LAWSON & LAWSON
[2018] FCCA 556
•27 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAWSON & LAWSON | [2018] FCCA 556 |
| Catchwords: FAMILY LAW – Property – where the husband received a payout that was a significant initial contribution to the former matrimonial home – where husband has become a bankrupt and company has gone into liquidation – self-managed superannuation fund – costs order. |
| Legislation: Family Law Act 1975 (Cth), pt.VII, VIII, VIIIB Bankruptcy Act 1996 (Cth) |
| Cases cited: Goode & Goode [2006] FamCA 1346 McCall & Clarke [2009] FamCAFC 92 MRR v GR (2010) FLC 93-424 Stanford & Stanford [2012] HCA 52 |
| Applicant: | MR LAWSON |
| Respondent: | MS LAWSON |
| File Number: | SYC 5671 of 2015 |
| Judgment of: | Judge Middleton |
| Hearing dates: | 22, 23, 24 February 2017, 28 March 2017 and 24 January 2018 |
| Date of Last Submission: | 12 May 2017 |
| Delivered at: | Newcastle |
| Delivered on: | 27 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Self-Represented |
| Counsel for the Respondent: | Mr Graham |
| Solicitors for the Respondent: | Catalyst Family Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Davies |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Nsw Gosford Family Law |
ORDERS
Property
The respondent wife is appointed trustee for the purpose of winding up the Lawson Family Trust (“the trust”) and the (business omitted) self-managed superannuation fund (“the fund”) and in this regard the respondent wife shall liaise with her accountant for the purpose of appointing an administrator who shall be appointed to liquidate the assets of the trust and fund and wind up the trust and fund.
The costs of winding up the trust and the fund shall be paid from the proceeds of sale of the assets of the fund and/or the trust.
Upon the assets of the trust and fund having been liquidated, the liquidator shall rollover into such superannuation fund as nominated by the applicant and respondent funds as follows:
(a)50% to the wife;
(b)50% to the husband.
Other than as provided for in these orders each party:
(a)Shall be solely liable for all debts and liabilities held in his or her name as at the date of these orders including but not limited to credit cards, personal loans, mortgages, motor vehicle leases, taxation liabilities and the like;
(b)Is declared to be the sole owner to the exclusion of the other of all items of personalty including their business enterprises and tools of trade, 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; and
(c)Shall do all acts and things and give all consents and execute all documents in writing as is necessary to give effect to the orders made herein.
In the event that either party refuses to execute the deed or instrument necessary to give effect to these orders, within seven days of being requested to do so, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
Costs
Within 28 days of today's date the husband is to pay the wife the sum of $5,806.00 pursuant to the costs order made on 17 March 2016.
Children
All previous parenting orders with respect to the children [X] born (omitted) 2008, [Y] born (omitted) 2010 and [Z] born (omitted) 2015 (“the children”) be discharged.
The mother shall have sole parental responsibility for the children.
Notwithstanding Order 8, the mother shall: -
(a)Notify the father of any medical emergency involving the children and shall thereafter authorise the father to liaise with treating medical practitioners.
(b)Notify the father of the names and details of any General Practitioner, Paediatrician, Medico Services or other treating medical professionals that any of the children attend upon from time to time.
(c)Keep the father informed of the school’s at which the children are enrolled and include him as a “contact person” on the enrolment forms.
(d)Keep the father informed of the children’s current residential address and contact telephone numbers and notify him no less than 7 days prior to any change of address or the intention to change address.
The children shall live with the mother.
The children shall spend time with the father up until 2019 as follows:
[X] and [Y]:
(a)Each week from 10.00am to 4.00pm on a Saturday or Sunday for a period of one month;
(b)Thereafter, each week from 10.00am Saturday to 12 noon on Sunday for a period of one month;
(c)Thereafter and during the school term, each alternate weekend from after school on Friday to 4.00pm on Sunday.
(d)For one half of each school holiday period in the Autumn, Winter, and Spring School holidays.
(e)For one half of the Summer school holiday period as agreed in writing and failing agreement on a week about arrangement.
[Z]:
(f)Each week from 10.00am to 4.00pm on a Saturday or Sunday for a period of 4 months;
(g)Thereafter and during the school term, each alternate week from when the father collects the children pursuant to order 11(c) herein until 4.00pm on Saturday for a period of 2 months;
(h)Thereafter and continuing each alternate week during the school term from when the father collects [X] and [Y] from after school on Friday to 4.00pm on Sunday and;
(i)During each school holiday periods, for no more than 3 consecutive nights when [X] and [Y] are in the father’s care pursuant to Order 11(d) and (e) herein.
Commencing 2019, the children shall spend time with the father as follows:
During school term:
(a)From after school or day care on Friday to before school or day care on Monday.
During school holidays:
(b)For one half of each school holiday period as agreed in writing and failing agreement, the first half.
Notwithstanding any other Order from 4.00pm on 24 December to 4.00pm on 25 December in odd numbered years and from 4.00pm on 25 December to 4.00pm on 26 December in even numbered years.
From 5.00pm on the Saturday immediately before Father’s Day each year until 5.00pm on Father’s Day in the event the children are due to be in the mother’s care.
