Lannon and Lannon & Anor (No 2)
[2015] FamCA 560
•17 July 2015
FAMILY COURT OF AUSTRALIA
| LANNON & LANNON AND ANOR (NO 2) | [2015] FamCA 560 |
| FAMILY LAW – CHILDREN – Best Interests – Where the children have meaningful relationships with both parents – children’s views – where the children have been exposed to the parents’ conflict – where the parties have failed to consult with one another about issues affecting the children – where each of the parties have the capacity to meet the needs of the children but both revealed an impaired capacity to focus on the needs of the children – where the father is in the better position to be the primary carer – where fewer changeovers will prevent the children from being exposed to the parents’ conflict – children to spend time with the father for nine days in each fortnight period – children to spend time with the mother for five days in each fortnight period FAMILY LAW – CHILDREN – Parental Responsibility – Where whoever has the primary care of the children should have sole parental responsibility – father to have sole parental responsibility – where there is to be a method of structured exchange of information between the parents about long-term decisions to be made by the father for the children FAMILY LAW – PROPERTY SETTLEMENT – Where the parties commenced their relationship on a basis which is approximately equal – where the parties’ positions were comparable during the course of the relationship – where an equal shared care arrangement for the children has been in place since separation and is similarly continuing – where there is to be an equal division of the parties’ net assets, following a cash adjustment to be paid to the mother by the father |
| Family Law Act 1975 (Cth), ss 60CC, 64B, 75, 79 |
| Bevan & Bevan [2013] FamCAFC 116; (2013) 49 Fam LR 387 Stanford v Stanford (2012) 247 CLR 108 |
| APPLICANT: | Ms Lannon |
| FIRST RESPONDENT: | Mr Lannon |
| SECOND RESPONDENT: INDEPENDENT CHILDREN’S LAWYER: | Mr David Legal Aid D Town |
| FILE NUMBER: | NCC | 1960 | of | 2013 |
| DATE DELIVERED: | 17 July 2015 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 21, 22, 23 & 24 April 2015 and 11 May 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Friedlander |
| SOLICITOR FOR THE APPLICANT: | Catalyst Family Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Rosic |
| SOLICITOR FOR THE FIRST RESPONDENT: | Rowlandson & Co Solicitors |
SECOND RESPONDENT: In Person
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O’Rourke, Solicitor Advocate |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Parenting
(1)That all prior parenting Orders made in the Federal Circuit Court and in this Court in relation to E born … 2005, F born … 2008, and G born … 2010 (“the children”) are discharged.
(2)That the father have sole parental responsibility for the children.
(3)That whenever an issue relating to the long term welfare of the children arises the father shall, other than in a genuine emergency, contact the mother in writing (which may include email and text) and:
(a) Identify the issue;
(b) Set out his proposal;
(c)Invite the mother to respond with any alternate proposal within a stated period of time; and
(d) Advise the mother promptly of the decision he has taken.
(4)That the children live with the mother as follows, and otherwise with the father:
4.1
Each alternate weekend from after pre-school/school Thursday to before pre-school/school on the Monday following commencing Thursday
30 July 2015 and thereafter commencing on the first Thursday of each school term (extending to the commencement of school on Tuesday when the Monday is a public holiday);
4.2On each alternate Thursday from after pre-school/school until before pre-school/school Friday commencing 23 July 2015 and thereafter commencing on the second Thursday of each school term;
4.3For one half of each school holiday period and failing agreement otherwise, for the first half in even numbered years and the second half in odd numbered years;
4.4For the purpose of these Orders, the school term and Christmas school holidays are deemed to commence at 9.00 am on the first day after the school term ceases and changeovers shall occur at 6.00 pm on the second Saturday of Terms 1, 2, & 3 and on the day in the middle of the Christmas school holiday period;
4.5For the purpose of determining the midpoint in Order 4.3, the parties must use their best endeavours to identify the same by the weekend preceding the commencement of the holiday period and if an agreement cannot be reached, then the parent who is to care for the children in the second half of the holidays shall determine the midpoint and notify the other party before the day of Term 4;
4.6If Mother’s Day falls on a weekend when the children are not already living with the mother, then from 6.00 pm Saturday prior to Mother’s Day until return to school Monday.
4.7If the children are living with the mother on the weekend when Father’s Day falls, then that time is suspended from 6.00 pm on Saturday prior to Father’s Day for the balance of the weekend.
4.8At Christmas:
(a)In even numbered years from 3.00 pm Christmas Eve until 3.00 pm Christmas Day; and
(b)In odd numbered years, from 3.00 pm Christmas Day until 3.00 pm Boxing Day.
4.9During the Easter long weekend (save and except for when Easter falls during the school holidays, in which event the school holiday arrangements will apply):
(a)In even numbered years from the conclusion of school on Easter Thursday until 12.00 noon Easter Saturday; and
(b)In odd numbered years from 12.00 noon Easter Saturday until the commencement of school the Tuesday following Easter Monday.
4.10Such other time as may be agreed between the parties.
(5)Failing agreement otherwise, all changeovers, other than from pre-school/school, shall take place outside the residence of each party, with the father to deliver the children to the home of the mother at the commencement of such holidays and other special times and the mother to return the children at the conclusion of those periods, with the parties to do the changeovers in the absence of partners unless otherwise agreed in writing.
Education
NOTING that the older children presently attend H School (HS), each of the parties is restrained as follows:
(a)From enrolling G at any other school when she commences primary school in 2016; and
(b)From changing the enrolment of the children away from HS (other than for progression to High School) without the prior written consent of the other parent.
(7)That the father shall, to the extent necessary, authorise the school to provide to the mother all information relating to the progress and welfare of the children at school (including but not limited to school reports, newsletters, applications for school photographs and notes relating to excursions).
(8)That the Independent Children’s Lawyer shall provide a copy of these Orders to the pre-school and to the school which the children attend.
(9)That each party is entitled to attend events to which parents are invited at the pre-school and school which the children attend (subject to any condition and/or restriction imposed by those institutions on the parents or either of them).
(10)That the Independent Children’s Lawyer shall explain these Orders to the children and to J and each party shall ensure that the children and J are brought in at a mutually convenient time for the Independent Children’s Lawyer and the children for that explanation to take place.
