinary lack of understanding about the dynamics and emotional and psychological effect that all of these events had had on the children. He did amend his application however to seek graduated contact and agreed that the children should continue to receive counselling. He also expressed a view that he might need some counselling himself although this recurred somewhat late and reluctantly on his part.
The mother, although initially opposing any form of contact, as I suggested above amended her position to support that of the children’s representative that the children continue to attend upon their respective counsellors and that the purpose of that counselling would be to facilitate contact between the children and their father. It was also proposed that the mother and father would implement the children’s counsellor’s recommendations.
The nature of the submissions about the children
The mother’s arguments were centred on the proposition the children should not be forced to have contact with their father. This was in part an expression of their wishes, their ages, the circumstances in which events occurred and difficulties about enforcing contact. She also asserted that the father did not have adequate accommodation for the children. Although there was some evidence about this latter point; I did not find that evidence convincing. Certainly this would not preclude there being contact between the children and their father.
The mother submitted[8] that the father blamed her for the children’s not wanting to have contact with him. This was not really an issue. The father agreed that he did blame the mother.
[8] T p 4 at ln 8
The mother asserted through her counsel that she had a strong and loving relationship with the children[9] and I accept and agree with that conclusion. It is justified by all of the reports appearing in evidence before me including the notes of the children’s counsellors. She also submitted that the father had no understanding about questions of violence and anger management and I substantially agree also with that assessment.
[9] T p 4 at ln 2
In her submissions the mother also supported the children’s response to their father’s challenging of them in the criminal court proceedings. She asserted that the children felt betrayed and devastated by what they perceived as being their father’s untruths and his unwillingness to protect them from exposure to the litigation process[10].
[10] T p 4 at lns 44-47
It was further submitted that I should accept BS’s evidence on the balance of probabilities that he was hit in the face/eye area rather than on the shoulder and arm area as his father had asserted[11].
[11] T p 5 at lns 14-17
Finally the mother opposed the suggestion from the Court Counsellor that there should be some form of watershed counselling involving all the parties so that there could be some resolution of the issues between the children and their father.
The father’s submissions
The father in proposing a structure of graduated contact in conjunction with counselling with the Court Counsellor, submitted that the children’s wishes should be assessed over a period and not just in relation to the more recent events. He submitted that the children’s wishes until quite recently had been that they were willing and happy to spend time with him. He also asserted that the children are not at risk when they are with him and reiterates his version of what occurred in mid-2003. I should add his version of the assault is substantially corroborated by his mother who was present.
The father also queries the influence that the mother may have had in developing the children’s wishes and submits that the violence during the course of the relationship was substantially instigated by the mother. (There is no evidence of this.) The father admits that he slapped the mother. He is mightily suspicious that the mother pursued apprehended violence proceedings as some form of forensic tactic. This may be true, although there was no admission to that effect from the mother. It is obvious that there were verbal disagreements between the parties and it is also obvious that the father felt he was being harassed by the mother. While that induced frustration on his part I do not believe it could reasonably be categorised as violence.
The father submitted further that the contact he had prior to separation and prior to the incident of mid-2003 meant that the children would derive benefit from their relationship with him and he wished to continue to offer that benefit.
In support of those submissions Mr Batey, for the father, queried the veracity of the domestic violence proceedings before the court prior to mid-2003. His suspicions in this regard were not pursued in cross-examination and although there may remain in the father’s mind a lingering doubt about the nature of those proceedings I am unable to conclude other than they were pursued genuinely. Although I am obliged to take the orders into account under section 68F(2)(j) Family Law Act, they do not affect these proceedings except on the question of credit. In relation to credit I do not agree the contention of Mr Batey that these proceedings reflected adversely upon the mother.
Mr Batey also submitted that the mother had in effect reconstructed the home situation at the time of separation to be a chaotic violent manipulative scene[12]. Mr Batey suggested (accurately) that there is nothing in the notes of SN and KM [the children’s counsellors] which suggested the children so regarded the circumstances. This is partly true. The children do reflect in the notes of the counsellors referred to, an abhorrence of the fighting between their parents and while the words “chaotic”, “violent” and “manipulative” are not words that appear in those notes it is clearly the case that the conflict between the parents had an effect upon the children. I am prepared to acknowledge that the mother’s perception of what occurred at that time is now coloured by subsequent events and that she probably sees the events in a form more damaging to the father than may have in fact been the case.
