Liddell and Liddell
[2016] FCCA 2751
•28 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIDDELL & LIDDELL | [2016] FCCA 2751 |
| Catchwords: FAMILY LAW – Competing applications for final property and children’s orders – children aged 10 & 6 – father seeks equal time regime – mother proposes more restrict regime of time – best interests – assessment of section 60CC factors – meaningful parental relationship – dynamic of parties’ relationship – communication skills – whether parenting relationship will sustain equal time regime – reasonable practicality – contents of property pool – assessment of contributions – assessment of section 75(2) factors – just and equitable. |
| Legislation: Family Law Act 1975, ss.60B;60CA;60CC;61DA; 65DAA;72;74;75(2);79(4) Evidence Act 1995, s.140 |
| Cases cited: Liddell & Liddell [2014] FCCA 2813 L & L (2006) FLC 93-254 |
| Applicant: | MS LIDDELL |
| Respondent: | MR LIDDELL |
| File Number: | ADC 1985 of 2014 |
| Judgment of: | Judge Brown |
| Hearing dates: | 21 & 22 April and 13 July 2016 |
| Date of Last Submission: | 13 July 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 28 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bowler |
| Solicitors for the Applicant: | Angela Ferdinandy |
| Counsel for the Respondent: | Ms Lee |
| Solicitors for the Respondent: | Adelaide Family Law |
ORDERS
CHILDREN’S ISSUES
The parties have equal shared parental responsibility for the children of the marriage X born (omitted) 2006 and Y born (omitted) 2010 (hereinafter referred to as “the children”).
Living arrangements
Until 20 April 2017, subject to arrangements for special occasions and school holidays delineated hereunder:
The children live with the parties as follows during school terms:
(a)With the husband:
(i)In the first week of each fortnight from the conclusion of school Tuesday until the commencement of school the following Wednesday;
(ii)In the other week of each fortnight from the conclusion of school Friday until 4:00pm Sunday;
(b)With the wife:
(i)At all other times
From 28 April 2017 until the conclusion of the term one holiday in 2018:
The children live with the parties as follows during school terms:
(a)With the husband:
(i)In the first week of each fortnight from the conclusion of school on Friday until the commencement of school the following Monday (or Tuesday in the event of a public holiday);
(ii)In the other week of each fortnight from after school on Tuesday until the commencement of school the following Thursday.
(b)With the wife:
(i)At all other times.
From April 2018 onwards:
With each of the parties on a week about basis, with the children to be exchanged between the parties on a day and time to be agreed between them but failing agreement to be from after school on each term time Friday.
School holiday arrangements
The children live with each of their parents, during each short school holiday (being from the first Monday of the holiday period until the commencement of school on the Monday of the new term) as follows:
(a)With the wife for the first week of each such holiday from the first Monday until the second Monday, unless the parties agree to reverse the weeks, as a consequence of term time arrangements;
(b)With the husband for the second week of each such holiday from the second Monday until the third Monday, unless the parties agree to reverse the weeks, as a consequence of term time arrangements;
The children spend time with each of their parents, during each Christmas school holiday period (being from the day after school has concluded until the day prior to the commencement of school for the New Year) on a week about basis from the commencement of the 2016/2017 school holiday with the weeks to be agreed between the parties and failing agreement the husband to have the first, third and fifth week.
Special arrangements
Unless the parties agree otherwise the children spend time with each of their parents, during the festive days of Christmas, as follows:
(a)With the wife from 2:00pm on 24 December 2016 until 2:00pm on 25 December 2016 and each alternate even ending year thereafter, and
(b)With the husband from 2:00pm on 25 December 2016 until 2:00pm on 26 December 2016 and each alternate even ending year thereafter.
(c)With the husband from 2:00pm on 24 December 2017 until 2:00pm on 25 December 2017 and each alternate odd ending year thereafter, and
(d)With the wife from 2:00pm on 24 December 2017 until 2:00pm on 25 December 2017 and each alternate odd ending year thereafter, and
The children shall live with each of the parents for the Easter long weekend as follows:-
(a)In 2017 and each alternate year thereafter with the husband from the conclusion of school on Maundy Thursday or 3.00pm if a non-school day until 3.00pm Easter Saturday and with the wife from 3.00pm Easter Saturday until 9.00am the following Tuesday and each alternate year thereafter;
(b)In 2018 and each alternate year thereafter with the wife from the conclusion of school on Maundy Thursday or 3.00pm if a non-school day until 3.00pm Easter Saturday and with the husband from 3.00pm Easter Saturday until 9.00am the following Tuesday and each alternate year thereafter.
The children shall spend time with the parent that does not have the children living with them on either of the child’s birthday and their respective birthdays as follows:-
(a)If a school day from the conclusion of school until 6.30pm, and
(b)If a non-school day from 12.00pm until 5.00pm.
In the event the children are with the husband on Mother’s Day the children shall spend time with the wife from 6.00pm on the Saturday before Mother’s Day until the children are returned to school on Monday morning provided that in the event that the children are with the wife on Father’s Day the children spend time with the husband from 6.00pm on the Saturday before Father’s Day until the children are returned to school on Monday morning.
Other issues
That the parties do ensure that:
(a)The children telephone and SMS the other at any time any child expresses a wish to do so.
(b)That they advise the other by email forthwith in the event of any change in their mobile number.
(c)That all handovers on school days occur at the said children's school and at all other times do take place at the wife's home, or such other place as may be agreed in writing.
That the husband and the wife be restrained and injunctions are hereby granted restraining them from:
(a)Denigrating the other, their partners or any member of their family to or in the presence of the children or allowing any other person to do so.
(b)Discussing any aspect of these proceedings, or matters pertaining to child support with or in the presence of the children or allowing any other person to do so.
(c)Making any appointments for the children in respect of any activity when they are living with the other.
(d)Interfering with any day to day decision made by the other in relation to their parenting of the children.
(e)Relaying messages to the other through the children.
(f)Undermining the other's relationship with the children.
(g)That each party do inform the other forthwith by SMS message to the other's mobile phone in the event of any serious accident, injury or illness suffered by any child and of all and any medical or other treatment received by the said child.
(h)That each party do authorise the other to receive any and all information from any treating doctor, health profession, therapist or counsellor upon whom any child attends from time to time and to permit the other to receive any or all information from the children's school as to their academic and general education progress and information relating to extra-curricular, sporting or other activities in which they may engage.
(i)That each party do provide to the other access to medical, dental and health professional reports in respect of any of the children and keep the other informed at all times, by way of email, of the names and addresses of all health professionals consulted by the children.
(j)Each party is restrained from allowing the children to undergo any elective surgery or surgical procedure without the prior written consent of the other.
In the event that any child does not attend school, that the parent with whom that child is living do inform the other by telephone by 10:00am on that day as to the identity of the child not attending school and the cause thereof.
That if either party intends or is required to travel interstate or overseas for more than seven (7) consecutive nights they provide to the other notice thereof in writing within twenty four (24) hours of becoming aware of the requirement to travel interstate or within twenty four (24) hours of the making of travel bookings whichever first occurs.
That each party have first option to care for the children in any period in excess of seven (7) continuous nights during which the other is unable to personally care for them as a result of interstate or overseas travel.
PROPERTY ISSUES
In full and final settlement of all claims for settlement of matrimonial property:
Within sixty (60) days of today’s date the husband do transfer to the wife, at her expense, all his interest, both in law and in equity, in the former matrimonial home situate at Property M, in the State of South Australia (hereinafter referred to as “the former matrimonial home”).
That contemporaneously with the transfer referred to in order 16 above, the wife pay to the husband the sum of one hundred and forty-three thousand dollars ($143,000.00).
Upon the transfer of the former matrimonial home contemporaneously with the payment referred to in order 17 the husband and wife shall forthwith discharge the mortgage secured against the former matrimonial home and the wife shall keep the husband indemnified in respect of such mortgage and all other outgoings and liabilities in respect of the former matrimonial home.
That contemporaneously with the transfer of property referred to in order 16 the wife do all things necessary and execute all documents necessary to transfer all of her interest in law and equity in the properties situate at Property N, in the State of South Australia (hereinafter referred to as the Property N property) and at (country omitted) Property, (country omitted) , in the (country omitted) (hereinafter referred to the (country omitted) property) to the husband at his expense.
Upon the transfer of the Property N property and the (country omitted) property from the wife to the husband pursuant to order 19 hereof the husband and wife shall forthwith discharge any mortgage secured against either such property and the husband shall keep the wife indemnified in respect of any such mortgage and all other outgoings and liabilities in respect of both the Property N property and the (country omitted) property.
Including but without limiting the effect hereof, the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife:
(a)the furniture and furnishings in his possession, power and control;
(b)any motor vehicle in his possession;
(c)all savings, shares and investments in his name;
(d)any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in his name;
(e)his personal effects.
(f)any other real and/or personal property and/or financial resources of the husband or in the husband’s name and/or possession not otherwise specified herein.
Including but without limiting the effect hereof, the wife shall retain for her sole use and benefit absolutely free from any further claim or demand of the husband:
(a)the furniture and furnishings in her possession, power and control;
(b)any motor vehicle in her possession;
(c)all savings, shares and investments in her name;
(d)any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in her name;
(e)her personal effects.
(f)any other real and/or personal property and/or financial resources of the wife or in the wife’s name and/or possession not otherwise specified herein.
All applications be otherwise dismissed
IT IS NOTED that publication of this judgment under the pseudonym Liddell & Liddell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1985 of 2014
| MS LIDDELL |
Applicant
And
| MR LIDDELL |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Ms Liddell “the wife” and Mr Liddell “the husband”. They are the parents of X born (omitted) 2006 and Y born (omitted) 2010. These reasons for judgment concern appropriate final parenting arrangements for X and Y and how property issues are to be resolved between the parties.