Property
(11)Within 60 days hereof, or such further time as agreed between the parties in writing, in respect of the property situate and known as K Street, Suburb L in the state of New South Wales being the whole of the land in Certificate of Title Folio Identifier … (hereafter referred to as “the Suburb L property”), the parties shall cause a settlement to occur whereby simultaneously the following shall occur:
(a)The Husband shall perform all acts and things and sign all documents necessary to transfer all of his right, title and interest in the Suburb L property to the wife or as she directs;
(b)The wife shall do all acts and things and sign all documents necessary to refinance the mortgage presently encumbering the Suburb L property so that the husband’s liability in respect of the mortgage is discharged;
(c)The wife shall on and from the date of transfer forever protect and indemnify the husband in respect of all rates, utilities, suits, claims, debts, loans, guarantees, charges or any other liabilities and the like arising from the fact that the husband was once a registered owner or held an interest in the property irrespective as to when any such liability arose or arises.
(12)That simultaneously with the settlement to occur pursuant to Order 11, in respect of the property situate and known as M Street, N Town in the state of New South Wales being the whole of the land in Certificate of Title Folio Identifier 19/13/758063 (hereafter referred to as “the N Town property”), the parties shall cause a settlement to occur whereby simultaneously the following shall occur:
(a)The wife shall perform all acts and things and sign all documents necessary to transfer all of her right, title and interest in the N Town property to the husband;
(b)The husband shall do all acts and things and sign all documents necessary to refinance the mortgage encumbering the property so that the wife’s liability in respect of the mortgage is discharged;
(c)The husband shall pay the wife the sum of $211,736 by way of lump-sum property adjustment.
(d)The husband shall on and from the date of transfer protect and indemnify the wife in respect of all rates, utilities, suits, claims, debts, loans, guarantees, charges or any other liabilities and the like arising from the fact that the wife was once a registered owner or held an interest in the property irrespective as to when any such liability arose or arises.
(13)Within 14 days of the date of these Orders the husband shall present such documents to the wife (and within a further 14 days the wife shall sign and return them to the husband) in which:
(a)The wife transfers to the husband or his nominee any and all interests she may have in the husband’s businesses, O Group Pty Ltd and O Pty Ltd or any other entity in which he conducts his business;
(b)The parties shall do all acts and things and sign all documents necessary to dissolve or wind-up (whatever the case may be) all partnerships, trusts or any other entities by which the husband conducted or conducts his business and the wife holds or held an interest in and thereafter the husband shall retain to the exclusion of the wife any and all property and rights of whatever nature held by such entities with the husband to meet the cost of taking such step including payment of professional and other fees.
(14)Except as otherwise provided for in these Orders or agreed otherwise between the parties, each of them shall do all acts and things and sign all documents necessary to close and/or discharge, whatever the case may be, all joint credit cards, bank accounts (including all partnership accounts and the like), investments, utilities and any other joint accounts or liabilities within 90 days of the date of these Orders.
(15)Except as otherwise provided for in these Orders or agreed otherwise between the parties, each party is herewith solely liable for all debts and liabilities held in his or her name as of the date of these Orders including but not limited to credit cards, personal loans, mortgages, motor vehicle leases, taxation liabilities and the like.
(16)Except as otherwise specifically provided for in the above Orders each party is declared to be the sole owner to the exclusion of the other of all items of personalty of whatsoever nature and wheresoever located including motor vehicles, choses in action, shares, all bank, credit union or building society accounts and superannuation entitlements not specifically dealt with herein and in the possession of that party at the date of these Orders herein and with respect to any debt relating to any such item of personalty so retained he or she shall indemnify the other from and with respect to such debt.
IT IS NOTED that publication of this judgment under the pseudonym Lannon & Lannon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 1960 of 2013
| Ms Lannon |
Applicant
And
| Mr Lannon |
First Respondent
And
Mr David
Second Respondent
And
Legal Aid D Town
Independent Children’s Lawyer
REASONS FOR JUDGMENT
introduction
These are competing applications for orders in relation both to:
a)Parenting orders for the three children of the parties, E aged nine, F aged seven, and G aged five; and
b)Adjustment of interests in property.
In addition, there was a three way dispute over a child of the mother’s first marriage, J aged 14. J lived with the parties from the commencement of their relationship when J was aged about two years. Post-separation, J spent time with the father in the same pattern as the subject children.
Consent Orders about J were made at the commencement of the hearing, which effectively enabled him to live with the mother and spend time with the father and with his own biological father by arrangement.
The parties
The applicant is the mother, aged 43. Her household consists of herself, her partner of two years, Mr B aged 43, the three subject children on an equal time shared care basis with the father, and the two younger B children, P aged 12 and Q aged 10 for five nights per fortnight and for half school holidays.
The respondent is the father, aged 35. His household consists of himself and the subject children when they are not with the mother.
The second respondent is the father of J.
The consent Orders having been concluded about J, the second respondent ceased participating as a party in the proceedings. Leave was granted to the mother to rely on an affidavit by the second respondent, sworn on the first day of hearing. The second respondent was not required for cross-examination and thereafter took no further part in the proceedings.
Applications
The parties each sought similar orders; that is, that the three subject children live with that parent and spend alternate weekends, half school holidays and other special times with the other parent.
The mother proposed equal shared parental responsibility, despite concessions of negligible communication and vehement opposition by the mother to the father being present, or even in her sight, at events involving the children.
Although not explicit in his application, the father told the Family Consultant that he wished to share parental responsibility with the mother.
During the course of the hearing, the parties moved from their respective positions to an agreed position that whichever parent had primary residence should have nine days per fortnight and the other parent five days per fortnight and the parent with primary residence should have sole parental responsibility.
Both parties stated their commitment to remaining in the local area and to the children continuing at their current schools, with G to join her two older siblings next year.
Both parties agreed that they should each be able to attend the events at pre-school and school to which parents are invited.
Short History of Relevant Events
The parties met in late 2002, early 2003. They began living together in 2003.
An Apprehended Violence Order (“AVO”) for the protection of the mother from the second respondent was still in place when she and J began living with the father. The father took a protective role, both for the mother and for J, and it is agreed that the father took on a fatherly role with J and was genuinely committed to him.
When the parties began living together in 2003, they were both in paid employment. At the time or shortly after cohabitation, the mother took up part time work. The father was a qualified tradesman employed by a building company, and shortly thereafter a sole trader, trading as ‘O Pty Ltd’ (subsequently ‘O Group Pty Ltd’) (“the company”).
Although the mother asserted that she had cash of about $100,000, being the nett proceeds of the sale of a property owned by her in R Town, I am satisfied that the nett proceeds available to her were $52,000. She also had a motor vehicle and household furniture.
The father had a motor vehicle, some shares and cash at the bank.[1]
[1] Affidavit of the Father filed 04/09/2014, par 11
Overall, the position of the parties was comparable at the beginning of their relationship.
In mid-2003 the parties purchased their first home together at S Street, N Town (“S Street”). They each contributed their available funds and it was at that time that the father began his own business.
In 2004 the parties married.
