Lennon & Lennon
[2011] FamCA 571
•19 July 2011
FAMILY COURT OF AUSTRALIA
| LENNON & LENNON | [2011] FamCA 571 |
| FAMILY LAW – CHILDREN – where the mother seeks orders that she have sole parental responsibility for the parties’ five children and that the children spend alternate weekends with the father – where the father seeks an order that the children spend alternating fortnights with each parent – where the parties are significantly at odds in terms of their parenting practices – where there are significant issues in relation to the children’s views, the father’s capacity to provide for the physical and emotional needs of the children and the father’s attitude to parenting – whether it is in the children’s best interests to rebut the presumption of equal shared parental responsibility – whether there should be change in the amount of time the children spend with their father. FAMILY LAW – PROPERTY – Contributions – where the husband made significant initial contributions – where one of those contributions was a half share in a property now worth $1.75million – where that property provided the foundation for the parties’ successful produce business – where the wife’s contributions to the parties’ children and business were greater than the husband’s from April 1999 onwards – where the wife’s contributions to the parties’ children post-separation has been significantly greater than the husband’s – whether the wife’s contributions later in the marriage and post-separation outweighs the husband’s initial contributions – where the contributions assessed in proportion of 55 per cent to the husband and 45 per cent to the wife – whether s 75(2) factors favour an adjustment in favour of the wife – where the wife will have sole parental responsibility for the children, the youngest of whom will turn 18 in 2021 – where the wife’s ability to earn remunerative income is significantly constrained by her care of the parties’ children – where s 75(2) factors favour an adjustment of 10 per cent in favour of the wife. FAMILY LAW – PROPERTY – settlement – where the parties’ property consists of two farms in Town 1 and several farming businesses – where the parties ran successful farming enterprises on the properties throughout their marriage – where the property is to be distributed in the proportion of 55 per cent to the wife and 45 per cent to the husband – where the parties are agreed that the properties and businesses will be liquidated – where the parties ordered to provide minutes of consent giving effect to these Orders |
| Child Support (Assessment) Act 1989 (Qld) |
| AIF v AMS (1999) 199 CLR 160 Aleksovski & Aleksovski (1996) FLC 92-705 |
Hides & Hatton (1997) FLC92-759
In the Marriage of Clauson [1995] 18 FamLR 693
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Lee Steere (1985) FLC 91-626
In the Marriage of Mallet (1984) 156 CLR 605
In the Marriage of Waters and Jurek (1995) FLC 92-635
Marras & Marras (No 2) [2011] FamCAFC 105
MMR v GR (2010) 240 CLR 461
Money & Money (1994) FLC 92-485
Pierce & Pierce (1999) FLC 92-844
Steinbrenner & Steinbrenner [2008] FamCAFC 193
U v U (2002) 211 CLR 238
Williams & Williams [2007] FamCA 313
| APPLICANT: | Ms Lennon |
| RESPONDENT: | Mr Lennon |
| FILE NUMBER: | BRC | 8876 | of | 2008 |
| DATE DELIVERED: | 19 July 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 20, 21 and 22 June 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms J Hogan |
| SOLICITOR FOR THE APPLICANT: | Belinda Eyers & Associates |
| REPRESENTATIVE FOR THE RESPONDENT: | Mr S Tester (solicitor) |
| SOLICITOR FOR THE RESPONDENT: | Stephen Tester & Associates |
Orders
IT IS DECLARED THAT:
The presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (Cth) (“the Act”) is rebutted in the best interests of the children:
a.Z, born … May 1995
b.J, born … January 1997
c.T, born … January 2000
d.S, born … September 2001
e.B, born … June 2003
IT IS ORDERED THAT:
Parental Responsibility
The mother shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Act (as amended)) in respect of the children, save that the mother shall, prior to making the sole ultimate decision about any such issue:
a.Use her best endeavours to advise the father in writing of the decision intended to be made;
b.Seek the father’s written response in relation thereto;
c.Consider, by reference to the best interests of the children, any such response prior to making any such decision;
d.Advise the father in writing as soon as reasonably practicable of her ultimate decision.
Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:
a.Any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or having professional contact with the children;
b.Any school which the children attend;
c.The Director of any extra-curricular school or other activity in which the children are involved,
to provide to the other party such information as might reasonably be required about the children together with any report, assessment or other such document provided to a parent in respect of the children.
Each of the parties shall notify the other of any serious accident, illness or other emergency affecting the children as soon as reasonably possible after its occurrence.
Each of the parties shall advise the other and keep the other advised of:
a.Their residential address;
b.Telephone numbers at which they and the child can be contacted;
c.Any email address to which the child can have access,
and shall notify any changes in any such details within 48 hours.
Live With and Time
The children shall live with the mother.
J, T, B and S shall spend time with the father as follows:
During School Term
a.Every second Thursday from the conclusion of school until the commencement of school the following Monday with the first such period to commence on Thursday 21 July 2011.
During School Holidays
b.J, T, B and S will spend half of all gazetted New South Wales school holidays with each parent, as follows, commencing in 2011 and alternating each year thereafter:
i.First term holidays with the mother;
ii.Second term holidays with the father;
iii.Third term holidays with the mother;
iv.Pre-Christmas with the father;
v.Post-Christmas with the mother.
To facilitate changeover for the purposes of subparagraphs (d) and (e), the parent who has care of the children, will drop them at the other parent’s residence at 5pm on 26 December.
Mother’s and Father’s Day
c.On Mother’s Day, the children, should they be staying with the father, may be collected by the mother at 9am and returned to the father by 5pm.
d.On Father’s Day, the children, should they by staying with the mother, may be collected by the father at 9am and returned to the mother by 5pm.
The children shall be at liberty to communicate with the parent with whom they are not spending time at any time and when the children express a wish to contact that parent, the other parent shall use his or her best endeavours to facilitate such call.
IT IS FURTHER ORDERED THAT:
The property of the parties or either of them within the meaning of s 79 of the Family Law Act 1975 be distributed in the proportion 55 per cent to the wife and 45 per cent to the husband.
10. As to give effect to the said distribution, the parties shall, within 21 days of the date of this Order, file by way of joint communication forwarded by email to the Associate to Justice Murphy … @familycourt.gov.au, agreed minutes of order, and, failing agreement, the matter be listed before Murphy J at a date and time to be advised.
IT IS FURTHER ORDERED THAT:
11. The wife’s application for a child support departure order is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Lennon & Lennon (previously cited as Leske & Leske) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 8876 of 2008
| Ms Lennon |
Applicant
And
| Mr Lennon |
Respondent
REASONS FOR JUDGMENT
During their 16 year relationship, the husband and wife, aged 40 and 41 respectively, cohabited for approximately 15 years and were married for 10 (as at the date of separation in May 2006). The wife gave birth to six children during the marriage, however, the parties’ son L tragically passed away in August 1999, one day prior to his first birthday.
Prior to separation, the parties were running successful produce farms on two properties in Town 1: R Street and F Street.
The parties separated briefly in October 2004 and finally separated in May 2006 after moving from Town 1 to Town 2. Upon relocating to Town 2, the parties leased the two farms in Town 1. Those leases expire in 2020 but there are options to renew.
After the parties separated, and following an initial period of limited contact due to the husband returning to Town 1 to settle outstanding business affairs, the children have spent time with the husband, first in accordance with an agreement between the parties and, later, in accordance with orders made by me on 27 April 2009. Both parties agree that the mother has been the primary caregiver of the children since separation. Each of the parties currently reside in rented accommodation in Town 2.
The parties have been in disagreement as to the time each parent should spend with the children since at least 27 April 2009. At that time, I made an order formalising what had essentially been the situation since separation, namely, that the children would live with the wife and stay with the husband four nights each fortnight. The wife’s Amended Initiating Application, filed 7 February 2011, seeks an order that the wife have sole parental responsibility for the children and a reduction in the time the children spend with the husband. The husband seeks an order that the children spend alternate fortnights with each parent.
In addition, the parties seek final orders in relation to settlement of property. During the parties’ relationship, spanning some 16 years, the parties successfully ran various farming enterprises in and about Town 1, Western Australia.
The parties are largely agreed as to the identification and value of the assets, liabilities and resources to be divided; the primary issue for determination is the assessment of each of the parties’ contributions to the marriage and the weight which ought to be attached to such contributions.
The husband contends that his initial contributions to the marriage were both significant and enduring and, overall, outweigh the contributions of the wife; he ultimately seeks a distribution of property in the proportion of 55:45 per cent in his favour. Counsel for the wife, Ms Hogan, conceded that the husband’s initial contributions to the marriage were significant, but submits that during the marriage, the parties’ contributions were equal until April 1999 and after April 1999, the wife’s contributions to both the parties’ business and the children vastly outweighed the husband’s, in effect, the contributions are said to warrant a finding that contributions favour the wife.
The wife also seeks a departure order pursuant to s 117 of the Child Support (Assessment) Act 1989 (Qld).
Parenting Orders
At present, the parties each have parental responsibility for the children, who live with the mother, and spend time with the father in accordance with orders made by me on 27 April 2009. Those orders essentially reiterated what had been the situation since separation, namely that the children would stay with the father four nights out of fourteen.
Proposals
The Mother’s Proposals
The mother’s proposals are set out in the Case Information document filed on her behalf on 21 March 2011.
