Lachlan and Lachlan
[2008] FamCA 455
•25 June 2008
FAMILY COURT OF AUSTRALIA
| LACHLAN & LACHLAN | [2008] FamCA 455 |
| FAMILY LAW – CHILDREN - Best interests FAMILY LAW – PROPERTY |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| A & D [2004] FamCA 879 C & C [2006] FamCA 701 Chorn and Hopkins (2004) FLC 93-204 Coghlan and Coghlan (2005) FLC 93-220 M & M (2006) FLC 93-281 ZN v YH (2002) 29 Fam LR 20 |
| APPLICANT: | Mrs Lachlan |
| RESPONDENT: | Mr Lachlan |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
| FILE NUMBER: | SYF | 3137 | of | 2006 |
| DATE DELIVERED: | 25 June 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 19-21 November 2007 14- 16 April 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Messner |
| SOLICITOR FOR THE APPLICANT: | Mitchell Lawyers |
| COUNSEL FOR THE RESPONDENT: | In Person |
| SOLICITOR FOR THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Knox |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
Orders
Parenting Orders
That all previous parenting orders in relation to the child, …, born … September 1995, be discharged.
That the father shall have sole parental responsibility for the child. The father is to consult with the mother by email before making any decision in relation to important aspects of the child’s life. The father in making a decision about any such matter the views of the child and the views of the mother.
The child is to live with his father.
The child is to spend time with his mother as follows:
(a) During each school week the child is to spend one afternoon per week with his mother from the conclusion of school until 7.30 p.m. The father is to advise the mother what afternoon will be suitable for the child at the commencement of each school term and thereafter for the remainder of the term that will be the afternoon the child is to spend with his mother. Changes can be made during the term with the agreement of the child and the mother.
(b) During school term, every second weekend on Saturday from the conclusion of any sporting commitment/school activity until 8.00 p.m and the next day (Sunday) from 9.30 a.m. until 5.30 p.m. The mother is to collect the child from his Saturday activity for the purpose of commencing her time with him. The mother is to otherwise be responsible for collecting the child from and returning him to his father’s residence unless the father agrees that the child can walk or cycle between the parties’ houses. In such circumstances the mother is to have the child telephone his father before he leaves his mother’s house and advise his father he is leaving his mother’s home. Further, if the father agrees that the child can either walk or cycle between the parties’ houses for the purpose of spending time with his mother then the father is to ensure that the child telephones his mother immediately before he leaves his father’s house to advise her he is leaving his father’s house. The mother’s first weekend period with the child is to commence on the first weekend after these orders.
(c) The mother’s weekends commence on the first weekend in the new school term if she has spent time with the child during the first half of the school holidays immediately before the subject school term and on the second weekend if she spent the last part of the school holidays with him.
(d) During all but the Christmas school holidays the child is to spend a one week block with his mother with such time to be day time only unless he agrees to stay overnight. The mother is to nominate the week she proposes to spend with the child no later than twenty-eight (28) days before each holiday period. Unless there is some special reason the mother is to nominate either the first or the second week of the school holidays. The mother is to consult with the child prior to nominating her holiday time to ascertain whether he has a preference about the week he will spend with her and the mother is to facilitate the child’s requested time if at all possible.
(e) In the Christmas School holidays the child is to spend every second week with his mother unless the mother and the child agree to another arrangement which sees the child spend about half of the holidays with his mother. The mother is to notify the father of the proposal for spending time with the child during the Christmas school holiday period no later than twenty-eight (28) days prior to the holiday period commencing.
(f) All communication between the parties is to be by email. Each email received is to be acknowledged by return email.
(g) The parties may by email agree to alter any of the orders for the time the child is to spend with his mother under these orders provided it is done by email so that each can retain a copy in writing of the agreed changes.
(h) The orders for the child to spend time with the mother are to lapse upon the child attaining the age of fifteen (15) years. Thereafter the parties are to facilitate any request of the child to spend time with the other parent and each parent is to ensure that the other parent is advised by email of any arrangement they have made with the child to spend time with that parent. the child is not to be permitted to move from one parent to the other for the purpose of spending time with that parent without the parents confirming that arrangement by email.
(i) At any time the child agrees to spend overnight time with his mother he is to notify his father and the child may then stay overnight with his mother on the afternoon he spends with her during the school term week and may also stay overnight on the weekends which he spends with her under these orders. If the child so elects he can stay with his mother on the Sunday night of his weekend with her and then go to school from her residence on Monday morning.
(j) the child is to sleep in his own bedroom whenever he spends overnight periods with his mother.
The Court NOTES each party is ordered not to pressure the child into making a decision one way or another about staying overnight with his mother.
Unless these orders otherwise provide differently the mother is to be responsible for collecting the child at the commencement of her time with him and returning him at the conclusion of that time. Depending on the circumstances and the provisions of these orders the child may be collected from school or from his father’s residence. Likewise the child may be returned to his school or to his father.
The father shall ensure that the child attends upon a therapist nominated by the Independent Children’s Lawyer in consultation with Dr L for the purposes of assisting the child in living between his parents’ homes where there remains a high level of conflict between them.
The Independent Children’s Lawyer has leave to provide a copy of Dr L’s reports dated 19 June 2007, 28 February 2008 and 30 March 2008 to the therapist engaged to assist the child.
The Court NOTES that the child’s therapist may, if she/he so desires, liaise with Dr L in relation to the assistance to be provided to the child.
The therapist appointed to assist the child, as provided for in these orders is authorised to communicate with the Independent Children’s Lawyer in relation to the child’s progress.
That the mother is restrained from denigrating the father or any member of the father’s family to the child or within his presence or hearing, and shall use her best endeavours to ensure that no other person does so.
That the father is restrained from denigrating the mother or any member of the mother’s family to the child or within his presence or hearing, and shall use his best endeavours to ensure that no other person does so.
Each parent is restrained from discussing these proceedings with the child or within his presence or hearing.
Each parent is restrained from showing the child any documents relating to these proceedings including but not limited to affidavits, reports, letters and orders.
The appointment of the Independent Children’s Lawyer be continued for a period of twelve (12) months from the date of these Orders.
That the Independent Children’s Lawyer have leave to re-list this matter before Justice Le Poer Trench by arrangement with his Associate.
That within three (3) months the father pay to the Legal Aid Commission of NSW the amount of $11,483.60 being his share of the costs of the Independent Children’s Lawyer in the amount of $9,901.10 and his share of the outstanding expert’s costs in the amount of $1,582.50
That within three (3) months the mother pay to the Legal Aid Commission of NSW the amount of $11,483.60 being her share of the costs of the Independent Children’s Lawyer in the amount of $9,901.10 and her share of the outstanding expert’s costs in the amount of $1,582.50.
That each party pay to the Legal Aid Commission of NSW one half of the additional costs of Dr L, Dr W and Dr Y for their court attendance at the hearing. Such payment to be made within twenty- one (21) days of receiving an invoice from the Independent Children’s Lawyer.
That the mother and father be restrained from removing the child, …, born … September 1995, from the Commonwealth of Australia pending further order of the Court.
That the name of the child be placed on the Passenger Automatic Selection System at points of international departure from Australia, and the Court requests the assistance of the Australian Federal Police in the implementation of this Order.
The father is to bring the child to the Sydney Registry of the Family Court of Australia to meet with Mr G, Family Consultant, and Justice Le Poer Trench at 4:15 p.m. on Tuesday 1 July 2008.
Each of the parties is to be at the Sydney Registry of the Family Court of Australia, court room 5B, at 4:30 p.m. on Tuesday 1 July 2008. The Independent Children's Lawyer is requested to be present at that time. The parties do not require legal representation; however, they are welcome to bring their lawyers should they so desire.
Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property Orders
Within two (2) calendar months from the date hereof the mother is to pay the father the sum of $187,812. In the event of her failing to pay that sum within the time required then the parties are to cause the property at D (the property) to be sold by an agreed real estate agent and at an agreed sale price. The property is to be offered for sale by private treaty unless the parties agree to sell the property by auction.
In the event of a dispute about the sale price for the property or the identity of the agent to be appointed to sell the property then the parties are to jointly appoint the President of the Real Estate Agents Institute of NSW to nominate an agent to act and/or nominate a valuer to appoint a fair sale price. The parties are to jointly pay the costs of the president and or his nominee which may be incurred in determining any such dispute.
The parties are to jointly appoint a solicitor to act for them on the sale of the property. If the parties cannot agree on a single solicitor to act for them collectively, then they are each to appoint their own solicitor to act on the sale and then instruct the solicitors to cooperate in order to carry out the orders of the court relating to the sale of the property.
Upon a sale of the property being completed the parties are to cause the sale proceeds to be applied as follows:-
payment of any agents commissions and fees;
discharge of the registered mortgage;
payment of any legal costs of sale;
payment to the father of 40.4 per cent of the sale proceeds;
payment of the balance to the mother.
The mother is to have occupation of the property pending the sale and is to meet all the payments required under the mortgage, rates and taxes pending the sale. The mother is to keep the property presentable for prospective purchasers to inspect and co-operate with the real estate agent to provide access at all reasonable times.
The mother shall indemnify and keep indemnified the father in respect of all claims for rates and taxes, if any, outstanding in respect of the former matrimonial home and all claims for in respect of electricity, gas, telephone, and any other services connected to or supplied to the said property.
The mother shall indemnify and keep indemnified the father in respect of the registered mortgage on the property. In the event of the property being sold pursuant to these orders then the mortgage is to be discharged and that discharge will extinguish the mother’s indemnity.
The parties are to be the trustee of the child’s bank account. The mother is to forthwith cause the account to be transferred into the parties’ joint names as Trustee for the child. Neither party is to be able to operate the account without the signature of the other. The mother is to cause details of the change in the particulars of the account, as required by these orders, to be provided to the father within twenty-eight (28) days of the date hereof. Thereafter the mother is to ensure the father receives copies of all statements and correspondence received by her in relation to the account. Upon the child attaining the age of eighteen (18) years the parties are to transfer the account to his absolute control.
The parties are to do all things necessary to cause the Coles cheque of $2,000 and the un-deposited dividends of $894.50 to be paid to the father.
The mother is to forthwith sign all documents necessary to allow the father to register the Toyota Camry registration number … in his name.
Each party is to cause a copy of these orders to be forthwith served upon the Trustee of the mother’s superannuation fund being the subject of orders made herein.