In September 2005 the parties’ first child, E, was born. The mother took about 12 months maternity leave and then a further period of 12 months leave. She provided care for the child and assisted the father in his business.
In 2006 the parties and E were in Melbourne on holidays. The parties were drinking with friends. The mother hit the father on the right side of his jaw, in the left eye, and the back of his head during the course of an argument. The evidence establishes that the mother is quick to anger and can be impulsively violent when roused. The father was not seriously injured and although wary of the mother was not fearful of her. On their return home, the father arranged for counselling for both parties through Ms T.
In 2007 the mother accepted redundancy and received a lump sum of about $10,000.
Also in that year, the father invested and lost about $40,000, which he drew out of his business account. I will refer later in these reasons to the argument over how this event should be treated.
In February 2008 the parties’ second child, F, was born.
In December 2008 the parties purchased the property at M Street, N Town (“the family home”), which became the family home and in which the father presently lives. The purchase price was $600,000, with $550,000 borrowed and S Street as security.
The parties’ moved into the family home and rented out S Street for 12 months before selling it. The parties agree that the nett proceeds of sale of that property, approximately $122,000, were used for renovations on the family home.
In April 2010 the parties’ third child, G, was born.
In September 2010 the father received a long service leave payment of $6,580.
In June 2011 the mother returned to part-time employment as a customer service officer for Bank West.
At the same time the father created the company, ‘O Pty Ltd’, winding up his previous business due to outstanding debts.
In August 2011 the parties’ relationship was struggling and the children were exposed to a high level of verbal conflict.
In September 2011 the mother began to consult a psychologist, Ms U, effectively for marriage counselling.[2] There is a reference in August 2011, in the referral letter for the mother, as follows:[3]
[The mother] is not depressed but is not enjoying life and this I believe which is due to her relationship with her husband which appears to be slowly deteriorating.
Testing by Ms U revealed that the mother’s levels of depression, anxiety and stress fell within the normal range.
[2] Exhibit 15
[3] Exhibit 15 (letter dated 25/08/2011 from Dr W)
The mother was encouraged to bring the father with her to counselling. Noted is the agreement of the parties that their pattern of conduct at that time was for the father to withdraw and cease communicating and for the mother to “yell, shout and swear”. The father began attending in 2011 with some benefit for both parties.
In December 2011 the father injured his back at work and began receiving workers compensation and income insurance payments, which continue.
In November 2012 the parties separated. The youngest child was then almost three years old. The mother moved out of the family home with the children and over the next four to five months, the parties operated an equal shared care arrangement for the children.
Early in 2013 the mother began a relationship with her current partner, Mr B. She did not let the father know of the new relationship at that time.
A complicating factor in this matter is the existence of a confiding friendship between the father and the former wife of the mother’s partner. This has led to the father being given the Family Report to read from the B Family Law proceedings.
There has also been conflict and litigation between those four adults around the purchase and subsequent sale early this year by the mother and Mr B of a property at Suburb C. Costs orders have been made on some occasions.
In March 2013 the parties purchased a property at K Street, Suburb L (“the Suburb L property”) for the mother and children to live in post-separation. The majority of the purchase price was borrowed and secured by mortgage.
During 2013 there were attempts by the mother to obtain an AVO for her protection from the father, without success. The last application was dismissed by the Local Court on 20 August 2014.
In April 2013 the father confronted the mother with explicit adult material posted by her on Facebook. The relationship between the parties sharply deteriorated.
On 1 May 2013 there was an incident in the former family home, which took on significance in these proceedings. The mother took all three children with her to the property, uninvited by the father, with the intention of obtaining the children’s sports equipment. Despite the father’s requests for the mother to leave, she went upstairs and the father, to use his words, subsequently “walked her out of the house”. The children were quite unnecessarily part of what became an angry scene, which led to police being called. J had been present at the home with the father when the mother and the subject children arrived and chose to remain there after she left.
During the course of the hearing it became clear that the mother’s version of events, as told to Mr B, encouraged him to believe that the mother had been assaulted by the father. This was not the case.
On 2 May 2013 the father alleged that Mr B telephoned him and threatened his life.
The mediation which had been set up for the parties failed in this context.
On 2 July 2013 a dispute about child support escalated and apparently remains unresolved.
On 2 August 2013 there was a further incident where police were called. It took place at G’s pre-school. It is agreed that the three subject children and J were present at the pre-school bush dance that evening.
If I accepted the evidence of either party in its entirety, that evidence would not reflect well on them. By the time the children left early with the mother, all three girls were crying and J was put under pressure. It appears that the parties were competitive over which parent the children should spend time with during the course of the dance.
In the carpark the mother’s mobile phone was broken, the mother alleging that the father grabbed her phone and threw it on the ground; the father alleging that the mother, having hit him twice to his lower jaw and then pushed him in the chest, dropped her phone as she did so. By the end of the incident the children were all unsurprisingly very distressed and the mother was screaming for help and for someone to call the police.
It seems the whole of this fracas was begun with a conversation about whether or not J had missed school, where both parties were critical and sarcastic of each other and it thereafter swiftly escalated.
On the evening of this day, the mother signed her Initiating Application for property and parenting orders in these proceedings.
On 15 August 2013 the mother filed her application later followed by a Notice of Child Abuse, setting out allegations in relation to the incident of 1 May 2013 (in the former family home), including an allegation that the father had grabbed her by the neck of her jacket, used force to push her down the stairs, then pushed her towards the door and slammed the door, hitting and injuring her.
During the course of cross examination the mother conceded that the father had not pushed her down the stairs or otherwise assaulted her.
On 21 September 2013 the father and Mr B met for the first time. There was a horrifying confrontation between them; horrifying from the point of view of the children, all present in the mother’s home.
The father arrived at the property expecting to collect the children for the weekend. The mother remained in the house with the children, having asked Mr B to go out and tell the father he could not have the children. The reason for the change proposed was that the mother wished for the children to spend her birthday with her on the Sunday. Thereafter the children were in her care for an extended period for a camping holiday.
Rather than dealing with the matter herself, as an issue of parental responsibility, the mother sent Mr B out to deliver her decision to the father. She knew, because she had told him so, that Mr B believed that the father had viciously assaulted her in his home in May 2013. He had also been made aware of the events at the bush dance in August 2013. There was a physical fight between the two men and the father was injured. Police were called but neither man was charged.
Mr B fairly conceded in cross examination that the more appropriate course would have been for the two men to meet, preferably by being introduced, given his significance in the lives of the subject children and that trouble was inevitable in those circumstances.
The children did not spend the weekend with the father.
