Lotta & Lotta
[2017] FamCA 50
•6 February 2017
FAMILY COURT OF AUSTRALIA
| LOTTA & LOTTA | [2016] FamCA 50 |
| FAMILY LAW – CHILDREN – Parenting – Where breakdown of the father/child relationship – Where father /mother relationship poor and conflictual – Where child of mature years has strongly expressed wishes as to contact with father –Where consideration of the child’s best interests – Where not appropriated to make positive order for the child to spend time with the father. FAMILY LAW – COSTS – Independent Children’s Lawyer’s costs – Where consideration of general principles – Where appropriate that order be made for parties to pay equally the Independent Children’s Lawyer’s costs. FAMILY LAW – PROPERTY – Where separation some years before trial – Where post separation financial dealings between the parties and otherwise – Where evidence adduced lacked appropriate forensic clarity – Where court satisfied that husband has failed to be full and frank with the court as to his financial dealings – Where appropriate to make adjustive orders – Orders made for husband to pay to wife capital sum. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79, 117 |
| Bevan& Bevan [2014] FamCAFC 19 |
| APPLICANT: | Ms Lotta |
| RESPONDENT: | Mr Lotta |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Naidovski |
| FILE NUMBER: | PAC | 3435 | of | 2013 |
| DATE DELIVERED: | 6 February 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 4, 5, 6, 11, 26 October 2016 and 12 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Thurlows Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Petrie (4, 5 and 6 October 2016) Self-represented (11 and 26 October 2016) |
| SOLICITOR FOR THE RESPONDENT: | Robert Tricca & Associates (4, 5 and 6 October 2016) Self-represented (11 and 26 October 2016) |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Kenny |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
Orders
Parenting:
That the mother have sole parental responsibility for the child A born … 2004.
That the child live with the mother.
That the father shall be at liberty to send letters and/or gifts to the child by forwarding those letters and/or gifts to the child at his home and the mother shall ensure that all letters and/or gifts that the father sends are passed onto the child.
That in the event that the child expresses a wish to the mother to spend time with the father the mother shall do all things necessary to facilitate such time occurring.
That the father shall be at liberty to obtain information from the child’s school in relation to the child’s progress and this order shall be sufficient authority for the father to do so.
That the father shall be at liberty to attend any events at the school to which parents are ordinarily invited provided always that in the event that the father attends at the child’s school the father is restrained from approaching the child, subject to order (4) above, or the mother.
That the mother shall notify the father of any hospitalisation or medical emergency involving the child as soon as is reasonably practicable and no later than 24 hours after the event and the father shall be at liberty to obtain such information from the hospital or medical provider as he may reasonably request and this order shall be sufficient authority for him to do so.
That each parent shall keep the other informed of their residential address, telephone contact number (both landline and mobile) and email address and that they notify the other parent of any change to these details within 48 hours of such a change occurring,
That each parent is restrained from denigrating the other parent or any member of their extended family or household in the hearing or presence of the child and shall not allow any other person to do so.
That each parent is restrained from discussing the court proceedings within the presence or hearing of the child and shall not allow any other person other than a family consultant or the Independent Children’s Lawyer to do so.
That each parent is restrained from showing the child any document related to these family law proceedings and shall not allow any other person to do so.
That within two months from this date the father pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyers costs in the sum of $6,400.50.
That within two months from this date the mother pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs in the sum of $6,400.50.
Property
That within two months from this date the husband pay to the wife or as she may otherwise direct the husband in writing the sum of $496,000.
Liberty to apply as to implementation or enforcement of the previous order.
That otherwise all applications be dismissed and proceedings be removed from the pending cases list.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lotta & Lotta has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3435 of 2013
| Ms Lotta |
Applicant
And
| Mr Lotta |
Respondent
REASONS FOR JUDGMENT
These are property and parenting proceedings.
Parenting
The parenting proceedings relate to the child A (“the child”) born in 2004.
At the time of trial the child was 12½ years of age.
The applicant mother in her Amended Application filed 13 February 2014 sought parenting orders in relation to the child that in summary provided as follows:
(1) that the mother have sole parental responsibility for the child,
(2) that the child live with the mother,
(3)that the child spend time with the father once every three weeks from Friday 6.00 pm until Sunday 6.00 pm with changeovers to be implemented at the mother’s residence.
At trial the mother sought substantially the same orders save that the child’s time with the father should be pursuant to the child’s wishes.
At the trial the father sought orders that provided:
(1)that the father have sole parental responsibility for the child,
(2)that the child live with the father,
(3)that the child spend time with the mother as recommended by the Family Report writer,
(4)that the child be engaged in therapeutic intervention.
A most significant issue at the trial was the weight to be attached to the child’s expressed wishes as communicated to the Court in the Family Report and the family reporter’s oral evidence at trial.
Documents relied on at trial
The mother relied upon:
a)Her trial affidavit filed 23 September 2016,
b)The affidavit of her partner Mr G.
The father relied upon:
a)His trial affidavit filed 1 October 2016,
b)The affidavit of Mr S filed 27 September 2016,
c)The affidavit of SW filed 21 September 2016.
The parties’ proposals
At the conclusion of evidence the mother proposed final parenting orders as follows:
(1)that the mother have sole parental responsibility for the child,
(2)that the child live with the mother,
(3)that the child spend time with the father as he wishes.