The father’s time with the children is suspended as follows:
(a)4.00pm on 24 December to 4.00pm on 25 December in even numbered years and from 4.00pm on 25 December to 4.00pm on 26 December in odd numbered years.
(b)From 5.00pm on the Saturday immediately prior to Mother’s Day to 5.00pm on Mother’s Day in the event the children are due to be in the father’s care.
To facilitate changeover when the children are not attending school, the parents or their nominees shall meet at the McDonalds Restaurant, out the front of (omitted) Shopping Centre at the commencement and cessation of the father’s time.
For the purpose of facilitating time during the school holidays, the following will apply:
(a)School holidays are defined to commence on the day immediately following the last day of the school term and to conclude at 5.00pm the day immediately prior to the commencement of the new school term or new school year.
(b)Changeover is to occur at 5.00pm on the mid point day between the first and last day of the defined school holiday periods.
(c)In the event that there are two consecutive “mid point days”, the changeover is to occur at 5.00pm on the first of the two “mid point days.”
The time the father spends with the children during the school term is to resume on the first Friday of the new school term if he has the first half of the school holidays and the second Friday of the new school term if he has the second half of the school holiday period.
Each parent shall do all things necessary to ensure that each parent have liberal telephone and electronic communication, including Skype and/or Face Time with the children when they are in the other parent’s care. Such communication shall occur not less than every third evening between the hours of 6.00pm and 6.30pm and at such other times that the children wish to ring the other parent provided such communication occurs prior to 6.30pm.
The mother is restrained from relocating the children’s residence from the (omitted) Region of NSW without the consent in writing of the father or by Order of the Court.
The mother is restrained from changing the children’s school from their current school without notifying the father in writing.
For the purposes of communicating the mother and father shall communicate by telephone in relation to matters of an urgent nature and otherwise are to communicate in writing by email.
Each party keep the other advised of their current address, contact telephone numbers (including both landlines and mobile telephone number) and email address and advise the other party of any changes to these details within seven days of such change occurring.
Nothing in these Orders shall prevent the father from attending any pre-school or school event to which the parents are ordinarily invited.
Each party is permitted to serve a copy of the Orders upon the children’s schools that they attend from time to time and thereafter is authorised to liaise directly with the school concerning the children’s progress and receive copies of all notices, reports and such other documents that parents are ordinarily entitled to receive from the school.
Both parents are injuncted and restrained from the following:
(a)Denigrating the other parent or a member of their family or household in the presence of or hearing of the child and as far as practicable shall restrain any third party from doing so.
(b)Passing information or messages through the children which are intended for the other parent.
(c)Discussing the future parenting arrangements with the children or in their presence or hearing without first reaching agreement between themselves as to any variation or change to the parenting orders.
IT IS NOTED that publication of this judgment under the pseudonym Lawson & Lawson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
SYC 5671 of 2015
| MR LAWSON |
Applicant
And
| MS LAWSON |
Respondent
REASONS FOR JUDGMENT
Background
These proceedings concern an application for a division of property under s 79 of the Family Law Act 1975 and parenting orders for the three children of the marriage [X] born (omitted) 2008, [Y] born (omitted) 2010 and [Z] born (omitted) 2015.
The parties met in 2002, married in 2006 and separated on a final basis in December 2014. Accordingly the relevant period of relationship is 12 years.
At the time of trial the wife was 38 years old and the husband was 42.
Following separation the mother lived in the former matrimonial home and the father lived in the parties’ work premises. The father returned to the former matrimonial home and on doing so the mother relocated with the children and withheld the children from the father.
Ultimately orders were made by myself on 9 February 2016 and amended on 15 August 2016 providing for the children to live with the mother and spend supervised time with the father on alternate weekends for three hours with the time supervised initially by the paternal aunt, Ms A and thereafter by the maternal grandmother.
The husband is a (occupation omitted) by occupation and the wife is a (occupation omitted) by occupation. The parties operated a company for the purpose of the father's occupation and the mother only returned to part-time employment after separation.
It is a relevant fact that the husband was in a horrific car accident in 2000 in which he was the only survivor. It is not in contention that the husband suffers significant injuries and as a result continues to experience issues with ongoing pain management.
The hearing ran over four days, the first three being between 22 to 24 February 2017 and a final day on 28 March 2017. The parties filed written submissions thereafter, the latest of which was filed on 12 May 2017.
In relation to the parenting matters, the parties each make allegations against the other including allegations of coercive and controlling behaviour, drug addiction and alcohol abuse.
In relation to property, it is not in contest that the husband received a payout as a result of the motor vehicle accident in the sum of $325,000.00 in late 2003.
It is from this money that the husband purchased Property A, a second-hand (vehicle omitted) vehicle and utilised the remaining monies from the payout in the construction of the house on the property at Property A.
The parties’ company commenced in 2006. The parties drew an equal wage from the company. The applicant worked in the company throughout the relationship and the respondent worked in the company two days a week in the office from approximately 2013 until separation.
The husband alleged that his parents lent money to the parties in the sum of $75,000.00 from his father and $50,000.00 from his mother. Neither of those persons were called and there was no evidence put before the court that could satisfy me is that such loans existed.