The mother seeks an order that she have sole parental responsibility for the children and for the children to live with her. The mother also proposes that the children spend less time with the father, specifically, each alternate weekend and half of the school holidays.
The Father’s Proposals
Until recently, the father proposed a week-about arrangement. However, in the Case Information document filed on the father’s behalf on 17 June 2011, the father proposes an arrangement whereby the children spend each alternate fortnight with each parent.
The disparity in the proposals clearly illustrates the primary issues in this case, and they also, in my view, illustrate the differences in personality and insight exhibited by each of the parties.
The mother strikes me as a highly organised person, who clearly establishes and reinforces age-appropriate boundaries and behaviour. The father on the other hand, is very focussed on allowing children to make their own “choices” with respect of a variety of matters. As will be seen, those matters include many which are ordinarily the domain of parental decision-making (e.g. schooling). In many respects, the father appears to seek to be the children’s friend, rather than their parent. Indeed, in many respects, he would appear to conflate the two roles.
There is no doubt that both these parents love their children and want only what is best for them. There is no suggestion of violence or the potential for abuse or neglect. But the parents are significantly at odds in terms of what they each perceive to be in the children’s best interests. The evidence provides some stark examples of the differences between them.
The Father’s Involvement with Religion 1
The mother, throughout her material and during oral evidence, repeatedly reiterated her concerns regarding the father’s beliefs in Religion 1.
My understanding of Religion 1 is restricted to that which I have obtained as a result of reading the father’s material and the Family Reports of Family Consultant, Ms D. But as was said during the hearing, this is not a trial about a belief system; it is a trial about the children’s best interests. That said, some statements of the father referring to Religion 1 can be seen to directly pertain to the children and the manner in which the father parents them.
Annexed to the mother’s affidavit filed 21 March 2011 are a number of emails sent to her from the father. Those emails contain a number of statements by the father referring to Religion 1 and the impact which the teachings of Religion 1 (or what the father says of them) have on his parenting.
· [J] asked about headaches, [Founder of Religion 1] mentions headaches in [reference to literature of Religion 1] ([J] has this). A few people are talking about 2012, [J] mentioned that a girl in his class was talking about it (the new era) [J] has listened to [reference to literature of Religion 1] (1 of 3 about the new era).
· Last Friday [J] [then 12 years old] and [a friend] were playing outside. I had not seen or herd from them for a few hours, the phone rang it was [J] asking if I could pick him up they were on top of the range. 17km drive later we find [J] and [his friend] still in the Wow of what they had achieved. Met some nice people enjoyed the view looked at where they had climbed still talking about how dangerous the climb was and the fact that they had not let me know. [J] talked about the pull he felt to keep climbing. That’s magnetic pull I explained to the Kids. (which is love) The other force is attraction (which is emotions).
· If [Z] wants to experience less period pain or even no pain at all she only as to cut out the EMOTIONS. This is not total right because what the soul will do it get the spleen to down load emotions from earlier childhood and then past lifes that the spleen had to up load because you were not having periods. The spleen works from 9pm till 1am (earlier for children). And if you wanted proof that emotion are not good for the body you should have seen [Z] this morning after the school social, it was great for the other kids to see. [T] said [Z] looked 4 years older. She looked to be 20 to me…
It ought to be noted that in a number of the emails the mother annexes, the father discusses the “oversexualisation” of girls in a manner which could be interpreted to condone sexual relationships between adolescent girls and their fathers. For instance:
Over sexualisation of Girls (in regards to an email forwarded about a workshop). It is a illness is it not? Is it not girls craving affections (sure there are other emotions involved as well). Could it be that girls are missing the affection from their Fathers. Could it be that today (well for some time now) when girls start developing breasts fathers lose that closeness (when their daughters need it most) because of emotions. (fear)
Ms D reports that the father clarified the meaning of such statements and reiterated that he was not referring to sexual relationships between adolescent females and their fathers. Ultimately, I am satisfied that the father was not condoning such relationships. Rather, as a result of his difficulties with literacy (as deposed to by the mother, as is evident in the e-mails to the mother, including those portions quoted above, and as observed by me whilst the father was giving oral evidence), the father’s true intended meaning was lost in his written statements.
Further examples of the impact of Religion 1 on the father’s approach to parenting can be found in a document described by the father as a “simple, short, playful, clear…perspective” written by him and annexed to his affidavit filed 6 April 2011. The following statements are taken from that document:
…for me to present a case with confidence that would result in meeting the Children’s wishes and best interests, I need to present the Fact that the whole idea that the children should live with their Mother and visit their Father comes from an expression that is not Love.
Which I then need to explain the consequence of an expression that is not Love which is Harm, which explains the accidents and illness that the children experience when they are with their Mother.
From here I have no choice but to explain the fact that every expression wether a spoken word or a physical movement of our body is a energy first, (science knows this already) and that Energy comes from one of two sources. It either come from that which is love or that which is not love. (one expression heals and the other harms)
Till January 2012 most are not ready to feel that this is True or important which is why I wish to set the Trial for February [2012].
Just like there was a point in time where as most where able to except the Fact that the Earth was round, so to there is a time when the bulk of people start to become aware that they have a choice which is to be love or to be that which is not love this is 2012.
…
…I do not want the Children to see their Father walked over by their Mother (pussy whipped) I feel that it is important that the Children feel that their Father holds his own with that which he feels is right and against that which he feels is wrong.
I like being clear, direct and straight to the point when I communicate.
So when [the mother] ask me to contribute to [S] school fees, which is giving your power away to a consciousness that is not love, which then harms you as it dose the kids, I reply with “you want the Kids to go to a [S] school you pay” simple and straight to the point.
…
It is not right to say that there is conflict between us and then give me sweet corn from her garden.
…
…a girls very first competitive netball game results in her right ovary becoming larger than her left, which leads to difficulties falling pregnant if she dose not stop. (and other problems).
I would never champion my girls playing netball ( I like the idea of becoming a grandfather).
I would never stop them from choosing netball, but feel there is a responsible to inform so that they Know what they are really choosing.
…
It is as if I am one of the earliest people to learn that the earth is round.
the fact that the earth is round is no big deal, It is the learning/understand that it opens you up to is what is really wow.
Understanding in regards to seasons, tides, weather, migration, and so on, (could be people on the other side) would have been really big for someone like me 600 years ago.
…
It would be great if I did not have to present this till the end of 2011 beginning in 2012 the weather has not yet got intense enough even though the floods across Australia caused quite a lot of damage.
The father’s statements – whether referring to Religion 1 or any other belief or belief system – give rise to a concern on the mother’s part about the inculcation of beliefs in the children, and an unstructured form of parenting without appropriate limit setting.
Ms D provides a greater insight into the implications of the father’s beliefs.
Family Reports
Ms D described the father as:
An inarticulate man who appears to hold a unique view of the world. He appeared to be disorganised in thought, thus, would often struggle to provide a coherent response to questions.
In relation to the mother, Ms D said “[the mother is] an assured and insightful woman who engaged and co-operated throughout the interview”.
Having observed both parties with the children, Ms D stated:
The [father] never attempted to contain the children’s behaviour nor did he praise them when they made efforts to successfully play the game…
…It appeared as if [the father] was physically present with the children but not emotionally.
Conversely, Ms D said that the mother placed boundaries around the children’s behaviour when she deemed it to be at a level that was potentially unacceptable. She would do this in a calm, warm manner without raising her voice or chastising them.
Ms D was attuned to the effect of the parties’ differing parenting practices on the dispute between them, stating that the parents’ different parenting practices “keeps alive their animosity towards each other”.
Significantly, Ms D observed:
[The father’s] parenting philosophy is not congruent with child focussed practices. It reflects limited insight about children’s basic care and protective needs.
As a further example of the father failing to be child focussed in his actions, the mother expresses concerns that the father has conveyed a desire to prolong the court proceedings “at the cost of the children”. Ms D subsequently reports the following statement by the father in her Family Report filed 11 March 2011:
I will continue to challenge any order not in my favour. I know the influence the mother is having on the children...if Court goes in the mother’s favour, I want the chance to play applicant…in six months time it will be the right time to explain to the Judge the influence I have on the kids and the mother…it is important the children see that the father is not allowing the mother to dominate him…if Court goes with the mother, I know I have to spend the money…I’m probably $100,000 better off than the mother.
Further, according to Ms D, the father’s “emotional vacancy” is:
not conducive to raising emotionally healthy and well adjusted children who are prepared for adulthood…such a practice generally causes children to display insecure behaviours such as attention seeking…and to have an insecure attachment to their parent.
Ms D was of the opinion that such behaviours were evident in all the children, especially J:
The risk to the children’s emotional and psychological wellbeing is further compounded by [the father’s] deliberate and brazen involvement of the children into matters that are not appropriate for them to be aware of.
In support of the latter observation, Ms D reports that T, J and Z all spoke about their father telling them the “truth” about a student’s death in Town 2. The father stated to Ms D that the school in question had “covered the truth and encouraged the children not to say anything” and he had “discussed the truth with the children” because he feels “children need to be exposed to honesty, truth…not being hidden from the illnesses in the community….” In fact, children need to be exposed to such “truth”, or any other adult issues, as their age and stage of development calls for. Often, that means protection from “truths” or other issues better left to await maturing and adulthood.
Ms D described the necessity for a certain degree of congruence in parenting practices in the following manner:
To minimise the potentially adverse affects of [unresolved parental issues] upon the children requires the parents to have a level of agreement between them regarding the significant issues and somewhat similar approaches to parenting in general.