On 9 October 2013 the father withheld the children from return to the mother for an additional period of six days. The mother responded by sending a text message to the father which included the words, “you lose all access to my son”. This was a reference to J and indeed thereafter J chose not to spend any time with the father.
I consider that the mother was punishing the father by thereafter dissuading J from continuing the relationship. That is not to say that J did not have some cause to feel upset and protective of the mother.
On 14 October 2013 interim consent parenting Orders were made in the Federal Circuit Court. One Order made by consent is a revelation of the competitive and destructive relationship between the parties at that time and still on display during the hearing:[4]
Each of the parents are restrained from questioning [the three subject children] as to their wishes in these proceedings and in particular any preference as to which parent the child would prefer to live with …
[4] Order 1 made 14 October 2013
In November 2013 J sent a text message to the father requesting the return of his possessions. He thereafter ceased spending time with him. This became an issue in hearing. It may be that J was aggrieved that the father did not arrange for the return of some items that he wanted. However, it was clear that the father remained hopeful that J would continue to visit and left his possessions in place. It was not until the first day of this hearing that the father stepped back from his application that J be included in the orders.
On 21 November 2013 the parties became before the Registrar and both conceded that they had failed to make full disclosure or comply with prior orders made.
On 13 December 2013 the mother and Mr B purchased a property at Suburb C. The father asserts that the mother made withdrawals from the parties’ account to fund the purchase of the property, about $12,000. It is agreed that she did make withdrawals from the account, which were used for household purposes. I take into account the mother’s concession that she did not require Mr B to make financial contribution to the expenses of the household, such as bills and mortgage repayments.
Later in December 2013 the mother and children moved out of the Suburb L property. The property had suffered some damage but I am unable to find the cause of that damage.
In February 2014 police informed the mother that the incident at the bush dance in August 2013 would not give rise to any charges or to an AVO. The mother then attended D Town Local Court and made a private application for an AVO. This application was withdrawn on 20 August 2013 and the mother was ordered to pay costs of around $8,000 to the father.
In March 2014 after orders were made by consent, payments in respect of the mortgage on the Suburb L property were brought up to date and the father was granted exclusive occupation of the property thereafter.
On 5 May 2014 the father suffered malicious damage to his motor vehicle.
On 11 May 2014, which was Mothers’ day, the children spent the weekend with the father.
On 13 May 2014 the Family Report was released. The recommendations of that report did not favour one parent over the other in terms of where the children should live. There was a strong recommendation that parental responsibility not be shared, given the conduct of the parties, and that if the court came to the conclusion that the children were at an unacceptable level of risk in the care of both of the parents, that the Department of Family and Community Services be invited to intervene.
On 10 June 2014 Mr B was injured at work and has not been able to work since; he receives workers compensation payments.
On 27 June 2014 there was a dispute between Mr B and his former wife, which played out in the presence of the mother and G. Mr B, mistakenly believing that his children should have been with him, removed the children from the beach and took them away. The mother of those children became both distressed and angry.
On 7 October 2014 when the subject children were at the beach with the mother and Mr B, the father rang to speak to them in accordance with the current Orders. His call apparently arrived at 6.03pm and he was told that he had rung too late and the children were unavailable. The mother suggested to the father that he obtain an alarm clock so that he would not his repeat his mistake. It is an incident typical of the inflammatory exchanges between the parties.
On 15 October 2014 the proceedings were transferred to this Court.
In January 2015 the mother and Mr B sold the Suburb C property as they were no longer able to meet the mortgage repayments.
On 23 January 2015 the mother filed an Application in a Case in respect of that sale, seeking to restrain the father from registering a caveat on the Suburb C property and other orders. An application for costs was pressed on behalf of the mother, unsuccessfully.
On 21 April 2015 the matter came for hearing before me. It did not conclude within the allocated four days and was adjourned for oral submissions to
11 May 2015.
Evidence
The documents relied on in respect of the applications were as follows:
The Mother
(a)Mother’s Amended Initiating Application filed 11/10/2013;
(b)Mother’s Notice of Child Abuse filed 22/08/2013;
(c)Mother’s Financial Statement filed 20/03/2015;
(d)Mother’s affidavit filed 20/03/2015;
(e)Mother’s affidavit filed 22/08/2014;
(f)Affidavit of Mr B filed 20/03/2015;
(g)Affidavit of Mr B filed 22/08/2014;
(h)Second respondent’s affidavit (where he is a witness in the mother’s case) filed in Court on 22/04/2015;
The Father
(i)Father’s Response filed 10/10/2013;
(j)Father’s Financial Statement filed 13/04/2015;
(k)Father’s affidavit filed 23/03/2015;
(l)Father’s affidavit filed 04/09/2014;
(m)Affidavit of Dr W filed 08/09/2014;
The Second Respondent
(n)Second respondent’s Response filed 14/08/2014;
(o)Second respondent’s affidavit (in support of his own case) filed 14/08/2014;
Reports
(p)Memorandum to Court dated 14/10/2013;
(q)Family Report dated 04/05/2014.
Oral Evidence
The Mother
The mother has not communicated with the father since she began her current relationship. She has been unwilling to be present at any event, including sporting and other extracurricular activities, if the father is present.
She has taken a confrontational attitude. Both she and Mr B have written letters to the Principal of the children’s school, so critical of the way each of them has been treated as to be insulting. The mother in particular showing no understanding that the school would not want to be caught between the parties in their conflict over the children.
Tendered into evidence were recordings on the father’s phone made prior to the parties’ separation.[5] I accept the evidence of the father that it was his intention to capture the mother in a particular mood and mode of conduct in order to obtain assistance from a psychologist about how to manage the situation and perhaps to improve their relationship.
[5] Exhibit 16
The recordings were taken in September and October 2012, the final weeks, in retrospect, of the parties’ relationship. In those recordings the mother, whilst aware that the father was recording what she did, spoke and behaved in the following way, with the children present. She screamed, bellowed, told J that “Dad must be lying”, used quite strong profane language about the father and became extremely agitated.
On the other occasion, on 29 October 2012, the mother was obviously intoxicated. The issue was a minor one, the father having made a positive comment about another person present on a group occasion. The mother’s tone elevated to the point where she was shrieking and appeared to be overwhelmed by rage.
The mother told the Family Consultant that the father had “tricked her into going to his doctor” when he asked the mother to accompany him in regards to his back pain.[6] The doctor then raised issues about the mother’s mental health. It may be that the mother does not understand her own conduct so as to have been able to consider its impact on the children. To the Family Consultant, the mother denied that she had historically suffered from mood swings or depression and “denies she historically had issues with anger impulse control”.[7]
[6] Family Report, par 33
[7] Family Report, par 33
The material tendered into evidence had been played in the doctor’s surgery and thereafter the mother would not return. Having been confronted with this matter, the mother conceded that at times there had been “explosions in front of the children”, but she was inclined to describe her reaction as being “really upset” on many occasions and not conceding “anger”. Anger was certainly on display in the recorded material.