[12] T p 11 at lns 43-46
Ingeniously Mr Batey also suggested that the broken broom/knife-pointing incident was “the culmination of a very frustrating episode”[13]. In seeking to excuse the conduct of the father by attributing his actions to the result of frustration, Mr Batey seems to overlook that self-control and the management of frustration and anger might properly be regarded as good attributes for a parent exercising parental responsibility. I do not believe that the father put the knife to JS’s throat. The incidents referred to however reflect badly upon him and his subsequent lack of insight about how badly they reflected on him is even more telling.
[13] T p 12 at lns 4-7
Determining precisely what happened on mid-2003 is difficult. Mr Batey submits[14] that it is open to the court to find there was some altercation. This is a statement of the obvious. He suggests however that it would not be likely that if a child were struck, a mother would postpone going to seek medical assistance for as long as this mother did. He also suggests that one would not in such circumstances seek the assistance of a chiropractor but would go to a doctor or at least get some x-rays - as indeed to chiropractor suggested[15]. I think his comments in this regard are probably well directed. It is curious that there was no immediate medical follow-up. In particular the mother’s lack of action does not fit comfortably with the report from the school that there was at least some indication of a mark on BS’s face before the end of the day at school.
[14] T p 12 at lns 16-24
[15] T p 12 at lns 26-31
The father had (interestingly) suggested that he noticed BS’s being elbowed in the face at a soccer match some time before. No one with any expertise gave any evidence about how long such a bruise would take to appear. BS gave that as a possible cause of his injury in his interview with the police but noted again that this was what his father had told him. The father suggested that he could not have struck BS in the head and struck him on the shoulder and arm as part of chastisement. I have no doubt that is the way he now sees the incident. I equally have no doubt that BS sees it very differently.
The suggestion from Mr Batey that the mother might have been responsible[16] for causing the injuries cannot possibly be entertained because of his failure to put that to the mother. In any event it would not only out of character for the mother but also has never been suggested in these proceedings.
[16] T p 13 at lns 9-15
Mr Batey correctly also asserted that BS still wanted to have contact with his father after this alleged incident[17] and in my opinion accurately summarised the situation in these words
“both appearances in court have had a disastrous effect upon the children’s relationship with their father and …that’s been more damaging to the relationship then any alleged violence”[18].
[17] T p 13 at lns 45-46
[18] T p 14 at lns 9-11
Mr Batey contended that the father was not only entitled to defend himself in court but should have done so. He further submitted the children should be given the opportunity to see the positive aspects of the resumption of contact with their father[19] and emphasised that his client had ten years of what he described as a good relationship with the children[20].
[19] T p 19 at lns 42-43
[20] T p 19 at lns 48-49
As a late-breaking submission Mr Batey also put (on instructions) that the father’s further amended proposal involving counsellors was an indication that his client had learnt something and that he is “listening to his children rather than his own needs”[21].
[21] T p 23 at lns 5-10
Children’s representative submissions
The children’s representative reiterated a number of matters about the children’s wishes and I will summarise my views about these matters in due course.
He emphasised that the children had a close and trusting relationship with their mother[22].
[22] FR 4.3
The children’s representative submitted that to force contact with the father may cause further damage to the children’s relationship with their father and he drew attention to the fact that the mother seemed to have appropriate parental skills[23] but that the father has “good intentions however little intuitive understanding of his children”[24].
[23] FR 2.2
[24] FR 5.7
The children’s representative felt that the children at their ages were both aware of their situation and freely able to put their thoughts and feelings into words.
He commented about the need to protect the children from harm.
As a result of the alleged incident in mid-2003, the father was charged and committed to stand trial in the Supreme Court on two charges of assault and assault occasioning actual bodily harm but was acquitted. He said that he was acquitted “on a technicality” but the reality was that he was acquitted on the direction of the judge to the jury that they should so acquit him. To some extent the father expressed disappointment that he had not had an opportunity to state his side of the case. The children’s representative did not press that the children would be in any immediate danger of harm from their father.
The children’s representative submitted that the father had after mid-2003 focused to some extent on proving his innocence and had perhaps demonstrated little insight about how this would impact on the children’s well-being and their feelings for him.
Mr Tallarita submitted that he believed that the mother would not prevent the children from seeing their father[25] and notwithstanding the father’s doubts about this, I accept that submission.
[25] T 1 at ln 46
The children’s representative also submitted
“that your Honour does not need to, for the purposes of making a determination of whats in the best interest of the children may not need to make a determination as to whether all these events of violence have occurred”[26].
[26] T 2 at ln 27
I agree with that submission. As I suggested to counsel during the course of submissions, whatever may have been the precise nature of the incidents asserted to have constituted violence, the children and to some extent the mother had moved beyond that point. Even at that stage there was no substantive resistance to a continued relationship between the children and their father. However the effect of the Supreme Court proceedings particularly (following as they did on the shoulders of the Magistrate’s Court proceedings) had a massively adverse effect on the relationship between the children and their father.