Granted, there will be differences in parenting as there would be if the parents’ relationship remained intact. However, if the differences are so diverse, how the children transition from one parent’s care to the other can be fraught with additional complexities. There is scope for the children to receive conflicting attitudes about boundaries, age-appropriate behaviours and expectations. There is likely to be discontinuity in the care they receive; and there is a risk of parent/child conflict occurring in either home as the children may advocate the views of the other parent out of loyalty and/or petulance.
In my opinion, this seems to largely be the dynamic within this family.
I accept that evidence and consider it important in determining orders which best meet the best interests of these children.
In what I perceive as an accurate description of the dilemma faced by the parties’ five children, and, again, a matter I consider extremely important in the context of these proceedings, Ms D stated:
The children live in two separate worlds, where the culture of those worlds is in contrast to each other…
There appears to be limited, if any, commonalities between the parents’ parenting and their respective home environments. If I was to draw a comparison, I would imagine that for the children it is like travelling from one country to another, where the customs, rituals, and language is very different; thus requiring a period of adjustment. An equal shared parenting arrangement enforces the children to experience this transitional stage more frequently that they would under the current parenting arrangement. In my opinion, this is not in their best interests. (Emphasis added).
In her latest report, Ms D recommended that the mother should have sole parental responsibility for the parties’ children and that the children should spend less time with their father. Ms D explained her recommendation by reference to her analogy of the children having to travel between two “separate worlds” every time they spend time with their father. In Ms D’s opinion, the short-term consequences of going against the children’s expressed views was justified given the long-term benefits that would arise from the children spending less time with their father.
It seems clear that one of the essential differences between the parties is that the mother attempts to set the boundaries for the children. This is perceived by the father as rigidity and failing to accord to the children a requisite degree of freedom to make their own decisions. When they are with their father, the children are encouraged to make their own decisions. This is perceived by the mother as an abdication of appropriate parental responsibility. It might be thought that the differences may simply be those of “style” or differing personalities. But, children need limits; it is how they make sense of the world as they develop. And, there is a point where “freedom” must cease. It is not, in my view, appropriate to allow a 6-year-old to stay at home alone. Nor is the father’s response to J leaving the house, at the age of 12, to climb a nearby mountain with a friend (a journey which the father deposed to necessitating his driving 17 kilometres to collect the children).
I raised the issue of boundaries with Ms D. Her evidence was that children need boundaries in order to successfully progress through the necessary stages of psychological development and, in fact, want boundaries despite their protestations to the contrary.
The mother herself called the father “the King of fun” and that is readily apparent on the evidence of both parties and the children. I have absolutely no doubt that the children adore their father and enjoy their time with him immensely. An important issue for determination however, is whether co-nurturing by the “King of fun” and the children’s “friend” should extend to time of the type for which he contends.
Issues and Considerations – Discussion and Findings
The statutory basis for the ascertainment of the children’s best interests and the Considerations relevant to same are enumerated in section 60CC of the Family Law Act 1975 (Cth) (“the Act”). I am also cognisant that the task of ascertaining the children’s best interests must be carried out within the overarching requirements of the Objects and Principles of the Act.
I make it clear that I am here applying my understanding of those principles as outlined by me in, for example, Hardie & Capris [2010] FamCA 1046, where I also referred to the authorities binding upon me in that respect.
The views expressed by the parties’ eldest children, Z, J and T, permeate the proceedings. Z has recently turned 16, J is 14 and T is 11. The Family Reports clearly demonstrate that all three children are intelligent, thoughtful and insightful.
It is appropriate that the Court – and parents – hear, and listen to, the voices of their children, particularly as they get older. But, a quintessential aspect of responsible parenting, having listened and listened carefully to the children, is to decide which of the statements or views of children should be agreed with and those which appropriate parenting must deny. A quintessential aspect of responsible parenting is deciding when, and how, to disagree with views expressed by children. This is particularly relevant here.
For courts that same issue can be expressed by saying, first, that the children’s views are but one of the s 60CC Considerations and secondly, that a determination of the best interests of children involves listening to, but sometimes disagreeing with, the views of children. The legislature has required children’s views to be weighed in that balance with other considerations.
Two clear tenets of legislative intent relevantly emerge. First, it is intended that in the usual course both parents should have an ongoing role in the co-parenting and co-nurturing of their children that is of value to the children. Secondly, that tenet, and the interference by a court in co-nurturing by parents, should, in all cases, be governed by, and consistent with, the determination of best interests specific to those children in their particular circumstances. The Act makes it abundantly clear, and it reminds the Court numerous times in different places, that the essential exercise in making parenting orders is to arrive at ultimate findings directed to the specific children’s best interests relevant to their specific circumstances.
Findings as to best interests underpin each of the specific matters to which the Court is directed by the Act. (See for example, s 60B(1)(a); s 60CA; s 61(d)(a)(iv); s 65DAA(1)(a); s 65DAA(2)(c) and Note 1 to each of those latter two sections).
By way of corollary, the assessment of best interests is to be conducted within the statutory objective of maximising parental involvement consistent with that assessment. Ascertaining best interests by reference to the Act’s mandatory signposts must embrace the fact that “it is a mistake to think that there is always one right answer to the question of what the best interests of the child will require. Best interests are values not facts.” (CDJ v VAJ (1998) 197 CLR 172, 219).
Statutory Considerations
Section 60CC(2) – Meaningful Relationship
Long before the notion of “meaningful relationship” was enshrined as a Primary Consideration in the legislation, Nygh J said, in Cotton & Cotton (1983) FLC 91-330 at 78-252:
One of these generally accepted perceptions, as I see it, is that it is desirable for a child to maintain a meaningful relation with each of his or her parents. That is obviously desirable when the parents are living together in a united household, but it becomes even more desirable when the parents are separated. It is a trite observation that the parties to a marriage may divorce one another, but they can never divorce themselves from their children. In that sense, the parties remain tied to one another, at least, until those children can stand on their own two feet which may not necessarily occur at 18 years of age or 21 years of age.
However, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. Nor is it necessary, as it must be obvious from the way I have expressed myself, that access should only be denied if it is established that a parent is likely to be a positive harm to the child — it is the emotional relationship which counts and not the inherent harmfulness of the parent as such: thus I can well imagine that in certain circumstances a woman who leads a totally immoral life such as a prostitute may have something to offer her children. On the other hand, it may be that a person who leads a life which to the general observer is one of a pillar of rectitude has nothing to offer to his children. In this case, as I have said, it is not a question of generalisation. One must come down to the real situation of the parties.
The evidence before the Court clearly reveals that all five children have a relationship with both parents that is meaningful and important. They derive from each of their parents gifts of love and care and are plainly enriched by their respective – but very different – parents.
Section 60CC(2)(b) – Family Violence
There are no allegations of abuse present before the Court. The mother applied for an Apprehended Domestic Violence Order on 2 March 2009. The application arose as a result of the father attending at the children’s school to collect the children on a day on which he was not scheduled to have them. On 1 March 2009, the mother deposes to being informed by B that his father would pick him up from school the following day. The mother then rang the father to clarify as the father was not scheduled to have the children on 2 March 2009. The mother states that during the telephone conversation, the father yelled at her and insisted that he was going to be at the school to collect the children. The mother states that she told the father “I don’t want there to be any confrontation in front of the children”. The father allegedly stated “well I am getting there and there will be confrontation”. The mother’s solicitors wrote to the father’s seeking clarification as to whether the father was going to attend at the school. It eventuated that the father did attend at the school and the mother made no attempt to stop the father as she “did not want to upset or embarrass the children and felt intimidated by the threats he had made to me the night before”.
It is unclear what occurred following the mother’s application. There is however, no suggestion at all by the mother that the children are at risk of any harm arising as a result of abuse, neglect or family violence.
Section 60CC(3)(a) – Children’s Views
The three eldest children of the marriage have repeatedly expressed a desire to spend equal time with both parents.
J has variously stated to Ms D that he “wants it to be a bit more time with dad and a break from mum”, “Dad is our friend not our parent”, “not [at father’s house] for long enough” and “it is not difficult going between the two homes”.
Z has echoed similar sentiments, and is reported by Ms D as saying that she wanted to spend more time with her father because “it’s all rushed into four days” and more time with her father would allow “more time with bonding…don’t get enough time to do that with dad”.
Ms D records T as saying “we want more time with dad but not more time than mum...its not nice being with dad for four days, you don’t get used to him but with mum you get used to it.”
Both the mother and Ms D reported that J has a strong sense of fairness. Whilst so much is plain from his statements taken at face value, what is, in fact, clearer is that J is struggling to cope with his parents’ ongoing dispute. I am especially concerned by several statements by J which were reported by Ms D in her most recent Family Report. In particular, J said he had “no faith that the family will be together…mum won’t be happy, dad won’t be happy” irrespective of the orders made by the Court. He went on to say:
…isn’t this about the welfare of the kids and look what it has done. I have no father. There is still no happiness…there never will be…There is nothing to hope for. There is no dreaming. (Emphasis added).
Ms D was visibly distressed whilst repeating those statements by J, as was his mother who I observed crying upon hearing the words of her 14-year-old son that “there is nothing to hope for. There is no dreaming”. By way of stark contrast, I was struck by the fact that the father, upon hearing what J had said, looked perplexed. I do not remotely suggest that he was unconcerned about J; rather he appeared not to understand the emotional context of what J was saying.