The father alleged that the mother deliberately wasted assets of the relationship including refusing to refinance the former matrimonial home to allow the parties to fund a lawsuit that the husband claimed was worth $4,200,000.00 against (omitted).
During the course of litigation and prior to the trial orders were made appointing the wife as trustee for the sale of the former matrimonial home. The property was ultimately sold for $825,000.00. The husband claims that the mother undersold the property.
It is also not in contest that the company owned by the parties fell into liquidation.
At the time of trial the mother was represented, the Independent Children’s Lawyer was represented, and the father represented himself.
The issues before the court
Children
In relation to the children's matter the primary issues for the court to determine are:
(1)Whether the children or any of them are at a risk of being exposed to family violence, physical, emotional and/or psychological harm if they were to live with or spend time with their father;
(2)Whether the children or any of them are at risk of being exposed to emotional and/or psychological harm if they were to live solely with the mother;
(3)The allocation of parental responsibility;
(4)The impact on the children, if any, if they were to spend time with the father for the purpose of identity contact only and have no contact with the paternal family;
(5)Whether the mother and father have demonstrated capacity to facilitate the children having a meaningful relationship with each of their parents.
(6)Whether an equal time arrangement is in the children's best interests.
Property
The issues before the court for determination are:
(1)The treatment of the husband's initial contribution of $325,000.00;
(2)Whether there was any wasting, deliberate or otherwise;
(3)Whether the former matrimonial home was sold under value; and
(4)Whether the parties owe any money to the applicant's parents.
Proposals
Children
The mother sought orders as follows:
(1)Sole parental responsibility to the mother;
(2)The children live with the mother;
(3)The father spend time with the children on four occasions each year at the Children's Contact Centre;
(4)Restrains pursuant to s 68B the Family Law Act 1975 for the personal protection of the mother.
The father sought the following orders:
(1)An order for equal shared parental responsibility;
(2)An order that the children live on an equal basis with both parents;
(3)In the alternative:
a) The children live with the father;
b) The children spend time with the mother from Friday afternoon until Sunday 5.00pm and for half of all school holiday.
The evidence
The husband relied upon the following documents:
(1)Case outline filed 11 August 2016;
(2)Case outline filed 21 February 2017;
(3)Affidavit of father filed 4 August 2016;
(4)Affidavit of the father filed 23 November 2016;
(5)Affidavit of the father filed 24 January 2017.
The mother relied upon the following documents:
(1)Case outline filed 10 August 2016;
(2)Case outline filed 15 February 2017;
(3)Affidavit of the mother filed 1 August 2016;
(4)Two affidavits filed by the mother on 20 January 2017;
(5)Affidavit of Mr S filed 21 February 2017;
(6)Affidavit of Mr G filed 10 August 2016.
The Independent Children's Lawyer relied upon:
(1)Case outline filed 16 February 2017;
(2)The reports of Ms L dated 10 July 2016 and 28 November 2016;
(3)The affidavit of Ms C.
The law
As the parties seek an order for the ongoing care of their children, Part VII of the Family Law Act applies.
Informed and guided by the principles and objects in s 60B I must, having the children's best interests as my paramount concern, make orders that I determine are in the best interests of the children after considering all of the relevant factors contained within s 60CC(2) and (3).
The parties seek an order for parental responsibility and accordingly I must consider the provisions of s 61DA. In the event that I make an order for equal shared parental responsibility, the provisions of s 65DAA are triggered.
In the event that the provisions of s 65DAA are triggered, I must consider and make determinations in relation to both aspects of s 65DAA.[1]
[1] MRR v GR (2010) FLC 93-424.
I must follow the legislative pathway in determining what orders are in the best interests of the children.[2]
[2] Goode & Goode [2006] FamCA 1346.
In relation to property since Stanford[3] the appropriate process is as follows:
(1)Ascertain the common law and equitable interests in property currently in the possession of the parties;
(2)Consider and make findings whether it is just and equitable to alter property interests of the parties;
(3)In the event that I find that it is just and equitable to alter the property interests consider and make findings in relation to s 79(4) of the Family Law Act 1975;
(4)Consider and make findings in relation to s 75(2) of the Family Law Act 1975 in consideration of whether it is just and equitable to further alter the property interests of the parties subsequent to my findings under s 79(4); and
(5)Consider whether the orders that I intend to make are just and equitable in all of the circumstances.
Assessment of the evidence
[3] Stanford & Stanford [2012] HCA 52.
The father
The father filed a considerable amount of Affidavit evidence.
The Affidavit of 4 August 2016 consisted of 325 pages. The affidavit of the father filed 23 November 2016 consisted of 52 pages and the Affidavit of the father filed 24 January 2017 consisted of 10 pages.
It is a general thrust of the father’s Affidavit material that the mother is a manipulative, coercive and controlling individual who fabricates evidence in order to promote her case.
It is clear on any view of the father’s evidence that the father does not trust the mother and considers that she is a despicable human with whom he has no effective communication.
The husband in his Affidavit filed 4 August 2016 sets out the assets and liabilities and the values of same as follows.