Although Mr Batey argued that the father really had no choice but to defend himself I reject that submission for the reasons I will outline.
Finally, the children’s representative recommended that there should be some mechanism put in place to enable the re-establishment of contact between the children and their father[27] and indicated that both KM and SN would be willing to participate in the facilitation of contact.
[27] T 2-3 at ln 49
Matters generally about the best interests of the children
No one factor in itself under section 68F(2) of the Family Law Act can be determinative, although the wishes of the children particularly as they get older must have a very strong effect on the determinations of the court. The children in this matter appear to have endured a number of impediments to the time that potentially, they might spend with their father. They reached a point of rejection of him as a result of his choice to proceed with the challenging of their evidence in the Supreme Court. They may or may not have been encouraged in this attitude by their mother but the firmness with which their opinions appear to the various counsellors suggest to me that substantially, their determination about this matter is of their own making. I accept that they are both unwilling at present and I think possibly emotionally unable to pursue time with their father without some assistance.
The father’s decisions about the proof of his innocence while not necessarily contemplating the effect that would have upon the children reveal a somewhat narrower approach on his part to what is best for the children. Many of his comments about the children seem to relate to physical things that he either has done with them or for them. In my opinion he demonstrates a lack of understanding about the feelings of the children. This may improve with time and external assistance but to some extent he has himself brought about the present situation with the children. His lack of insight into his own behaviour and to the needs of the children is somewhat dramatically reflected in the orders he was seeking up to the first day of the hearing. In circumstances where the children did not want to see him at all, to suggest they should be “forced” to spend substantial time with him demonstrates a lack of understanding of their needs[28].
[28] In the course of submissions there was an exchange between Mr Batey and me about my use of the word ‘force’. I do not resile from the assessment I gave to Mr Batey during those submissions of the appropriateness of that term.
There is no doubt that both parents had involvement with the children during the time they were together. Each of them now sees that involvement in a somewhat idealised form. I accept the submission of the children’s representative that the door should remain open for a resumption of a relationship between the children and their father. I further accept the submissions that this is not going to be accomplished except with the assistance of counsellors. Those who have assisted the children in the past are logically the ones primarily to undertake this task. The father evinced initially some reluctance to the involvement of those counsellors and wanted the Court Counsellor to be involved. In my opinion, continuity and trust are imperative if there is to be any change in the children’s attitudes.
Although KM and SN will substantially be responsible for “the facilitation” of future contact, the drivers of such contact should be the children themselves.
I further do not accept the recommendation of the Court Counsellor that there should be some form of watershed counselling at this point to enable what I interpret as being a cathartic meeting to occur to attempt to heal old wounds. The mother opposes the meeting. This would not contribute to its success. The children apparently do not want it. It may be that such a meeting is advantageous in the future when the children and their counsellors reach a point where they think this would be appropriate. I note that BS feels that his father must publicly admit that he is lying before some reconciliation between the two of them is possible.
Because his father does not acknowledge that he is lying (and indeed his recollection of the events would probably now have cemented in place his view that he is not) this precondition is unlikely to occur. It is probably unreasonable for it to occur in that form in any event. It is to some extent up to the father to find some way in which he can adequately apologise to the children for his failure to put their interests above his own in the criminal proceedings. I do not believe they should be forced into a situation of joint counselling at this point until they are ready to hear him in a context they find both safe and acceptable. Accordingly, while I will make orders generally in accordance with the children’s representative suggestions, I will not adopt that suggestion.
Property
As indicated previously, the property proceedings are dealt with under the Domestic Relationship Act 1994 (ACT). The relevant provisions of that Act are set out in Endnote 6Endnote 6. Initially the dispute between the parties was of substantial compass. The mother asserted the father ought to be debited (or perhaps credited) with some $800,000.00 that she said was unaccounted for in relation to the buying, renovating and sale of properties during the course of their relationship. There were still issues to resolve about the pool of property to be divided at the end of the proceedings but there had been substantial agreement along the way about a number of things.
Agreed property pool
The parties were agreed as to the following items to be included in the pool of property for division:
Proceeds from the sale of T
(in a solicitor’s trust account) $128,138.00
Preliminary distribution to the mother $107,893.00
Preliminary distribution to the father $55,000.00
Proceeds of the sale of the Subaru $23,000.00
Proceeds of the sale of the Toyota $4,000.00
IAG Shares (500) $3,000.00
Tractor $8,500.00
Contents of the mother’s home $10,000.00The mother’s superannuation $27,013.00[29][29] Superannuation is however not “property’ under the Domestic Relationships Act
The mother had also listed equity in her property in Q bought with some of the money released (as set out above) in the sum of $38,000.00. This “equity” ought not to be added back to the pool as it had derived from the anticipatory distribution to the mother of the parties’ money and there was no evidence of a subsequent windfall increase.