That the mother transfer to the father all of her right, title and interest and the father keep and retain all his right, title and interests in monies held in the following financial institution accounts:
(a) The Gateway Credit Union Account No. … in the name of the father;
(b) The Commonwealth Bank VR2 Account;
(c) The V Bank Account No. … Offset Account in the name of the mother and the father
The parties cause the jointly owned shares to be sold and the proceeds to be divided between them. For the purpose of this order the mother is to forthwith arrange for the sale of the shares and cause the father to receive his share of the sale proceeds at the same time she receives her share. The mother is to provide to the father evidence of the sale of the shares, commissions charged and the like.
That the mother transfer to the father all of her right title and interest in the Forex Trading Account.
That the father transfer to the mother all of his right title and interest in the Timeshare holiday facility. The mother is to provide to the father for his signature and return to her, all of the documents necessary to effect a transfer of the time share interest.
The base amount allocated to the father out of the interest of the mother in the R Super Fund account number … pursuant to section 90MT(4) of the Family Law Act 1975 is $218,845.
Pursuant to section 90MT(1) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest of the mother in the R Super Fund account number … the Trustee of the fund shall:
(a) Pay to the father or his administrators, executors, beneficiaries, heirs or assigns the amount which is calculated in accordance with the Family Law (Superannuation) Regulations 2001 using a base amount of $218,845; and
(b) Make a corresponding reduction in the entitlement that the mother would have but for these orders.
The Trustee of the R Super Fund account number … shall do all acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the Trustee can calculate the entitlement of, and make payment to the father in accordance with foregoing Order.
That the operative time for the purpose of these Orders is the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee of the R Super Fund.
Pursuant to section 106A of the Family Law Act 1975 (Cth), in the event either party refuses or neglects to comply with the provisions of these orders, the Registrar of the Family Court of Australia is hereby appointed to execute all deeds and documents in the name of the father and/or the mother, and do all such acts and things necessary to give validity and operation to the said orders within fourteen (14) days of the reasonable request to do so being sent to the last known residential address of the party or solicitor acting for the parties.
Otherwise each party is declared the owner of any item of personalty in their sole name including any bank accounts and superannuation interest currently in their possession or control.
IT IS NOTED that publication of this judgment under the pseudonym Lachlan & Lachlan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 3137 of 2006
| Mrs Lachlan |
Applicant
And
| Mr Lachlan |
Respondent
REASONS FOR JUDGMENT
Parenting Matters
Introduction
The subject child is the twelve year old son of Mr Lachlan (the father) and Mrs Lachlan (the mother). I have had the pleasure of meeting the child and speaking with him assisted by Mr G, a Family Consultant in this Court. Meeting with the child was an unusual event for me however, as will be seen later, the unusual circumstances of this case gave rise to that situation.
The child is a delightful young man and meeting him made me feel very sad given I have concluded he has been treated in an appalling and disrespectful way by his parents. The enduring and nagging recollection I have of meeting the child was his desire for the Court proceedings to stop. For his part he carries the burden of loving both his parents, pining for a reconciliation of their marriage, longing to once again be part of an intact family, albeit a dysfunctional and an argumentative one. He has, in a real sense, lost his parents to their acrimony and battle to win at all levels in their parenting and financial disputes. He has done nothing to deserve this and is powerless at this time to change the situation. His parents have treated him as a chattel and lost sight of the fact he is a living human being with feelings and rights. He is but a toy in the manipulative and psychological games the parents play. His ability to withstand the psychological damage his parents inflict on him must be limited and already the evidence suggests he has been damaged. It is clear that the child does hold a fear of him being the only adult present at a time when his mother might suffer from a hypoglycaemic attack (“hypo”). There is ample evidence to support a conclusion that such fear has been fostered and promoted by his father.
Since November 2006 the child has been living almost full time with his father. He has spent very little overnight time with his mother. He has spent no overnight time with his mother in 2008. His stated reason is a concern (fear) he holds that his mother might have a diabetic hypoglycaemic attack (severe drop in blood sugar levels potentially causing coma). He would like to spend time with his mother and desires a continuing relationship with her. He would like to spend day time periods with his mother and determine himself when it might be safe for him to stay overnight with her.
The court appointed expert, Dr L, holds the opinion that initially the fear the child had of staying overnight with his mother was fuelled by the father as part of the ongoing dispute between the parties. Dr L, in his last report dated 30th March 2008, says he accepts that the child’s fear of spending overnight time with his mother has become real for him irrespective of the possible psychological manipulation by the father in enlivening that fear.
It is against that background that I come to determine the competing proposals for the child.
I apologise in advance to those who have to read this judgment for its length. There were four experts whose evidence was read and who were required for cross-examination. The issues were complex. The decision difficult. The reasons for a decision which is largely against the recommendation of the principal expert requires proper explanation.
Parties’ Proposals
The father has been self represented in the proceedings before me. The mother has been represented.
The orders sought by the mother are found in exhibit M14. She seeks that the child live with her after a four week period of living with his maternal aunt C. During this period the child and his mother will attend upon a therapist to assist in the transition of the child to the mother’s house where he will no longer fear being left overnight with his mother. It is proposed that the child spend time with his father in one week from Friday night until Sunday night and the next week from Saturday night until Sunday night. The father is restrained from having any other contact with the child. At the conclusion of the hearing, when the Independent Children's Lawyer made known the orders she was supporting, the mother informed me she would support those orders with some slight amendments.
The father’s proposals are found in his Amended Response filed 21 May 2007. He seeks the child live with him. He proposes an equal shared parental responsibility order. He seeks that the child spend time with the mother as agreed or as ordered by the Court. His submissions suggest an approach which sees the child being able to adjust the time he spends with each of his parents as the child’s needs dictate. He seeks flexibility in the arrangement.
Independent Children's Lawyer’s Proposal
The orders recommended by the Independent Children's Lawyer are contained in exhibit ICL6. The proposed orders provide for the child to live with his maternal aunt and then spend limited time with each of his parents over a graduating process which finally concludes with the child living with his mother at all times other than Monday and Wednesday afternoons after school and for Friday night until 5.00 p.m. Saturday. There are provisions for some holiday time for the child with his father. There are other incidental orders sought which I will refer to later in these reasons.
Credit
The father
The father presented as a very pleasant and straightforward man who was committed to his son. His evidence revealed to me that the child is the father’s life. Irrespective of the concerns which Dr L has about the relationship between the child and his father, it appeared to me that the father had a high investment emotionally in his relationship with the child.
Unless I hereafter specifically deal with a piece of evidence which shows a contrary conclusion, I do accept the father has given his evidence honestly believing the content to be true. I do not believe he has deliberately sought to be untruthful. In the main he appeared to answer the questions asked of him in an apparently straightforward manner. He readily made concessions when they were appropriately sought. This included a concession that he had assaulted the mother on one occasion.
The mother
It appeared to me that the mother gave her evidence honestly. She was prone to divert from the question she was asked; however, I did not think this was excessive. Unless I specifically comment in these reasons about particular evidence, it should be understood that I accepted the mother as a truthful witness.
Background Facts
The father was born in October 1958 and is 49 years of age.
The mother was born in June 1961 and is 46 years of age.
Both parties were born in India. The mother came to Australia to live in early 1989. She obtained employment with the V Bank (her current employer) in April 1989. In about mid 1990 the father commenced to reside in Australia.
They married in Australia in August 1990.
The father was unemployed when the parties married. He secured employment in early 1991 and continued working in paid employment until 2001.
Both parties hold degrees from universities in India. The father also holds a Masters degree from the University of Western Sydney (UWS). The father holds other qualifications.
In the financial year ended 30 June 1998 the mother earned a taxable income of $41,627. The next year she earned $65,043. In the 1996 and 1997 years she earned in the $30,000’s. In 1998 she earned $41,627. In 1999, 2000, 2001, 2002 and 2005 she earned in the $60,000’s. In 2003 and 2004 she earned in the $70,000’s and in 2006 she earned $58,718.
In 1991 the mother sponsored her mother’s migration to Australia. She then lived with the parties until 2004.
In 1994 and 1995 the father undertook a Masters degree at UWS. He attended university 3 to 4 nights per week in addition to holding down a full time job.
The child, the parties’ only child, was born in September 1995. The mother took 3 months maternity leave and accrued annual leave to care for the child. In mid 1996 the mother returned to part time work and then in December 1997 she returned to full time work.
In 2001 the child commenced attending school.
The parties separated in about April or June 2006. The father and the child moved out of the home. They later reconciled to some extent. They continued to live under the same roof until 23 November 2006. On that day the mother claims she was assaulted by the father. The father was charged with assault but acquitted.
At the final separation of the parties they were living at the property in D.
During 2001 the father became aware that his father was very ill. It is common ground that the father’s relationship with his parents broke down shortly before he left India to live in Australia.
In 2003 the father worked for three days with O Company. Otherwise he has not worked in paid employment since 2001.
Between 2002 and 2004 the father undertook a course with Forex at a cost of $5,000. He then invested $15,000 in Forex trading.
In about 2004 the father repaired his relationship with his mother.
In about March 2005 there was a separation of the parties under the one roof. This was a time when the mother’s friend Ms B was living with the parties. The father alleged that the mother and Ms B shared a bed. The way in which the father spoke of this event to others involved in this case led them to understand he was alleging a homosexual relationship between the mother and Ms B.
In September 2005 Ms B moved out of the parties’ property and the mother and father resumed their relationship.
On about 22 October 2005 the father assaulted the mother by slapping her. The child was in the house at the time of the assault. About the end of 2005 there was an AVO issued against the father for the protection of the mother.
In October 2005 the mother says that the father threatened to kill himself with a kitchen knife. This is denied by the father. Whatever happened, it appears it traumatised the child who was present in the house.
From about early 2006 the father commenced to record conversations with the mother, the child and others. There may have been in the order of 300 recordings.
In about April 2006 there was a separation between the parties.
The father alleges that on 13 May 2006 the child tried to harm himself with a plastic knife. The father told the police about this incident two days later. The father alleges this behaviour on the part of the child was provoked by conflict between the mother and the child.
On 19 May 2006 the police attended at the former matrimonial home and reported a dispute between the parents. The father said the mother was angry with him and saying he did not work and stayed at home and accessed pornography on the computer all day.
On 1 June 2006 the father left the home taking the child with him. The mother called the police. The police spoke to the child and the father. The mother was seeking the help of police to restore the child to her care. The police refused to return the child to the mother.
In June 2006 the mother commenced the proceedings seeking, amongst other orders, a recovery order. The mother alleged the father had removed the child from the home at D for the purpose of residing elsewhere without her consent.
Consent orders were made on 7 June 2006 which provided for the child to live with the mother.
In July 2006 the father and the child returned to live at the former matrimonial home.
On 17 November 2006 further interim orders were made for the child to live with the father. The father was to vacate the home in December 2006.