ASSET: | APPROXIMATE VALUE |
Property A | $800,000.00 |
Home furnishings | $100,000.00 |
(omitted) Camper Van | $20,000.00 |
(omitted) motor vehicle | 4,000.00 |
Business – (business omitted) | $0.00 |
| LIABILITIES | APPROXIMATE VALUE |
| (omitted) Bank Mortgage on Property A | $480,000.00 |
| (omitted) Bank Overdraft | $280,000.00 |
| Loan from Mr P from November 2014 | $70,000.00 |
| Loan from Ms C from October 2014 | $50,000.00 |
| (omitted) Bank Visa | $10,000.00 |
| (omitted) Bank Visa | $25,000.00 |
| (omitted) Bank | $35,000.00 |
| (omitted) Bank | $9,000.00 |
| Company supplier’s debt | $360,000.00 |
| ATO | $430,000.00 |
| (omitted) Truck debt | $17,000.00 |
| Nissan (omitted) debt | $15,000.00 |
| Nissan (omitted) debt | $18,000.00 |
| Holden (omitted) debt | $16,000.00 |
| Toyota (omitted) debt | $19,000.00 |
| Toyota (omitted) debt | $19,000.00 |
| Kia (omitted) debt | $16,000.00 |
An analysis of the balance sheet sets out that the husband asserts that there is $924,000.00 in total assets and $1,869,000.00 in total liabilities.
The husband asserts that the self-managed superannuation fund (omitted) Superannuation Fund is valued at $370,000.00.
Pursuant to orders made by myself, the respondent wife was appointed trustee for the sale of the home situated at Property A, New South Wales. The property sold for $825,000.00 and the entire proceeds were used to pay debt.
On 23 November 2016 the father filed a further Affidavit in which he alleges that the property was under sold to the tune of approximately $200,000.00.
The husband annexes details of a property sold for $1,030,000.00 in support of his contention that the former matrimonial property was under sold to the tune of $200,000.00.
The first thing to note about the Annexure A document allegedly relating to Property A, is that the address of the property is handwritten.
The second matter to note is that other than the description of the property features I have no expert evidence as to the quality of either home. In those circumstances I can give very little weight to the husband’s asserted waste.
Furthermore in August of 2016 the husband filed an Affidavit where in at paragraph 71 he valued the property at Property A at $800,000.00.
I do not accept that the home was sold under value in those circumstances and accordingly cannot find that the wife wasted assets with respect to the property at Property A.
With respect to the children's matters, it is the father's case that the mother is suffering from “malicious mother syndrome" resulting from her long-term untreated Lyme disease.
It is the father's case, and he repeats it often, that the mother has fabricated evidence against him in order to alienate the children from him.
The father denied any methamphetamine use and indicated that he used cannabis for pain management.
It is not in contest that the father was involved in a very serious and indeed catastrophic motor vehicle accident in 2000.
It is not in contest that the father became dependent on opioids for his pain relief and it is not in contest that the husband admitted into rehabilitation but did not last more than 48 hours.
The father returned three drug urinalysis results. They showed negative for methamphetamine use and positive for cannabis.
The father thereafter did not undertake any further drug testing from approximately mid-2016 because he simply could not afford it.
The father gave evidence that he struggled significantly financially and indeed shortly after the end of the trial the mother became aware of the father's impending bankruptcy.
The matter was relisted before me on 24 January 2018 and it was disclosed that the father had become bankrupt.
The father conceded under cross-examination that he was not paying child support.
In relation to parental responsibility, the father conceded that the relationship between he and the mother was not good but he said he “believed it could be good but she uses tactics.”
The husband conceded that he had no evidence from a doctor as to the alleged diagnosis of the mother’s Lyme disease.
The father acknowledged that his sister had stopped supervising the time between he and the children because she could not cope with it any more.
In relation to the Apprehended Violence Order proceedings, the father stated that it was all out of context and that he did not believe the mother was intimidated by him.
The father acknowledged locking the mother out of the home on one occasion during the relationship stating that she needed to calm down and she was being melodramatic.
In relation to the recommendations of the Family Consultant Ms L, a clinical psychologist, that the father engage in counselling, the father gave evidence under cross-examination that he saw a person and the professional said he did not need to keep going.
The father alleged that he had stopped using cannabis after speaking with Ms L.
The father admitted to being in a relationship with a new partner with whom he lives together with her two children.
When cross-examined as to why she was not available to give evidence, he said he did not think there would be much weight given to it and so did not ask her to give evidence.
The father gave evidence under cross-examination that he sold a (motorbike omitted) that was in his possession post-separation to fund a staff Christmas party and that the company was in liquidation.
In relation to the claim the father said he wished to pursue against (company omitted) worth in excess of $4 million, he gave evidence that he was trying to find a lawyer who would act for him on a pro bono basis and stated that there was a claim “on foot.” No evidence of that claim is before the Court.
In relation to the purchase of the home at Property A, the husband conceded that he bought the land with the compensation he received after the couple were together and that the wife assisted with the design of the property, however stated that she was “controlling and demanding”.
In relation to future needs, the husband conceded that he had a disability and he found it difficult to work although he did note that he had been working for himself since 2006.
In relation to superannuation assets, the husband when cross-examined, gave evidence that although the wife initially deposited $36,000.00 from her superannuation account, he had provided $18,000.00 to the wife prior to that.