Matters still in dispute
Counsel for the father asserted at the end of the proceedings that there should be a further add-back of a balance of funds from the sale of the G property of the parties of $72,000.00. Ms Tonkin, on behalf of the mother, asserted that at the date of separation the amount still remaining was $3,000.00 and that is the amount that should be added back in.
The claim against B
In proceedings in 1991 the father obtained a judgment against a real estate agent for $108,574.00. However the defendant had no assets and became bankrupt. As a consequence a caveat was lodged against a property in CH and that caveat apparently still remains in place. The father has until 2008 to enforce the judgment but claims through his counsel that he will not do so. It is said he does not have the money to pursue the claim and it is not worth the effort. The mother seeks that the full amount of the claim should be added back in in some way to the property owned by the father.
Proceeds of the Seca
The agreed proceeds of the sale of the Seca motorcar of $5,700.00 were sought by the mother to be added to the father’s side of the ledger. She claimed he had the benefit of those proceeds[30]. The father claimed that the proceeds were part of the T property to the extent that they had been expended on renovations in relation to that property. He gave sworn evidence about that matter in his affidavit[31]. In my opinion there was no satisfactory evidence to contradict that sworn evidence and the mother’s claim should be rejected.
[30] T p 6 at lns 37-38
[31] ¶ 19
Liabilities
The father, by the time of the hearing, had identified his tax debts between 1998 and 2002 as $24,273.00. The mother rejected a claim that this should be included as part of the (in effect) joint liabilities of the parties. That approach is not only ungracious but invalid. If in fact tax had been paid during the relevant period then the family would have been deprived of the benefit of the money that is referred to. It was not. I am satisfied that the father’s income was for all practical purposes assumed into the family partnership. Accordingly the figure of $24,273.00 should be deducted from the overall pool of assets.
There is also a claim by the mother that a loan she incurred from Mr B should be deducted from the pool. This was in an amount she nominated at $20,500.00. It was being repaid at a nominal amount per week and was an intra-family loan. In general I accept the submissions of Mr Batey on this point that this falls within the Af-Petersens v. Petersens[32] category of a loan that is unlikely to be enforced or repaid - except on a family basis. I have no doubt that the money was, to some extent, borrowed by the mother but after separation and while the legal liability for its repayment may be questionable, it is a factor that I can take into account (to some extent) as part of her total financial picture under section 19(2) of the Domestic Relationships Act. It is however not properly to be regarded as a joint debt.
[32] (1981) FLC ¶91-095
Balance of G
Returning to the claim about the $72,000.00 I find that for all relevant purposes the appropriate amount to be added back is the sum of $3,000.00 not $72,000.00. I substantially accept Ms Tonkin’s submissions about this matter[33]. I stop short of indicating that I am satisfied that all of the money was necessarily applied to the benefit of the family. I cannot however be satisfied otherwise.
[33] T pp 7 and 8
During the time when the money dissipated, the parties were still living together and no evidence was brought forward by the father to suggest that this money had in some way been secreted away. Ultimately it is not a question of credit as Ms Tonkin suggested[34] but rather a question of lack of other relevant evidence and the very practical conclusion that the money was expended during the time the parties were together.
[34] T p 17 at lns 44-50
B claim
It is difficult to imagine this claim being pursued. I accept the submissions of Mr Batey on this matter. I am encouraged in this view by his offer in effect on behalf of his client if the money should be recovered it should be divided in the same proportions as any of the other property[35]. It is not clear to me whether the claim was absorbed into the bankruptcy of the defendant and I am far from confident that the lodging of the caveat had any substantive effect. Lack of evidence and lack of certainty about this matter lead me to conclude that it should be disregarded.
[35] T p 24
The cumulative profits of renovation
Although the mother hand contended that the father had either secreted away money from the ongoing renovation projects of or, had wasted, $800,000.00 ultimately I was satisfied that the money from each of the projects found its way into the next project and so on down the line until it was represented in the proceeds of the sale of the T and G properties. I may be mistaken but I understood Ms Tonkin to have in effect conceded that matter by the time final submissions were made.
History of the relationship in relation to property and contributions
The mother brought with her a BMW car, which she said was worth about $10,000.00 some household contents and little else into the relationship. The father owned land at W and had a car (which he said was a Triumph Stag) which he valued at $17,000.00. The father claims that the mother was in debt at the time of the beginning of the relationship. The litigation he refers to seems to be the subject of the same sorts of uncertainties as the father’s litigation against B.