The mother was cross examined at some length about the incident on 1 May 2013, when she had gone to the father’s home to collect the children’s sports uniforms. She conceded that the father had asked her to leave and she had refused. This is a situation where the mother had, feeling aggrieved, chosen to take the children with her to the father’s home.
In the Family Report G told the Family Consultant, “... Dad throwded [sic] Mum down the stairs”.[8] In her oral evidence, the mother denied that she had told G about that but there is no other credible source for the information, given that the mother conceded that the father did no such thing. At best, G may have heard the mother telling third parties that that is what had happened.
[8] Family Report, par 108
In relation to the bush dance, the mother conceded that she had objected to the father being present and had decided to leave, taking the children with her. It was a complete lack of focus on the pleasure that the children, especially G whose pre-school it was, would take in the event. The mother denied she had lost her temper but I accept that she did. The father sent a series of rude and insulting text messages to the mother. The mother agreed that she had threatened to show those messages to J.
The evidence does not support a finding that the mother did show the messages to J. However, from October 2013, when the mother sent the message “you lose all access to my son” to the father, she has not encouraged the relationship, despite the father being the psychological father of J from age two.
In relation to a day-care centre chosen by the mother for G, the mother did not discuss a change with the father in advance, did not extend the child’s time at the day-care centre she was presently attending, but chose the centre based on its closeness to her place of work. Her explanation for providing minimal information only after the event and for not discussing this matter with the father was “because he says no to everything”.
On 18 November 2014 the father attempted, at 5.00 pm, to speak to the children. He spoke to E. At that point, the mother, Mr B and the three children were sitting in a spa. The father heard Mr B speaking in the background and suggested that E get out of the spa so they could have a conversation. He says that he had heard Mr B direct F to remain in the spa when she sought to get out to speak to the father. When the father spoke to G she told him about going to a different pre-school and described where it was (the mother conceded that that is the preschool she had just been enrolled in). In the background the father describes Mr B using profane and insulting language, conveying a message to the father that there was nothing he could do about it.[9]
[9] Affidavit of the Father filed 23/03/2015, par 161
There was an element of mockery evident in what had happened with the children and their attempts to speak to the father, with the mother taking no independent responsibility to ensure that the children each had an opportunity in private to speak to the father. In relation to putting the phone on loudspeaker in the spa, the mother conceded that there had been occasions when the phone had been on loudspeaker but “I didn’t put it on”, which reveals the limitation on the capacity of the mother to meet the children’s needs.
In May 2014 there was a cross country event at the children’s school. The father attended as a school helper. The mother objected at the time and subsequently in writing. The written complaint was made by the mother and Mr B and the school responded to them both.[10] The school confirmed their policy that school was not to be used as a meeting point for parents wishing to see their children on days when they were not in their care. It then went on to explain the circumstances for the father being present with the school’s authority.
[10] Exhibit 7
The mother was affronted by the school allowing the father to be present and Mr B had taken the matter up by telephone on that day. Mr B has had his own serious conflicts with the school where his two younger children attend and has apparently been restricted from attendance for reasons relating to the conflict between himself and his former wife.
Another such incident occurred on 28 June 2014. This was at a community sports game. The mother arranged for Mr B to tell the father after F had played that if he was coming to the next game, they would not be there, with the inference that E would not be there either. The mother asserted that she was intimated by the presence of the father, who was standing across the field, 30-40 metres away. She was present with Mr B and it was a crowded event with many children and parents present.
Subsequently, Mr B made a complaint to the president of the sports club about the presence of the father, who was said to be a “risk” to the mother. The president compelled the father to leave. The outcome of that incident was that the president stood down from his presidency of the club. In relation to this matter, the single minded focus of the mother on excluding the father from being present at the children’s events was simply not child focused at all.
The mother conceded that in relation to the communication book used by the parties, she tore out all entries by the father. She also provided copies of some entries to the school. She rejected the proposition that she had been seeking to enmesh the school in her dispute with the father, asserting that she was simply seeking help from the school but I reject that evidence.
The secondary consideration for the children is that the mother is resentful towards the school, for what she perceives to be favouritism by the school directed at the father. She is less supportive of the children’s involvement in their religious faith than the father is, despite their common position of having the children baptised into that faith and attending a religious school. The mother has contemplated removing the children from the school if she could, although that is no longer her position.
In relation to issues of property, the mother was not inclined to make any concessions about the level of the father’s contribution as a carpenter and builder, to the renovations on the family home or to the repairs on the damage to the Suburb L property.
The mother was however able to make whole-hearted concessions about the father’s love for the children, “he supports them at school, he encourages their sport, he helps well with their homework, he loves his daughters”. She was clear to say that the father cared for the children and she had no concerns for their welfare with him.
The Mother’s Partner
Mr B presented as a forceful personality, unlikely to be swayed once he had made a decision. It is apparent that the mother has relied on him to fight her battles for her.
When asked why he had been prepared to make a complaint to the president of the sports club about the father, describing him as “violent” and referring to an AVO, Mr B said, and I accept, that he did it for the mother.
He has taken a protective role with her, but has not always been fully appraised of the facts when he has done so. The most outstanding example is in September 2013 when he met the father for the first time and a psychical fight ensued. His beliefs about the father, his conduct, and alleged assaults on the mother were not well founded.
In fact, consistent with his relationship with the mother, Mr B has decided to attend all changeovers between the children. His focus is on protecting the mother. He may not have understood the impact on the children of constantly having to wonder whether actual conflict would break out again between the father and Mr B, with whom they share a house.
Had Mr B been properly informed on the day that he told the father the children were not going with him, he would have understood that the father was simply collecting the children for the weekend and what the mother wanted, by way of agreement, was for the children to stay with her in order to celebrate her birthday on the Sunday of that weekend. However, in his cross examination, his explanation for saying to the father “they are not coming with you” was “to support my partner’s position”.
This motivation appears to be much more about the adult relationship than the need of the children not to be exposed to violence and to be able to spend time with the father as agreed between the parties.
At the conclusion of his evidence, Mr B chose to remain in the courtroom. Sitting with the mother, they held hands with each other throughout the balance of the proceedings.
The Father
The father presented, at least initially, in a rather self-righteous, even pompous way. He agreed that he thought his parenting ability was superior to that of the mother. However his presentation changed and I concluded that nervousness was responsible for a rather puffed up start to his evidence.