Exhibit 13 is a transaction statement from the wife's (omitted) Superannuation Fund.
An analysis of Exhibit 13 reveals that (business omitted) (the parties trading company), paid a total of $8976.04 towards the wife’s superannuation entitlement and that the member exit statement revealed that the wife rolled over $36,838.35 into the parties self-managed superannuation fund.
Exhibit 14 is a transaction statement for the self-managed superannuation fund and that document reveals that $36,383.35 was deposited into that account on 6 June 2013.
The (omitted) Bank transaction statement referred to above also provides evidence that an additional sum of $238,819.05 was also deposited into the self-managed superannuation fund account.
The husband's evidence is that those monies came from monies that he had in his possession prior to the opening of the self-managed superannuation fund.
The husband conceded that he sent a suicide note and told one of his doctors post separation that he was considering suicide.
In relation to the alleged anger management problems, the husband indicated that he was angry after 13 years of being controlled by the mother and that he no longer suffers from any anger management issues.
The husband conceded and indeed, it is not in contest, that the two older children [X] and [Y] enjoy spending time with the father and want to spend more time with the father.
When cross-examined by the Independent Children's Lawyer's counsel, the father conceded that he had had a long-standing conflict with his own family.
Although the father gave evidence that he commenced using marijuana to assist him with the pain, he conceded that he told the neuropsychologist Ms S in October of 2000 that he had significant drinking and use of marijuana prior to the accident.
The father conceded that post-accident he had become dependent on codeine and oxycodone and attempted rehabilitation twice. The first time he concedes he failed. The second attendance he agrees he attended for one day and thereafter removed himself from the rehabilitation clinic and went “cold turkey” in relation to his dependence on opioids.
The evidence of the father under cross-examination was that he still gets quite considerable pain and that he “will reach for anything to alleviate the pain.” Nevertheless the father says that he has stopped using marijuana. I do not accept that the father has stopped using marijuana.
The father conceded that he attended upon Dr S on 7 June 2016, post-separation, as he was struggling to cope with things regarding his family and he had thought about suicide on the Saturday night previous.
The father was cross-examined as to doctor’s notes on 30 December 2016 wherein Dr B noted that the father attempted to gas himself with car fumes on (omitted) 2016.
The father said he did not attempt to gas himself, rather he was thinking about it.
The doctors notes continue that this incident occurred in circumstances of the recent separation from the father’s then current partner (Ms K). The father denied that was so but nevertheless, shortly thereafter in cross-examination, agreed that there had been a disagreement over money and that he had left his partner and she had left him, although it was for a short time. It should be noted that the father and Ms K are still in a relationship.
The father stated under cross-examination that everything associated with his emotional distress was as a direct result of the mother's unilateral decision to remove the children.
It is a fact though that the husband suffered significantly as a result of losing his fiancé in the car accident in 2000 and the death of another friend. It is a fact that he was having some difficulty with his current girlfriend Ms K and that he was having increasing financial strain and chronic pain.
In light of those facts, I formed the view that the father had significant lack of insight in relation to the factors that affect his ability to regulate his emotions.
In relation to the time he spent with the children post-separation it is not in contest, and indeed the father gives evidence of this, that the father saw the two older children [X] and [Y] overnight from 11 January 2015 until August of 2015.
In August 2015 the father moved back into the matrimonial home where the mother was living. Shortly thereafter within a couple of weeks the mother moved to (omitted).
On 3 September 2015 there was a struggle involving the children in (omitted). On this occasion the father had located the children and wanted to remove them from the mother.
The father could accept no blame for the resulting effect on the children, the children were taken by police from the scene to the police station, but rather stated that the entire incidence was caused as a result of the mother removing the children from the (omitted).
The father accepted under cross-examination that both he and the mother were in a highly volatile relationship. I accept that the parties were in a highly volatile relationship.
The numerous text messages annexed to the father's Affidavit of August 2016 satisfy me that both parents were disrespectful, antagonistic and self-focused throughout their relationship.
The father ultimately accepted that all of the children enjoyed spending time with him but nevertheless, could not accept that the mother was promoting a relationship between the children and he, notwithstanding their very poor communication and co-parenting relationship.
The father stated that he and his partner now live on the (omitted) so that he can be available for the children.
The mother
The mother's Affidavit of 20 January 2017 consisted of 218 pages. Her Affidavits of 21 February 2017 consisted of 35 pages and 3 pages.
The mother in her case outline filed on 10 August 2016 sets out the property of the parties as follows.
| ASSET | APPROXIMATE VALUE |
| Property A | $800,000.00 |
| Holden (omitted) | $20,000.00 |
| (motorbike omitted) | $16,000.00 |
| Home furnishings | $10,000.00 |
| (omitted) Camper Van | $10,000.00 |
| (vehicle omitted) | $4,000.00 |
| Business – (business omitted) | $Unknown |
| LIABILITIES | APPROXIMATE VALUE |
| (omitted) Bank Mortgage over Property A | $482,100.00 |
| (omitted) Overdraft | $280,000.00 |
| (omitted) Bank Visa credit card | $10,000.00 |
| SUPERANNUATION | APPROXIMATE VALUE |
| (omitted) Superannuation Fund (self-managed) | $Unknown |
The mother filed an Affidavit of Mr S, a valuer. The valuation was in relation to the one asset of the superannuation fund, a unit at Property B. The valuation evidence is that the property is valued at $345,000.00. The father accepted that valuation.