The father, in his affidavit, claims that he had the block of land which he had bought in 1987 for $83,000.00 with a loan of $55,000.00. He claims to have sold that block of land in January 1993 for $157,500.00, netting a figure of $88,865.70[36]. Precisely what happened to that money or the proceeds of the sale of the Triumph Stag is not apparent. It seems likely that the funds would have been subsumed into the succession of properties bought, renovated and sold by the parties.
[36] Father’s affidavit ¶ 6
To that extent it seems that there was an imbalance in the initial contributions of the parties. The father claims that this should result in a credit (at a contributions level) for him at about 10%.
In 1991 the mother claims she was earning $50,000.00 working as a real estate agent and that she continued to work. She asserts that the father was unemployed from November 1991 until June 1993[37]. The father says he was a self-employed town planning consultant. Whatever may have been his designation, his income was apparently quite low. In exhibit M3 his tax returns were exhibited. No income was attributed to him for the periods between 1991 and 1995. I say “no income” but it was in fact an unknown income during those periods. His income subsequently was apparently:
[37] Mother’s affidavit ¶ 12.8, 12.9
1996$6,149.00
1997$6,053.00
1998$19,150.00
1999$15,796.00
2000$9,524.00
2001$29,214.00
2002$10,930.00
2003$11,001.00
2004$102.00
By any measure the mother’s income from her own remunerated exertions exceeded that in every year.
The mother claimed that not only did he earn less but that he did not apply any income he did earn to the parties’ benefit. These sorts of claims are almost impossible to verify. Bank records were tended and bank statements (with notations) were put before the court. Ultimately these are not capable of proving either the mother’s contention - or the father’s that he was a significant contributor. Enough appears from the bank statements to indicate that not all of the money from the father’s activities was expended on the renovations of the properties. The precise imbalance between contributions on a regular basis by father and mother is impossible to calculate. The parties had entered into an informal “partnership” of sorts which resulted in the father’s providing more manual and physical labour than the mother. She ultimately in my opinion, provided more money from her other income than he did. He provided some skills as a builder and renovator which appear to have exceeded those of the mother.
Whatever the deal was between them they apparently found it satisfactory until their relationship significantly soured. The extent of this is indicated in the father’s affidavit in which he outlines the arrangements that existed between them. Essentially they occupied one property, bought another, renovated the second property, moved into one, bought a new property, renovated that and so on. At any time they generally had two properties. Set out hereunder is a list of those properties up until the very end (where the properties in G and T are not included).
Property Purchase Value Sale Value D $194,500 $160,000
$235,000SH 1 $291,000 $142,000
$320,000SH 2
Rental
$260,000 $132,500
$137,500
$80,000KC $185,000 $230,000 R $145,000 $207,500 D $330,000 $345,000 O $230,000 $293,000 A $185,000 $286,000 H $113,000 $139,000 F $470,000 $630,000 $2,403,500 $3,338,000
Each of the parties claimed that he or she had been a greater non-financial contributor, I think in this regard each of the parties has tended to see his or her contributions through the rose-coloured glasses of retrospectivity. On the whole however given the father’s approach to the children, I think it is more likely than not that the mother’s contributions were greater than his in parenting and care of the children and household. In part this is corroborated by the photographs tendered in evidence about the state of the father’s dwelling after separation.
Robb v. Robb - like contributions
It is common ground that ES lived with the parties during a large part of their relationship. It seems to be agreed that the father at least contributed towards ES’s expenses at what was described as an “expensive” school in Sydney. ES was treated by the parties as their child. I refer for example to the father’s affidavit[38] in which he said
“…at no point in time did her father pay child support and I treated her as a daughter. …”.
[38] ¶ 42
This is significant because of the distinction that exists between the relevant definitions for the purposes of the Family Law Act which gave rise to, in my opinion, the anomalous decision in Robb v. Robb[39] and the situation applicable in this case.
[39] (1995) FLC ¶ 92-555
Because of the definitions under the Family Law Act a contribution made to a child who is not a child of the parties, was on the part of the person who was the parent no more than the fulfilment of his or her moral obligations and on the part of the other person a contribution over and above his or her legal obligations and hence something to be regarded as an additional contribution on his or her part.
Under the Domestic Relationships Act one of the definitions of a “child of the parties” includes “a child for whom both parents accept responsibility for his or her long term welfare”[40]. In this case on the evidence of the father, ES falls within that definition and ought therefore to be excluded from any specific consideration of the type espoused by their Honours in Robb v. Robb.