In November 2006 the father’s mother arrived in Australia and commenced to live with the parties.
On 23 November 2006 there was an incident in the home between the parents. The mother alleged that the father had assaulted her. The father denied any assault. The father’s mother was alleged to be a witness to the assault. The police required the father to leave the home. The father was charged with assault. The charge was dismissed. The mother alleges that the charge was dismissed because the father’s mother was not available to give evidence. A further AVO was granted to protect the mother. That AVO expires on 23 May 2009. The child left the home with his father on 23 November 2006.
In December 2006 the mother says she copied the hard drive on the father’s computer and then gave the computer to him. The mother alleges that she discovered pornography on the computer which she then tendered in evidence before the court.
On 23 January 2007 whilst the child was staying with his mother, she suffered a hypoglycaemic attack. She became unconscious. The child could not revive her with lemonade. He rang his father who then called the ambulance to attend the mother’s home. The front door was deadlocked by the mother and the child was not told where the keys were kept. With the assistance of the father talking to the child on the phone he was able to find the keys and provide access to the ambulance officers. The father says that some 6 days after this attack the mother drove her car.
Since 23 January 2007 the child has not spent time overnight with his mother.
On 25 January 2007 the mother had a “hypo” during the day and the child revived her with lemonade.
On 11 April 2007 the court orders were varied to remove night time visits for the child with the mother.
In August 2007 there was an incident between the parties at changeover. The mother alleges the father was inspecting her car and so she took a photo of him. The father was disturbed by the photographing and thereafter required the changeovers to occur at a police station.
In September 2007 the father was investigated for and charged with redirecting the mother’s mail. No conviction has been recorded in relation to the charge.
Until the end of 2007 the child was a pupil at S Primary School.
In 2008 the child commenced attending B High School. This is a state selective school.
Both parents agree the child is a keen cricket player. He commenced playing in 2001.
In May 2007 the mother was fitted with an insulin pump. She says that she understands this gives her much better control of her insulin levels. It provides 24 hour monitoring of glucose levels. On 5 July 2007 the mother took the child to see Dr O who explained to the child the functioning of the insulin pump.
Orders were made on 11 July 2007. These orders provided for the child to meet with Professor Y. They provided for the father to be examined by a psychiatrist (subsequently Dr W was appointed).
As referred to earlier there was an AVO issued on 23 May 2007 for a period of two years. It serves to protect the mother. It is against the father. It prevents a number of actions by the father. It does not permit the father to approach or contact the mother otherwise than authorised by an order under the Family Law Act 1975.
The mother’s employer has agreed to the mother having flexible hours of work, including working from home in the mornings and afternoons if necessary in order to be available for the child.
The parties live within a kilometre of each other at the moment.
Financial Matters
The father was employed during the marriage from 1991 until July 2001.
The mother has been employed throughout the marriage with the exception of time she had off to give birth to the child. During that time she received maternity leave for three months. She had four and a half months of paid annual leave.
The mother is currently employed by the V Bank and earns $96,600 per annum. The father has been unemployed virtually since July 2001.
The father holds a degree in engineering and a Masters degree from Western Sydney University.
At the date of the marriage the mother says she held a term deposit of $25,000. The father had no assets of note.
The parties have owned two properties. The first they bought in 1991 at C. That property was purchased using savings and borrowings. There is a dispute as to the amount of savings the father contributed. That property was sold in 1999.
In 1998 the parties purchased D property. The purchase price was $314,000. The whole of the purchase price was borrowed using both properties as security. The parties had at least $50,000 in savings at the time of the purchase. The sale of the C property discharged the mortgage on the former matrimonial home.
At the date of separation the parties’ assets were principally their interest in the former matrimonial home, savings and superannuation.
During the marriage the parties lent money to the mother’s sister who paid interest and has repaid the loan. The father disputes the repayment largely because he says he has not seen any documentary evidence to support the allegation.
Since the separation the mother has paid child support. She currently pays $745 per month.
In 1991 the parties sponsored the mother’s mother to come to Australia. She then lived with the parties until a dispute between the parties. The mother alleges that the father forced her mother from the home.
In 2005 the father and says the mother suffered a hypoglycaemic attack whilst driving the car. The father says that after that date he prevented the mother driving the car unless it was absolutely necessary. The extent or intensity of the attack is disputed by the mother.
The mother has had exclusive occupation of the former matrimonial home since 17 November 2006.
Relevant Law
Legal Principles
The principles governing this case are set out in the Family Law Act 1975 (Cth). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it. I here set out the provisions of section 60B:
FAMILY LAW ACT 1975 - SECT 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.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that: “… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows: “…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.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.
Consideration of Section 60CC
In determining what is in the best interests of the child I am required to consider the provisions of sub sections (2) and (3) of section 60CC.
I am required to consider the following “Primary Considerations”:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I understand and accept the application of the primary considerations in the determination I am required to make in this case.
I am also required to consider the other sub-sections of section 60CC.
The Evidence
The mother’s affidavit evidence
In her affidavit material the mother is highly critical of the father in many areas. She is critical of him as an uninvolved father. She is critical that he has not been able to maintain employment.
In paragraph 35 of her affidavit filed on 2 August 2007 she said:
“I have been constantly dismayed at the husband’s apparent lack of motivation and drive and to make any contribution to the family existence and the day to day life and have held concerns of the potential negative psychological impact it may have upon [the child].”
The mother concedes that in 2004 the father began taking the child to cricket and swimming. She further concedes that in 2006 the father became more involved in the child’s recreational activities.
The mother claims that the father has been harassing her by making telephone calls during the night.
The mother attends upon a psychologist provided by her employer.
The mother alleges that the father “labours under psychological or psychiatric pressure and lack of insight.”(paragraph 58 of mother’s affidavit). She says that the father has threatened to do her harm by saying, within her hearing to a friend “if she opens her mouth again I will finish her off” (paragraph 61 of the mother’s affidavit). This was said shortly after the mother says the father slapped her twice. Following this incident the mother made a complaint to police. An AVO issued against the father for a period of 12 months commencing 22 February 2006.
On 31 October 2005 the mother said the father threatened to kill himself. He picked up a knife and said “I will kill myself.” The mother said that the child was present and screamed. The mother reported the incident to police.
The mother alleges that the father has “frequently and persistently accessed, subscribed to and downloaded pornography from the internet.”(paragraph 73 of the mother’s affidavit). “He also superimposed naked bodies onto photographs of relatives and friends of mine.” I will refer to this allegation later as it is referred to in other affidavits which annex material.
In paragraph 64 of her affidavit sworn on 2 August 2007 the mother says that in about March 2006 the child started to distance himself from her. He would only answer questions she asked him about school. The mother said she was frightened and started to write on pieces of paper questions for the child. These included things such as “Who is putting you to bed tonight?” The child would reply “Dad”. Sometimes he just shrugged his shoulders.
On 12 November 2006 the mother asked the child, “Did I ever write notes to you to say that your Dad is bad?” The child replied “No”. I have assumed that this question was asked of the child because of some allegation made by the father. In any event it is direct evidence of the mother involving the child directly in the dispute between the parties.
The mother alleges that on 31 October 2005 the father threatened to harm himself with a knife. The father denies this allegation.
In paragraph 66 of the mother’s affidavit she says on 19 October 2006 she heard the father reading part of the mother’s affidavit to the child. There then proceeded to be a loud argument between the parents where the father alleged the mother had grabbed his papers and also pulled and shook the child. The mother denies this. The father called the police. The mother says the police report refers to the child as “deeply traumatised by the parents’ arguments”.
The mother alleges that on 23 November 2006 the father assaulted her. The mother annexed to her affidavit filed 2 August 2007 a copy of the statement she made to the police on the day of the assault. The father denies this assault. It is common ground that the father was charged with assault and that the case was dismissed. The mother claims the case failed because the supporting witness, namely the father’s mother, had left the country.
In March 2007 the mother filed a contravention application claiming the father had failed to comply with court orders and make the child available to spend time with her. The case was dismissed.
The mother has permission from her employer to work flexible hours including working from home for some of her time.
The father in his affidavit filed on 10 October 2007 says that during the marriage when the mother had “hypos” she was very violent and the father had difficulty restraining her. Although he had injections to give her at these times he saved them for a “last resort” because of the fear of damage whilst giving the injections.
The father says that as the mother’s diabetes progressed she underwent some type of personality change and became aggressive even when not having a “hypo”.
The father says that on 14 January 2006 the mother had a “hypo” and hurt herself. He says this was witnessed by the child. Again in July 2006 the father says that the child witnessed his mother suffering from a severe “hypo” which required the father to resuscitate her. He says that the child witnessed three “hypos” in 2006.
At the date of cohabitation the mother said that she had $25,000 in cash savings in a term deposit. No evidence is provided to corroborate this; however, I accept her evidence in relation to same.
In 1991 the parties purchased a townhouse for $161,000. Ten per cent deposit was provided. The mother alleged that the whole of the deposit came from her savings. The father denied this and said that he had been working for some time and had accumulated some savings. I accept that the father did contribute either directly or indirectly to the deposit. This contribution, however, came from his income which is a matter I will take into account (namely his income earned during the course of the cohabitation) as a contribution on his behalf. That property was sold in 1999.
In 1998 the parties purchased the former matrimonial home at D. By that time the parties had additional savings of $50,000. Following the sale of the former property owned by the parties in C, they were able to discharge the mortgage on the former matrimonial home.
It is clear from the financial history that the parties were good savers and accumulated substantial assets by the time of the separation.
The parties currently have a mortgage on the former matrimonial home to the mother’s employer. The mother says that it is a condition of the mortgage that she resides in that property.
The father left his employment in the middle of 2001. At that time he was employed by T Pty Limited. Shortly before he left that employment the father had been the subject of a review of his employment. The mother claims that the father left his employment because he received a poor review. The father denies that. The effect of the mother’s evidence is that the father was on the point of being sacked and fearing being sacked he left the employment. The father denies that version of the facts. In relation to that issue I prefer the mother’s view and I find that the father did leave his employment because he was concerned about the prospect of a further adverse report.
Apart from a few days work in 2003 it appears that the father has not generated income for the family from paid employment since July 2001. The father did undertake Forex training with a view to share trading. The mother says she contributed $10,000 as a fund for share trading. In total the parties invested about $15,000 of their capital into Forex Trading.
The mortgage on the former matrimonial home is paid for by the mother. It is deducted from her salary.
In 1994 the parties lent money to the mother’s sister. That amount was paid back with interest. In 2003 the mother’s sister borrowed money again and that was repaid with interest in April 2005. In this regard I accept the evidence of the mother. The father had not accepted the mother’s evidence on this point and sought documentary evidence. The mother’s version of the repayment has been corroborated by her sister.