The parties began to live together, in the (country omitted), in 1995 and married on (omitted) 2003. They lived in Adelaide between 1998 and 2001, when the husband was transferred to Australia, by his then employer, the (employer omitted). The parties returned to live in the (country omitted) between 2001 and 2005 but, since 2005, have lived in Adelaide, where they are each well settled. Both children were born in South Australia.
The parties have much in common. Their respective backgrounds are similar. They were each born in the early 1970’s and both have tertiary qualifications in (omitted). As I recall, they met, at university, in (country omitted). Both have extensive experience in the (employment omitted) industry. They each fit the description of a high functioning professional person.
The parties finally separated on 19 May 2014, when the husband left the former matrimonial home located at Property M “the Property M property”. Ms Liddell continues to live in this property, with X and Y. If at all possible, she hopes to be able to retain the Property M property, at the conclusion of these proceedings. It her position that this property is the children’s home and provides a secure and familiar base for them.
The parties’ separation was emotionally fraught. Prior to separation, Mr Liddell had commenced a relationship with a co-worker, Ms A. For obvious reasons, this situation precipitated strong emotional reaction, in all concerned, which will take some time to dissipate, particularly so far as Ms Liddell is concerned, if at all.
Both the husband and wife are intelligent, responsible and law abiding individuals. They are each conscientious professionals. However, the major attribute, which they currently share, is a common aspiration that X and Y have every possible opportunity to have a rich, happy and fulfilled childhood, marked by every possible educational, sporting and cultural opportunity.
X and Y are much loved children. They are being well brought up and, as a consequence, they are doing well. Their parents love them and are interested in every aspect of their care. This is not a case concerned with any troubling issues of family violence, drug abuse or mental illness, which feature in so many parenting cases, which come before the court. I emphasise again that the parties are each good parents.
Against this background, Mr Liddell aspires to parent the children in what is commonly called a shared parenting regime or an equal time arrangement. He does not care how the time is divided up, so long as X and Y spend broadly equal periods of time with each of their parents. He is also prepared to agree to an appropriate runway during which the children’s time with him will incrementally increase, until they are both sufficiently mature to deal with an equal time regime.
From his perspective, such an arrangement will ensure that the children are able to secure the maximum degree of parental involvement in their lives, whilst they grow to maturity and, as such represent an outcome which must be calculated to be in their best interests, both in the short and longer term.
Ms Liddell does not agree. It is her case that she has been and will continue to be the parent, who is more in touch with X and Y’s emotional needs. As such, she believes that the children will struggle to be away from her for extended periods of time. It is also her position that the parties struggle to communicate effectively with one another about issues to do with the children. In these circumstances, she contends that the parties do not have the necessary prerequisites to make an equal time regime work.
Ms Liddell proposes that the children continue to live predominantly with her, whilst spending one overnight period with their father during each school week and one weekend, from Friday evening until the following Sunday afternoon per fortnight, until April 2017. Thereafter, when Y in particular is older and more emotionally robust, she proposes that the children should spend five nights per fortnight, with their father, in three distinct period, the longest of which being from after school on Friday until the commencement of school the following Monday morning.
Ms Liddell is also concerned at the prospect of the children spending consecutive overnight blocks of time with their father during school holidays. During the shorter school holidays, she proposes that the children spend no more than three consecutive days away from her care and in the longer end of year school holiday, the period be extended to five consecutive days.
The underpinning of her position is that the children lack sufficient emotional resilience to be separated from her their primary carer for extended periods of time. Her view is that five days is currently beyond the range of time with which X and Y can manage without suffering emotional deregulation.
Ms A is employed as a (occupation omitted). She has two children. They are A, who is aged six and B, who is aged four. Ms A enjoys a good relationship with her former partner, A and B’s father. They have agreed to share the care of the children week about. At present, Mr Liddell is living in rented accommodation. With the conclusion of the property proceedings between him and Ms Liddell, he hopes to have sufficient funds to buy appropriate accommodation for him and the children.
Mr Liddell and Ms A do not have any firm plans to live together but, from both their joint perspective, the relationship between them is a solid and committed one. As such, at some stage in the future, they will want to share a home together. Ms Liddell is highly critical of how little thought she perceives Mr Liddell has given to the question of how X and Y will interact with Ms A and her children in future. This forms a significant criticism of Mr Liddell’s parenting and capacity to be child focussed.
The parties’ different views regarding the appropriate arrangements for the parenting of X and Y, have also influenced their different approaches to how their matrimonial property should be divided. In general terms, the parties agree that their current gross worth is somewhere in the vicinity of $1.5m and their liabilities in the vicinity of $850,000.00, leaving a net pool of around $650,000.00. The most significant item in the pool, both in financial and psychological terms, is the Property M property. The parties agree the property is worth $625,000.00 and is subject to a mortgage of just over $100,000.00.
Otherwise the parties own two investment properties – one in (country omitted) , in the (country omitted); one in Property N, in suburban Adelaide. Both are negatively geared and accordingly subject to significant mortgages. The (country omitted) property, when valued in Australian dollars, has markedly depreciated recently as a consequence of currency fluctuations in (country omitted).
Controversies arise as to the fine tuning of the asset pool and how monies, distributed between the parties prior to trial, but now spent and so notional in value, are to be treated. Ms Liddell also contends that her financial contributions are markedly superior, to those of the husband, because in 2007 she received an inheritance of $96,000.00, the greater proportion of which ($85,500.00) was utilised to pay down the Property M property mortgage.
The more significant controversy arises in respect of the percentage to be applied following the court’s assessment of the applicable considerations arising under section 79(4) of the Family Law Act 1975. On the basis that the parties’ overall contributions are taken to be roughly equivalent and on the proviso that the care of the children is shared equally, the husband proposes a 45/55% division of the property, in the wife’s favour. Mr Liddell sees growth potential in both the Property N and (country omitted) properties and wishes to retain them.
He has no desire to retain the Property M property and his preference would be, if at all possible, for Ms Liddell to keep it, provided she is able to borrow a sufficient sum to purchase his interest in it. Otherwise he asserts that the property will have to be sold, so he can receive his proper entitlements of matrimonial capital. At present Mr Liddell is employed by (employer omitted), as an (occupation omitted). He earns approximately $110,000.00 gross per annum.[1]
[1] See Annexure A to the wife’s affidavit filed 14 April 2016
It is Mr Liddell’s position that Ms Liddell has at least equivalent, if not superior qualification to his. She is a qualified (occupation omitted) and has three years’ experience working for a global (employer omitted) firm. As such, he contends that Ms Liddell should be able to earn an equivalent or superior income to his own. In these circumstances, he does not believe it is fair that Ms Liddell should do otherwise than utilise her full income earning capacity.
Ms Liddell is employed as an (occupation omitted) for a non-profit organisation, (employer omitted). She is required to work 24 hours per week, which she is able to arrange around the times the children are at school. Her income is currently $56,160.00 per annum.[2] Because of the non-profit status of her employer, Ms Liddell is able to allocate some of recurrent living expenses as salary, to which tax does not attach. This benefit is likely to be phased out. Without salary sacrifice benefits, Ms Liddell asserts that her true income will be closer to $37,000.00 gross per annum.
[2] See wife’s statement of financial circumstances filed 14 April 2016 at item 9
Ms Liddell’s evidence is that she does not intend to return to full time work until at least the time Y has commenced secondary school, which is approximately seven years away. It is her case that it is in X and Y’s best interests that she is readily available to them most of the time. As such, she wishes to maintain her current level of parenting [see section 75(2)(l)].
Given the current level of disparity in income between the parties, which Ms Liddell contends is likely to continue for a significant period of time, and given what she contends is a superior level of financial contributions emanating from her, particularly in the form of her grandmother’s bequest, Ms Liddell submits that a 67.5/32.5% division of property, in her favour, represents a just and equitable outcome of the property proceedings.
I have not been provided with any extensive detail regarding the wife’s capacity to borrow. In this context, in my view tellingly, in her case outline, the wife proposes that contemporaneously with the transfer of the Property M property to her she “pay the husband the amount of **.” Notwithstanding this lacuna, from the wife’s perspective, it is essential to the welfare of X and Y that she is able to provide them with the security of the familiar surrounds of the Property M property, as their family home.
As such, it is her contention, whatever is the ultimate percentage basis of the division of property, it will be necessary in the interests of justice and equity, that she retain the Property M property. In these circumstances, she would wish to pursue a claim for some form of liquidated spousal maintenance.
The proceedings between the parties have been on foot since shortly after the parties separated. Regrettably, an earlier date (August 2015) scheduled for the trial of the issues between the parties, could not be utilised, due to the pressure of other business on the court. I have been concerned at the exposure of the parties to the cost of trial, given the likely extent of the property pool. I was also concerned that a trial about the children’s issues would only exacerbate the current level of difficulties between the parties and so be of little assistance, in the longer term, in promoting a positive parenting relationship between them.
Every assistance and encouragement has been provided to the parties to assist them to reach common ground in respect of arrangements for X and Y and the division of their property. This assistance has included extensive mediation and the preparation of two expert family reports, by Dr A, an experienced consultant social worker. Regrettably, it has not been possible for the parties to reach any compromise.
In her first report (dated 20 March 2015) Dr A described X and Y as delightful children who demonstrated high intellect [and] engaging sociability. In her engagement with them, Dr A indicated the children smiled continuously and did not demonstrate any signs of anxiety, distress or any lack of confidence. Under observation, the children were seen to engage warmly and familiarly with both their mother and father.