It is agreed between the parties that the father does not readily lose his temper; the mother’s complaint was that he withdrew from communication. It is apparent that the father believed he was justified in his approach to the poor communication between them because the mother was quick to anger.
The father was criticised for having taken videos with his phone of the mother. However, I accept that his counsellor had advised him to keep a record of such events and to show them to the mother when she was calm so that she could see her own conduct, “that’s the behaviour you display”.
The father said, and I accept, that he did what he did during the relationship as a husband to improve the marriage and that he did not imagine he would be using the recordings in court. However, post-separation, I am confident that the father was conscious of what would become evidence in court and made provocative remarks to the mother in that context. For instance, at the bush dance when he opened the conversation by criticising the mother for not sending J to school.
The text messages sent by the father to the mother were not only profane and insulting, but also condescending, “remember you’re uneducated”. The abusive nature of the messages reveals unconsidered insults, threats, and posturing by the father which showed a complete lack of focus on the three young children.
However the father was willing to make concessions. For instance when he was taken to a reference to J being unsafe in the mother’s household, he said not only did he not say that but he did not believe that.
The proposition was put to him that he did not want to pay child support because the mother did not deserve it. He forcefully denied it, “absolutely not”, and there were no further questions for him on this topic.
The father was then challenged about there being an arrears of child support, which he denied. The mother received a letter from the Child Support Agency on 10 April 2015 with a new balance after an adjustment.[11] However, it is apparent that there is an ongoing dispute about that re-assessment by the agency.
[11] Exhibit 22
I consider that the father had, even after separation, hoped for reconciliation and had throughout the relationship tried to understand some aspects of the mother’s behaviour, particularly her impulsive anger.
The mother had been offended by what she perceived as a slur in the pre-school notes, where there is a reference to the pre-school being told that the mother had been diagnosed with bi-polar and “won’t take her medication”.[12]
[12] Exhibit 21 (notes from the pre-school director)
The father explained that the teacher had done two things: firstly, explained that staff would not gather evidence where there was a dispute between parties; and secondly had asked about the mother’s conduct at the bush dance in August 2013. The father said he had explained to her that he had been to the GP who had told him something about the possibility of the mother having that particular mental illness, but that there was a variety of investigations to go through to get a diagnosis. He conceded that perhaps he should not have confided that information to the teacher, but I accept that he was responding to a question.
The father conceded that putting comments into one of the children’s school diary, for the benefit of the mother, was inappropriate. His response was considered definitely, “I put notes in an envelope now. It was dumb to put notes in the school diary”.
The father also conceded that he had taken G along for an interview in anticipation of possibly starting school in 2015. He did so without consultation with the mother.
He also took the children for counselling without discussion with the mother. Whilst I accept that the school handed forms out to both parents and recommended the counselling, the fact that the school rules provided for it to be sufficient for one parent to authorise the counselling, it was nevertheless a failure of parental responsibility to start the counselling without the mother’s consent. That is not to say that counselling would not have been helpful for children who could not avoid their parent’s conflict and also the conflict of the Bs over their two children at school.
In relation to the fight in September 2013 the father gave straight forward evidence. He said he would have liked to see Mr B charged, but accepted that he was not. The father was conscious of neighbours watching as he was pinned to the ground by Mr B and had called out to a neighbour for help. He denied driving into the driveway to block it. He denied being angry when he arrived.
His initial emotion had been excitement about seeing the children and a birthday party which was planned for E. He freely conceded that he was at a disadvantage in the physical confrontation with Mr B and had been quite concerned about the outcome. He was certainly injured.
Just as the mother had been able to draw on genuine positive feelings about the father as a parent, he reciprocated. The father said he regarded the mother as enthusiastic about the children’s sport, gets their homework done, “the children are always well-groomed”. That the fun aspect of the mother was, “she plays around with the kids, she volunteered at canteen and all the places where the children were involved”, and “that’s great”.
These two moments of acknowledging the positives about each other were the highlights of an otherwise grudging and abrasive criticism by each parent of the other. I am satisfied that each parent knew, having moved to a common outcome, that the hearing had become entirely about a move from seven days per fortnight each, to a nine day/five day fortnight, if the Court took up their common position.
The Family Consultant
The Family Consultant expressed her disappointment to see “a high level of conflict continuing that will be doing psychological harm to the children”.
She agreed that the parents’ common position about a nine day/five day fortnightly arrangement was good but only if the conflict between them stopped.
The Family Consultant was clear to say that given past events, it was best that parents and partners be kept apart and that changeovers should, when they could not be at school, be between parents only, perhaps at a contact centre for all non-school changeovers.
The Family Consultant was also strong on the subject of phone calls, that there should be none ordered given the difficulties the children had experienced as the parties failed to implement the order.
The Law – Parenting
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Primary Considerations
The common position of the parties that one parent should have sole parental responsibility and report to the other is a realistic acknowledgment by each of them of their inability to cooperate in decision making.
The parties are not yet able to talk to each other in a calm, reflective, and child focused way. Their conversations, even electronically, escalate quickly into angry exchanges designed to hurt, based on areas on vulnerability known from the course of the relationship.
The benefit to the child of having a meaningful relationship with both of the child’s parents
The three children do have a meaningful relationship with both parents, which will be preserved and supported by conflict being eliminated from their lives in two ways; firstly, by reducing the number of changeovers and the times when the parents are in contact with each other; and secondly, by giving one parent the authority to make decisions with a structure for information being exchanged between parents as issues arise for decision.
There is a need to protect the children from psychological harm from past exposure to family violence. The worst example is the physical fight between the father and Mr B, but the criticisms each parent have levelled at the other have filtered through to the children and hurt them, more particularly E, as the oldest of the subject children.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
E is nine years old, F is seven years old and G has just turned five years of age.
The two older children reported to the Family Consultant that they enjoyed school and were well behaved and did not get into trouble. Likewise, G expressed her enjoyment of attending pre-school.
The children reported that they loved both their parents and have a close relationship with Mr B and his children.
None of the children reported anything they did not like about their current parenting arrangements as “they love both their parents and think the current arrangement is fair to their parents”.[13] These are children who are well used to equal shared time.
[13] Family Report, para 109
The Family Consultant asked about future living arrangements. E said she would probably choose to live more in the father’s household for reasons which did not reflect adversely on either parent. However, her reference to enjoying playing sports was also a reference to the father’s engagement in that activity. F said she did not want to choose to live at one house rather than the other and her younger sister agreed, “me neither”.[14]
[14] Family Report, para 109
Indirectly, the children expressed a view about their exposure to the conflict between their families. All three children reported that their parents are “not friends and that they would like them to be”.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
The children have loving and affectionate relationships, observed as “familiar, close and affectionate” by the Family Consultant, with the father, the mother, Mr B, J and even J’s father and his partner. This is a positive statement about the values of the parents.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
Each of the parties is keenly interested in the long term welfare of the children and wishes to spend time and communicate with them as much as possible.