[40] see section 3(4)(b)
Post separation contribution
Mr Batey, in the course of his final address, acknowledged that this was an area in which his client had some difficulties. Because the father was not a regular carer for the children post separation it was clear that the mother had made a larger contribution. Mr Batey set this at no more than 5%[41]. This argument must fail in degree. The obligation to support the children and the care associated with them is a continuing obligation and a continuing contribution. That contribution is in part made more onerous by the fact that BS suffers from Perthes disease. This affects (as the mother’s evidence reflects in her affidavit) not only his physical requirements on a day-to-day basis but also, to some extent, his accommodation.
[41] T p 29 at ln 45
Summarising contributions
The father made an initially greater contribution. The mother made a larger contribution from her remunerated physical exertion. The renovations were conducted by a combination of money and skill the latter of which was more significantly from the father. The mother’s contributions as home-maker and parent were more significant. In combination I find that until the time of separation the contributions of the parties should be regarded as being 55% to the father and 45% to the mother.
Post separation contributions however should favour the mother and on the level of contributions overall the mother should be regarded as having contributed 55% and the father 45%.
Other factors (Analogous to s75(2))
Additional factors under section 19(2) include; the mother’s alleged greater earning capacity, the failure, so far, on the part of the father to contribute in any reasonable way to the financial support of the children and the fact that the mother has an asset in her own right (the Q property).
Because it is not property (strictly so called) the mother’s superannuation should be brought in as a resource on her part.
However it has to be said that while the father’s income has been significantly reported at a low level. His most recent financial statement[42] shows a total salary per week of $769.00 plus some reimbursement for petrol and telephone at $150.00 making an average weekly income of $919.00. On that basis his financial situation from his employment is little different from the mother’s and may be rather more certain.
[42] Filed 14 September 2004
The factors under section 19(2) overall favour the mother because of her care of the children principally (not double counting this with the post separation contributions referred to above). This is offset by the superannuation (which perhaps represents in real figures a differential of about 7%) but nevertheless requires a further adjustment in my opinion of 5% (or a differential of 10%)[43].
[43] In contradistinction to the submission by Ms Tonkin that there should be an adjustment of 10% or a differential of 20%
I have taken into account in arriving at these percentages the potential benefit that the father may have by his claim against B and the potential detriment the mother may have in relation to her loan for Mr B.
Proceeds from the sale of T
(in solicitor’s trust account) $128,138.00
Preliminary distribution to the mother $107,893.00
Preliminary distribution to the father $55,000.00
Proceeds of the sale of the Subaru $23,000.00
Proceeds of the sale of the Toyota $4,000.00
IAG Shares (500) $3,000.00
Tractor $8,500.00
Contents of the mother’s home $10,000.00
G property $3,000.00
$342,531.00- $24,273.00
$318,258.00
That means that the mother should receive 60% of the assets in the pool as identified above and the father 40%.
So therefore if the mother were to receive 60% she would receive a sum of $190,954.80. She has already received $143,893.00. Therefore, the mother should receive a further $47,061.80
The fourth stage is then (notwithstanding that this is not pursuant to the Family Law Act) as whether the result seems to me to satisfy the just and equitable test required of it by section 15(1) of the Domestic Relationships Act.
The result will not without liquidation of mother’s assets (and perhaps even with such liquidation) reaccommodate the mother and the children. However, because of the way the evidence unfolded and the findings I have made the pool is significantly smaller than the mother had proposed and neither party will be comfortable as a result of my determination. This distribution of the property and the resources (including the mother’s superannuation excluded from the pool) is in my opinion overall just and equitable in the circumstances.
The orders I make in this matter are as follows:
1. The children, JS, born 1992, and BS, born 1993, reside with the mother, L;
2. For the purpose of facilitating contact between the children and the father, L, the parties will ensure that JS will continue to attend upon her counsellor KM and BS upon his counsellor SN. Any contact between the children and their father will be upon the initiation of the children;
3. For the purposes of Order 2:
a.The mother and father will ensure that JS attends upon KM once a month for a period of twelve months from the date of these Orders and on other such dates and times as requested by KM;
b.The mother and father will ensure that BS attends upon SN once a month for a period of twelve months from the date of these Orders and on other such dates and times as requested by SN; and,
c.Both the mother and father will attend on dates and times set by KM and SN. KM will consider the wishes of JS, and SN the wishes of BS in making any appointments for the mother and father.