In this context, Dr A considered that individually both Mr Liddell and Ms Liddell had the necessary parental capacity to provide for X and Y’s intellectual, social and emotional needs. Her assessment of the husband and the wife was that each was a child-focussed parent who was a sensitive and thoughtful adult. I agree with this assessment. The essential issue, in this case, are the implications, for X and Y, of the impact of their parents in combination. Individually, they are likely to be excellent; as a team, they are likely to be severely compromised.
In these circumstances, perhaps with an undue level of optimism, Dr A invited both parties to draw back from their respective preferred outcomes in the case and rather focus on X and Y’s best interests, which were likely to be served by them working together to try and diminish the conflict between them. Dr A wrote as follows:
“…at this point in time X and Y could only benefit from each of their parents forgoing the extent to which he and she have determined is fair or wanted regarding the children’s time with each of them. If each parent could make every effort to consider his and her children’s long term pleasure in and appreciation of their loved parents’ capacity to make their lives free of conflict, and aligned to a happy vision of the future with each of their parents, notwithstanding parental separation, then there appeared little doubt X and Y would likely continue to enjoy and benefit from their privileged lives situated as they are within loving and competent parents.” [3]
[3] See Family Report dated 20 March 2015 at paragraph 65
I share these sentiments. X and Y do lead privileged lives. They are fortunate to have capable and loving parents. They are doing well, which must be a credit to both Mr Liddell and Ms Liddell. In all these circumstances, Dr A, as I did, urged the parties to seek a compromise. Failing agreement, Dr A recommended that the children’s time with their father be incrementally increased, until the stage Y reached eight years of age ((omitted) 2018), when consideration should be given to a week about regime of care.
By the time of her second family report (17 March 2016), Dr A noted that all friendly and non-litigious communication between the parties had ceased. Rather the parties communicated through emails or solicitor’s letters. At the stage of the second report, Dr A perceived the significant issues to be the poor communication between the parties and its likely impact on the well-being of X and Y; and issues to do with Mr Liddell’s relationship with Ms A and her children.
To Dr A, Mr Liddell indicated that it was his perception that Ms Liddell was unduly emphasising the communication difficulties between the parties and adding to them, in order to deflect his aspirations for shared care of X and Y, which Dr A had earlier recommended. To Dr A, Mr Liddell said that he did not believe that he and Ms Liddell were in high conflict. Rather Mr Liddell indicated that he and Ms Liddell “simply do not agree on the details of shared care, the split of money, and the children’s scheduling of external to school activities…” [4]
[4] See Family Report dated 17 March 2016 at paragraph 57
Again, at the time of the second report, Dr A described X and Y as having good relations with each parent. However Mr Liddell and Ms Liddell both complained about the other’s differing view about how the children were best parented. The pivotal question for Dr A being how much time the children should spend with each parent and the introduction of Ms A and her children to the equation.
In these circumstances, Dr A opined as follows:
“…in the absence of parental disharmony, the nature and quality of Y and X’s relationship with their father and separately their mother, would likely provide opportunities for each child to learn self-control and to make responsible choices as he and she grows. It did not appear that either child, in their father or mother’s care, would be exposed to any other unacceptable risks other than the risk of being exposed to continuing parental acrimony and disagreement.”[5]
[5] Ibid at paragraph 90
Notwithstanding these concerns, Dr A recommended that the parties share equal parental responsibility for X and Y and the court give “every consideration to Mr Liddell’s proposal for a graduated yet simple approach to shared care over and above Ms Liddell’s very lengthy approach…” Again, Dr A optimistically urged the parties “to work towards communicating with each other in front of the children without demonstrating any behaviours the children might perceive to be demonstrating hostility or anger.”[6]
[6] Ibid at paragraph 98
In answers to questions from me, posed during the trial, Dr A agreed that Ms Liddell was unlikely to move on from her feelings of hurt and betrayal arising from the end of the parties’ marriage any time soon and quite possibly never. By necessary implication, she agreed that if there was to be any improvement in the parties’ capacity to communicate effectively with one another, it would have to be as a result of a shared commitment to ameliorate their relationship. She did not think that Ms Liddell was likely to have such a commitment, at this stage or in the foreseeable future.
At an earlier stage of proceedings, I was called upon to make interim orders in respect of care arrangements for X and Y, particularly what time they should each spend with their father.[7] In the resultant judgment, I said as follows:
“On any view, the parenting relationship between the parties is currently extremely strained and mistrustful. The parties do not communicate well and have a fundamentally different view as to how X and Y are currently travelling in an emotional sense. Some of these issues may be clarified by a family assessment report but until such a report is to hand, in my view, it is incumbent upon the court to approach the case somewhat cautiously rather than in an experimental fashion.”
[7] See Liddell & Liddell [2014] FCCA 2813 at [105]
It is the submission of Mr Bowler, counsel for the wife, that nothing significantly has changed since I made these comments in December 2014. He contends that the parties’ facility to communicate remains impaired and their parenting styles and view of what is likely to be best for X and Y remain incongruent.
As such, Mr Bowler argues that it is incumbent on the court to approach the case cautiously, particularly in respect of what he would categorize as the husband’s unduly ambitious approach to shared parenting, which is insensitive to Ms Liddell’s feelings.
In contrast, Ms Liddell, counsel for the husband, contends that, although far from perfect, the parties’ relationship can sustain an equal time regime and such an outcome is likely to be in the best interests of X and Y. These reasons for judgment are directed towards resolving these various issues between the parties.
The Legal Principles Applicable
(a) Parenting Issues
Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a) & (b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[8]
[8] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[9] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[10]
[9] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[10] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[11]
[11] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care and the child concerned gains the benefits of this involvement.[12]
[12] Goode & Goode (2006) FLC 93-286 at 80,901
However, as As Kay J pointed out in Godfrey v Saunders[13] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”. In this context, I must be careful not to determine the case, in the artificial framework of considerations of what is theoretically ideal for the children. Rather I must consider the current reality of their family situation, particularly the emotional topography prevailing between their parents.
[13] See Godfrey v Saunders 2008 FLR 287 at 298
In the current matter, the parties agree that the presumption of equal shared parental responsibility should be applied to their parenting of X and Y and is not rebutted by any considerations relating to family violence, neglect or abuse of the children.
From the husband’s perspective, given the application of the presumption, once the court has considered all the relevant factors arising under section 60CC, it will readily conclude that it is the best interests of X and Y to live for equal periods of time with each of their parents. He contends further that although not optimal, the parties parenting and communication skills are sufficiently developed to make such a regime viable.
From the wife’s perspective, given the previous pattern of care of the children; her superior parenting skills; and the views of the children; she asserts that the court should conclude that such an arrangement is not in the best interests of either X or Y. Furthermore, such a regime is not objectively practicable because of the deficits in the parties’ communication skills and the overall lack of compatibility between them.
(a) Property Issues
Part VIII of the Family Law Act is the part of the Act dealing with property, spousal maintenance and maintenance agreement. The major provisions relating to marital property division are contained in sections 79(1); 79(2); 79(4); & 75(2) of the Act.
Pursuant to section 79(1) the court is authorised to make such order as it considers appropriate in order to alter the interest of the parties to a marriage in relevant property.
The expression “property” is defined in section 4(1) in relation to the parties to a marriage or either of them as meaning “…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”
Pursuant to section 79(2) the court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitive words “shall not” in the relevant section.
Section 79(4) provides the mechanics of how a court is to make an order altering marital property interests. It provides seven matters [in paragraphs (a) – (g)] to be considered, as relevant.
Paragraphs (a); (b); and (c); categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the court to take into account the effect of any order upon the earning capacity of either party to the marriage concerned.
Paragraph (e) directs the court to consider a list of matters contained in section 75(2), which are germane to spousal maintenance or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs.
Finally, Paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
Until recently, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled, as it required the application of a preferred approach. This approach entailed a four step process, described by the Full Court as follows:
· identification and valuation of the property of the parties;
· identification and evaluation of contributions to the property (including property no longer owned by the parties) – the contribution phase – section 79(4) (a) to (c);
· identification and assessment of the various matters in section 79(4)(d) to (g) including to the extent they are relevant, the matters in section 75(2) – the prospective needs phase;
· considerations of justice and equity.[14]
[14] See Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39] and Bevan & Bevan [2013] FamCAFC 116 at [60]
The general applicability of this four step process has been recast, to some extent, in the light of what has been said recently by the High Court in the matter of Stanford v Stanford.[15] In the case, the majority stated that:
“It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [16]
[15] Stanford v Stanford [2012] HCA 52
[16] Ibid at [35] – [36]
In Stanton the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of section 79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation. The majority said as follows:
“In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of the choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying section 79(4).” [17]
[17] Ibid at [42]
In Bevan the Full Court noted that the above paragraph was likely to encapsulate the vast majority of cases coming before courts, such as this one, namely that the circumstances of the parties concerned, following the end of the marriage between them, made it readily apparent that it was just and equitable to make a property order and therefore it would be open to the court concerned to adopt the multi-stepped process endorsed by cases such as Hickey.
In Bevan the majority of the Full Court (Bryant CJ and Thackeray J) said as follows:
“Although the High Court did not disapprove the four step process, we accept it did not approve it either... However, the High Court’s decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.
…
Stanford will also serve as a reminder that the four step process ‘merely illuminates the path to the ultimate result’.”[18]
[18] See Bevan (supra) at [65] and [71]
From this, I take it, the four step process remains a valid approach in the vast majority of cases, provided care is taken not to overlook the requirement that all orders altering property interests in proceedings arising under the Act be justice and equitable.