In 2004 the parties purchased a holiday time share unit for $12,500.
Following the physical separation between the parties the child has been predominately living with the father. The mother pays child support of approximately $745 per month. This might have increased slightly because I was told at the hearing that she was paying $800 per month and that the payments were up to date.
On 16 August 2007 the mother filed a further affidavit. In that affidavit the mother says that on 2 December 2006 she turned on the father’s computer and investigated its contents. She searched for picture image files and found what she described as “pornography”. The mother was obviously looking for evidence to use in this case. She was aware of the father viewing pornography on the computer as was evidenced by police reports of earlier attendances at the parties’ home. She annexed to that affidavit printed copies of images she said she found on the computer. She says that the images show her sister, her niece and friends of hers. She says the photos show superimposing of faces of her relatives and friends onto pornographic images. The photos attached to the affidavit include plainly pornographic photos and it can clearly be seen that faces have been superimposed onto pornographic pictures. The father denies he created the images.
On 19 November 2007 the mother filed a further affidavit in which she says she found further images, I assume on the father’s computer, which are in the form of cartoon. Again she says these computer images depict relatives of hers. Some of the words and pictures portray violent sexual activity. There is also reference to stupefying drugs being administered.
The father denied that he had created the pornographic images and directed my attention to the first page of the annexure to the affidavit of 19 November 2007 which shows the location of the file as K:/[mother’s name]. He says that this indicates that the file was in fact saved by the mother.
I am unable to reach a conclusion as to whether or not the pornographic images were created by the father. There is, however, no evidence that the child has ever been exposed to pornographic images whilst in the care of either the mother or father. There is no evidence that the mother wiped the pornographic images from the father’s computer before she gave it back to him. She could not have been concerned that the child would be exposed to such images in the father’s house.
The mother’s sister, the maternal aunt, signed two affidavits which were read by me in the proceedings. She gave evidence that she cared for the child from time to time when he was a baby. She offered herself as a carer for the child. She has a five bedroom house and would be able to provide accommodation for the child.
In her affidavit filed on 20 November 2007 she gave evidence that she had never locked the child in a house with toddlers and gone out. This was something which had been alleged by the father. She gave evidence that she had repaid all the monies lent to her by the mother. The loans advanced were $20,000 in 1994 and $50,000 in 2003.
The mother’s mother, the maternal grandmother, also filed an affidavit. She is 87 years of age. She denied the father’s allegations that she did not help care for the child. She said that on an evening in September 2004 the father had chased her out of the house, yelling “get out, get out”.
The Father’s Affidavit Evidence of 10 October 2007
The father says that in January 2006 he started to keep a complete diary of the incidents of hypoglycaemic attacks suffered by the mother. On 14 January 2006 she suffered a severe hypoglycaemic attack at night and hurt herself. The father said that the child observed that incident. In July 2006 she had another severe hypoglycaemic attack whilst asleep. Again the child witnessed that attack.
The father says that the child has a sleep disorder which causes him to wake at night and he would come into their bed. It is in such circumstances that he has observed his mother suffering the attacks.
The father says that the incidents of hypoglycaemic attacks observed by him in the mother in 2006 are not referred to in the report of Dr Y dated 7 August 2006. The father says the mother is deliberately under-reporting her diabetic condition.
In August and October 2006 the father said the mother had further severe hypoglycaemic attacks.
On 17 November 2006 orders were made for the child to reside with his father.
In paragraph 35 of his affidavit the father says as follows:
“Instead of obeying the Court orders my wife wanted to take [the child] to Dr [Y] so that Dr [Y] could convince [the child] that he was safe with her. Although this was never ordered, the child’s representative wrote to [the child] on 22 November 2006 (annexure B) making it appear that this was in the orders.”
I have read annexure “B” and I do not agree that the letter from the Independent Children’s Lawyer to the child dated 22 November 2006 suggests that seeing Professor Y was part of a court order.
The father says that on 23 January 2007 the child was spending time with his mother during the second half of the school holidays. At about 2.00 a.m. he phoned the father and said that his mother was having a hypo. He was unable to revive her with lemonade. The father then contacted the ambulance service and directed them to the mother’s home.
The father says that on the evening of 24 January 2007 the child was sleeping in the same bed as his mother. He says that during the night the mother struck him on the neck. The child then awoke and revived her. Again on 25 January 2007 the father says the mother had another hypo during the day when the child gave her lemonade and revived her. I have assumed that this information was provided by the child. The weight to be given to this evidence is limited.
In paragraph 41 of the affidavit the father alleges that the mother had a priest perform an exorcism in the house in the presence of the child during January 2007. The mother denies this; however, she agrees that a priest was present for the purposes of “blessing the house”.
The father says that following the return of the child to live with him on 29 January 2007 at the conclusion of the school holidays, the child was thereafter reluctant to spend nights with his mother. The father said he tried to make other arrangements so that the child could spend time with his mother during the day time rather than night time however he says his suggestions were rejected.
The father says that on 13 March 2007 the child ceased going to his mother’s house.
The father is critical of the mother driving the child on both 29 and 31 January 2007 within such a short proximity of a major hypoglycaemic attack on 23 January 2007. The father suggests that this was a potentially dangerous exercise.
On 11 April 2007 the interim orders were varied to remove the provision for overnight time for the child to spend with his mother.
In about May 2007 the father says the mother had her insulin pump in use.
Annexed to the father’s affidavit is a letter dated 13 August 2007 requesting answers to questions from Dr Y. Dr Y has answered that list of questions. I have read both the questions and answers. In answer to question 10, Dr Y said:
“It is generally considered not advisable to drive within three months of an unconscious hypoglycaemic episode. If treatment has been optimised and the patient has not suffered unconscious hypoglycaemia for three months and is judged to take reasonably measure to detect and treat hypoglycaemia then application for a driving license is generally supported.”
In 2001 the child started at school. Between 1996 and 2000 the child had been looked after by the mother’s sister, the maternal aunt, while the parties worked.
The father says at paragraph 55 of his affidavit that it was a condition of marriage that the mother’s mother lived with the parties. He said the parties sponsored the maternal grandmother to travel to Australia in 1991. The condition of the sponsorship was that the parties were to be responsible for the care of the maternal grandmother for ten years. The father says that although the maternal grandmother resided with them until late 2004, she provided no care for the child. During the period 1991 to 2004 the father says that the parties supported the maternal grandmother and although she received a pension, she saved that for her own purposes which was a holiday in Europe.
The father says that in 1994 the mother provided $40,000 to her sister to buy a new house. A further $50,000 was provided to the maternal aunt in 2003 to renovate the house. It is the mother’s case that the money has been repaid. Once the child commenced school he began his schooling near the residence of the maternal aunt. He then went to school with his cousins. The father would deliver the child to the aunt’s house in the mornings and collect him in the afternoon on the way home from work.
The father in his affidavit is very critical of the mother and her family. For example, he said that the mother’s family claimed to be Portuguese and “so had a right to call us dirty Indians”.
The father said that the child is a gifted and talented child with a brilliant academic performance:
“He is in the best selective primary school in the State and has gained admission to selective [B] High. He is evaluated as being in the top 1% in mathematics in the State. None of my wife’s family or friends has more than a most basic of educations and they do not encourage their children to pursue a university education either.”
In addition the father says that the child has a wide extracurricular interest and that he has taken the child to and from chess, piano, swimming, soccer and cricket matches and training. The father also says that he has assisted the child with academic problems but does not do his homework for him.
The father claims that despite a payment by way of interim order of $86,507 to the mother, she has squandered the money on legal expenses and purchases for herself and friends and relatives. Despite complaints on the father’s part that the mother was reluctant to or refused to pay child support, it now appears that she is making payments pursuant to a child support assessment.
Under the heading “Financial Contributions for the Family”, the father in his affidavit provides the following relevant evidence. In 1991 the parties purchased their first property for $161,000. A mortgage was taken with V Bank where the mother worked. The parties contributed $18,000 from their savings. The payments on the mortgage were deducted from the mother’s salary. The father contributed 100% of his salary to an off-set joint account which had been established with V Bank. The entirety of the $145,000 borrowed to repurchase the home was repaid around 1994.
In 1998 the parties purchased the former matrimonial home for $314,000. A second mortgage was taken with Westpac Bank in relation to the parties’ existing property. Further borrowings were obtained from V Bank. The first property owned by the parties was retained as an investment but sold later for $245,000. By 2000 the parties had paid off the second mortgage on the former matrimonial home.
As mentioned earlier there were two loans advanced by the mother to her sister, one of $40,000 in 1994 and another of $50,000 in 2003.
In 2004 $15,000 was used by the father to establish a Forex trading account. The father paid $5,000 for a Forex trading course undertaken by himself.
The father annexed to his affidavit as annexure “F” a spreadsheet of income earned during the course of cohabitation. As there were no primary documents in the normal course of events, such a document would not be accepted as evidence. However, in this case, the schedule clearly shows that the income of the mother throughout the course of cohabitation was significantly superior to that of the father. As such, the schedule amounts to an admission against interest and I will accept it as being accurate. On the father’s own calculations commencing with the financial year ended 30 June 1991 and concluding on 30 June 2007, the total net salary received by the mother was in the order of $709,000 and the total net salary received by the father was in the order of $402,000. If the totals were taken at the date of separation in about mid 2006, the result is not much different.
On 17 November 2006 an order was made in this Court requiring the parties to cause the balance of their accounts with Gateway Credit Union to be divided equally between them. A further order was made on that day requiring the father within 21 days to vacate the former matrimonial home at D. Annexure “D” to the father’s affidavit evidences a payment to the mother of $86,507.75 on 28 November 2006. On 17 November 2006 the Court further made an order, pending further order, for the child to live with his father.
On 23 July 2007 the father filed a further affidavit. The following facts emerged from that affidavit. On 11 April 2007, interim orders were made in the Court for the child to continue to live with the father. The time which the child was to spend with his mother overnight was removed. I should add that was an order made with the consent of each of the parties.
Annexed to the father’s affidavit filed on 23 July 2007 is a document being a reply to Dr L’s report dated 13 June 2007. The father also annexed a copy of a letter to Dr L requesting the answers to questions. He has also annexed a copy of a transcript and some emails passing between the mother and others and between himself and Dr Y.
The annexure dealing with Dr L’s report I have read. Some of the matters outlined in this annexure were raised with Dr L.
There is not any matter of substance in the reply to Dr L’s report which is not dealt with elsewhere by me in these reasons.