The difficulty with the parties is that they have failed to take the opportunity to consult with each other, partly out of animosity and partly out of dread that conflict would erupt.
One example is the father arranging for E to have counselling, which the school recommended and was undoubtedly helpful to her, but the mother was not involved in the decision-making. That picture was complicated by the fact that the mother is at odds with the school and the father was only too well aware of it. Accordingly, when the school told him that only one parent was needed to authorise what E required, he did so.
It is a telling example of the impact the parties’ relationship has on the children.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
Each of the parties has contributed to the maintenance of the children.
There have been disputes about clothes, sports equipment and other items, but each of the parties is willing to do what they can financially to provide well for the children.
The father has paid the children’s school fees, but has been in a stronger financial position to do so.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
A change from equal shared time to a nine day/five day arrangement was proposed by the parties during the course of the hearing. Their agreement on this point has its own value.
The other way of approaching the impact of the parties’ conflict on the children would have been to severely minimise time with one parent.
A reduction of time from seven days per fortnight to nine or five days per fortnight will likely have a minimal impact on the children’s welfare, but arrangements which see fewer confronting changeovers and one parent having authority to make important decisions is likely to have a positive effect on all of the children. No one will lose relationships with any significant person.
It was submitted on behalf of the mother that if the children lived with the father for the nine days, there would be some detriment to their relationship with J. I do not consider that is so.
The four children are close as a group but J will be 15 years old in December 2015 and is in his third year at high school. At this time, his interests and associations are very different from those of his three younger sisters. J now also spends some time with his biological father and his father’s partner.
J is also welcome to spend time with the father and may do so when this litigation is behind the family. I am confident that the father would facilitate visits and phone calls between J and other children, irrespective of whether J wished to spend any time with him.
The practical difficulty and expense of a child spending time with and communicating with a parent
The parties are committed to remaining in the same area and there will be no practical difficulty or expense in the children being collected from school and pre-school or from being transported between the two households.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
In a finely balanced matter such as this, it is capacity, the ability of parents to meet the emotional, physical, psychological needs of the children that is crucial.
Each of the parties has the capacity to meet those needs.
However each of the parties revealed an impaired capacity to focus of the needs of the children from the time the father became aware of the mother’s new relationship and thereafter, up until an including the hearing in this case.
The father has shown a practical commitment to the children in terms of his engagement with their school and their activities and an understanding of their relationship with the mother.
He revealed a level of immaturity in his communications with the mother. J complained that he had heard the mother criticised in the father’s household. That may be so, however, there is no reason to think that the father criticises the mother to the subject children, which suggests that J may have been on the periphery of adult conversation or phone calls.
The mother has at times abdicated her parental responsibility to Mr B. In particular, she did not take a firm stand on the children’s telephone calls and allowed something as simple as a private conversation between the children and the father to become a source of worry and tension for them.
She allowed Mr B to control the setting of those calls in the same way the mother sent Mr B out to deliver news to the father, which she knew would be upsetting and provoking, although she may not have anticipated the physical fight that resulted.
A third example would be the combined letters sent from the mother and Mr B to the school, complaining about perceived unfairness of the school in allowing the father to participate in sporting events.
The mother may have underestimated the need of the children to maintain, as the two most important people in their lives, their parents, no matter how much the children have become fond of Mr B.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The children are girls aged nine, seven and five years respectively, living on the North Coast in New South Wales.
They are doing well at school and are well supported there.
They are healthy, well behaved children, although E has begun to participate in her parents’ drama to her detriment. She lied to the father about having been punished by Mr B, perhaps for attention, perhaps to be treated as an adult, but it is a very clear warning about allowing the children to go on being exposed to their parents’ differences.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
Both parties are capable of taking a responsible attitude to all three children and are concerned about their education, health and in the case of the father, participation in their being raised in the faith in which they were baptised.
Any family violence involving the child or a member of the child’s family
The mother reported to the Family Consultant that there was no family violence during the relationship. She reported incidents of violence post-separation.
The mother concedes conduct by herself during the marriage of physically pushing the father during arguments and slapping him on one occasion on the arm and once across the face.
The parties have spoken to each other in person and by electronic means using strongly abusive language.
The mother experienced family violence in her relationship with J’s father and took appropriate steps to protect herself and the child. There is now a friendly relationship between the mother and J’s father, but for many years the father took on a parental role for J.
The mother does not seem to appreciate her own role in conflict and that her pattern of screaming, yelling, and shouting insults, whilst it may not be frightening to the children, is something they are likely to model.
There are no current family violence orders between these parties.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
The parties have now been separated for two and half years. For a short period they contemplated reconciliation.
The mother formed a new relationship which has proved to be a stable one with long-term commitment.
The parties having come to a common position on the structuring of time are likely to be able to make the orders work for themselves and the children.
Conclusion
Accordingly, having considered all of the matters outlined above, I have concluded that the father is in the better position in terms of parenting capacity to have the children for nine days in each fortnight during school terms.
I am satisfied that he will support the relationship of the children with the mother and J. I am somewhat less confident about the mother’s capacity to support the relationship between the children and their father.
The father will maintain steady commitment to their education, including their religious education, and their extra-curricular activities.
The children will be with the mother for five days per fortnight, coinciding with the two younger B children, whose company they enjoy.
There will also be equal time shared school holidays with both parties.
The fact that the children will know with certainty that they will be collected by the mother on Thursday each week, in one week for an extended weekend until Monday back to school and the other overnight until Friday, will create certainty and make for easy transitions being from school and pre-school.
There will be an order for the father therefore to have the sole parental responsibility for the children but with a method of structured consultation with the mother. I am satisfied he will identify issues and genuinely consider any response that the mother makes before coming to a decision. However, the decision should be his so the children are not exposed to parental conflict through conflicting ideas.
The children will spend holidays and special times with each party and for those times when changeovers cannot be from school and pre-school, the parties are now committed to natural changeovers from house to house. There should be no reason why the father cannot deliver the children to the mother at the commencement of those periods, allowing them to leave the car and run into the house, and the mother cannot return them at the end of those periods in the same way.
The parties have committed to the children remaining at their current school and to G commencing at that school in 2016. An Order is made accordingly with the Independent Children’s Lawyer to provide the school and pre-school with a copy of these Orders.
An Order has been made which entitles each party to attend events at the children’s school and pre-school, to which parents are invited. However, the Order makes explicit that the school has ultimate authority over the parties’ attendance.