In this case, it is abundantly clear that the marriage between the parties has come to an end and, as such, there is no logical justification for them holding any joint community of property together.
In these circumstances, I am satisfied that it is appropriate to adopt the four step process in this case and it is in accordance with notions of justice and equity that the court proceeds to make orders pursuant to section 79 of the Act, in respect of the parties’ various proprietorial interests.
Although the multi-step process envisaged by Hickey remains relevant it is less prescribed as a consequence of what was said by the High Court in Stanford. In this context, I respectfully adopted was said by Murphy J in Watson & Ling namely:
“As a result of those matters, the Court’s approach to s 79/s 90SM may be less compartmentalised than what a strict or unthinking adherence to four (or three) “steps” might otherwise reveal. The task is essentially holistic; is it just and equitable in the particular circumstances of the particular relationship or marriage under consideration to make an order and, if so, its terms must similarly meet that criteria. Of course, holistic though the approach is, it must be referenced to what the Act requires and care must be taken to ensure that the Court’s reasons make that clear.”
As was discussed by the Full Court in Bevan, whether it is just and equitable to make any particular property order is invariably inextricably interwoven with questions of contribution arising under section 79(4) and the parties’ financial and relationship history with one another.
Although the court must be careful not to combine issues arising under section 79(2) with the exercise arising under section 79(4), it is artificial to divorce them from each other. Section 79(2) does not, however, represent a formal threshold to be crossed prior to the undertaking of the section 79(4) exercise.
Rather, the overall task is a holistic one, to be informed by the idiosyncratic circumstances of each case concerned. However, in most cases, it will be readily apparent that it is just and equitable to make an order altering the property interests of the parties concerned because of their circumstances or the manner in which each has presented their case and the orders sought.
The “overriding requirement” of section 79 is that considerations of justice and equity should inform the process envisaged therein. The exercise I must undertake is not a “process of social engineering”[20] or of equalisation of assets or financial resources. Considerations of this type inform the so-called fourth step, as well as providing the determination as to how the court should approach issues such as notional property. The court must make the orders it considers just and equitable.
[20] See Waters & Jurek (1995) FLC 92-635
As such, I am at pains to point out to the parties that the task I must undertake is not a simple accounting or arithmetical task. In the jargon of the times, I cannot “crunch the numbers” to come up with a division of their property, which is not open to challenge or incapable of different interpretation. My responsibility is to exercise the discretion reposing in me according to considerations of justice and equity.
Marriage is by and large a joint enterprise. How much buffer spouses must give one another, when financial setbacks occur, must depend on the degree of consultation and acquiescence in their relationship.[21]
[21] See D & D [2003] FamCA 473 at paragraph 49
The task, set out for me in this case, requires me to balance and compare contributions, which are by their nature different, within the framework of a marriage. Many contributions in a marriage, such as being a homemaker, do not result in the direct acquisition of assets. They are also difficult to value. The discretion I have is a wide one. It is however not an exercise in “palm tree justice”.[22]
[22] See In re: Watson: ex parte Armstrong (1976) FLC 90-059 at 75,270
In this context, the following comments of Gibbs CJ in Mallett & Mallett [23] are apposite:
“Decisions in particular cases of that kind can, however, do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered. It is necessary for the Court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case.”
[23] Mallett & Mallett (1984) FLC 91-507
The Evidence
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[24] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[25]
[24] See Evidence Act1995 (Cth) at section 140
[25] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ
The husband relies on the following documents:
i)Three affidavits of himself filed on 27 October 2015; 2 March 2016; and 15 April 2016;
ii)A statement of his financial circumstances filed on 15 April 2016;
iii)An affidavit of Ms A filed on 15 August 2015.
The wife relies on the following documents:
i)Two affidavits of herself filed 5 August 2015 and 14 April 2016;
ii)A statement of her financial affairs filed on 14 April 2016.
Dr A’s two reports have also been exhibited or filed in the proceedings. In addition, Dr A was required to attend at court for cross examination, as was Ms A.
The parties were each extensively cross-examined by counsel for the opposing party. As such, I had an opportunity to observe each of them at close quarters. In my view, there were few issues of real substance in dispute between them. This is not a case which turns on credit. In my assessment each party is an honest person, who endeavored to give his/her evidence as truthfully and objectively as possible.
The issues arising in this case are subtle. They have arisen over many years and have evinced deep conviction on the part of both the husband and the wife. As a consequence, the parties have very different views as to what is the appropriate outcome in the case. However, the significant evidentiary issues in contention between them are few and turn on matters of temperament and areas of emphasis in regards to what is important in parenting.
Although the parties have much in common, necessarily they have different personalities and aspirations in life. The husband presents as an optimist, with a can do attitude to all challenges, which life can throw at him. He is confident that he will be able to manage the competing claims of his job and the complex needs of X and Y, in a shared care regime. He agrees with Ms Liddell that there has been significant conflict between the parties but he believes that these difficulties can be overcome with good will on both sides.
Ms Liddell does not agree. She characterises the father as being pushy and disrespectful of her aspirations as a parent, but also as a person who does not fully grasp what the children really need. At present, as previously indicated, Ms Liddell works part-time, in an (occupation omitted) position in the (omitted) sector, which allows her to tailor her hours to the children’s school commitments. Mr Liddell works full time. As such, it is Ms Liddell’s view that she has amply demonstrated her commitment to the children and her willingness to sacrifice her career aspirations for them.
Ms Liddell presents as a person who is deeply emotionally connected to X and Y and highly protective of them. She has no great desire to communicate with Mr Liddell and believes that when push comes to shove, so far as the parenting of X and Y is concerned, it is she who is the more responsible and capable parent and the one with the greater intuitive understanding of their emotional needs.
Ms Liddell does not believe that Mr Liddell will be able to balance the competing calls of career and the children, as she has done and inevitably it will be she who will be called upon to pick up the slack when Mr Liddell is found wanting, particularly when he his employer places demands upon him. It is also her case that she does more of the hard yards of parenting, particularly so far as organising the children’s extramural activities is concerned. These activities include (hobbies omitted) for Y and (omitted) for X.
Prior to the parties’ separation, it is clear that, to a large extent, the parties did divide their parenting responsibilities along conventional lines, with Mr Liddell remaining the family’s main breadwinner, whilst Ms Liddell took maternity leave and remained in the home, as long as possible, to provide for the children’s needs.
Against this background, Ms Liddell asserts that it must be incontrovertible that she is and has been the children’s primary carer and, as a consequence, the court should be cautious before it meddles with the arrangements that hitherto appear to have served X and Y well.
Ms Liddell encapsulated her case in the following passage of her oral evidence given at trial:
“The children struggle if separated from me for more than two days. They need a place to come back to be themselves, to be secure, to be safe, to express their emotions. They need to live most of the time with me and live in their home.”
Needless to say, the home to which Ms Liddell refers is the former matrimonial home, which she aspires to retain.
Mr Liddell agrees that following each of the children’s births, Ms Liddell was their primary attachment. However, to utilise Mr Liddell’s terminology, he does not believe that the children’s relationship, either with him or their mother can be regarded as being static. It is his view that the children’s relationship with both their parents, has evolved over time and will continue to do so. From his perspective, Y, in particular, is now no-longer emotionally dependent upon her mum. He refutes any suggestion that the children will be emotionally traumatised by a shared care regime. Rather, he believes, the children are likely to miss one parent, when they are with the other, which he regards as being normal and understandable.
Mr Liddell aspires to be a modern parent, who is fully involved in every aspect of his children’s lives, both the mundane and the more special – preparing the children’s school lunch and supervising their homework, as well as hosting their birthday parties and watching their sporting or educational triumphs.
Mr Liddell does not wish to be confined to a role of weekend or holiday dad. Rather, he wishes to be a parent, who is a consistent presence through the day to day lives of X and Y. In this way the children’s relationship with him will be a meaningful one. This is the rationale for his desire for equal time.
It is Mr Liddell’s view that it is beneficial for children, if their parents can adapt and change their parenting behaviour, particularly following such dramatic transitions as marriage breakdown. He is confident that he has changed his parenting practices and will continue to do so. As such, he characterises himself as being a parent who has demonstrated that he will be capable of stepping up to the plate and pulling his weight in an equal time regime to ensure the betterment of the children. He hopes that Ms Liddell can demonstrate the same attitude. In my assessment, this is a reflection of his essentially optimistic personality.
However, Mr Liddell also concedes that there are currently grave deficits in the parties’ capacity to communicate effectively. He agrees that their communications currently lack spontaneity, empathy and warmth. Rather, at best they are stilted in nature and at worst passively aggressive.
He fears that Ms Liddell is intent on undermining his relationship with the children through a process of subtle denigration of him because she herself is unable to move on from the difficult circumstances surrounding the parties’ separation. In this sense, he asserts that Ms Liddell is putting her own emotional needs before those of the children.
Ms Liddell does not dispute that Mr Liddell loves X and Y or suggest that he would wantonly or negligent expose them to harm. Rather it is her position that she will always be the more competent and insightful parent, who has a visceral understanding of what the children need. Dr A, agreed with my assessment, that if Ms Liddell were called upon to do a report card of her and Mr Liddell’s parenting skills, she would award herself A’s and high B’s, whilst Mr Liddell would be given mostly D’s and a few E’s, with the comment could do better.