The Evidence of Dr W
On 27 September 2007, Dr W signed an affidavit. This affidavit annexed his report. In that report Dr W had examined the father following concerns raised by Dr L in his earlier report. Dr L was asked by the Independent Children’s Lawyer in the letter of instruction whether the father suffers from any psychiatric condition or disorder. Dr L said:
“Based on the restrictions of a single cross-sectional interview and on the reliability of his history along with my mental state examination, I would indicate that [the father] was not suffering from a major mood disorder at the time I saw him”
…
”I have not made any diagnosis on AXIS I in relation to [the father]. As noted earlier he does not suffer from an antisocial personality disorder but a single cross-sectional interview can only provide you with a snapshot of an individual’s personality.”
…
“Based on my examination I am of the opinion that [the father] does not suffer any specific psychiatric illness and there are therefore no psychiatric reasons why he should not be able to either have residency or continuing access to his son, depending on the determinations of the court.”
Evidence of Dr Y
Dr Y signed an affidavit on 30 July 2007. This affidavit annexed a copy of a report of his dated 21 May 2007. In this affidavit Dr Y gave details of the mother’s diabetic condition. In the body of the report Dr Y says:
“Obviously any chronic illness can affect a person’s ability to function in most activities, including that of caring for a child. However, in my judgment [the mother] is perfectly capable of looking after her son [the child]. Certainly in every day clinical practice I will not consider her to have any degree of difficulty in this regard that would have alerted me.”
The Evidence of the Single Expert Dr L
Dr L was the expert appointed to prepare a report in this matter. There is no challenge to the expert’s expertise and/or credentials which have been provided with his report.
His first report was attached to an affidavit sworn on 14 June 2007. The report commences in paragraph 4 with these words: “This was a most distressing case.” In his oral evidence to me given on two occasions during the hearing of this case, Dr L described how the vitriol that was evident from the parents was of such intensity that Dr L himself found it necessary to seek a form of counselling or release from his experience.
In this report, Dr L says as follows:
“I do have concerns that the father’s behaviour may represent a delusional disorder of pathological jealousy although it also appears to serve a manipulative purpose that may indicate that it is more a strategy than a disorder and reflect maladaptive attempts at controlling his wife. No doubt there have been occasions, especially in 2005 and 2006, when [the mother] suffered behavioural disturbance as a result of hypoglycaemia, but this is a relatively transitory disturbance. The primary condition of relevance to this matter it seems both suffer from is pathological hatred of each other and the level of animosity is so great that neither have insight into the harm they are doing to their son.”
In his interview with the child, Dr L said “[the child] is quite concerned about the risk of hypoglycaemic attack with his mother.” He said “[the child’s] fear is real.” He said further,
“It is also, I believe common, not only grounded in the latest episode which does seemed to have been extremely concerning, but has been augmented by the constant conversation he has had with his father in which I believe his fear has been augmented.”
Dr L was concerned that the father was exaggerating earlier symptoms of the mother in relation to her diabetes and significant hypoglycaemic like disturbance prior to 2005 which Dr L said did not seem reasonable having regard to Dr Y’s report. I should add here that it is the father’s case that the mother significantly understated her symptoms to Professor Y in the period prior to 2007.
This brings me to a point of considering the evidence of the parties and Dr Y in relation to the extent and nature of the mother’s “hypos” prior to 23 January 2007. In this regard I do accept the evidence of the father which suggests that the number of and intensity of the mother’s hypoglycaemic attacks were more frequent and more severe than that reported by her to her medical practitioners. I reached that conclusion having observed the way the father gave his evidence in relation to those matters and the content of that evidence. I therefore do not accept the conclusion reached by Dr L that the father was attempting to exaggerate the severity of the mother’s medical condition.
Dr L records the child’s preferred position was to live together with both his mother and father in the house. Dr L said that the child missed his house. The child had a realisation that it was unlikely his parents could be together. He said he was happy with the current arrangements (living with his father and seeing his mother during the daytime). His preference was to live in his house with his father and visit his mother.
In his conversations with the child, Dr L was of the view that the child was being protective of his parents, conscious of the fact that they would read the report and what he says.
In conversations with both parents, Dr L said that they had revealed numerous times that they have questioned the child about behaviours and living conditions when with the other parent.
The child told Dr L that he liked his relatives on both sides of his family. He recalled that he used to stay with his (maternal) aunt when he was young.
The child told Dr L that he could not distinguish between his parents stating “Neither gave him more of a hard time than the other.” The child said that his father did not want him to go to his (maternal) cousin’s house. His mother did want him to go there. “He says that his dad always says that his auntie and uncle are bad people and his mum disagrees with most things that his dad says.” The child acknowledged that both of his parents love him.
In relation to the child’s wishes, Dr L said “I do not think that [the child] has the maturity his parents ascribe to him.” He said that the child presented as “a typical 11 year old boy.” Dr L said,
“Although he has good levels of verbal expressive ability he remains no more mature than the average 11 year old boy and susceptible to the severe pressures placed on him by his parents. His primary aim is not to look like he is taking sides. As such, although he has stated his preference, I believe that his preference is as much a product of the extreme situation he finds himself in and is not, as yet, sufficiently competent to deal with.”
In observing the child with each of his parents, although there were some differences, ultimately Dr L concluded that the interaction was very much the same. He noted, “I did have to tell the father not to continue talking about the mother and the court issue. He seemed unaware of how he was trying to engage [the child] as an accomplice in his criticism of his mother with me.” Dr L records, “Both (parents) make allegations essentially the other has some kind of psychological disorder. The father says the mother has “a sexual deviation (lesbian interest)”. Both describe the other with “symptoms such as irrational thinking, high irritability and anger. It is [the mother’s] contention that her father is paranoid, jealous, violent and irrational with a deviant interest in pornography.”
In the history provided by the father to Dr L there was a strong theme of discontent with the mother’s relationship with her family. He saw the situation as the mother’s loyalty to her family being greater than her loyalty to the new family of herself, the father and the child. Dr L said “Such reports indicate a degree of jealousy about his mother’s time.”
Part of the history provided by the father included the statement that on Good Friday 2005, he and the mother effected an in-house separation. The father moved to sleep in the study. He said that “When he moved into the study to sleep his mother moved out of the main bedroom and began sleeping with her girlfriend, alleging a lesbian relationship.” In the hearing before me the father did not allege a lesbian relationship. His concern about the relationship between the mother and this guest related to the mother’s medical condition. The father alleged that during the time this guest stayed in the house, the mother had deliberately kept her blood sugar levels high so she would not have a “hypo” during the night. He said it was this action of the mother, rather than the effect of stress which adversely impacted on the mother’s diabetic condition as referred to in the evidence of Dr Y.
It seems clear from Dr L’s report that he understood the father was making a clear allegation that the mother was having a sexual relationship with the guest in the house. To the extent that the father might now be denying that he made such an allegation I do not accept that and I do accept that Dr L accurately understood the allegation being made by the father in this respect.
Dr L records the history from the father that in about September 2005 the house guest’s father came to stay and the father then told that man what he believed was occurring between the two women. That man then took his wife and left the residence. The father told Dr L that he and the mother then resumed a sexual relationship and recommenced sharing the same bedroom.
The father told Dr L that after he had recommenced his sexual relationship with the mother, he found out she was continuing to meet with the lady who had been a guest in the house and he told the child of this. He also says that on the day that he told the child the mother had rung saying that she would be late at work. The father said “since he knew where she was going he called the police.” The father told Dr L that there had been an incident between himself and his wife where he had slapped his wife which gave rise to an AVO. The circumstances were that his mother had called him on his birthday and whilst on the phone, the mother had spoken on an extension yelling at his mother.
The father also conceded he had been reading the mother’s emails. As a consequence he said he knew the mother was meeting her friend at the sister in law’s place. Consequently, he would not allow the child to go with his mother to that place.
Dr L reports the mother denies having been in a lesbian relationship. Dr L says that the father’s behaviours as described in the report, “with his allegations suggest a level of paranoia which, in my mind, is akin to pathological jealousy.” Dr L said,
“There did not appear to be any accompanying psychotic symptoms. That is, there is no underlying bizarreness or psychotic symptoms. Although the diagnosis of delusional disorder (jealous type) may be available it seems to me the emergence of this jealousy within a mutually destructive and angry relationship makes the behaviour seem more manipulative than simply delusions.”
Dr L says the father has developed possessiveness in relation to the child. “There is no doubt in my mind that the intensity of the belief is well beyond the average angry man who wishes to find fault in his spouse.”
In paragraph 30 of his report, Dr L refers to an occasion in May 2006. The father told him that in order to protect the child he had told the mother that he checked the child’s homework. There was an argument between them about this matter. The father said that the child then told him, “I can’t believe you are fighting over my homework. I’m going to kill myself.” The father said that the child then took a plastic knife and went through the motion of cutting his throat and wrist and slashing his stomach. Dr L recalls that the father was crying whilst retelling this incident. The father then took the child to the police who counselled him. The father said three days later, the mother had told the child, “I will call up all your friend’s parents and make sure that none of them come to your house.” This very much upset the child. The father said he started hitting himself on the head. Dr L noted that from the mother’s affidavit, she confirmed the last allegation took place in the heat of the moment.
The father told Dr L that following the incident in May 2006, he had called the police to come to the house and he had barricaded himself and his son in his bedroom. He told Dr L that the mother was “raving” outside the door. He said that when the police arrived, the mother told them he was downloading pornography and showing it to children. She said that he was encouraging the child to bring his friends home. In relation to this allegation Dr L notes that the mother claimed to have found pornography on the father’s computer which involved images of her family being superimposed over pornographic poses. She told Dr L that she felt that showed a degree of deviance and disturbance in the father.
The father told Dr L that he considered the child to be a gifted and talented child. He considers him to be quite mature and able to make adult-like decisions. He said he often asked his son for advice.
The father told Dr L about a temporary separation that took place in May 2006 when he decided to take the child and move to an apartment he had rented. The mother’s reaction was to initiate proceedings for a recovery order.
In relation to the information conveyed by the father to Dr L, he made the following comment in paragraph 34:
“What the above account shows is the complete lack of insight that [the father] reveals about the impact his action would have had on [the child], involving him in counselling, interviews with police, and attempting to have him act as a witness to the alleged machinations of the mother, barricading him in a room and heightening a sense of fear of his mother all to prove his point. Such behaviour is psychologically abusive, insensitive to his need to protect his son, and of great concern calling into question his ability to fully comprehend the result of his actions in disturbing his son.”
Dr L records that on 7 June 2006 the parties went to court. They reached agreement in relation to the care of the child which saw him sharing time with each of his parents. Following the lease expiring which the father had on the rented apartment he moved back to the former matrimonial home.