I wholeheartedly share Ms D’s concerns about J; I agree that he requires therapeutic assistance in dealing with his parent’s separation and ongoing conflict.
Section 60CC(3)(b)(i) – Nature of Relationship
The children describe their relationship with their father as being “fun” and involving a variety of outdoor activities. The eldest children in particular, make it clear that they enjoy spending time with their father to the extent that they wished they could have more time with him.
Similarly, the children clearly enjoy a healthy and beneficial relationship with their mother. The lack of comments from the children regarding their time with their mother is, I think, indicative of the fact that their mother is a stable, consistent presence in their life. Also, of course, she is the parent who is more likely to deny them what they might want to do and who seeks to impose limits and self discipline.
I agree with Ms D’s observation that, not only is the father the “King of fun” but the children spend time with the father on a weekend which is invariably a less stressful and more relaxed time of the week and, as such, the children associate their time with their father as being more fun than their time with their mother.
Section 60CC(3)(c) – Facilitating Relationship
I accept Ms D’s evidence that the mother has, to a large extent, been more successful than the father in facilitating and encouraging a close and continuing relationship between the children and their other parent.
In making that observation, I am cognisant that Z stated to Ms D that the mother had called the father a “fruit loop to everyone” and J drew a picture in which his mother’s door was closed but not his father’s because, as he described it, the door to his mother’s home is closed to his father but his father’s door is open to his mother.
The father admits to involving the children in these proceedings; he has shown the children letters from the mother’s solicitors which, on any view, would cause significant distress to a child and could not possibly be seen as facilitating a relationship between the children and their mother.
The children’s comments indicate a perception of their father as something of a victim, sitting “alone” in his house until the children arrive for their visit. I have little doubt that the father has, to a certain extent, inculcated this perception in the children; his reference to not wanting the children to see their father “walked over (pussy whipped) by their mother” is a stark example.
In a similar vein, various statements by J are strikingly similar in both tone and content to statements made by the father. I am persuaded that the father has criticised the mother’s parenting practices in J’s presence. For instance, during an interview with Ms D, J stated:
mum does everything for us…dad doesn’t…it’s hard, we don’t learn much [as a result of the mother’s parenting practices]…[T], [S] and [B]…mum treats them like babies…never get a chance to grow…I feel sorry for them that they never get a chance to grow up…she doesn’t give any responsibility…they don’t get to think for themselves.
When asked, J was unable to elaborate on the “responsibilities” which he felt the other children should be given. J also informed Ms D that the father had shown him the emails which the mother annexed to her affidavit and that he did not think they were suggestive of any potential harm to his or his sibling’s wellbeing. That is, a 12-year-old was put in the position of commenting upon his father’s parenting of him. That J had been shown the emails is concerning enough. That he addressed them in relation to his and his sibling’s wellbeing strongly suggests a greater involvement in the issues underlying them.
In a similar vein, Ms D observed, in relation to T:
[T] is keenly attuned to the parental conflict, primarily as a result of her father’s input. Consequently, T held particular views but struggled to substantiate them…
She goes on to quote T:
[In relation to the legal proceedings] dad is the one who comments…he used to pay $1000 to mum … not $1000 but a bit and then went down to $100/$200…that was two days ago…the letter that dad got out of the letter box [from the mother’s solicitors]…everything I ask him [the father]…he tells me not like mum.
I consider that the father, by involving the children in the dispute with the mother, has contributed to J’s hopelessness. Children are emotionally burdened by adult responsibilities. They need the freedom to be children and to embrace adult responsibilities at an appropriate pace and at an appropriate stage of their development.
The crossing of that boundary by the father is a concern in respect of the proper exercise of parental responsibility. It is, also, a concern in that it encapsulates the “two worlds” of which Ms D speaks. It also raises concerns as to the extent to which the father will promote in the children an appropriate relationship with their mother.
Section 60CC(3)(d) – Change in Circumstances
As Ms D stated in her reports and during oral evidence, there is a distinct “lack of consistency, structure and routine between the two homes” and this in turn, has the potential to have an “adverse psychological and emotional” impact on the children.
The children alluded to this lack of consistency during their interviews with Ms D. For instance, J said “it’s hard to adjust…the way they run their houses is different…”. T said “When with dad it seems that mum is on the other side of the universe and it feels like you don’t have a mum and when with mum it feels like you don’t have a dad …”. It was this disparity between the two homes which lead Ms D to describe the transition experienced by the children as something akin to travelling between two “hostile” countries with differing “languages”, “cultures” and “customs”. According to Ms D, the less frequently the children have to experience the transition, the better. I agree.
Ms D asserted that it would be in the children’s best interests to spend less time with their father because their father’s views, in particular in relation to Religion 1, is likely to put them at odds with their peers, if the children repeat them. There is nothing on the evidence to suggest that this is a real risk faced by the children. None of the children, or their mother, raise any such concerns. Indeed, the three eldest children all indicated that the father did not “force” Religion 1 onto them.
Section 60CC(3)(e) – Practicality and Expense
No issues have been raised in terms of expense associated with the children spending time with their father. The parties live close to each other and no difficulties have emerged in relation to the children contacting their father via telephone.
Section 60CC(3)(f) and (g) – Capacity and Characteristics
I consider that the father’s beliefs and parenting practices (whether related to Religion 1 or otherwise) (s 60CC(3)(g)) are a highly relevant consideration, in particular, in relation to the father’s capacity to provide for the needs of his children (s 60CC(3)(f)).
I have previously outlined various statements made by the father which are indicative of his underlying beliefs (whether stemming from Religion 1 or otherwise). As will become clear, I am concerned that the father’s beliefs have had, and will continue to have, a detrimental effect on the father’s capacity to provide for his children’s physical, emotional and intellectual needs in a stable and predictable manner.
In my judgment the mother has demonstrated a consistent ability to provide for the children’s needs. The mother has been primarily responsible for the day to day care of the children both before and since separation. In terms of their schooling, the mother alone has paid the requisite fees. The mother has also funded Z’s participation in an exchange to Europe and has ensured that the children have been able to participate in sports and other extra-curricular activities.
The father, it would appear, does not condone his sons’ involvement in football:
I can see that playing competitive football harms the Body, you only have to look at the alcohol, drug, woman abuse that players use to feel okay to appreciate that what they are doings is not okay. (not love).
Similarly, the father, apparently, does not support his daughters playing netball:
…a girls very first competitive netball game results in her right ovary becoming larger than her left, which leads to difficulties falling pregnant if she dose not stop. (and other problems).
I would never champion my girls playing netball ( I like the idea of becoming a grandfather).
I would never stop them from choosing netball, but feel there is a responsible to inform so that they Know what they are really choosing.
The mother deposes to Z being gluten and dairy intolerant and to taking steps to ensure that Z does not ingest anything that could agitate her intolerance. The mother also deposes to having recently obtained a diagnosis of Pyroluria in all five children. That condition is not, on the mother’s evidence, widely accepted amongst the medical profession. The condition is treated by way of vitamin supplements which the mother provides to the children on a daily basis.
The mother deposes to having informed the father about the children’s condition. The father does not believe the children are suffering from the condition. The mother claims the father said:
I don’t remind the children to take their medicine. They just remember themselves. If one remembers then they all take it. I’m not going to remind them, it’s not my job.
This statement is entirely consistent with both the evidence of the father and with Ms D’s description of the father’s parenting approach as being “laissez-faire” and “self (as in the children) determined”. I have concerns about the capacity or willingness of the father to provide for the physical needs of the children. It is not that the father does not care or is negligent; rather, his beliefs predominate and guide all of his actions.
The father’s “self (as in the children) determined” approach to treating the children’s ailments was plainly apparent when J attended a school camp in August 2008. When the father dropped J off at the airport, J was taking antibiotics to treat several boils on his knee. The mother deposes to having asked the father to give the antibiotics to the camp nurse on J’s departure. Upon returning from the camp 8 days later, the mother “observed nine antibiotic tablets loose in J’s lunchbox”. J allegedly told his mother “Dad gave them to me to take but I kept forgetting to take them.”
The father’s comments regarding J’s headaches and the treatment of menstrual pain are also concerning in terms of his ability to provide for the physical needs of the children. They also provide clear examples of the impact of the father’s beliefs. For instance the father stated that J’s recurring headaches “related to frustration…frustrated at mum’s house…constraining it now and it is casing the headaches…it is a release of frustration…”. In relation to addressing menstrual pain experienced by Z, the father said:
If [Z] wants to experience less period pain or even no pain at all she only has to cut out the EMOTIONS. This is not total right because what the soul will do is get the spleen to down load emotions from earlier childhood and then past lifes that the spleen had to up load because you were not having periods. The spleen works from 9pm till 1am (earlier for children). And if you wanted proof that emotion are not good for the body you should have seen [Z] this morning after the school social, it was great for the other kids to see. [T] said [Z] looked 4 years older. She looked to be 20 to me…
Such statements, if they are a true indication of how the father responds to common ailments, cast significant doubt on the father’s ability to provide for the children’s physical needs by permitting a belief system to predominate.