In her most recent affidavit,[26] Ms Liddell has provided examples of where she asserts Mr Liddell’s parenting has been found wanting. They include the following:
·In October 2015, X suffered a six to seven centimetre carpet burn, on his back, whilst in his father’s care, as a consequence of being dragged on the carpet because he would not do what he was told;
·Mr Liddell fails to return items of the children’s clothing, uniform and equipment, which causes embarrassment to them;
·Mr Liddell refused to change arrangements for Halloween in 2015, so that they could spend it with her, which caused the children distress;
·Mr Liddell did not prepare for Christmas Eve 2015 adequately in that he failed to leave cookies and milk out for Santa, or carrots for his reindeers;
·Mr Liddell did not get out of bed early on Christmas morning 2015 and later provided Y with food for Christmas lunch, which she did not like;
·Mr Liddell returns the children, especially Y, in dirty clothes, without their faces washed. Y is returned with her hair un-brushed;
·On 3 April 2016, Mr Liddell left the children unattended for twenty minutes, whilst he went to the shops;
·Following the children’s five day trip to (omitted), during the recent end of term one holiday, with their father, Mr Liddell did not allow the children to telephone their mother.
[26] See affidavit of Ms Liddell filed 14 April 2016 at paragraphs 4 - 14
Mr Liddell has responded to each of these criticisms. He asserts as follows:
·X enjoys rough house games on the carpet, with his father. During one of these games, X’s shirt rode up and he sustained a graze, which Mr Liddell treated with pawpaw ointment. X did not complain of pain;
·Mr Liddell does not regard Halloween as being particularly important. He offered to swap Halloween, with Ms Liddell, for another day, but she declined. In these circumstances, he arranged for X and Y to have Trick or Treat at Property M, near his home, which they thoroughly enjoyed;
·Mr Liddell concedes that he did not prepare a meal for Santa. He believes the children are now of an age at which it is not necessary;
·Mr Liddell asserts that he and the children were up and opening their presents at 7.45 am, which was soon after the children woke up;
·Mr Liddell asserts that he prepared salt and pepper squid for Christmas lunch. Y was not hungry because she had been eating chocolate;
·Mr Liddell asserts that he returns the children in the clothes in which they are delivered to him. He does not believe that these clothes are generally dirty but he does not always have time to wash them;
·Mr Liddell acknowledges that initially he struggled with the care of Y’s shoulder length hair. However, it is evidence that he has persisted with brushing it and now is able to put it into plaits, but not to a degree as good as my former wife;
·Mr Liddell refutes the suggestion he left the children untended for twenty minutes. He asserts that on the day in question, the children expressed a desire to have pancakes for breakfast. He had left the pancake mix in his car, which was parked in the street adjacent to his home. He left the children unattended for no-longer than it took him to walk to and from the boot of his car, which was not a long time;
·Mr Liddell asserts that the children did not ask to telephone their mother. Rather they appeared to be enjoying their holiday, with him, on (omitted). As a consequence, he did not think it necessary to make any arrangements for telephone calls.
I accept the validity of each explanation given by Mr Liddell, particularly in regards to the carpet burn and the pancake incident. It seems to me to be improbable that he would willingly expose either child to the potential to come to harm or leave them unattended for any unreasonable period of time. I also accept that he is a competent parent, although perhaps not as solicitous as Ms Liddell.
In my view, Ms Liddell’s various complaints tell more about her than they do about Mr Liddell. She is highly protective of the children and believes that Mr Liddell has no prospects of approaching her sensitive and intuitive parenting. From her perspective, it is an example of gross parental inattention that the carrots for Santa’s reindeer were overlooked.
In these circumstances, it does not seem farfetched to me that Ms Liddell would be passively resistant to the children extending their time with their father. In fact, in my estimation, this has been demonstrated by her attitude to these proceedings, which have been marked by an inability of the parties to reach any significant level of compromise in respect of the children. Of the two parties, in my view, it is Mr Liddell who is more able to make concessions.
a)Care of the children prior to separation
Ms Liddell’s evidence is that she took twelve months maternity leave following the birth of each child. Mr Liddell asserted that this is an exaggeration and she took ten and nine months respectively for each child. Nothing turns on this. Ms Liddell also deposes that Mr Liddell was focussed on his career, during the marriage, working up to sixty hours per week, as well as bringing work home. As such, she characterises Mr Liddell as having a limited role in the care of the children, although she does, to her credit, accept that he was a hands-on parent in the circumscribed time available to him.
Again, Mr Liddell characterises these statements as an exaggeration. He has deposed that he regularly changed nappies; interacted with the children prior to bedtimes; got up to tend to them at night time; and did the majority of school and childcare drop offs, as well as taking them to sporting activities and (hobbies omitted) lessons.
The truth probably falls somewhere in between. Mr Liddell accepts that Ms Liddell prepared the majority of meals because he has no great abilities as a cook. Undoubtedly there were many pressures on the family, including financial ones. For these reasons, it was imperative that Mr Liddell continue to work and that Ms Liddell return to the workforce on a part time basis. It is Mr Liddell’s evidence that he played the major role in caring for the children on weekends.
As with many families, they had recourse to childcare but attempted to limit their reliance on it. It also seems likely that Ms Liddell found parenting tiring from time to time and called upon Mr Liddell to help, particularly in evenings. In these circumstances, it seems to me to be more likely than not that the parties were a team, each pulling their full weight, both in and out of the home.
It does not seem to me that Mr Liddell can be characterised, in any way, as a disinterested parent or one who left everything to his spouse. In respect of his culinary skills, Mr Liddell has deposed that, of late, he has made massive progress with my cooking and cook healthy meals for my children very night I have them. I accept this evidence.
In my assessment, the parties are to be characterised as a modern working family. After the birth of the children, Ms Liddell focussed on nursing the children and tending to their needs. She did so in an exemplary fashion but she did not do so alone. Mr Liddell augmented her efforts when called upon to do so.
Given the calls of his career, it seems more likely than not that historically Ms Liddell has provided more of the day to day parenting of the children and has been a more consistent presence in their lives, particularly following separation. However Mr Liddell has never been absent from the children’s lives.
In my view, what is important about this analysis is that the parties’ parental roles should not be seen as fixed forever in aspic. Mr Liddell, in particular, has demonstrated an ability to adapt his parenting. Merely because one particular parent has historically been the more dominant parent does not preclude the other parent from having the capacity to step up to the plate and play a more active parenting role. It is also common for parenting roles to change as the dependency of children reduces, as they mature.
b)Care of the children after separation
Mr Liddell vacated the Property M property in May of 2014. He moved to a cabin at a nearby caravan park initially and then to his current rented accommodation in (omitted). Both parties agree that the children were unsettled by what had occurred. Mr Liddell agitated, from the outset for a shared care regime, which Ms Liddell resisted.
In the period following separation, a regime developed which saw the children spending from Wednesday afternoon to the following Thursday morning with their father, as well as alternate weekends. Ms Liddell asserts that this arrangement was only being tried. On the other hand, it was Mr Liddell’s position being that this arrangement was the start of a progression to an equal time regime, with him being cognisant of the need for sensitivity in regards to the feeling of X and Y, as a consequence of their exposure to the recent turbulent events. He also asserts that he understood Ms Liddell would need a period of time in which to adjust to the new situation.
It seems more probable than not that, in the aftermath of their separation, the parties were incapable of discussing any long or medium term issues to do with X and Y effectively and were at cross purposes with one another. However, it does not appear to me that Mr Liddell was aggressively pushing the wife or dictating to her. To the contrary, he appears to me to have behaved appropriately and sensitively, given the circumstances.
It was Ms Liddell who commenced the proceeding in court in early June of 2014. She was concerned that Mr Liddell had taken the children’s Australian passports, at separation, although, at her request, he had returned them two days later. Ms Liddell expressed her concern at the possibility that the children might leave Australia on (country omitted) passports obtained for them by Mr Liddell.
In my view, this was something of a hysterical over-reaction. It demonstrated Ms Liddell’s negative view of Mr Liddell. Ms Liddell also alleged that Mr Liddell had a problem with excessive alcohol consumption, which Mr Liddell has subsequently denied. For his part, at this early stage, Mr Liddell characterised Ms Liddell as having problems with managing her anger and being a volatile and reactive person. He reported to Dr A that he regretted Ms Liddell bringing the matter to court so soon after the parties separated because, in his view, it prevented them reaching a negotiated arrangement for the care of the children.
As the case has progressed, from both parties’ perspectives, these concerns have receded in importance. It seems to me to be more likely than not that, in its latter stages, the marriage between the parties was frequently deeply unhappy. In such circumstances, it is only to be expected that both parties’ behaviour was found wanting from time to time. However, there is nothing to indicate that this has had any long term detrimental consequences for either X or Y.
This view is supported by Dr A, who reported in the first family assessment report her opinion that the parties had suffered “situational or separation conflict which conflict has resulted in very poor communication between them…”
On 2 September 2014, the children’s names were entered on the AFP Family Law Watch List. Orders were also made for the children to spend time with their father on Wednesdays and on alternate weekends, during school terms and for blocks of five days during the school holidays. I was hopeful that the difficulties between the parties would reduce over time.
To his credit, Mr Liddell agreed to vary the order, which provided him to spend a block of five days, with the children, during the forthcoming school holiday. He acknowledged that the children were still undergoing a process of adjustment and were likely to be unsettled if separated from their mother for up to five days. In lieu thereof he agreed to have the children for two blocks of three nights. I consider that this arrangement reflects well on both parties. It demonstrates some facility to negotiate a change of arrangements, which is child focussed.