4. The father and mother will pay equally the costs of the children attending upon their counsellors;
5. The mother and father will implement the children’s counsellors’ recommendations and for these purposes, the counsellors will be at liberty to reduce any recommendations to writing;
6. The father and mother will be at liberty to make such other arrangements as they may agree upon in writing;
7. To the extent necessary, leave is granted for the child representative to serve the family report filed in these proceedings on the children’s counsellors and the child representative deems appropriate to facilitate the implementation of these orders.
IT IS FURTHER ORDERED THAT:
8. The wife retains (as against the husband) property already in her possession and control including but not limited to the preliminary distribution from the proceeds from the sale of T, the proceeds of the sale of the Subaru, the contents of her home, $3 000 from the sale of G, and her entitlement to superannuation;
9. The husband retains (as against the wife) property already in his possession and control including but not limited to the preliminary distribution from the proceeds from the sale of T, and the proceeds of the sale of the Toyota;.
10. The parties shall do all acts and execute such documents required to transfer to the wife $47 061.80 from the proceeds from the sale of T, held in trust by the solicitor;
11. The parties shall do all acts and execute such documents required to pay to the Australian Taxation Office the sum of $24 273.00 for the husband’s taxation debts from the years 1998, 1999, 2000, 2001 and 2002 from the proceeds from the sale of T, held in trust by the solicitor;
12. The parties shall do all acts and execute such documents required to transfer to the husband the remaining $56 803.20 from the proceeds from the sale of T, held in trust by the solicitor;
13. The parties shall do all acts and execute such documents required to transfer from the joint names of the parties to the sole name of the husband the shares in IAG;
14. The parties shall do all acts and execute such documents required to transfer from the joint names of the parties to the sole name of the husband the Kubota tractor;
15. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
16. The matter is removed from the pending cases list.
Endnote 1
Orders Sought by the Mother in Relation to Property
- By way of adjustment of property interests of the parties pursuant to s15 Domestic Relationships Act 1994 (ACT),
- The parties shall do all acts and things and execute all necessary documents to transfer to the applicant mother the monies held in the solicitor’s trust account (namely $128 138) and the applicant mother be declared solely entitled to those monies;
- Both parties do all acts and things and execute all necessary documents to sell the IAG shares and the net proceeds of sale shall be held on trust for the benefit of the children, and the mother shall be appointed trustee and may distribute funds from time-to-time for the benefit of the children to pay educational, medical or other expenses necessary for the children;
- The respondent father shall pay to the applicant mother $26 000 within 30 days of the date of these orders and these funds shall be held on trust for the benefit of the children and the mother shall be appointed trustee and may distribute funds from time-to-time for the benefit of the children to pay educational, medical or other expenses necessary for the children;
- Except as otherwise provided in these Orders, the applicant mother is declared to be solely entitled (to the exclusion of the father) to all property (real and personal) in her possession and control as at the date of these orders, monies standing to her credit in financial institutions and to any entitlements to superannuation in her name in which she has an interest at the date of these; and
- Except as otherwise provided in these Orders, the father is declared to be solely entitled (to the exclusion of the mother) to all property (real and personal) in his possession and control as at the date of these orders, monies standing to his credit in financial institutions and to any entitlements to superannuation in his name in which he has an interest at the date of these.
Endnote 2
Orders Sought by the Mother in Relation to the Children
1.All previous parenting orders be and are hereby discharged;
2.The children of the marriage JS born 1992 and BS born 1993 live with their mother;
3.The mother have sole responsibility for the long-term care, welfare and development of the children;
4.The mother have sole responsibility for the day-to-day care of the children;
5.The father have no contact with the children; and
6.The father be restrained from entering or attempting to enter the place or places of education of the children.
Endnote 3
Orders Sought by the Father in Relation to Property
1. That the parties do all acts and things and sign all necessary documents to cause the money invested in the solicitor’s trust account, as trustee for S and L, being Accounts Numbered PZY and PZZ to be paid:
a.to pay to the Australian Taxation Office outstanding tax debts for the years 1998, 1999, 2000, 2001 and 2002;
b.balance to the father
2. That the applicant mother pay to the respondent father within 42 days from date of this order a further sum of $70 000;
3. In the event that the mother does not pay this above-mentioned sum, the mother do all acts and things and sign all necessary documents to cause the property known as Q to be sold and the proceeds paid as follows;
a.payment of the mortgages over the property;
b.$70 000 to respondent father and interest as prescribed in Supreme Court Rules; and
c.balance to the mother;
4. Subject to these orders, each party be declared as against the other as sole owner of all other properties (including choses-in-action) in their respective possession as at the date of these orders including superannuation;
5. In the event either party refuses or fails to sign any document necessary to give effect to these orders, then pursuant to Section 26 Domestic Relationships Act 1994 a Deputy Registrar of the Family Court of Australia at Canberra is appointed to execute such a document.