Dr L says the father believes that apart from the mother’s difficulties with diabetes she has a significant additional psychological problem attributed in some way to her father.
In his report, Dr L sets out in paragraph 41 the following:
“[The father] says the culture he comes from is that husbands and wives do not divorce, even if they do not talk to each other. A divorced man or woman is therefore seen as having a very low status. He agrees that it is not a good situation for [the child], even though to date it does not seem to have affected him. The father believes that [the child’s] experience of the current conflict may come out in his relationships later on. He says that he would like it to stop and to have a truce. However, he says that for a truce to be declared he would like to have his wife stop having psychological warfare with his son.”
The father admitted that he had told the child the mother was a thief. He said that the child became angered as a result of that allegation. He further said that the child had asked him did he love the mother, to which he replied he did not. the child had said to him, “You must love her.” The father acknowledged that the child was seeking reconciliation from the parents but said that was not possible.
It seems common ground that following the birth of the child and the return of the mother to full time work, the child was cared for by the mother’s sister until such time as he went to preschool. In his oral evidence the father told me he was critical of the mother’s sister’s capacity to care for the child properly.
In paragraph 48 of the report, Dr L looks at the question of the father’s employment. He records that the loss of employment was a matter of considerable concern to the mother. Although the mother insisted that she remained calm and did not cause stress, every day she tried to find employment for the father. At the conclusion of the paragraph, Dr L records this:
“I suspect she simply cannot view her own behaviour as being insistent or critical but it is not hard to see how it may have been so. Such discrepancies go to her inability to gain insight into the mutually difficult behaviours that have characterised this relationship for some years before it finally exploded into the current litigation.”
The mother told Dr L that one day she was at home and found the father was viewing and storing pornography. She said she talked to him about it. She then did not trust the father to look after the child and his young friends. She thought they might “by mistake” find the pornographic files.
Dr L reports as follows:
“[The mother] seemed very concerned about [the child] not keeping to routines such as practicing the piano and developed quite a complicated routine for him on a daily basis. She said the father was unable to maintain any kind of routine.”
In paragraph 52, Dr L comments as follows:
“[The mother] appears to have been quite regimented in what she expected of [the child] and displayed no insight into the demands she placed on both her husband and [the child] or the angry manner in which such pressure was applied. Whilst such behaviour might be problematic, her account does not indicate mental illness or obsessional disorder.”
The mother reported that in 2005 she felt it was time to bring the marriage to an end. She said that she was having her mail opened by the father and was being subjected to questions about bank statements and the like in circumstances where the father was not contributing to the family in any way. She said he accused her of having a lesbian affair with a good friend.
Dr L says in paragraph 53 “Whilst this behaviour is denied by [the father] he does report a degree of investigation of his mother’s dealings including opening her email despite her attempts to safeguard it.”
In paragraph 54 of his report Dr L sets out the mother’s statements in relation to her diabetic condition during 2005 through to 2007. The mother claims good diabetic control until 2005. She reported having quite a few hypoglycaemic attacks in 2006 and her last attack being 23 January 2007. Dr L has accepted the mother’s evidence in relation to her account of her diabetic state. Dr L said that:
“hypoglycaemia can result in dissociative like behaviour and in such a state a person may seem irrational and act in unusual ways. It is clear that from 2005 to early 2007 several of these episodes occurred and [the child] was exposed to such behaviours. However, such episodes do not, to my knowledge, cause lasting brain damage or major alterations of personality and in the absence of continued threat of attacks the significance of her diabetes for her mental state is not high.”
The parties are trustees for the child of money in a bank account standing in the mother’s name. The balance is $20,589. This money has accumulated over time. Each party seeks to control the funds pending the child reaching his majority.
By orders made on 17 November 2006 the parties agreed to cause the two accounts with the Gateway Credit Union to be divided equally. The parties had previously had orders made on 7 June 2006. Those orders provided as follows:-
1.The husband be at liberty to withdraw $17,000.00 from the gateway Credit Union account number […].
2.Both parties be restrained from withdrawing any funds from the following accounts:
oAccount […] ([The child’s[ account) – operated by wife with approximate balance of $18,000.00.
o[V Bank] account […] in the joint names of the parties with an approximate credit balance of $150,000.00.
oSubject to order 1 hereof account […] with Gateway Credit Union.
3. The husband be at liberty to operate and use the following account:
oThe VR2 account in the joint names of the parties with an approximate balance of $3,000.00.
4.The wife be at liberty to operate and use the funds in account […] in the Gateway Credit Union with an approximate balance of $30,000.00.
The father says that when the Gateway Credit Union account was divided each of the parties received $86,500.
There was a notation made to the orders made on 17 November 2006 to this effect:
“That the orders for division of the funds held in the Gateway Credit Union is not intended by the parties to be by way of interim or partial settlement of property but the parties understand that the distribution of funds may be the subject of a finding by the trial Judge in the context of the settlement of property.”
Although the father has submitted that the mother has hidden funds he has not been able to establish on the evidence that such is the case. I am satisfied that the mother has operated accounts in the name of her nieces. However, I have no sense from the evidence that this was part of some scheme to hide funds or commit some type of fraud.
Between 1991 and 2004 the mother’s mother resided with the parties. The evidence is relatively silent about the financial relationship between the parties and the mother’s mother. The father said that she received a pension which she banked and used to pay for her travel to Europe. He said in his affidavit that the mother’s mother did not contribute to the family financially or in kind. He claimed she had refused to assist in the care of the child when the mother had to return to work following the child’s birth. He said the parties met all of the mother’s mother’s expenses whilst she lived with them. The mother’s mother gave evidence in the case which I refer to hereafter.
There is reference in the evidence to the mother’s mother having savings which were in an account in the mother’s name. These funds were made available to the mother as part of the repayment of the loan from the parties to the mother’s sister. Whether they were funds accumulated from the pension received by the mother’s mother during the time she lived with the parties is not made clear.
There is a dispute between the parties about the contribution the mother’s mother may have made to the household in exchange for free board over a lengthy period of time. The mother said by way of submission and/or evidence that her mother had performed a considerable amount of caring for the child. The father denied that. The father said in paragraph 55 of his affidavit filed 10 October 2007 the following:
“It was a condition of marriage that [the mother’s] mother lived with us. We sponsored her mother, […], on an old age residency in 1991 (before [the child] was born in 1995) that required us to look after her for 10 years. After her mother got her citizenship two years later she went to social security and claimed we were not feeding her and got a special pension. She continued to stay with us until late 2004 but provided no care for [the child]. We continued to meet all her expenses between 1991 and 2004. [The mother’s mother] did not contribute to her expenses but used the money from social security to go for a holiday in Europe. I believe my wife was hiding the money received by her mother in accounts in the name of her nieces and nephew to prevent scrutiny by the welfare and taxation agencies.”
The mother’s mother filed an affidavit on 20 November 2007. She said: “I deny that I did not want to help care for [the child]. I cared for him on occasions before and after pre-school and sometimes in the evening when [the mother] and the husband went out.”
She said the father had chased her from the house in September 2004.
There is no evidence from the mother’s mother asserting she had made any other contribution to the household. There is no evidence from the mother about any contribution from her mother either financial or non financial.
The parties have owned two properties. The first they bought in 1991 at C. That property was purchased using savings and borrowings. There is a dispute as to the amount of savings the father contributed. Given that the father had no savings at the commencement of the cohabitation he could only have contributed from his income all of which will be taken into account as a contribution by him to the marriage. That property was sold in 1999.
During the marriage the parties lent money to the mother’s sister who paid interest and has repaid the loan. The father disputes the repayment largely because he says he has not seen any documentary evidence to support the allegation. I have found that the money was repaid.
The Balance Sheet
Property Ownership Value
Home Joint $600,000.00
Father’s Car Joint $ 1,500.00
Mother’s Car M $ 9,500.00
Shares F and M $ 16,115.49
Shares F $ 7,302.98
Shares M $ 6,929.30
Coles cheque F and M $ 2,000.00
Undeposited Dividends F and M $ 894.50
Cash - Offset A/C Joint $150,485.00
Cash in Bank F E$77,010.00
Cash in Bank M $ 19,395.32
Mother’s paid legal fees M $ 71,647.30
Father’s paid legal fees. F $ 47,209.00
Timeshare Joint $ 12,000.00
Forex Trading A/C F $E12,101.00
Total $1,034,089.89
Liabilities
Mortgage on home Joint $135,043.15
Father’s credit cards F $ 1,800.00
Mother’s credit cards M $ 1,660.00
Total $138,503.15
Net property other than Superannuation - $895,586.74
Superannuation
Mother’s Superannuation M $450,719.00
Father’s Superannuation F $ 64,556.00
Total $515,275.00
Net property including superannuation - $1,410,861.74
Child’s account with Gateway Credit Union: $ 20,589.01
Not included are the parties’ liability for any further costs of the Expert Witnesses and the costs of the Independent Children's Lawyer. The Independent Children's Lawyer has sought an order for the payment of costs by the father in the sum of $11,483.60 and by the mother in the sum of $11,483.60. There will be additional fees for Dr L, Dr W and Dr Y to be paid by the parties. Their quantum was unknown at the time the case concluded.
Issues on the Balance Sheet
The balance sheet which is set out above was tendered as an agreed balance sheet. The only addition to that document which I have made is to add the paid legal fees of the parties which have been considerable and which based on the authority of Chorn and Hopkins (2004) FLC 93-204 should properly be added back given that they have been paid from matrimonial savings which the parties had at the date of separation. It is reasonable to assume that the parties have met their legal costs from the savings each of them received following the orders of 17 November 2006. Each of the paries received the sum of about $86,000. They each further had access to funds of about $30,000. Further, in this case, the father has made the deliberate choice not to be represented in the proceedings because of the legal costs involved. The mother has continued to be represented and has paid considerably more than the father for legal costs. It would be unjust not to add the costs back as a notional entry on the balance sheet. I will assume that the balance of the parties’ $86,000 funds have either been spent on ordinary living expenses or found their way into other savings.
The evidence does not tell me what the asset position of the parties was at the date of the separation. Injunctive orders were made on 7 June 2006 which prevented the parties dealing with certain bank accounts and permitting them to use other accounts. The father was permitted to transfer $17,000 from one account to another account where the orders permitted him to be able to use the funds in the latter account. The mother was permitted to use the funds in the Gateway account which stood in credit with the sum of $30,000. I assume that the funds in the account upon which the father was permitted to operate after the transfer of the $17,000 had a balance similar to that of the mother’s account.