From Mr Liddell’s perspective, this holiday period went well and X and Y enjoyed their time with him and were reluctant to return to their mother. On the other hand, Ms Liddell asserts that the children were unsettled, sad and clingy on their return to her care. In this context, Ms Liddell has deposed “the children enjoyed their time whilst with the husband; however the emotional impact was evident afterwards.”[27]
[27] See wife’s affidavit filed 5 August 2015 at paragraph 44
On the other hand, it has been Mr Liddell’s position, from this time onwards, that X, in particular, has wanted more rather than less time with him. It is Mr Liddell’s evidence that certainly since this time, the children have completed any process of adjusting following their parents’ difficult separation. This is an issue to which I will return, when considering the evidence of Dr A.
In November of 2014 Mr Liddell chose to further agitate his interim application for an equal time regime. Again this was vehemently resisted by Ms Liddell as being too emotionally challenging for X and Y. The issue was determined in the light of each party filing several affidavits, which were at odds with one another. Significantly, I had some advice from a family consultant, Ms K, whom I had requested interview the parties, pursuant to section 11F of the Family Law Act. Ms K reported as follows:
“It is noted that the separation is relatively new for the children and the parents, and it is likely that all members of the family are feeling emotionally vulnerable and fragile at this time. Short but frequent time with the father may assist the children to keep the connection with the father, and it may be difficult for them to adjust to several consecutive overnight times given the changes they have experiences in their lives. Ms Liddell’s proposal for dinner times with the father may have some merit, and if the parties cannot agree about the best overnight arrangements, one night might be best in the Interim, and a Family Assessment, in due course, might assist to resolve the dispute.”
In the light of Ms K’s advice and my perception that the areas of dispute between the parties were escalating rather than diminishing, as previously indicated, I elected to adopt a cautious approach and not unduly alter arrangements for the care of X and Y at an interim stage.
I maintained term time arrangements for the children to spend overnight each Wednesday with their father with alternate weekends from Saturday morning to Sunday afternoon. In respect of school holidays, an equally cautious regime was followed, which saw the children spending only three single overnight periods, with their father, during each fortnight, with their father.
Ms Liddell’s perception was that the children benefitted from being separated from their mother for only one night at a time. On the other hand Mr Liddell asserts that the children were settling down because they were adjusting more readily to their parents’ separation. Ms Liddell is critical that Mr Liddell did not always take up his time with the children or ever request additional time.
Ms Liddell provides one example where she asserts communication was less than optimal. It concerned one of the children being ill and alternative arrangements having to be made at short notice. Clearly, this is a fairly commonplace situation, which will recur in future. The evidence is that the parties were able to communicate about the matter – instantaneously in fact, through SMS messages.
In this sense, there are no practical deficits in their abilities to communicate with one another, in the face of an unexpected event. Each will be able to contact the other, through electronic means, and be confident that his/her communication will be responded to promptly and without invective, if not great warmth.
Ms Liddell’s criticism is that Mr Liddell was not immediately able to leave his employment and come to her aid, although he did offer assistance later in the day, which she rebuffed. In this context, given the degree of notice provided to him of the child’s indisposition, it seems unfair that Mr Liddell is characterised as having issues in respect of problem solving. The issue of X’s tummy cramps was addressed, albeit not in the manner Ms Liddell would have wished.
The difficulty of balancing home and work responsibilities is one of the mantras of the modern age. Although Ms Liddell has tailored her work commitments around the needs of the children, she is not likely to be immune herself to such issues in the future. It seems probable that Mr Liddell would do whatever he could to assist her. The parties have managed attendance at school and sporting events, without conflict erupting, although I accept that there is often a stilted and chilly atmosphere between them.
As is obvious from these lengthy reasons for judgment, the parties’ relationship is not the most fertile one from which to grow a shared time parenting arrangement. Again, is the fact that the parents concerned do not have the level of communication skills most conducive to the imposition of a shared parenting arrangement, a sufficient factor to rule out such an arrangement. Obviously, this must be a question of degree in each individual case concerned.
It would be nonsensical if the court could only consider an equal time arrangement, if the circumstances prevailing are conducive for the facilitation of such an arrangement. As previously indicated, parents who litigate with one another are not likely to produce such optimal circumstances. Necessarily, the vast majority of parents who come to court, at the final stage, do not agree on many issues to do with their children and have problems discussing their difference amicably.
I suspect that the parties will never completely see eye to eye in regards to a wide range of issues, given the differences in their respective temperaments and personal orientation and also because of the emotional residue arising from their difficult separation. I do not consider that Ms Liddell’s obvious and strong personal antipathy to an equal time regime is a sufficient practical reason alone to rule it out.
As I observed earlier, I must be careful not to apply an unrealistically utopian standard to the parties, particularly in respect of their communication skills. The parties separated, after an unhappy relationship. Inevitably both have experienced some difficulties in adjusting to this change of circumstances. Although far from perfect, it is my assessment that the parties’ level of communication is sufficient to resolve most of the issues, which are likely to arise between them from the implementation of an equal time arrangement.
d) Impact on the children
X and Y are doing well under the current regime, which sees them both spending weekend and weekday time with their father. In Dr A’s assessment, they are each polite, high functioning and well-adjusted children, who engage well with their parents and the world at large. They engage in a wide variety of activities outside of school.
It is Ms Liddell’s position that Y, in particular, is clingy if she is separated from her mother for any extended period and that X has become argumentative. In particular, Ms Liddell’s view is that the children were greatly upset following the recent extended holiday with their father. Mr Liddell’s perspective is that the recent (omitted) holiday, involving five days went well and Y enjoyed herself. He has not noticed any particular difficulties with X’s behaviour.
Dr A noted the mother’s evidence regarding Y’s clinginess and thought it something of an overstatement to regard the children as being traumatised. She accepted that there was a need for caution, but generally regarded the children as having demonstrated a capacity to cope with change, which included their father’s change of accommodation and their increased time with him.
Dr A also suggested that, given there were no reports of the children having been unsettled at school there was a significant level of probability that the mother was overstating the level of upset being experienced by the children. I do not suggest that Ms Liddell is exaggerating the degree of difficult for the sake of advantage in these proceedings or in order to secure her preferred outcome in them. However, I am concerned that she may not be completely objective in her assessment regarding the overall resilience of the children, particularly their capacity to adapt to change.
In these circumstances, I do not think a progression to an equal time regime, over a period of around two years, is going to have a markedly deleterious impact on the children concerned, although it will entail a process of adjustment for them.
e) Any other issue
In T & N,[58] a case which pre-dates the shared parenting amendment legislation by several years, Ryan FM (as her honour was then) drew up a list of matters, considered to be useful indicia as to whether or not a shared parenting regime was likely to be workable. Some of the matters on the list were as follows:
·do the parents agree or disagree on matters relevant to the child’s day to day life in respect of such things as methods of discipline; attitudes to homework; health and dental care; diet and sleeping patterns;
·do the parents share similar ambitions for the child in respect of such things as religious adherence, cultural identity and extracurricular activities;
·do the parents respect on another, as parents;
·can the parents address, on a continuing basis, the practical considerations which arise when a child lives in two homes, in respect of such things as necessary school work or sporting equipment left behind at the other home.
[58] T & N [2001] FMCA fam 98 at 34
In my estimation, given the very similar backgrounds of the parties and their shared aspirations that X and Y should do well at school and have a happy and well adjusted childhood, they are likely to agree on matters relating to when homework should be done; when the children should go to bed; and what are appropriate meals and snacks for them. There is no suggestion that they do not have common attitudes in respect of how the children should be disciplined, if required.
In these circumstances, it does not seem to me to be probable that there will be any great chasm between the parenting ethoses pertaining in the two households. Mr Liddell respects Ms Liddell as a parent. This is not an attitude reciprocated by Ms Liddell. I suspect that her views, in this regard, are influenced somewhat by the circumstances surrounding the end of the parties’ marriage.
X is likely to forget his (hobby omitted); Y may decide that she needs a particular thing for (hobby omitted). Some essential thing required to complete a project for school may be at one house rather than at the one at which it is immediately needed. In addition, one of the children may ultimately find it irksome that he or she has two bedrooms rather than one.
In terms of the former type of issue, both parties are likely to do whatever is necessary, within reason, to fix the problem arising – arrangements will be made to collect the (omitted) or the (omitted). How the children themselves will react to having two bedrooms and the like is uncertain and is likely to change over time.
The mother view the children as having a particular emotional connection to their situation at the Property M home, where they have each lived for most, if not all, of their lives to date. They are likely to have such a sentimental attachment to this home, but, in my view, it will not necessarily be severed if they live in their father’s home for extended periods of time.
Conclusions on children’s issues
Y’s tender years and greater susceptibility to emotional upset must be the major consideration in determining how quickly the children move to an equal time regime, which I have concluded is both in their best interests and reasonable practicable to implement.
Y will turn seven in April of next year. From the start of Term 2 in that year, I propose that the children live with their father for five nights per fortnight, during the school year. In the first week of each fortnight, this can be from the conclusion of school on Friday until the commencement of school the following Monday (or Tuesday in the event of a public holiday). In the other week of the fortnight, I propose from after school on Tuesday until the commencement of school the following Thursday morning.
When Y turns eight in April of 2018, the week about regime can commence, with the children transitioning between the parties’ home on the day most convenient to them and failing agreement to be Friday, from after school.
Notwithstanding the mother’s fervent opposition, in my view, the children will be able to sustain seven consecutive days, in their father’s care, during school holiday periods. In my view, it is in their best interests for this to occur from the end of year 2016/17 school holiday onwards. I will make orders in respect of the equitable sharing of special occasions.