Endnote 4
Orders Sought by the Father in Relation to Children
1.That the children JS born 1992 and BS born 1993 reside with each of the parties on a week-about basis;
2.To implement Order 1,
a.For a period of four weeks, the father have contact with the children from 10am-5pm each Saturday;
b.For a further period of four weeks, the father have contact with the children from 10am-5pm on Saturday and 10am-5pm Sunday each weekend;
c.For a further period of four weeks, the father have contact from 10am Saturday until 5pm Sunday each weekend;
d.For a further period of four weeks, the father have contact from after school Friday until 5pm Sunday each alternate weekend;
e.For a further period of four weeks, the father have contact after school on Friday to commencement school on Monday each alternate weekend;
f.For a further period of four fortnights from after school on Thursday to commencement of school on Tuesday;
g.Thereafter week-about with contact handover to occur after school on Friday.
Endnote 5
Orders Sought by the Children’s Representative
1. That the children JS born 1992 and BS born 1993 live with the mother;
2. That for the purpose of facilitating contact between the children and the father, the parties will ensure that JS will continue to attend upon her counsellor KM and BS upon his counsellor SN;
3. That for the purpose of the preceding order:
a.the mother and father will ensure that JS attends upon KM once a month for a period of twelve months and on dates and times as requested by KM;
b.the mother and father will ensure that BS attends upon SN once a month for a period of twelve months and on dates and times as requested by SN; and
c.both the mother and father will attend on dates and times set by KM and SN. KM will consider the wishes of JS, and SN the wishes of BS in making any appointments for the mother and father.
4. That the father and mother will pay equally the costs of the children attending upon their counsellors;
5. That the mother and father will implement the children’s counsellors recommendations and for these purposes, the counsellors will be at liberty to reduce any recommendations to writing;
6. That the father and mother will be at liberty to make such other arrangements as they may agree upon in writing;
7. That the father have liberty to re-list on the issue of contact;
8. That to the extent necessary, leave is granted for the child representative to serve the family report filed in these proceedings on the children’s counsellors and the child representative deems appropriate to facilitate the implementation of these orders.
9.
Endnote 6
Section 15 Domestic Relationships Act 1994 (ACT) provides that,
(1)On application by a party to a domestic relationship, a court may make an order adjusting the interests in the property of either or both of the parties that seems just and equitable to it having regard to –
(a)the nature and duration of the relationship; and
(b)the financial or non-financial contributions made directly or indirectly by or on behalf of either or both of the parties to the acquisition, conservation or improvement of any of the property or financial resources of either or both of them; and
(c)the contributions (including any in the capacity of homemaker or parent) made by either of the parties to the welfare of the other or any child of the parties; and
(d)the matters referred to in section 19(2), as far as they are relevant; and
(e)such other matters (if any) as the court considers relevant.
(2)A court may make an order under subsection (1) whether or not it has declared the title or rights of a party in respect of the property.
Section 19 Domestic Relationships Act 1994 (ACT) provides that,
(1) On an application by a party to a domestic relationship, a court may order the other party to the relationship to pay an amount, or periodic amounts, by way of maintenance to the applicant if it is satisfied that—
(a) the applicant is unable to support himself or herself adequately because
of having the care and control of a child of the parties, or a child of the other party, who, on the day on which the application is made, has not attained the age of—
(i) 12 years; or
(ii) if the child has a physical or mental disability—16 years; or
(b)the applicant is unable to support himself or herself adequately because
the applicant's earning capacity has been adversely affected by the circumstances of the relationship and the court is satisfied that—
(i) an order for maintenance would increase the applicant's earning capacity by enabling the applicant to undertake a course or program training or education; and
(ii) it is reasonable to make the order, having regard to all the circumstances of the case.
(2) In exercising a power under subsection (1), a court shall have regard to—
(a) the income, property and financial resources of each party; and
(b) the physical and mental capacity of each party for appropriate gainful
employment; and
(c) the financial needs and obligations of each party; and
(d) the responsibilities of either party to support any other person; and
(e) the terms of any order made or proposed to be made under section 15 with
respect to the property of either or both of the parties; and
(f) any payments made to the applicant, under an order of a court or otherwise,
in respect of the maintenance of a child or children.
(3) In making an order for maintenance, a court shall ensure that the terms of the
order will, as far as practicable, preserve any entitlement of the applicant to a pension, allowance or benefit.
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
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Statutory Interpretation
Legal Concepts
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Damages
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Duty of Care
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Negligence
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Remedies
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