The mother conceded under cross-examination that but for a few weekends the father and children in the main spent regular overnight time together. The mother was also aware that the father's current partner was involved with the two older children.
The mother conceded that she had thought about moving to (omitted) well before doing so and also conceded that she did not tell the father about her move. After being cross-examined on this issue, she conceded that she did not have any real fears about the father not returning the children after spending time.
The mother conceded that the children were missing their father during the time that she had unilaterally stopped that time from occurring. The mother indicated that she took no steps to arrange for time between the children and the father at all stop.
The mother accepted that “she gave as good as she got” in terms of the communication and hostility between the parents.
In relation to the mother's alleged fear of the father, she said in evidence that she did not want any more conflict in front of the children and conceded that other than the incident involving the police at (omitted) and the father attending school once whilst they were in (omitted), there were no physical altercations between the parents.
The mother conceded that the father has in the main respected her privacy although at times she receives text messages that she feels are unwarranted.
The mother under cross-examination found it difficult to articulate any incidents of family violence. This was consistent with her interview with the Family Consultant Ms L on 27 July 2016.
Ms L’s paragraph 231 and 232 of that report provides evidence that the mother had extreme difficulty with providing a Family Consultant with any detail in relation to family violence or as to why she has such high avoidance of the father.
When pressed under cross-examination, the mother said she has such high avoidance of the father because she wishes to avoid conflict, she does not want to be blamed for everything, he came into her house at Property A and scared her, he had previously locked out of her house, that there was yelling in front of the children and that she could not communicate effectively with the father.
In relation to the allegations of drug use, the mother stated that this posed a risk to the children. It should be noted, however, that the mother was well aware of the father's long-term ongoing cannabis use at the time of separation and this did not prevent her from agreeing to the two older children spending time with the father including overnight time.
The mother agreed that both she and the father were now living on the (omitted) and that as at the time of trial both she and the father were travelling to (omitted) for the purpose of the children spending time.
The mother gave evidence that both [X] and [Y] are wanting to spend more time with the father and ask whether it is the weekend yet.
The mother agreed that it was not sustainable for the children to be travelling to (omitted) each alternate weekend in order to spend supervised time with the father.
The father cross-examined the mother and the mother conceded that post separation the father contributed significantly towards the finances of the mother.
But for some very minor expenses the mother conceded that all of the mother’s bills were paid and the father continued to maintain payments towards a home.
The mother agreed that it was not until she unilaterally moved to (omitted) that the father ceased providing assistance to the mother's household.
The mother was cross-examined as to why she did not agree to refinance the existing mortgage so as to fund litigation against (company omitted). The mother's answers satisfied me that she made relevant enquiries and believed on reasonable grounds that there was no advantage to the parties in refinancing.
On that basis I am not satisfied that the mother deliberately, recklessly or wantonly wasted assets of the parties.
The father did not cross examine the mother on many issues currently before the court.
The family consultant
Family Consultant Ms L was called.
Ms L was cross-examined as to whether the counselling she recommended would have a positive effect on the father.
Ms L’s response was that she could not guarantee that any counselling would have an effect on the father and that her recommendation for such counselling was consistent with the post-traumatic stress disorder best practice guidelines and the English guidelines.
Ms L confirmed that her observations revealed that the children all have a very good relationship with the father.
Ms L gave evidence that the mother's proposal, having regard to the children's attachment to their father, could cause the children confusion, disappointment and grief and said that would not be a good result for the children.
When asked whether she would recommend supervision, Ms L gave evidence that as the father was in a stable relationship and there had been no interventions by police in the father's home or complaints of the father’s time with the children and the children all have a good relationship with the father, she could see no reason why she would recommend supervision.
Ms L was cross-examined as to whether she saw any evidence of the mother attempting to align the children. Her evidence was that she saw no evidence of this.
The evidence establishes that the children are well attached to their father and the two older children have a very good relationship with him.
Assessment of the evidence
The children
After hearing and testing the evidence of both parties and Ms L, I was satisfied that these parties had a very tumultuous relationship wherein their behaviours were reactive rather than controlling and manipulative.
I am satisfied that both parents were at times behaving in a non-child focused way.
I am satisfied that the mother presents as an anxious person and that the father presents as an inflexible person. Those two personality types do not work well together as is evidenced by the many many text messages that passed between the parties and the history of these parties relationship.
The evidence establishes that the mother raised concerns about the father's mental health, alleged drug use and family violence.
In relation to the father's mental health, I am satisfied on the evidence that on two separate occasions shortly after separation and indeed in (omitted) 2016, the father made comments about suicide.
I am not satisfied that the father intended following through on those threats. I am not satisfied that those threats were made at a time when the children were in his care.
I am not satisfied that the father poses a risk to the children as a result of his mental health. I am satisfied that the father as he says “wears his heart on his sleeve” and at times finds it difficult to regulate his emotions.
In relation to drugs, the mother was fully aware of the father's long-standing use of marijuana. She agreed to the children spending overnight time with the father notwithstanding that use.