There is also provision for the Independent Children’s Lawyer to explain the Orders to the children and to J, together as a group.
Orders are made accordingly.
The Law – Property
In considering applications for alteration of property interests and transfer of property the Court must:
(i)Identify the existing legal and equitable interests of the parties in property;[15]
(ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;
(iii)
If an alteration should be made, to consider the matters contained in
ss 79(4) and 75(2) of the Act in coming to an adjustment; and
(iv)Analyse and consider whether the adjustment under consideration would be just and equitable.
[15] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FamCAFC 116
Identify existing legal and equitable interests of the parties
The assets and liabilities of the parties were identified in a joint Balance Sheet[16] as set out below:
[16] Exhibit 35
O’ship
Description
Wife’s value
H’band value
ASSETS
1
J
M Street, N Town
$795,000
$795,000
2
J
K Street, Suburb L
$372,500
$372,500
3
W
Minibus motor vehicle
$10,000
$13,000
4
H
4WD motor vehicle
$10,000
$5,000
5
W
Motorcycle
$1,750
$1,750
Total
$1,189,250
$1,187,250
LIABILITIES
7
J
Commonwealth Bank mortgage encumbering M Street, N Town
$379,378
$380,302
8
J
Commonwealth Bank mortgage encumbering K Street, Suburb L
$377,500
$378,708
10
H
ANZ Visa
Nil
$6,649
11
H
Income tax payable
Nil
$26,188
12
H
Income tax payable
Nil
$17,036
Total
$756,878
$808,883
SUPERANNUATION
Member
Name of Fund
Type of Interest
Wife’s value
H’band value
13
W
Com Super
Accumulation
$10,943
$8,315
14
W
IAG & NRMA Super
Accumulation
$49,470
$53,000
15
H
CBUS
Accumulation
$74,378
$74,378
Total
$134,791
$135,693
The revised net asset pool of the parties is as follows:
Assets
Item 1 $795,000.00
Item 2 $372,500.00
Item 3 $13,000.00
Item 4 $10,000.00
Item 5 $1,750.00
$1,192,250.00
Item 13$10,943.00
Item 14 $49,470.00
Item 15 $74,378.00
$134,791.00
Total $1,327,041.00
Liabilities
Item 7 $380,302.00
Item 8 $378,708.00
Item 10 $6,649.00
$765,659.00
Grand Total Assets $1,327,041.00
Grand Total Liabilities $765,659.00
$561,382.00
Where it would be just and equitable to make a property adjustment
The applicant mother wishes to acquire the respondent father’s interest in the Suburb L property. She wishes to have the opportunity to refinance, presumably with Mr B, pay out the existing mortgage, and negotiate a new one together.
I accept that there are benefits to the mother being able to do so. There would be no further stamp duty to be paid and the property is one which the mother and Mr B, with the children, have lived in previously.
On behalf of the father it was said that the mother would not be able to refinance. However, she should be given the opportunity to do so and given that there will be a cash adjustment in her favour, it is not entirely unrealistic.
At present, the mortgage on the property exceeds its value.
The husband will retain the property in which he lives, with a substantially increased debt.
Consideration of ss 79(4) and 75(2) of the Act
The parties commenced their relationship on a basis which is approximately equal. The mother had the proceeds of sale of a property, about $52,000, a vehicle and some furniture. The father had some savings and a vehicle.
Their positions were comparable during the course of the relationship.
There were three children born to the relationship.
The father made a contribution to the welfare and upbringing of J, treating him as his own child and engaging in activities with him.
The father worked full-time whilst participating in the care and supervision of the children. The mother provided the greater share of care and supervision for the children, until separation.
Acknowledging each other’s involvement with the children, an equal shared care arrangement has been in place since separation.
For the future, the mother is presently working part-time and has expressed a hope that she will be able to move to full-time work.
The father has the ongoing income stream from his insurance payments, resulting from an injury, but is likely to be able to work more in time, around the needs of the children. He has a greater income at this time and each party has the need to provide suitable accommodation for all of the children.
In those circumstances it would be inequitable to make a significant adjustment in favour of the father given that the parties will continue to have a shared care arrangement, although no longer equal time during school terms.
The parties are in early mid-life. The father suffered an injury to his back in 2011 but is hopeful that his slow recovery will continue. The mother is working and has the support of Mr B, although his previously substantial income was lost as a result of his own injury at work.
To the extent that there is a need for it, it is open to the parties to adjust child support based on their changing financial position and the children’s needs.
Conclusion
On that basis, an adjustment to reflect an equal sharing of the parties’ net assets will leave both parties with the opportunity to retain a property, although with significant debt for each of them.
Each is in a position to make the decision to sell that property to reduce debt.
An equal division of the net asset pool will have the following outcome.
The Wife
The wife will retain the following assets and liabilities:
Assets
Item 2 $372,500.00
Item 3 $13,000.00
Item 5 $1,750.00
Item 13 $10,943.00
Item 14 $49,470.00
$447,663.00
Liabilities
Item 8 $378,708.00
Total Net Share $68,955.00
Cash adjustment from husband $211,736.00
Grand Total Share $280,691.00
The wife will also receive a cash adjustment from the husband. That payment will allow her to pay her outstanding legal costs and refinance the Suburb L property, reducing the current mortgage and creating modest equity.
After adjustment, the wife’s position will be:
Suburb L property $372,500.00
Subject to mortgage $166,972.00
Equity $205,528.00
Other assets $75,163.00
$280,691.00
[Owed legal costs $120,000.00]
The Husband
The husband will retain the following assets and liabilities:
Assets
Item 1 $795,000.00
Item 4 $10,000.00
Item 15 $74,378.00
$879,378.00
Liabilities
Item 7 $380,302.00
Item 10 $6,649.00
$386,951.00
Total Net Share $492,427.00
Cash adjustment to wife $211,736.00
Grand Total Share $280,691.00
After adjustment, the husband’s position will be:
N Town property $795,000.00
Subject to mortgage $592,038.00
Equity $202,962.00
Other assets
Vehicle $10,000.00
Superannuation $74,378.00
TOTAL $287,340.00
Debt $6,649.00
TOTAL $280,691.00
[Owed legal costs $40,000.00]
Accordingly, Orders have been made for:
a)The father to retain the N Town property;
b)The mother to acquire the Suburb L property;
c)There to be a cash adjustment to the mother of $211,736;
d)The mother to transfer her interest in the father’s company and business to the father; and
e)For each party to keep what they otherwise have in their possession, including superannuation interests.
I certify that the preceding two hundred and twenty three (223) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 17 July 2015.
Associate:
Date: 14 July 2015
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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Costs
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Res Judicata
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