Similarly, the father has admitted to leaving his two youngest children (the elder is currently aged 9 years) at home alone for prolonged periods of time. He apparently sees no problem with this, whereas I do. Alarming of itself, it is especially so considering S’s (then aged seven) responses to Ms D’s questions regarding what he would do if he was home alone and certain situations arose; S stated that whilst he was not allowed to stay at home alone at his mother’s house, “at dad’s I am allowed…in the middle of the jungle so hardly anyone comes there…[left alone for] an hour or so…don’t get scared”. S stated that he:
didn’t know what to do if a stranger came…[in the event of a fire] call dad if fire accidentally started…go to next door neighbour…[if this were not possible?]…don’t know…[if hurt?]…wouldn’t complain because I asked to stay home … [if sick?]…wouldn’t happen. You don’t get sick for an hour. (Words in square brackets in original).
In late 2008, the father moved out of his rental accommodation and commenced residing in a tent at a nearby caravan park. The mother, through her solicitors, expressed concern regarding the father’s ability to ensure adequate sleeping and hygiene facilities whilst the children spent time with him and requested that the father rent a cabin during the time the children stayed with him. The father rented a cabin for the first night but resumed residing in the tent for the remaining nights that the children were staying with him.
Ms D raises concerns about the father’s capacity to provide for the children’s emotional needs. For instance, “it appeared as if the father was physically present with the children but not emotionally” which lead Ms D to assert what she described as the father’s “emotional vacancy” is not:
…conducive to raising emotionally healthy and well-adjusted children who are prepared for adulthood…such a practice generally causes children to display insecure behaviours such as attention seeking…and to have and insure attachment to their parent.
The father admitted in the witness box to telling the children that, if he does not get the orders he seeks, he will be returning to Town 1. Whilst the father claimed he made that statement in a “light-hearted” way, Ms D opined that, irrespective of the manner in which it was delivered, such a comment is certainly “not beneficial to the children” and it “demonstrates a lack of insight into the emotional and psychological wellbeing” of his children. Again, I agree.
I am concerned about the father’s capacity to provide for his children’s needs, in particular their emotional and psychological needs. I repeat: I have no doubt that he loves his children deeply and is concerned about what is best for them. But the father’s actions and statements, in my view, demonstrate an inability to predominate his children’s needs over his beliefs. That should not be seen as a criticism of a belief system; the issue is the father’s lack of insight and falling below what I consider to be a “good enough” standard in the evidence of parental responsibility. Whether or not these actions, or inactions, are informed by a belief system (in Religion 1 or anything else) is not to the point.
Section 60CC(3)(i) – Attitudes
I have dealt with the father’s attitude to parenting in considering the preceding subsections of s 60CC(3). As is apparent, the father’s attitude to parenting is, to use Ms D’s description, “self (as in the child) determined”. The father clearly places significant emphasis on the children making their own decisions. While children undoubtedly require a certain degree of autonomy to develop, the father, in my view, confuses “freedom” with “absence of appropriate boundaries and responsibilities”. I am also concerned about what Ms D called his “emotional vacancy”, although I would probably describe it as a lack of insight. Either way, it is not, as Ms D stated, “conducive to raising emotionally healthy and well-adjusted children who are prepared for adulthood”.
Section 60CC(3)(k) – Family Violence
I have dealt with the issue of violence previously when addressing the consideration contained in s 60CC(2)(b).
Sections 60CC(4) and (4A) – Responsibilities
The emails annexed to the mother’s affidavit, filed 21 March 2011, whilst certainly reflective of the father’s beliefs, also demonstrate that the father has attempted to participate in making decisions about major long-term issues in relation to the children.
In terms of taking the opportunity to communicate with the children, the father stated that he had not tried to contact Z whilst she was in Europe. He stated that he has spoken to her “a couple of times” since she travelled to that country on 5 January 2011 but he acknowledged that on those occasions, Z had contacted him. The father explained “I don’t have her contact details. I haven’t asked for the contact details. I’ve had no need to contact Z. She talks to her mother all the time”.
When asked during cross-examination by Mr Tester whether she had made decisions regarding long-term issues, such as the children’s schooling, without conferring with the father, the mother asserted that, whilst she endeavoured to involve the father in such decisions, communication between the parties had deteriorated to a point where it was no longer possible to confer with the father.
Parental Responsibility and the Court’s Power
I attempted to distil the principles emerging from earlier authorities in respect of this issue in Hardies & Capris, above, specifically at [59] to [64]. Again, I do not propose to repeat them here but, again, I make it clear that, in this judgment, I rely upon those principles as there discussed.
Pursuant to s 61DA, in making parenting orders in relation to the parties’ five children, it is presumed that it is in their best interests for both their father and mother to have equal shared parental responsibility for them. This presumption however, may be rebutted where doing so is, relevantly, in their best interests (s 61DA(4)).
The mother seeks an order that she have sole parental responsibility for the children, whilst the father does not propose an order altering the current situation in which each party has parental responsibility for the children.
The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those sharing parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
A finding that the parties are incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility is, in my view, a highly relevant matter in determining whether the best interests of the children require the presumption to be rebutted in this case.
Carrying out the tasks and obligations, required by the Act, on what might be a regular basis, especially where there is a high degree of conflict, carries with it potential significant difficulties and the potential to create significant further stress for the children.
The evidence clearly reveals a significant degree of disagreement between the parties, in particular, in relation to highly significant issues such as the children’s schooling and medical treatment.
Ms D express the view that there was “no prospect of [the parents] being able to make joint decision as parents” and subsequently recommended that the mother have sole parental responsibility for major long-term decisions. Whilst I am not entirely satisfied that there is no prospect of the parents being able to make joint decisions, I consider that their capacity to co-operate is deteriorating with time and the disparity in their beliefs, parenting practices and personality characteristics are likely, in my view, to continue to present very considerable difficulties in this respect.
If the parties were to continue to share parental responsibility, further conflict between the parties is, in my view, very likely. This is particularly concerning in light of what I find to be the father’s involvement of the children in the parties’ dispute and his apparent willingness to place adult issues on children’s shoulders. Given the deleterious impact such conflict has had thus far on the children, in particular J, it is in my view clear that such conflict is contraindicated in the children’s best interests.
I am satisfied that it is in the best interests of the parties’ five children, that the presumption contained in s 61DA(1) is rebutted.
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for a child is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person. There is no doubt that the exercise of that discretion ought to be resolved in favour of an outcome which is seen to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
The matters and findings just discussed do not necessarily lead to a conclusion that there should be an order for “sole parental responsibility” which might arguably have the effect of excluding the “other parent” from any involvement in decision making. It seems to me that orders can be made which strike a balance; on the one hand removing (or significantly reducing) conflict by permitting of one parent to have the ultimate “say” but, on the other hand, permitting of input by the other parent. I propose to make such an order in this case.
As a result of the rebuttal of the presumption and a finding that an order for equal shared parental responsibility is not in the children’s best interests, the pre-condition to the exercise of the power to make parenting orders (see MMR v GR (2010) 240 CLR 461 and s 65DAA) is inapplicable. Accordingly, the issue of the children’s best interests is, to use the words of the Full Court in Goode & Goode (2006) FLC 93-286, “at large”.
Best Interests - Responsibility and Co-parenting
The orders sought by the mother are plainly contrary to the views expressed by the parties’ mature, intelligent and thoughtful three eldest children. A child’s true views need to be listened to, but appropriate parenting does not involve permitting the children’s views (even mature children’s views) to be a veto over parental decision making. The fact that a child’s views are listened to – and respected – does not necessarily mean that they are accepted. Such is the stuff of age-appropriate mutual respect.
Both parties clearly love their children deeply and want what they perceive to be in their best interests. As I have discussed, I am concerned that the father’s approach to parenting, in particular his emphasis on allowing his children choices and giving them “responsibility”, fails to recognise the importance of appropriate boundaries in facilitating a child’s adolescent development.
I have no doubt that the father is, as the mother described him, the “King of fun” and a “good bloke” and that the time he spends with the children is characterised by fun, excitement and the freedom to make decisions, some of which might be curtailed by the mother.
I also accept Ms D’s evidence, that the parties children, in particular Z, J and T, have a great sense of fairness and are desirous of an arrangement which is seen by them to be “fair” to both parents. But, sadly, J was, in my view, correct in his assertion that, irrespective of the orders made by this Court, “mum won’t be happy, dad won’t be happy”. I reiterate: I am very worried about J who, I think, will not be happy irrespective of the Orders made.
The orders proposed by the father represent a very significant change for the children, who have, for the last five years, lived predominantly with their mother in what appears on the evidence to be a stable home environment characterised by routine and consistency and in which the children’s physical, emotional and intellectual needs are recognised and provided for.
Z is now sixteen. She is intelligent and mature. That maturity should be respected. Her decisions as to when she sees her father will be guided by a number of considerations, not the least of which are practical; what she is doing with friends, school, sport and the like. I propose to make no order for time with respect to Z.
I have considered, for similar reasons, making an order in relation to J that would expire when he turned 16. However, when I suggested such an order to Ms D, her opinion was that it would likely cause more distress to J as it was “moving the goalposts”. I am very concerned to formulate Orders which will not further compound the distress J has articulated (despite him indicating that, regardless of the Orders I make, there will be “no happiness”).
The interim orders made by me on 27 April 2009, reflected a distinction between the children that saw three children spending time with their father in one week and the other two children in the other week so that the father did not have all five children together. I do not consider that, in final orders (and particularly noting my finding with respect to Z) that such a distinction between the siblings should pertain. It is, in my view, in their best interests that they all spend time together with their father.