The mother asserts that the father is a user of methamphetamines including “speed” and “ice.” The evidence before me does not satisfy me that the father is a user of methamphetamine.
I am satisfied that the father uses marijuana on a continuing basis. In relation to whether his use of marijuana poses a risk to the children, there is no evidence before me that could satisfy me that the father has neglected the children whilst in his care as a result of his marijuana use.
In relation to family violence, I am satisfied by the parties’ own evidence that they have both engaged in family violence as defined in the Family Law Act 1975. Their conduct amounted to denigration and verbal threats and it could be classified as situational family violence.
I am satisfied that there was an incident of family violence at (omitted) in the presence of the children.
There is no evidence to suggest that there is family violence in either home of the parents currently. In those circumstances I am not satisfied that there is a risk to these children from being exposed to family violence in either parent’s home.
The evidence establishes that the parents do not have an effective co-parenting relationship or indeed a co-parenting relationship at all.
I am not satisfied on the evidence that the mother has been alienating the children against their father.
I am satisfied on the evidence that the children have a strong relationship with their father. I am satisfied that the father has done all that he possibly can to maintain a relationship with his children notwithstanding his personal difficulties relating to extreme financial difficulties and having to be supervised with his children.
[Z] has been able to develop a relationship with his father during this period of time. [Z] will turn three years of age on (omitted) 2018.
In circumstances where I intend making orders for unsupervised time, I am satisfied on the evidence, particularly that of Ms L, that it is in [Z]'s best interests to increase his daytime with his father to include overnight time and I propose doing so in the orders that I have made.
The legislation
Section 60CC(2)
I am satisfied on the evidence that these children will benefit from having a meaningful relationship with both of their parents. In crafting orders I have adopted the prospective approach as referred to in McCall & Clarke.[4]
[4] [2009] FamCAFC 92.
As previously indicated I am not satisfied that these children are in need of protection from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence in either home.
I note that the father alleges throughout his material that the mother has abused the children and is attempting to cause them psychological harm as a result of her alleged alienation of the children.
I am not satisfied that the mother is embarking upon that course. Indeed the evidence is strongly indicative of the fact that the mother has done everything possible to facilitate and support a relationship between the children and the father but for the period where she unilaterally moved to (omitted).
I am satisfied that the mother moved to (omitted) in circumstances where she was in a state of heightened anxiety and I am further satisfied that the period of time that the children did not spend with the father has not adversely affected their relationship with their father.
Section 60CC(3)
[X] spoke positively about both of his parents and did not indicate that he had any fears of either parent.
[Y] spoke positively about both her parents and she did not appear to be overly aligned to either parent.
[Z] was 15 months at the time of interviews. As a result he was not asked any questions.
All three children were observed with both parents. It was clear that [Z] was strongly attached to his mother and had difficulty settling with his father.
It was equally clear that both [X] & [Y] interacted well and easily with the mother, father, the father's partner and the father's partners’ children. During the observation with the father, [X] expressed a desire to go and visit the father at his home.
The mother gave evidence that both the older children want to spend time with their father and miss him.
I am satisfied on the evidence that the children have a close, loving relationship with both of their parents. I am satisfied that [Z] is developing a relationship with his father but remains primarily attached to the mother.
I am further satisfied that the two older children have a good relationship with the father's partner and her children.
The evidence establishes that both parents have done all that they possibly can in the circumstances to be involved with and participate in making decisions with regards to the children.
The evidence establishes that the father's ability to spend time with and communicate with the children has been interfered with by the mother's unilateral decisions.
Fortunately the evidence of the Family Consultant persuades me that that interference has not adversely affected the relationship between the two older children and their father.
The evidence establishes that the father has not paid any child-support. The evidence further establishes however that the father paid for the majority, if not all of, the household expenses in the mother's home post separation up until the time that the mother unilaterally relocated.
The evidence further establishes that both parties have experienced extreme financial hardship noting that the parties’ company fell into liquidation and the father has now become bankrupt.
In light of those factors, I am satisfied that both parties have fulfilled, to the extent they were able to, their obligations to maintain the children.
The mother proposes that the children only spend identification type contact with their father moving forward.
I am persuaded by the Family Consultant’s evidence that that contact would be disadvantageous to the children and would cause them some psychological harm.
The father proposes that the children live with he and the mother on an equal basis. I am satisfied on the evidence that such an arrangement is not in the best interests of these children and is contraindicated.
In the alternative, the father proposes that the children live with him and spend each alternate weekend with the mother and half school holidays.
The children have always lived with their mother. The mother has provided for them. There is no evidence to support a finding that the mother is a risk to the children.
The father does have, on the evidence, some difficulty managing his emotions from time to time. The father did speak about suicide in (omitted) 2016 and the father says he is in constant significant pain.
Those factors mitigate against the children living with the father full-time as those factors in my view, would impact upon the father being consistently, both emotionally and physically, available for the children.
The evidence establishes that both parents now currently live on the (omitted). In those circumstances there is no evidence that could satisfy me that there is a practical difficulty and expense involved in the children spending time with both parents that would substantially affect the children's right to maintain personal relationships and direct contact with both parents.