The father claimed that the mother held accounts in banks which stood in relatives’ names. Ultimately the mother agreed that was the case. The status of the funds in the accounts was a little unclear; however, as the accounts were controlled by the mother, I assume she is the beneficial owner of the accounts. The accounts had relatively small balances. They have not been included in the balance sheet as far as I can determine.
The Mother’s Contributions
The mother relies on the following contributions, all of which I accept she made.
·At about the time of marriage the mother had savings of about $25,000.
·Throughout the cohabitation the mother was in full time employment. The only exception to that was when she took 18 months full time off work to give birth to the child. At that time she took maternity leave and accumulated leave. She was off work for seven months and then worked part time over the remaining 18 month period. Evidence of the father makes a concession about the income earned by the mother throughout the cohabitation. He calculates that the mother’s total income was $709,544 and his was $402,794. No issue is taken with this calculation by the mother.
·At the time cohabitation commenced the mother was already a contributor to her superannuation fund. She had been in the fund for about two years prior to the marriage. She contributed during the cohabitation and since. I will deal with this contribution separately hereafter.
·The mother obtained finance through the V Bank for the properties owned by the parties. The mother claims that she received a preferential interest rate on the loans. This is probably true; however, there is no evidence to establish what was saved by the parties as a result of that preferential rate. I cannot therefore take this contribution into account as it is impossible to weight it.
·The mother contributed as a homemaker and parent. She was the primary caregiver for the child during at least the first 7 months following the birth of the child. For the next period of 11 months she worked part time and her involvement in the care of the child, I accept, was extensive. The father at the time was working full time. He was also finishing off his masters degree in 1995. The mother participated in most of the range of activities usually associated with the domestic requirements of a family. Until 2001 I accept she was responsible for the major portion of the home maker and parent contributions. The mother attended school functions for the child. She attended parent teacher interviews, something the father agrees he did not participate in. The father did attend the child’s school for some time to take the scripture classes. The mother attended sporting and extracurricular activities with the child as did the father.
·There is an issue between the parties about the extent of their contributions as a home maker and parent. The mother claims that until separation she did the vast majority of the domestic duties associated with the family. This is denied by the father. The mother concedes that the father did vacuuming in the house. She claims she did all the shopping for the house. The father denies this and says it was shared. She claimed she cooked most of the meals. The father agreed she cooked on the weekends. However, he claimed he did the cooking during the week. The mother claimed she did most of the washing. The father denied that. He said “she rarely touched the washing machine or the vacuum”. The mother said she made the beds. The father denied that. She said sometimes the father did work in the yard of the house. He said he did all of the outside work. Given the fact that the father did not work outside of the house after 2001 I think it likely that he did contribute significantly from that time. I also accept the father made contributions on the nature described by him in his evidence. My determination is that over the spread of the cohabitation the parties should be assessed to have contributed about equally as home makers and parents until the date of separation.
·In 1994 the father commenced to study for his masters degree at Western Sydney University. He attended night classes. The course took two years. He graduated with a maters degree. During this period the mother’s contributions as a home maker and parent (after the child’s birth) must be seen as having been greater because of the unavailability of the father. Further the father’s additional accreditation must be seen as increasing his marketability for future employment. The mother has contributed to that.
The mother did not make submissions suggesting a separate consideration of the contributions to the parties’ superannuation. However, given that a splitting order is sought and having regard to the Full court decision in Coghlan and Coghlan (2005) FLC 93-220 I propose to assess contributions to the parties’ superannuation separately from the balance of the assets.
The mother sought a division of assets and superannuation based on assessment of contribution as to 65 % to her and 35% to the father.
Contributions towards Superannuation
The mother in her submissions has not sought a separate assessment of the parties’ contributions towards superannuation. She has treated the superannuation as part of the same pool as the balance of the assets for the purpose of assessing contribution. As I said earlier, Coghlan (supra) recommends against such approach where a splitting order is sought.
The mother’s superannuation has a value of $450,719. That figure represents a calculation as at 2October 2007. The mother commenced contributing to her superannuation fund before the marriage. She first became a member of the plan on 17 April 1989. There is no evidence as to the value of the mother’s entitlement at the date cohabitation commenced.
The father’s superannuation has a value of $64,556. The father contributed to his fund wholly within the period of the parties’ cohabitation.
Each of the parties must be seen to make indirect contributions towards the superannuation of the other. Each party has indirectly enabled the other to have enjoyed employment during the cohabitation and thereby gain their entitlements to superannuation.
This was a marriage of some 15 years in which a child was born. The Full Court authorities such as Coghlan (supra) and M & M (2006) FLC 93-281 require the court to consider the contributions to superannuation within the context of all of the parties other contributions under section 79(4).
The Full Court in M & M (supra) dealt with assessment of contributions to superannuation. In that decision, the Full Court said at paragraph 123:
“123. In our view it is clear from those comments that the majority in Coghlan (supra) was concerned with a consideration of actual contributions where they were ascertainable. The relationship between years of fund membership and cohabitation might be relevant in a defined benefits scheme whereas actual contributions made by the fund member at the commencement of the cohabitation might be relevant to an accumulation fund where in both cases the marriage was of short duration. However, in our view there is nothing said by the majority in Coghlan (supra) that would give any support for the application of some kind of a formula or that contributions to superannuation whatever the nature of the fund, should be treated in a different way from contributions to other property under s 79(4). This is so in our view whether the superannuation is considered as part of one pool of assets or in a separate pool.”
I assess the contributions of the parties in each of their funds as 52.5% to the mother and 47.5% to the father. This reflects my view of the parties overall contributions in all the areas referred to in section 79(4) (a), (b) and (c).
Post Separation Contributions
The mother has met the mortgage payments and outgoings on the former matrimonial home.
The mother has paid child support. The payment has been significant and not token.
Post separation the mother has continued to contribute to her superannuation. The value of the interest which appears in the balance sheet is the value at October 2007.
The Father’s Contributions
The father is entitled to rely upon the following contributions based on my acceptance of the evidence.
·His income earned during the cohabitation. I have referred to the comparative amounts earned during the cohabitation in detailing the mother’s contributions.
·The father was involved in share trading over a period of about 12 months and he estimates he made about $3,000 to $4,000 in that time.
·The father was asked about his contribution as a homemaker and parent. It was put to him that he did very little cooking during the course of cohabitation. He denied that. It was put to him that apart from vacuuming, the mother did the majority of the housework. The father denied that.
·It was put to the father that the mother did all of the grocery shopping during cohabitation. He denied that. He said “We both went out mostly on weekends and did the shopping together.” Sometimes the mother would pick up a couple of things on the way home from work.
·It was put to the father that the mother prepared the evening meals. He said “Not always”. He said that usually she did prepare the meal on the weekend. During the week he said that he would cook once or twice a week which would provide meals for the week days.
·It was put to the father that the mother usually did the washing including towels and manchester. He denied that. He said she very rarely touched the washing machine. She very rarely touched the vacuum cleaner. He denied that she dusted and cleaned the home. He denied that she made the beds in the house. He denied that she swept and mopped the home. He agreed that he did the mowing of the lawns and said that he did all of the outside work on the house. He agreed that he looked after the car. He agreed that the mother attended parent/teacher nights and that he did not.
·As detailed during my consideration of the mother’s contributions as a home maker and parent I conclude that to the date of separation in November 2006 the parties’ contributions in this area should be assessed as equal.
Contributions towards Superannuation
I have dealt with this under the assessment of the mother’s contributions as set out above.
Post Separation Contributions
The father has had the responsibility to care for and predominantly financially support the child (albeit with the benefit of the mother’s paid child support). The child has spent very limited time with his wife since the end of 2006.
Conclusion Based on Assessment of Contributions
The mother submitted that all contributions should be assessed as favouring the mother by proportion 65% to her and 35% to the father.
The father did not ascribe a percentage to the assessment of contribution. However, he did say he proposed the assets (and superannuation) should be divided 55% to him and 45% to the mother.
My assessment of the contributions is that the balance should fall in favour of the mother in assessment to the date of separation. Post separation I conclude the father’s contributions were greater than the mother’s. The very considerable contribution he made in caring for the child has tipped the scales in his favour during this period. Notwithstanding that period post separation favouring the father I still hold that the mother’s overall contributions were greater than the father’s by a small margin and this is largely because of the financial contribution of the mother following the father leaving his employment in 2001. I assess the contributions as being 52.5% to the mother and 47.5% to the father.
That determination would result in the mother receiving $470,183 in non superannuation assets and $270,519 in superannuation. The father will receive $425,403 of non superannuation assets and $244,756 in superannuation.
Section 75(2) Matters
Before dealing with the matters which the parties and the evidence suggests I should consider under this heading I need to make clear that in considering these matters I do so in relation to both the assets and the superannuation pools.
The father was born in October 1958. He is 49 years of age. The mother was born in June 1961 and is almost 47 years of age.
This was a marriage of some 15 years in which a child was born.
The mother has a long history of diabetes. This has affected her general health in differing ways over the course of the marriage and since. She now has fitted a glucose pump and a blood monitor. This has given her a comparatively lengthy period of good health without apparently suffering from severe hypoglycaemic attacks.
Dr Y confirmed that the glucose pump and monitor currently used by the mother are an expensive item and can cost up to $10,000 per annum to maintain. The mother will have this expenditure into the foreseeable future.
The father is in good health physically. However, Dr L has raised concerns about his psychological health. Dr W was unable to diagnose an AXIS 1 disorder. The father has been unemployed since 2001. The length of his unemployment and the circumstances in which he came to leave his last employment do raise concerns about his ability to work in a conventional workplace and meet the requirements of an employer. The matters raised by his last employer as criticism included his being unable to complete tasks in what was regarded as an appropriate time. There were also concerns about the standard of his work.
The father said that since May 2007 he has applied for between 25 and 50 jobs
He agreed that after the court case has finished there would be no reason why he could not find some employment. He had said that having to conduct his own case in the court had required his full attention during the last 12 months or so.
The father is highly credentialed in his field. He holds a Masters Degree from Western Sydney University. Although the father was confident he could obtain contract work in the industry I do have some reservations about that possibility. Certainly I think it probable that he could obtain small contract jobs from time to time; however, I do not share his confidence that he will obtain a continuity of work which might be equivalent to full time employment.
The father’s foray into the world of share trading took the form of undertaking a course of study with Forex and then doing some trading. Although the father says he made a profit it was hardly the type of income which could sustain the father. His involvement in share trading seems to have ceased some time ago.
I conclude that the father’s prospects of obtaining consistent work in the future are not good. I consider that he may from time to time obtain some small contract jobs. I think his ability to generate reasonable income (at least comparable to that earned by him prior to his employment ceasing in 2001) in the future is quite limited.