Undoubtedly, Orders consistent with the father’s proposals would provide the children with more “fun” and freedom. It is unsurprising that adolescent children, or, indeed, any children, might revel in such a situation. But in my view, what the father sees as “freedom” or “fun” or the children making their own choices is, in many respects, in fact contraindicated in their best interests.
At all stages in children’s lives, but particularly as they approach and move through adolescence, which involves, quintessentially, exploring – and pushing – boundaries they need stability, predictability and routine; when they push boundaries, they need parents who (appropriately) push back.
I consider the mother is much better placed and, by virtue of her demonstrated capacities and personality, much better able to provide these fundamentals to these children.
I see an alternating arrangement of the type proposed by the father as likely to be productive of further conflict, further deterioration in the parent’s relationship and greater confusion for the children. As to the latter, I was very much struck by, and agree with, Ms D’s description of the children being confused by experiencing “two worlds”. The alternating fortnights (or, for that matter, weeks) proposed by the father – whilst “superficially fair” – is not, in my judgment, in the children’s best interests and is, in fact, contraindicated.
Should the father absent himself from the children’s lives by moving back to Town 1, I think it likely that the children would experience a profound sense of loss. They love him and need him in their lives; but that is a different proposition to their living in “two worlds” in alternating households.
By the same measure, I do not consider a reduction in time with their father to be in the children’s best interests.
Balancing all of the considerations I consider relevant within the Objects and Principles dictated by the Act, I consider a continuation of the existing Orders achieves the best balance of the issues I have discussed and I consider them to be in the children’s best interests.
Property Settlement
Relevant Principles
The statutory mandate is to not make an order pursuant to s 79 of the Act unless, in all of the circumstances, it is just and equitable to do so.
The process by which the discretion is exercised is circumscribed by s 79 and by long-standing authority (see e.g. In the Marriage of Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; and Coghlan & Coghlan (2005) FLC 93-220). The process has been described as having three (or four) steps.
As has been said, the primary issue in this case centres on an assessment of the respective contributions of the parties. More specifically, what is required is an assessment of the importance of significant initial contributions (Aleksovski & Aleksovski (1996) FLC 92-705 and Pierce & Pierce (1999) FLC 92-844) and the importance of contributions by each of the party to the business partnership and to the marriage partnership (In the Marriage of Mallet (1984) 156 CLR 605 and Ferraro).
However, the first step is to identify and value the property of the parties or either of them.
The Property of the Parties or Either of Them
An assessment of the net value of the parties’ property is complicated by the following factors:
a)The gross and net sale price of the two properties which form the vast majority of the pool will be unknown until the properties are sold and the sale proceeds are received;
b)At least two companies of which the parties are directors and/or shareholders are plaintiffs in a class action in the Federal Court of Australia (in respect of which liability has been admitted). The basis for, and the quantum of, damages is, at this stage, unknown. However, the parties have been advised that it is likely that at least one of the corporate entities involved in the class action may receive damages, exceeding $400,000;
c)The parties will certainly receive significant dividends from the winding up of two corporate entities (the occurrence of which is common ground). But, the value of those dividends will be unknown until those companies are wound up;
d)Tax liabilities arising from sale, winding up and as a result of any potential property orders will be unknown until the Orders are carried into effect.
In submissions an attempt was made to reach an agreed approximate figure for the gross “pool” and liabilities so as to give monetary meaning to a final percentage distribution. Both parties were amenable to the Court proceeding on the assumption that the gross pool is approximately $4 million with liabilities of about $1.2 million, and, thus, a net pool in the region of $1.8 million.
Director’s loans from Business 1 and Business 2 to the parties in both their joint names and individually form the vast majority of the parties’ liabilities. As at 17 March 2011 those director’s loans total $735,325 (affidavit of Mr C of G Accountants, filed 15 June 2011).
Neither party submitted that superannuation should be considered in a separate pool (see Coghlan & Coghlan (2005) FLC 93-220). Rather, it is agreed to be included in the one “pool” with an order to the effect that each party retains their respective superannuation. The wife deposes to having approximately $177,901 invested in two superannuation funds whilst the husband’s superannuation interest, if any, is unknown.
Add-back of Legal Fees?
To date, the wife has paid $187,056.00 (Exhibit ‘F1’) in legal fees using the funds she transferred to herself from a joint account.
During cross-examination, the husband stated that, to date, he has paid $10,000 in legal fees and owes between $60,000 to $80,000. Counsel for the wife subsequently called for the production of costs disclosure letter(s) to support this evidence. The solicitor for the husband was unable to locate those letters at the time and I afforded him the opportunity to provide them to Counsel for the wife the following morning. No issue was subsequently raised with respect to such disclosure. No costs disclosure letters from the husband’s solicitors were tendered. I will therefore proceed on the assumption that the husband has paid $10,000 in legal fees.
Both parties seek to have their paid legal fees notionally added back to the agreed pool. In support, the representatives for both parties referred to Kouper & Kouper (No 3) [2009] FamCA 1080, a judgment in which I dealt directly with the issue of adding back legal fees. I don’t propose to repeat the relevant passages, but, I make it clear that I rely on the principles discussed in that judgment and, in particular, paragraphs [72] to [75].
The Full Court, in Chorn & Hopkins (2004) FLC 93-204 confirmed that the treatment of legal fees, within the context of a s 79 application, is ultimately a matter within the discretion of the trial judge and suggested the following principles applicable to the exercise of that discretion:
57.If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
58.If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
59.Outstanding legal fees themselves are generally not taken into account as a liability.
Both parties stated that they had paid their legal fees from funds either from the joint account, or, in the case of the wife, from her own account using funds she had transferred from the joint account. I consider it appropriate to add back the sums paid by the parties and credit those respective funds as assets of each.
Assessment of Contributions
Initial
At the commencement of cohabitation in 1991, the husband owned a half share in the F Street property along with a half share in the Lennon and Son farming partnership. He was farming with his parents as part of the Lennon and Son partnership. The wife deposes to having $25,000 in savings, a $5000 car and various personal effects at the commencement of cohabitation. She was working as a clerk at the local branch of a bank and for her parents in their grocery business.
It is readily apparent that the husband’s assets at the commencement of cohabitation were significantly greater than the wife’s. What is more, not only was the husband’s property valuable in and of itself, that property formed the foundation for the parties’ farming enterprises and continues to form a significant portion of the property pool (see Pierce & Pierce, in particular [28] and [29]).
The situation for the husband, Mr Tester submitted, on his behalf, is that aside from F Street and his interest in the Lennon and Son partnership, the husband also initially contributed his ‘intellectual property’. I understand that to mean that the husband, by virtue of his training in agriculture and his experience working on farms, was pregnant with a particular talent and with the capacity to create an increasingly profitable farming enterprise. This, too, it is said, should receive particular recognition as a contribution.
I have difficulty accepting that submission. I accept that the husband had particular skills and talents born of his qualification and experience. But, so, too did the wife. Included amongst the talent and experience she brought to the relationship was that of a potential primary homemaker and parent. She also, plainly it seems, had the potential to manage a successful farming enterprise. That each brought differing (important) talents to the relationship is merely a reflection of the notion that parties to a marriage form a partnership “to which each brings different gifts” (Figgins & Figgins (2002) 29 Fam LR 544 at 566).
The husband’s contribution of the land and farming business was significant. The husband’s training and talents find reflection in that. To accord him an “extra” contribution for his talents is, in my view, to “double count” the husband’s contributions particularly given that such talent, qualification and other such potential as the husband had is, in my view, not a contribution until the potential is realised and the capacity is exercised.
During the relationship
The wife deposes to contributing to the Lennon and Son partnership “between early 1991 and 1993…by my labour on the farm on weekends and running errands during the week.” The wife estimates that, from December 1991, her hours on the farm increased from six to anywhere between 10 to 20 hours per week, which was unpaid. According to the wife, in the early stages of their farming business, the parties lived off the wife’s wages from her work at the bank and the grocery business.
Until 1993, and whilst working between 10 – 20 hours at the F Street property, the wife was still employed at both the bank and at her parents’ business. Whilst the wife left her employment with the bank in 1993, she remained working for her parents until July 1994, at which time she began working “50 to 70 hours per week on the farm itself” whilst still managing the administrative side of the business.
In 1993, the Lennon and Son partnership was dissolved. The husband deposes to receiving $400,000 upon the dissolution of that partnership, along with a “significant amount of farm machinery”. The wife asserts that it was in the vicinity $370,000.
The husband asserts that in “1993 or early 1994” the parties “commenced cohabitation in a home” in G Street which the husband says he purchased for $54,000 “from savings”. The wife states that the property was purchased for $52,000 by the husband using a portion of the $370,000 he received as a result of the dissolution of the partnership. The wife states that the property was subsequently sold to the husband’s brother in 1999 for $72,000. The wife alleges that at the time the property was sold to the husband’s brother, it was worth $110,000. (Annexure Z, affidavit of the wife filed 21 March 2011).
In August 1994, the parties formed Business 1 to carry out their farming business. The parties were, and remain, equal shareholders in Business 1.
In September 1994, the parties purchased the husband’s parents’ shares in F Street for $50,000 each, which it is agreed, was $60,000 less than market value. The F Street property is currently valued at $1,750,000 and has been one of the primary locations for the parties’ farming business.