Property proceedings – section 79
Step 1 – the pool of assets
On the basis of the findings set out above, I find that the parties’ table of assets consists of the following:
Assets:
$
The Property M property
625,000
Property N property
435,000
The (country omitted) Property
368,071
The (omitted) withdrawal (W)
10,000
The (omitted) balance
18,000
(omitted) shares (W)
3,800
(omitted) shares (W)
9,000
Total assets
1,468,871
Liabilities:
Property M mortgage
100,000
Property N mortgage
407,000
(country omitted) mortgage
267,981
Total liabilities
774,981
TOTAL ASSETS
693,890
Financial Resources:
Wife’s superannuation
186,159.13
Husband’s superannuation
201,000.00
Total superannuation
387,159.13
Step 2 – Assessment of contributions
The various and different contributions of the parties must be assessed and weighed against the background of their marriage, which lasted almost 20 years and produced two children. On any view, the relationship was one of significant length.
In my assessment, both parties are energetic and resourceful individuals, who contributed, to the full extent of their respective capacities, towards achieving the welfare of their family, through both paid employment and homemaking.
Regardless of their criticisms of each other now, the parties clearly planned to have a family together and wanted their children to have a happy and well provided childhood and adolescence. This was the raison d’etre of their marriage and their shared purpose in it.
I am satisfied that during their marriage, both parties worked hard in a variety of capacities. Prior to the birth of X, both were employed as (occupations omitted) both in Australia and the (country omitted). They both earned comfortable salaries during this period which were pooled and utilised for joint purposes.
With the birth of X, Ms Liddell, with Mr Liddell’s approval, has focussed more on parenting responsibilities and homemaking. As I have found, she is an excellent and devoted parent. In addition, she has also combined these responsibilities with part time employment.
In recent years, Mr Liddell has had a number of positions in the paid workforce and one brief period of unemployment. I accept that he has applied himself diligently to his employment and has utilised his wages entirely for family purposes. At the same time, I accept that he has not shirked his responsibilities as a parent and homemaker but rather has augmented Ms Liddell’s role, in this regard.
Although I am loath to use the word conventional, the parties have adopted conventional roles in their marriage. In my estimation, the marriage was a partnership, during which both parties fulfilled their allocated role capably, which complimented that of the other. They jointly and willingly committed all their resources and energies to joint purposes.
In all these circumstances, I have no difficulty in reaching the conclusion that the parties’ respective contributions, during their marriage, are to be assessed as different in nature but essentially equal.
The one exception concerns the significant injection of capital, which is attributable to Ms Liddell’s father. The sum in question was approximately $96,000, the vast majority of which was used to reduce the mortgage on the Property M property. When compared to the current net asset pool, it must be regarded as a significant sum.
However, there is a dearth of evidence regarding Mr R’s motivation in making the gift, which arose at a time when the parties were in a committed relationship, with one another and, as such, Mr R would have known that the donation would benefit both the wife and the husband.
In these circumstances, as I foreshadowed earlier in the judgment, I propose to approach the donation as a contribution emanating from the wife. However, it is potentially distorting to approach the sum in purely arithmetical terms. In these circumstances, I will allow 5%, in favour of the wife, in respect of this item.
The period since the parties separated has inaugurated a time of financial deprivation for each of them. The husband has been compelled to move into rented accommodation. He has had child support responsibilities. I accept that he has not shirked his financial responsibilities in the period following separation.
As a consequence of the parties’ prudence, during their marriage, the mortgage on the Property M property was well in advance. As a consequence, they have had some financial latitude, in the period since separation, which has enabled them to manage their various negatively geared properties. They have also been able to sell one of the properties concerned.
In this period, the parties have been able to stave off complete financial calamity, which is to their mutual credit. At the same time, they have each incurred significant liabilities in respect of legal fees as a consequence of these proceedings. In all these circumstances, I do not consider that one party has made a greater contribution than the other in the period post separation.
There is a difference of approximately $15,000.00 in respect of the parties’ superannuation holdings, which favours the husband. At this stage of the proceedings, I do not consider that this is significant and propose that no alterations be made in these holdings, but I will take into account the modest disparity at the third step stage.
Accordingly, in percentage terms, I assess the parties’ respective contributions, arising from step two, as favouring the wife 55/45%.
Step 3 – section 75(2) – the prospective needs of the parties
I am now required to consider the various matters set out in section 75(2) and in particular to consider whether any further adjustment should be made in favour of either party. The section 75(2) factors are mainly, but not only, prospective in nature. They are as follows:
(a) the age and state of health of each of the parties;
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d) commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person;
(f) subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under -
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,
and the rate of any such pension, allowance or benefit being paid to either party;
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain adequate income;
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)the need to protect a party who wishes to continue that party’s role as a parent;
(m)if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties.
I will address the section 75(2) factors, as relevant.
Paragraph (a) – the husband was born on (omitted) 1972. The wife was born on (omitted) 1971. Both enjoy good health. In general terms, I find that there are no health considerations, relevant to these proceedings, arising in respect of either party. Both are likely to be able to continue working for many years to come.
Paragraph (b) – both parties have qualifications as (occupations omitted). The wife’s professional experience is less current than that of the husband, as a consequence of her leaving full time employment, as an (occupation omitted), with the birth of X. I accept Ms Liddell’s evidence that she has of late chosen to pursue less well remunerated financial work, in the not for profit sector. As a consequence, at the present time, she earns a significantly lower salary than that of the husband.
It is the wife’s current preference that she remains, in her part time work, whilst Y is in primary school. This is a period of around six years. It is the tenor of Ms Liddell’s evidence that, in these circumstances, it will be easier for her to obtain employment, in the not for profit area, which is likely to attract less remuneration than if she sought employment within industry or a (employment omitted).
In general terms, I accept that the non-government sphere is, on balance, likely to offer more flexible employment to a single parent such as Ms Liddell, who has highly marketable skills but does not wish to be employed on a full time basis. I also accept that such employers are not likely to be in a position to offer as an attractive salary as private employers.
However, I must also bear in mind that Ms Liddell has not provided any actual evidence of her employment prospects. For all sorts of reasons, in the context of these proceedings, she is not likely to present an enthusiastic front, in respect of her employment prospects, nor be inclined to inquire of possible employers as to their willingness to take on part time employees. In my assessment Ms Liddell has the attributes, particularly the mental capacity to obtain employment which is appropriate for her significant skills and experience.
Mr Liddell has secure employment, in industry, as an (occupation omitted), which provides him with a salary in the low six figures. It is his evidence that his current employer is sympathetic to his likely parenting responsibilities. In the short to medium term, Mr Liddell is likely to have a greater level of financial security than Ms Liddell because of his employment.
However, in my assessment, Ms Liddell is an intelligent and well qualified person. As previously indicated, she has professional experience derived from working at a large (employer omitted) firm. In these circumstances, I would expect that, if she wishes, Ms Liddell will be able to return to full time employment in some form of (occupation omitted).
It has been said, by the Full Court, that the most valuable “asset” a party can take out of a marriage is “a substantial, reliable income-earning capacity”.[59] In my view, the evidence indicates that both parties have such a capacity, but at present the husband’s is superior to that of the wife.
[59] See Clauson & Clauson (1995) FLC92-595 at 81,911
This issue turns on the wife’s preference to remain significantly involved in parenting X and Y. In this context, it is the husband’s position that it is not fair to him that the wife should be able to warehouse her income earning capacity for an indefinite period of time, particularly if he is substantially involved in caring for the children.
At present Mr Liddell’s salary is approximately double that of Ms Liddell, although their qualifications are broadly similar. From 2018 onwards, their level of responsibility to parent X and Y will be the same. Accordingly the factors arising under this criterion and the subsequent one favour Ms Liddell but do not do so indefinitely.
Following their lengthy marriage, the parties find themselves with approximately equal levels of superannuation. Given their respective ages and qualifications, it seems to me that both will be able to add to that superannuation in the period prior to their retirement from the workforce, which is likely to be many years in the future.
Paragraph (c) – at the present time, Ms Liddell has the main responsibility for parenting X and Y, who are in her care for ten days per fortnight and with their father for the remainder. This will change in the first part of next year to a 9/5 day regime and in April 2018 to a 7/7 day regime.
Accordingly, the care of the children will gradually transition from one which is predominantly with the wife. As such, she will have a greater degree of latitude to seek more hours of work or work for longer periods in one week of each fortnight from April of 2018 onwards.
It is the wife’s case that, up to this stage, and most probably for the next eighteen months or so, it will be she, rather than the husband, who will suffer the inevitable restrictions upon working hours and choice of work because of her greater obligations to care for X and Y, if one of them falls ill.
In this context, Mr Liddell asserts that his employer is family friendly and supportive of his role as an involved parent. This evidence has not been tested in any forensic way and I concede that no employer, in this day and age, is likely to assert publically that it is not family friendly.
The underpinning of much of Ms Liddell’s case is that society continues to be sexist and inevitably, when push comes to shove, it will be her employment prospects, which will be detrimentally affected by parenting obligations, regardless of any shared parenting regime.
Bearing in mind all these factors, I consider that the factors arising under this consideration favour the wife to a moderate degree in the short to medium term, but are likely to even out, in the next two to three years, particularly if Ms Liddell returns to full time work.
Paragraph (d) – the parties and the children enjoy a reasonably comfortable lifestyle, without any great indulgences. The children are properly provided for and supported. The parties are committed to ensuring that X and Y have a well-funded education and a comfortable middle class lifestyle.
Paragraph (e) – neither party has either a legal or moral obligation to support any other person, other than the children concerned. Mr Liddell is under no legal obligation to support either Ms A or her children.
Paragraph (f) – as previously indicated, the parties’ superannuation holdings are approximately equal, although Mr Liddell has an advantage of about $16,000.00. Each party is likely to have available to him or her, barring unforeseen events, to have around twenty years, in the paid workforce to prepare for retirement through the accumulation of superannuation.