The evidence establishes that both parents have the capacity to provide for the needs of the children including the emotional and intellectual needs.
As I have said previously both parents have at times let their emotions and self-focus impact upon their capacity to meet the needs of the children.
I am satisfied on the evidence though that by effectively keeping the parents apart and not requiring them to be involved with each other that this will have a significant positive effect on both parents’ capacity to provide for the needs of the children.
I have already outlined my findings in relation to the attitude to the responsibilities of parenting demonstrated by each of the parents and issues involving family violence.
Suffice to say, I am satisfied on the evidence that there is no risk of family violence in either parent’s home currently and but for those few occasions when the parents have put their own self focus above that of the children, they are otherwise two capable parents who can meet their parental responsibilities moving forward.
Parental responsibility
The evidence clearly establishes that there was family violence between these parents as defined under the Act.
Accordingly the presumption within s 61DA does not apply.
The evidence firmly establishes that there is a complete breakdown in the co-parenting relationship between these parents. The evidence furthermore establishes that there is a complete lack of trust and respect between these parents.
In those circumstances an order for equal shared parental responsibility is contraindicated and I will not make an order for equal shared parental responsibility.
In my view parental responsibility should rest with the parent with whom the children should live predominantly and I will make such an order.
In those circumstances the provisions of s 65DAA are not triggered. I am otherwise to make such parenting orders as I think proper[5] and that are in the children's best interests and I have done so.
[5] Family Law Act 1975 (Cth), s.65D.
Property
Having assessed the evidence and noting that the company is in liquidation and the father is a bankrupt and that the former matrimonial home has been sold with the entire proceeds used on debt, I am satisfied that the property of the parties is as follows:
(1)Motor vehicles and chattels held by the parties in their own names of limited value.
(2)Superannuation totalling $345,000.00 and held by the parties in accordance with their respective rights pursuant to the trust deed.
Both parties seek an order for 100% of the superannuation fund.
There is no evidence before me as to whether the trustee in bankruptcy has sought to include as an asset in the bankrupt’s estate the husband's entitlement in the superannuation fund.
Section 116(2)(d)(iii) of the Bankruptcy Act 1996 (Cth) provides that a regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 is exempt from being deemed property of the bankrupt estate.
There is no evidence before me as to whether the self-managed superannuation fund of the parties is a regulated superannuation fund within that meaning.
I proceed on the basis therefore that the self-managed superannuation fund is exempted and that the trustee has not sought to divest the husband's entitlement from the fund.
The evidence clearly establishes that as a result of the husband's compensation payout he contributed $300,000.00 plus dollars into the parties’ relationship.
It is not in contest that he utilised those funds for the purpose of purchasing the block of land upon which the house sat and applied funds from that compensation payout towards the construction of the former matrimonial home. That property is no longer an asset of either of the parties.
In terms of contribution to the superannuation fund, the evidence establishes that the wife contributed $36,000.00 to the fund and that of the $36,000.00, $8,976.04 of that money came from superannuation paid by the company owned by the parties.
It is not in contest that the wife worked in the company and it is furthermore not in contest that when the parties worked together for the benefit of the company the company thrived.
The evidence establishes that there was an additional $238,819.05 deposited into the superannuation fund.
The evidence clearly establishes then that the husband contributed more to the self-managed superannuation fund than did the wife.
The evidence establishes furthermore that the husband retained property and sold property post separation.
The evidence satisfies me that during the course of the relationship the husband was the predominant wage earner and the wife contributed her skills and efforts toward the running of the company.
I am further satisfied that the wife was primarily involved in home duties including cooking, cleaning and caring for the children.
The orders that I have made in relation to children will see the children living predominantly with their mother and spending each alternate weekend and school holiday time with their father. In those circumstances there should be an adjustment in favour of the mother.
The evidence clearly establishes that the father has ongoing difficulties arising from his motor vehicle accident in 2000. The father has maintained employment since that time although his ability to maintain employment and be productive must fall into question having regard to the evidence regarding the company and the subsequent liquidation of that company. In those circumstances there should be an adjustment to the husband.
I am satisfied that it is appropriate to adjust the party's interest in the superannuation fund as the parties are no longer living together and no longer enjoy the joint enterprise that brought about the creation of a self-managed superannuation fund and the contributions thereto.
The relevant period of the relationship was 12 years. There is a very limited pool available to the parties at the end of the relationship.
I am satisfied that it is just and equitable for each of the parties to receive 50% of the total superannuation value.
Costs
On 17 March 2016 I made a costs order in favour of the wife.
At the time of making the order I required more evidence regarding the amount of those costs.
Paragraphs 103 to 111 of the wife's Affidavit of 1 August 2016 provides that detail.
In those circumstances I am satisfied that an order be made that the husband pay the wife the sum of $5,806.00 within 28 days of today's date.
For those reasons I am satisfied that the orders I have made are in the best interests of the children and are just and equitable.
I certify that the preceding two hundred and six (206) paragraphs are a true copy of the reasons for judgment of Judge Middleton.
Date: 27 March 2018
Key Legal Topics
Areas of Law
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Family Law
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Insolvency
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Equity & Trusts
Legal Concepts
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Costs
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Injunction
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Jurisdiction
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Remedies
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Statutory Construction
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