In the same month, the parties purchased another farming property in P Street for $910,000. The parties purchased this farm with the intention of, as the wife states, becoming “more serious [produce] farmers” for which they “needed more land”. The wife asserts that she was:
responsible for putting [the parties’] offer [for the P Street] property together]. As part of the preparation for that tender [the wife] prepared for the first time a budget with projections (budgets and forecasts) and negotiated a loan for $1.5 million in a 7 day period.
The parties and their children subsequently moved to the P Street property and used the former matrimonial home in G Street as accommodation for staff.
The wife states that when the P Street property was first purchased “we only had an outside shower and no garden”. The wife deposes to working at the property “to make it more of a home by planning, planting and maintaining a tropical garden all around the home”.
The P Street property was sold in September 2004 for $2.95 million.
The wife describes the parties’ contributions to their business in the following manner:
Our responsibilities on the farm were shared by agreement with [the husband] taking care of the farm work and I the administration, handling and packing post harvest, logistics and the overall running of the business.
My duties included attending all face-to-face meetings with accountants and solicitors and attending to all written communications on behalf of the business. I would discuss the contents of all of the meetings and correspondence with [the husband] to obtain his opinion. After our discussions, [the husband] would say to me: “You make the decisions on the financial side”.
…
For the remainder of 1994 [the husband] and I worked alongside each other on [F Street] and prepared [P Street] for farming in the 1995 calendar year.
During 1994/1995, the parties, through the purchase of the property in P Street, increased their farming land from approximately 160 hectares to 517 hectares. Consequently, the workload of each of the parties increased significantly.
The wife states that in early 1995, in addition to her “administration duties”, she was “required to ride a motorbike, over very roughly ploughed ground to mark out a survey grid line in preparation for lazer levelling” whilst 5 months pregnant with the parties’ eldest child, Z. The wife states that during this time, “the heat would rise to 40 degrees. I worked many hours throughout my first pregnancy and my subsequent pregnancies.”
The parties employed staff on the farms and also used nannies to assist with caring for the children.
In 1998, Business 2 was incorporated by the parties. The parties have, and continue to, conduct their business through both Business 2 and Business 1.
In November 2001, the parties purchased another farming property in R Street, Town 1 (“R Street”). The parties purchased R Street for $875,000. That property is currently valued at $1,120,000.
The husband described the parties’ contributions to the business in the following manner (in his Affidavit filed 6 April 2011):
47.I worked 12 or 14 hours a day 7 days a week (except for the occasional holiday) in all areas of the agricultural practice from picking fruit, spraying, planting, irrigating, plumbing, pest and disease, crop scouting, packing, soil monitoring fertilizing, machinery maintenance and repairs, management, hiring/firing, negotiating contracts and purchases and sales etc.
48.The wife’s involvement in the business commenced when she stopped working at her father’s [grocery business] in [Town 1]. The wife became involved in the farming business when we moved to a house on the “[P Street]” farm at the end of 1994. The wife’s initial involvement was in bookkeeping including the paying of invoices, the paying of wages, and what I would call, “the paperwork”. Initially she helped me out in my business but over the years she came move involved to the point were it was a joint enterprise.
49.As the farming enterprise grew the administrative role also grew and just as we employed more farm workers we also employed extra administrative staff to assist the wife in the office.
…
56.…From a domestic point of view the wife and I both contributed to the care and welfare of our children and to domestic duties.
…
58.Although we had domestic help, the wife and I still attended to various needs of the children’s I assisted to wash and dress the children. The wife assisted with some cooking. We both did some cleaning around the kitchen, bathrooms and we both washed clothes from time to time.
Whilst the husband’s position is that the parties contributed to the marriage partnership equally for the entire duration of the relationship, the wife submits that, after April 1999, her contributions both to the parties’ business and to their children significantly outweighed that of the husband.
On any view, the overwhelming bulk of the initial capital contributions to this relationship came from the husband and the use to which it was put is also significant in the context of the parties’ relationship (see Money & Money (1994) FLC 92-485 and Pierce, above). The property so contributed continues to form (in terms of 2011 dollars) almost half of the agreed net pool available for distribution between the parties.
Whilst the husband certainly brought what would become a successful and profitable farming property to the relationship, both parties (at least initially) worked extremely hard to create and maintain a successful farming business. Both parties brought different skill sets to the relationship. As Ms Hogan succinctly submitted on behalf of the wife, “the parties did together what neither could have achieved alone.” Whilst the husband brought to the relationship his talents as a famer, including specific knowledge about irrigation in a very arid area, the wife brought to the relationship her skills as a businessperson, organiser, wife and mother. The latter two matters are of real (and not “token”) importance (see Mallet v Mallet (1984) 156 CLR 605).
The business which existed at the commencement of the relationship was, I accept, a foundation upon which a bigger and more “progressive” business commenced, which ultimately saw the parties become one of the largest produce farmers in the region.
It should also not be forgotten that the parties received two significant loans from the wife’s parents at times when the funds were (I accept) required urgently to keep the business running and to facilitate a harvest in 2002. The funds were received at times when (I accept), the parties were unable to secure loans from banks. But, equally, the parties’ joint efforts repaid the loans within several months of receiving them. Additionally, the unchallenged evidence of the wife is that she received a $45,000 gift from her parents in December 2002, with such funds being deposited in the parties’ joint account to be used some five days later to repay a contractor.
I am satisfied that, until April 1999, the parties’ contributions to the business were essentially equal. I find that, while the wife may not have engaged in the hands-on aspect of the farming business to the degree that the husband did, the husband did not involve himself in the administrative component of the business to the extent that the wife did. The wife contends that she made a greater contribution to the wellbeing of the family. The husband asserts that he assisted in caring for the children and that the wife had help in the form of nannies and cooks. It seems to me that, until April 1999 at least, the parties to this marriage partnership brought differing skills and qualities to it but did so to the maximum of their respective abilities and in a manner which should be seen as being equal (see Ferraro per Fogarty J; In the Marriage of Waters and Jurek (1995) FLC 92-635). In Williams & Williams [2007] FamCA 313, the Full Court held, that whilst it is “appropriate to give recognition” to the value of an initial contribution “at the time of hearing or the time it was realised”, it is “[e]qually as important to give recognition to myriad of other contributions that each of the parties has made during the course of their relationship.”
The evidence of Ms H and Ms W regarding the husband’s contributions to the farming business is limited to the extent that, for the most part, both witnesses were confined to the packing shed. I accept, though, Ms H’s evidence that she inspected the crops daily. Ms H’s evidence that she was not able to locate the husband during her inspections is entirely consistent with the evidence of Mr J.
I am satisfied, on the whole of the evidence that, from 1999 until the parties’ leased the farms and moved to Town 2, the husband gradually withdrew from the farming business, and as a result, the wife assumed greater responsibility for the parties’ business. During that time the farm (and the business) grew; the parties’ acquired R Street. Thus, the wife not only continued to maintain F Street, she also contributed to the development and management of R Street.
I reiterate that I am satisfied that the wife has contributed more in terms of the welfare of the family and the care of the children post-separation and that has occurred in the context of the financial arrangements earlier outlined.
The parties have now been separated some five years. Contributions in the post-separation period favour the wife, noting, however, that the farming properties have been tenanted, the parties have each lived remote from them and the farm have produced income by reason of their occupation by lessees.
In my view, looked at across the whole of the period from cohabitation to the date of trial, contributions would be seen as favouring the husband. The greater contributions made by the wife post-April 1999 and post-separation should, though, sound ultimately in a disparity less than might otherwise be indicated by the nature and extent of the initial contributions of the husband, had there been, for example, an equality of contributions during that time.
The evidence, in my judgment, points to a significant change in the respective contributions of the parties after April 1999 (that is at about the mid-point of the parties’ cohabitation). In my judgment, the wife can be seen to have made a greater contribution to the maintenance, presentation and improvement of the property, and to the welfare of the family, than the husband. But, the husband made a very significant direct financial contribution by the husband to a cohabitation of about 15 years. That contribution formed the “springboard” for the parties’ very successful business. It provided the foundation for the property “pool” currently in existence which can be seen to have been built upon those initial direct contributions.
I consider that the contributions favour the husband and should be reflected in a disparity in contributions of about $180,000, approximately 10 per cent of the net “pool” of property.
I assess contributions, then, in the proportion of 55 per cent to the husband and 45 per cent to the wife.
Section 79(4)(e) – The “s 75(2) Factors"
The next step in what has been termed the “four-step approach” (see, recently, e.g. Marras & Marras (No 2) [2011] FamCAFC 105), is to determine whether, having reference to the relevant matters in s 75(2), any adjustment ought to be made to the entitlements determined by reference to the parties contributions (s 79(4)(e)).
The contribution assessment, determined by me, would see the husband receive property with a value in the region of $990,000 and the wife $810,000.
Both parties seek an order that the two farms in Town 1 be sold. Those properties, more specifically the leases in relation thereto, provide the primary source of income for both parties. As such, any order for the sale of those properties will inevitably affect the earning capacity of both of the parties (s 79(4)(d)).
The wife gave evidence that, due to her commitments to the parties’ children, it is very difficult to find remunerative employment. My parenting Orders will see her primarily responsible for the children in a day to day sense.