The mother is employed as a full time employee with the V Bank. She receives a salary of $96,200 per year (see the mother’s Financial Statement filed 2August 2007). The mother in her submissions said that her income was $62,296 per annum and referred me to the mother’s Financial Statement filed 26 October 2007. That document was not relied upon in the hearing. The Case Summary Document filed by the mother on the 19 November 2007 only seeks to rely upon the Financial Statement which I have referred to.
The mother has been paying child support for the child for some time now. Her obligation would have commenced following the physical separation of the parties in November 2006. The payment is about $750 per month.
The father told me in evidence that he has been receiving some financial support for the child and himself from his wife since the separation in November 2006. The amount he has received is about “a few hundred dollars here and there”. She did provide a sum of $2,500 for the child shortly before the separation in November 2006.
The mother has occupied the former matrimonial home since the separation in November 2006. She has also met the outgoings on the property.
The mother has a liability for further legal costs not paid at the time of the hearing in the sum of about $15,000. Given that the mother has had written submissions provided by her counsel post the hearing, I think it reasonable to conclude that the mother’s liability for legal costs has grown further.
The mother sought to rely on a possible inheritance from the father’s mother. There is insufficient evidence before the court to enable me to take that matter into account.
The child will reside principally with the father into the foreseeable future. He is almost 13 years of age; however, he will require housing and financial support for at least the next five years. The children’s orders I propose to make provide for the child to attend upon a therapist as recommended by Dr L. It will be the father’s responsibility to make that happen and it may well require some payment by the father. As I do not know from any evidence what this is likely to cost I can only take it into account in a minor way. I understand from the evidence of Dr L the child will need to see a psychologist in private practice. I know that there is some relief for payment by allowances now available through Medicare. The extent to which the father may qualify for such relief is not known to me.
It is reasonably anticipated that the mother will pay child support for the child at a reasonably high rate for the foreseeable future.
The financial commitments of each party and the cost of self support are set out in each of their Financial Statements.
The parties have lived a frugal lifestyle. They have been able to save a large amount of money. That has only occurred in this family because they have avoided unnecessary expenditure. There is no evidence of lavish holidays or lifestyle.
Both parties have entitlements accruing in superannuation funds. The mother’s entitlement is very significant having regard to the balance of the assets. She seeks a splitting order so that the father would receive 34% of the mother’s fund.
The decision I have made about the division of assets based upon assessment of contribution means that the mother will receive $470,183 in non superannuation assets and $270,519 in superannuation. The father will receive $425,403 of non superannuation assets and $244,756 in superannuation.
My view of the parties’ relative financial futures is, as I have set out, that the mother is likely to continue in secure employment into the foreseeable future. The father’s prospect of future employment I see as not good. I need to consider that with that secure future employment for the mother there is the ability to continue to grow her superannuation. She is now 47 years of age and might reasonably be expected to work to the age of 60 to 65 years. Thus she has another 13 to 18 years of employment life ahead of her.
The mother sought a further adjustment in her favour of 5%. In fairness to her it was premised on the assumption that the child would be predominantly living with her. That is not my decision in the case.
The mother’s mother lived with the parties from 1991 to 2004. The father says that although she received a pension she saved that money to fund overseas travel. The father’s evidence, which I accept, is that the expenses of the mother’s mother were met by the parties. The parties had sponsored the mother’s mother to come to Australia. After about two years she received a pension. She contributed nothing from her pension to the family expenses. The parties provided her with a home and met all her expenses. It must be reasonably concluded that a considerable provision was made by the parties for the support of the mother’s mother with very little provided by her in return. I do not accept she provided any meaningful assistance to the parties for the care of the child or in any other way. There is no ability to consider this matter under the “contribution” headings having regard to the provisions of sections 79(4)(a), (b) and (c). This factor requires a significant adjustment in favour of the father.
Having regard to all those matters I conclude there should be a significant adjustment in favour of the father. That adjustment should be 12.5%. That adjustment should be calculated across both the asset pool and the superannuation pool.
The end result is that there should be a division of the parties’ assets and superannuation as to 55% to the father and 45% to the mother.
Nothing in my determination is likely to have an effect upon the earning capacity of either party.
I have taken into account under section 75(2), as above addressed, the effect of the children’s orders I propose to make upon the determination to be made by me in relation to the parties property.
I have considered above the fact that the mother has been assessed to pay child support for the child.
Should there be a Splitting Order as Sought by the Mother?
The issue here is whether the father should be able to take some of his share of superannuation as an adjustment in relation to the pool of non superannuation assets. He considers if he is able to take his interest from that pool he may be able to take the property at D as his share of the assets. In the circumstances of this case that is an understandable approach. However, the mother also wishes to retain the property.
As I have said earlier I have concerns about the father’s future employment prospects. If he is unable to obtain employment or contract work then he has little opportunity to contribute further towards superannuation. His current entitlement is comparatively small and would be unlikely to allow the father a reasonable standard of living when he retires. If he retains the totality of his entitlement to the superannuation of the parties through the making of a splitting order, then the prospect of being able to support him after retirement increases.
The parties are still reasonably young and there are a number of years to pass before either would become entitled to draw on superannuation. It would be unfair to the mother if I allowed the father to take his proportion of her superannuation as I have determined above, in current assets and then have her have to wait until she retires to receive her benefit of the orders I am required to make.
I am of the view that there should be a superannuation splitting order. I have been advised that the mother’s superannuation trustee has been given proper notice of her proposed splitting order and raises no objection to same.
The father is to receive $283,401 in superannuation benefit. He has an entitlement in his own fund of $64,556. Therefore the amount to be used to calculate the future entitlement of the father in the mother’s fund will be a base figure of $218,845.
In this case I conclude it is important for the superannuation of the parties to be split. I think that the prospects of the father being able to significantly grow his superannuation before he retires are not very high. Therefore if the father is to have the prospect of some comfort in his retirement it will be important for him to receive a significant share of the parties’ superannuation as it now exists.
I can understand the father seeking no splitting order and effectively taking his interest in the mother’s superannuation fund as property now. If he does not secure enough money from the parties’ assets now to enable him to acquire the mother’s interest in the former matrimonial home then he would see himself as having little chance of being able to buy a comparable property on the open market given that he would have to borrow funds and he does not have a secure job.
Notwithstanding the father’s position I think it is fair and appropriate that there be a splitting order as proposed by the mother.
Just and Equitable
The effect of the orders to be made by the court dividing the parties’ assets and superannuation 55% to the father and 45% to the mother is that the father will receive $492,572 in assets and $283,401 in superannuation and the mother will receive $403,014 in assets and $231,874 in superannuation. That leaves the father with $89,558 more than the mother in assets and $51,527 more than the mother in superannuation.
Given the circumstances of this marriage I conclude that the determination above referred to will provide a just and equitable division of the parties’ assets and superannuation.
The Proposed Property Orders
The parties are unable to agree about the items of joint property which should be retained by each party. I therefore need to consider how the property should be divided before any cash adjustment or sale of the former matrimonial home. Both parties sought to offload to the other every bit of available property and savings that they could in order to bolster their ability to retain the former matrimonial home.
The Coles cheque of $2,000 and the un-deposited dividends of $894.50 should go to the father as they would both potentially carry an incident of taxation. Given that the father has no income for the purpose of assessing taxation it is unlikely that he will have to pay any income tax on the dividends. The mother would certainly be expected to have to pay tax on the dividends.
Each of the parties should retain the shares that stand in their sole names. The father has shares valued at $7302.98 and the mother has shares valued at $6,929.30. These parcels therefore are about equal. The parties jointly own shares worth $16,115.49 on the balance sheet. Given that in recent times there has been volatility on the stock market, it seems to me that the fairest way to deal with this item is to have it sold and the net proceeds divided equally between the parties. This will mean if there has been a diminution in the value of the shares the parties will equally suffer the loss and the converse is true also. Consequently when I consider the division of the assets between the parties I will have an entry in each parties’ lists of assets to be retained “Half the joint share portfolio $8,057.75”.
The father should retain the Forex Trading A/C as that has been his venture.
The Timeshare could be used by either; however, each suggests the other should receive this asset. It seems to me that the father is unlikely to have the resources/income to be able to afford to use the timeshare unit whereas the mother could well have and so I propose that she retain that asset.
Each of the parties would like to retain the former matrimonial home. The father would need to borrow a considerable amount of money to pay out the mother and there is no evidence that he could do so. The mother works for the V Bank and has a good income. She may be able to borrow sufficient funds to pay out the father and keep the house. She should be given two months to do that otherwise the house is to be sold.
The house has a value of $600,000. There is $135,043 owing on the mortgage. The net value is therefore $464,957. The father is to receive $187,812 from the mother if she retains the house. That sum as a % of the equity in the home (value less amount outstanding on the mortgage) is 40.4%. Therefore the orders should provide that if the mother has not paid the father the sum of $187,812 within two months of the date of order the house is to be sold. The mortgage and sale costs paid and the father is to receive 40.4% of the sale proceeds thereafter.
The orders I propose will see the father having to receive $492,572 worth of the parties’ assets. He will retain from the balance sheet the following items as his property:
PROPERTY OWNERSHIP VALUE
Father’s car joint $ 1,500.00
Half the joint share portfolio $ 8,057.75
Shares (Father’s) F $ 7,302.98
Coles cheque F and M $ 2,000.00
Undeposited Dividends F and M $ 894.50
Cash - Offset A/C Joint $150,485.00
Cash in Bank F E$77,010.00
Father’s paid legal fees. F $ 47,209.00
Forex Trading A/C F $E12,101.00Total $306,560.23
Liabilities
Father’s credit cards F $ 1,800.00
Total $ 1,800.00Net assets to be retained by the father: $304,760.23
Amount to be paid by the mother $187,812.00
Net Assets to be received by father: $492,572.00
The mother would therefore be required to pay the father the sum of $187,812.
757.The mother will retain the following assets from the balance sheet:
PROPERTY OWNERSHIP VALUE
Home Joint $600,000.00
Mother’s Car M $ 9,500.00
Half the joint share portfolio $ 8,057.75
Shares M $ 6,929.30
Cash in Bank M $ 19,395.32
Mother’s paid legal fees M $ 71,647.30
Timeshare Joint $ 12,000.00
Total $727,529.67
Liabilities
Mortgage on home Joint $135,043.15
Mother’s credit cards M $ 1,660.00
Sum to be paid to the father $187,812.00 Total $ 324,515.15
Net assets retained by the mother: $403,014.00
I certify that the preceding seven hundred and fifty-seven (757) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.
Associate:
Date: 25 June 2008
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