If Ms Liddell does not return to full time work or delays her return, she will not be able to accumulate as much superannuation as Mr Liddell over the coming decades. However, in my view, this is likely to be her personal choice. As I have found, she has viable and attractive qualifications in (occupation omitted). I will take into account the current modest discrepancy in the parties’ respective superannuation holdings.
Paragraph (g) – this consideration recognises that one of the inevitable consequences of the end of the majority of marriages is a drop in living standards for the individuals concerned. This is particularly so if the marriage concerned has been a lengthy one and has involved on party either entirely or largely retiring from the workforce.
It is trite, but true nonetheless, that two households cannot live as economically efficiently as one. What is important is that any drop in living standards should not be borne disproportionately by one party more than the other. The end of the parties’ marriage has been an economic misfortune for each of them.
Mr Liddell has been forced to move into rented accommodation, which he has had to equip. The income coming into Ms Liddell’s household, where X and Y have predominantly lived has been significantly reduced. In these circumstances, I accept both parties have been doing it hard.
From Mr Liddell’s perspective, the most important aspect of this part of the proceedings is her desire to keep the Property M property, as it has been her home and that of the children for a significant period of time. I bear this in mind. However the property embodies the most significant store of the parties’ jointly accumulated capital. The interests of Ms Liddell, in wanting to continue her lifestyle, as represented by her continued occupation of the home, must be balanced against Mr Liddell’s entitlement to have an equitable share of the parties’ jointly accumulated capital.
It would not be fair to Mr Liddell, if his proper entitlements are subjugated to the wife’s aspirations to retain the property. If Mr Liddell’s legitimate claims, for a proper share of the parties’ marital property, cannot be satisfied without the sale of the property because Ms Liddell cannot raise sufficient funds against it, the property must be sold.
Paragraphs (h), (j) & (k) – Ms Liddell seeks a sum of money in the form of spousal maintenance. This claim was not delineated with any precision. Pursuant to section to section 74 of the Act, the court may make such order as it considers “proper” for the provision of maintenance to the wife in accordance with the provisions of Part VIII of the Act.
In particular, section 72 deals with the right of a spouse to maintenance and reads as follows:
“(1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).”
The discretion arising under section 72 is to be exercised in accordance with the provisions of section 74 with “reasonableness in the circumstances” being the “guiding principle”. [60]
[60] See Bevan & Bevan (1995) FLC 92-600 at 81,981-2
Ms Liddell does have the significant care of X and Y, who are under the age of eighteen years of age. She does however have a high level of skills which equip her to obtain appropriate employment. In these circumstances, I do not think that it is either reasonable or proper to make an order requiring Mr Liddell to provide a defined stream of spousal maintenance for Ms Liddell for either a defined or indefinite period.
This is not a case where Ms Liddell needs to retrain or undergo any form of re-skilling before she is able to return to the workforce. In addition, in my view, there is no cogent evidence supportive of Ms Liddell’s contention that her skills have significantly eroded during the period in which she has been engaged predominantly in pursuing family responsibilities.
I will, however, take these considerations into account in determining what is the appropriate division of the parties’ marital capital particularly bearing in mind that over the next two to three years, it is likely that there will be a move towards an equalisation of the parties’ income at the same time as their parenting responsibilities come in equilibrium.
Paragraph (l) – I appreciate the importance Ms Liddell places on being available to X and Y, particularly in the context of after school. As previously indicated, I accept that Ms Liddell strongly identifies her role in life as being a parent. However, Ms Liddell does not have an absolute right to focus on being a parent to exclusion of any requirement to make provision for her own financial support following the end of the marriage between the parties.[61]
[61] See Heeks & Heeks (1980) FLC 90-804 at 75,072
Again the court must look to what is reasonable and proper in all the circumstances prevailing. Ms Liddell is a person with professional qualifications. It is not, in my view, reasonable that she should not utilise these qualifications, to a significant level, once the children have become fully embarked upon their primary school education.
Paragraphs (m) (o) & (p) – these considerations are not relevant to the current matter.
Paragraph (na) – the weight to be attached to a child support assessment will vary in the circumstances of each particular case concerned. The court is directed to look at the amount of the assessment, the financial circumstances of each of the parties, the needs of the children concerned and whether child support is likely to be paid regularly and at an adequate rate in future.[62]
[62] See Clauson & Clauson (supra) at 81,911
Mr Liddell is a PAYG taxpayer. His salary is likely to be readily amenable to the application of the child support formula. In my view, he has limited capacity to manipulate his affairs to escape child support. More significantly, I accept that the evidence indicates that Mr Liddell has voluntarily accepted his responsibility to provide financial support for the children and has regularly paid more than has been legally required of him.
In all these circumstances, it seems to me that the relevant authorities will be able readily to apply the applicable child support formula to the circumstances of the parties concerned and ensure that an appropriate level of child support is paid depending on the income of the parties themselves and the relevant care arrangements for the children, as they change from time to time.
Conclusions on section 75(2) factors
The parties are of similar age and have similar qualifications. They both enjoy good health. Over the next two to three years, they are likely to move to a situation in which their incomes are broadly similar, during which period they will assume the shared care of their children. At the same time, the child support formula will ensure that both of them provide an equitable level of financial support for their children.
In this context, it will also be the case that the parties will do everything necessary to provide X and Y with all the prerequisites pertaining to a comfortable middle class childhood, including a private education and involvement in a wide range of extracurricular activities. They will share these expenses.
Ms Liddell’s fervent wish is to retain the Property M property. In order to do so, she will have to extend the mortgage already secured against it. Mr Liddell wishes to utilise whatever capital is realised to him, as a consequence of these proceedings, to purchase suitable accommodation for him and the children. Accordingly he too is likely to have the on-going burden of having a mortgage to service.
In all these circumstances, it seems to me that the parties face broadly similar financial futures. The only significant areas of difference being that there will be a period of two or three years, whilst Ms Liddell gets up to speed, before this financial equilibrium is achieved. In my view, this factor, when coupled with the current slight disparity in the parties’ level of superannuation, calls for a further adjustment in Ms Liddell’s favour, which I calculate should be 6%.
Accordingly, I assess that the parties’ non-financial assets should be divided 61/39% in the wife’s favour. This takes into account the differential, in the husband’s favour, arising from superannuation holdings. Rather than making a splitting order to bring about equalisation, I have allowed an extra 1% in the wife’s favour, on the assumption that cash is more useful to her than superannuation.
If the wife retains the Property M property, subject to its existing level of mortgage ($525,000.00); her shares ($12,800.00); and the (omitted) funds, both those notionally attributed to her and the existing balance ($28,000.00); she will have assets to the net value of $565,000.00.
If the husband retains the (country omitted) property, subject to its existing level of mortgage ($100,090.00); and the Property N property, subject to its existing level of mortgage ($28,000.00); he will have assets to the value of $128,090.00.
61% of the parties’ net assets equates to a sum of $423,272.90 and 39% to a sum of $270,617.10. Accordingly, to bring about the outcome proposed, it will be necessary for the wife to provide the husband with the sum of $142,527.10. I will round this sum up to $143,000.00 and allow the wife sixty days to raise the sum.
Ms Liddell’s evidence is that she believes she will be able to raise this sum by way of an extension on the existing mortgage on the Property M property, leaving her with a likely mortgage balance of somewhere in the vicinity of $250,000.00 or around 40% of the property’s estimated value.
I accept that this calculation does not take into account her likely heavy level of indebtedness arising from legal fees. She will have a reasonable amount of superannuation and some modest ability to fund unseen exigencies, if she liquidates her shares. This outcome gives her the security of accommodation, which has been her primary focus. It leaves her with some modicum of financial security but not to any great degree.
Mr Liddell will have two investment properties, which contain some equity and in which he sees potential for capital growth. He will have a sum of cash to use as a deposit to purchase accommodation for him and the children but in order to do so, like the wife, he will have to borrow a significant sum of money. He too will have a reasonable amount of superannuation. The necessity of the situation is likely to require both parties to remain in full time employment for the foreseeable future. In this regard, it is noteworthy that they have similar qualifications.
The relevant factors to be considered in determining how any mix of assets, between parties, is to be made up, when final orders are being determined, are likely to include the following:
·the purchase price of appropriate accommodation and rehousing costs for each of the parties concerned;
·the need to provide some form of financial buffer to cover each of the parties concerned in respect of the ordinary exigencies arising from independent living;
·the current level of the parties’ superannuation and any discrepancies thereon;
·the probability of the parties being able to acquire appropriate superannuation benefits from any future income;
·any discrepancies in the income earning capacity of the parties concerned, which will have implications in respect of any capacity to borrow monies in future in order to finance the purchase of future accommodation.[63]
[63] See L & L (2006) FLC 93-254
There is no perfect outcome in this case for either of the parties concerned. Regrettably, both the end of their marriage and the ruinous costs incurred by them in pursuing these proceedings, make it inevitable that their standard of living, in the short to medium term, will be much reduced and each will have significantly less financial security than previously.
However, notwithstanding these doleful conclusions, there is an upside. Both Mr Liddell and Ms Liddell are intelligent professional people, who have the skills to put this financial calamity behind them and replenish their financial stores. They will leave the marriage with roughly equivalent amounts of superannuation and the capacity to provide accommodation for themselves and X and Y.
As such, I am satisfied that the outcome I propose represents a just and equitable one, in all the circumstances prevailing.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding four hundred and seventy five (475) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 28 October 2016
[19] Watson & Ling [2013] FamCA 57 at [13]
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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