The husband’s position is more difficult to discern. As earlier noted, he has stated that he intends to resume farming in Town 1; he is currently farming a crop. It is not clear whether, in light of my parenting orders, he will effectively reside in Town 1. I accept, in any event, that he has farmed his whole life; and that, outside of that activity, he is not highly educated in a formal sense (although plainly a very skilled and knowledgeable farmer).
The wife is currently aged 41; the husband will turn 41 in August. Both parties are, for the most part, in good health. The wife, however, was diagnosed with Myasthenia Gravis in 1986. In an annexure to her affidavit filed 21 March 2011, the wife’s neurologist states “[the wife’s disease] is under excellent control…[and] does not interfere with her activities of daily living in any way at this time”. Similarly, the husband was diagnosed with depression in 2005. There is no psychiatric or psychological evidence regarding the husband currently before the Court. From an entirely lay person’s perspective, my observations of the husband would point to the desirability of seeking further expert input in that respect.
The husband has worked on farms his entire life and whilst the bulk of the wife’s vocational experience stems from her involvement in the parties’ farming business, the wife has previously worked as a bank clerk and also assisted in the administrative aspects of her parent’s business.
The wife has, and will have, primary responsibility for the parties’ five children, all of who are under the age of 18 (the eldest having recently turned 16). I consider the wife’s care of the children, the youngest of whom will turn 18 in 2021, will affect, at least in the near future, the wife’s prospects of obtaining remunerative employment.
The wife deposes to having received “taxation refunds of $38,000.00…and $126,758.00 from Centrelink” along with $51,514.58 in child support from the husband. I have previously referred to the issues relating to the payment of school fees and other expenses associated with the future care of the children. The husband has, in five years, paid just over $50,000 in child support – that is, about $10,000 per year or $2000 per child per year.
The husband’s future employment and income are unknown. Certainly, he expressed in evidence a general pessimism about each. There is no evidence to suggest that, despite his undoubted skills, his peanut farming venture is significantly remunerative or likely to be so in the future.
There is, on the evidence before me, reasonable cause for pessimism about the husband having an income that would see a child support assessment commensurate with the needs of the five children. Independent of that, the evidence also reveals a significant cause for pessimism as to financial contribution to the children apart from any assessed child support.
I consider this, in conjunction with the children’s ages and the responsibility for their day to day care, to be very important factors in this case.
Any adjustment pursuant to s 79(4)(e) is more a mathematical calculation than an assessment of contributions; it is one component of a discretion which, to use the words of the High Court, is “very wide”. Yet, as was said by Coleman J in Steinbrenner & Steinbrenner [2008] FamCAFC 193 (referring to the assessment of contributions):
Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.
However, in seeking to express any adjustment (and resulting disparity between the parties) in terms of its dollar value – as distinct from a somewhat arbitrary percentage figure (see In the Marriage of Clauson [1995] 18 FamLR 693 at 714) – some shape can be given to the task by reference to aspects of the evidence grounded in figures.
Here as I have said, I consider that the issue of ongoing financial support for the children (in whatever form) is particularly important. They have, respectively, 2, 4, 7, 9 and 10 years until they reach 18. The reasonable weekly needs of two teenagers, and three children yet to be teenagers, all of whom have some schooling remaining and three of whom have the whole of their secondary education remaining, is a very important matter, particularly in light of the fact that total child support from the husband has averaged about $10,000 per year over the last five years; where no, or very little, additional expenditure for the children has been met by him and where he expressed pessimism about his future income prospects.
Of course, as against that, it is necessary to take account of the fact that the substantial real property and farming business brought to the relationship by the husband will now be represented by a cash sum with which he must re-establish himself, including acquiring any land upon which he might farm and/or live. So too, if the husband chooses to remain in Town 2 so as to maximise his time with the children – particularly as they grow into young adults – I consider his prospects of earning a regular income of significance to be somewhat limited – at least in the short and medium term.
I consider that, in all of the circumstances, an adjustment in favour of the wife is called for. An amount of about $180,000, or 10 per cent of the net “pool” is, in my view, appropriate.
Such an adjustment would have the effect of seeing the wife receive 55 per cent of the property and the husband 45 per cent equating to the dollar figures earlier referred to.
Just and Equitable
Whether it is appropriate to refer to the s 79 process as involving “three steps” (see e.g. Lee Steere) or “four” (see e.g. Coghlan; Marras), it is plain from the terms of the section and earlier authorities that it is necessary for the Court to satisfy itself that the result mooted, and importantly, the orders proposed, produce a result which, in all the circumstances, is just and equitable.
Here, the property underpinning the marriage partnership will be liquidated, with the effect that each of the marriage partners will need to re-establish their independent lives. That will, or might, include the re-establishment of a house and, crucially, the provision of a house and other necessities for the children.
I consider a result that sees the wife likely receiving a little less than $1 million and the husband a little less than $900,000 is, in all the circumstances, just and equitable.
The parties are agreed that the properties and the businesses will be liquidated, and that the parties will share in the proceeds, in accordance with my Orders.
This will involve various formalities that may have taxation ramifications, some, perhaps, potentially significant. Realisation costs may also be incurred. I have no cogent evidence about either. Orders will force upon the parties a significant re-arrangement of their affairs (albeit one that they apparently foresee). That these events can have unforeseen (commercial) financial ramifications has been recognised, at least in part, by the legislature by, for example, providing rollover relief in respect of transactions effected as a result of matrimonial orders.
It seems to me appropriate, then, that the parties be afforded the opportunity to take advice and to seek to lawfully minimise taxation and other burdens and, subsequently, to forward agreed minutes of order giving effect to my judgment.
Having said that, the possibility of a desire to appeal by a party should be recognised. Appeals are from Orders, not reasons. There is, of course, something entirely artificial about the parties settling Orders only to have one (or both) parties to then appeal against those Orders.
Accordingly, I will also make orders giving effect to my central findings such that, if considered appropriate, an appeal might be lodged without the necessity of first waiting for settled orders to be made.
CHILD SUPPORT
On 7 June 2011, the wife received a letter from the Child Support Agency advising that there had been a change to the child support payments. According to that letter, the annual amount payable by the husband is $21,260 which equates to a weekly rate of $407.45.
Pursuant to s 117 of the Child Support (Assessment) Act 1989 (Qld) (‘the Assessment Act’), the wife applies for a departure from the current Child Support Assessment for a period of 18 months and proposes an Order that the husband pay the sum of $60,000 over that 18 month period by way of weekly instalments of $769.00.
As has been stated, the father does not pay school fees for the children nor did he contribute to the costs of Z’s exchange. The wife deposes to having spent $87,122 on the children in the 2009/2010 financial year, and $71,710 on the children from 1 July 2010 to 9 March 2011. Those figures include food, entertainment and health insurance but they do not include school fees which the wife deposes to being $18,536.90 for all five children.
The husband admits that he does not assist the wife in paying for the children’s school fees but states that this is so because he does not agree with their attending a S school. The wife states that prior to separation, the parties agreed that the children would attend a S school.
An applicant for Child Support Departure must first establish that there are grounds for doing so (s 117(2)). Each is dependent upon the establishment of “special circumstances”.
Implicitly the ground relied upon is the cost of caring for, or educating, the children in the way that the parents had intended before separating (s 117(2)(b)(ii)). The Full Court said in Hides & Hatton (1997) FLC92-759 at 84,355:
… not only must the judge apply the three-stage process under s 117(2), (4) and (5) in relation to the circumstances of the parties as they exist in the child support year in question, but also in relation to the present circumstances of the parties (if at all relevant). For example, it may well be necessary in a particular case, in addition to considering the circumstances of the parties, in the past child support year in question, also to consider the present capacity of the payer to meet a new assessment and/or the impact on a payee of a credit in the payer’s favour which might be created by a departure from an assessment for an earlier child support year
Whilst the wife’s sole responsibility for the payment of the school fees may, in the circumstances of this case, constitute a “special circumstance” for the purposes of s 117(2) of the Assessment Act, before an order is made under s 117(1), I must be satisfied such an order is “just and equitable” and “otherwise proper”.
Pursuant to s 117(4), there are a number of factors to which the Court must have regard in determining whether an order under s 117(1) is “just and equitable”. In Hides & Hatton, above, the Full Court said:
… some of the matters listed in ss (4) may overlap with matters already considered under ss (2), and some of paragraphs in ss (4) may be more significant in one case than they would be in another, or of little relevance in a particular case. It is an essential part of the s 117 exercise to carry out the obligation under ss (4). However, that does not mean that it is necessary in each case to slavishly go through each of the paragraphs. The extent to which it is necessary to do so will depend upon the facts and conduct in the individual case, and the analysis already performed under ss (2).
But, one of the factors listed in s 117(4) is “the income, earning capacity, property and financial resources of each parent who is a party to the proceeding”. Pursuant to s 117(7), in considering the “income, earning capacity, property and financial resources” of either parent, the Court must have regard to the “capacity of the…parent to earn or derive income…”.
As has already been discussed, as a result of property orders to be made, the erstwhile property of the parties will significantly change in nature. So too, as a result, will the parties’ income.
There is, as a result, no way of knowing with any degree of satisfactory accuracy, what either party will be earning (or what property or resources) either party will have once these Orders are carried into effect.
I consider that I am unable to determine, in those circumstances, matters central to the wife’s application for a departure order.
I will dismiss that part of the wife’s application.
I certify that the preceding two hundred and fifty-six (256) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy delivered on 19 July 2011
Associate:
Date: 19 July 2011
20
12
4