The ICL proposed orders in the following terms:
(1)that the mother have sole parental responsibility for the child,
(2)that the child live with the mother,
(3)that the father shall be at liberty to send letters and/or gifts to the child by forwarding those letters and/or gifts to the child at his home and the mother shall ensure that all letters and/or gifts that the father sends are passed onto the child,
(4)that in the event that the child expresses a wish to the mother to spend time with the father the mother shall do all things necessary to facilitate such time occurring,
(5)that the father shall be at liberty to obtain information from the child’s school in relation to the child’s progress and to attend any events at the school to which parents are ordinarily invited,
(6)that in the event that the father attends at the child’s school as provided for in the previous order the father is restrained from approaching the child or his mother,
(7)that the mother shall notify the father of any hospitalisation or medical emergency involving the child as soon as is reasonably practicable and no later than 24 hours after the event,
(8)that each parent shall keep the other informed of their residential address, telephone contact number (both landline and mobile) and email address and that they notify the other parent of any change to these details within 48 hours of such a change occurring,
(9)that each parent is restrained from denigrating the other parent or any member of their extended family or household in the hearing or presence of the child and shall not allow any other person to do so,
(10)that each parent is restrained from discussing the court proceedings within the presence or hearing of the child and shall not allow any other person other than a family consultant or the ICL to do so,
(11)that each parent is restrained from showing the child any document related to the family law proceedings and shall not allow any other person to do so.
The father near the close of evidence proposed the following orders:
(1)that the father have sole parental responsibility for the child,
(2)that the child live with the father,
(3)that the father be permitted to enrol the child in H School,
(4)that the child spend time with the mother at any time as agreed to by the child,
(5)that the father ensure that the child attends therapeutic counselling,
(6)that the mother pay the costs of the child’s therapeutic counselling.
Context
The mother at the time of trial was aged 43. The father was aged 44.
The parties commenced cohabitation in 1992 and married in 1993.
The parties separated in September 2008, some eight years before trial and were divorced in March 2014.
There are three children of their relationship J now aged 21, L now aged 20 and the subject child now aged 12. At the time of separation the children were aged 13, 12 and four. The child is now in high school in Year 7.
The mother describes their relationship as a “reasonable workable marriage”. However, the mother complains that the father was a significant controlling and dominating factor in their relationship.
The mother initially worked for a health society but ceased work just before the birth of the second child in 1996. Thereafter she worked in various part-time positions and her own business subject to her obligation to care for the children.
In 2003 the father, a professional, opened his own practice. The mother worked in that practice for about five years until separation. The father asserts and the mother agrees that he worked long hours.
Thereafter for a period the mother relied on Centrelink benefits.
Separation and the AVO
The mother asserts incidents of domestic violence to which she was subjected at the hands of the father. These incidents are at or about the time of separation in September 2008.
At the time of separation the mother and children left the then semi-rural home at Suburb B where she did not feel safe. After a week the mother returned to the home.
On 17 September 2008 an interim apprehended violence order was put in place for the protection of the mother. Shortly thereafter the father retuned to the home. He was charged with breach of the interim AVO.
The mother and children again left the home and returned a week later.
As a result of the father’s entreaties the mother gave no evidence later at the AVO proceedings and the matters were dismissed.
Purchase of C Street, Suburb D and thereafter
The mother was of the view that she could not remain at the Suburb B home. In early December 2008 she applied for finance secured over the Suburb B home that was in her name and at that time unencumbered. She borrowed $570,000 from St George Bank and purchased a home at C Street, Suburb D for $525 000 plus purchase costs.
In February 2009 the father was injured in an accident and stayed at the D property to recover. He then returned to reside at the B property.
An arrangement was later agreed that provided that the father pay the mother $570,000 (her mortgage debt), that the mother transfer the B property to the father with the mother remaining a guarantor of a loan in favour of the father that was secured over the D and B properties.
The father in March 2009 advanced to the mother $400,000. She applied the funds to reduce her mortgage debt. The mother applied $22,000 available to her from her D property mortgage borrowing and the parties thereafter deposited other funds to the loan until final payments in February 2010 paid the St George Bank loan balance down to nil. The mother was later released from her guarantee and she retained the D property unencumbered.
The D property was later sold by the mother in September 2014 for $802,000 with the mother asserting that in absence of financial support from the father she had no choice but to realise capital to provide for her and the children.
In November 2013 an order was made for the father to pay spousal maintenance of $400 per week. The father was later in July 2015 ordered to pay arrears of $14,800 (37 weeks) being arrears accrued until January 2015 when the mother commenced a defacto relationship with her now husband. The mother married her new husband in 2015.
The mother applied for child support in 2009. The father asserted income of only $5,000 in the 2011 and 2012 financial years. In September 2014 the Child Support Agency reassessed the father’s obligation on the basis of an adjusted taxable income of $115,000 until 31 August 2017.
As at September 2016 the father was in arrears of child support in the sum of $21,674.
The subject child
Subsequent to separation and on 14 April 2009, the parties entered into a parenting plan that relevantly provided that the child spend regular time with the father. It is common ground that the child’s time with the father was substantially in accord with that agreement for some years until 2013/2014 although the mother asserts not as regularly as provided for.
In June 2013 the mother commenced a relationship with her now husband Mr G. Coincidentally at about this time the parties’ relationship deteriorated over financial issues.
Things, it appears, did not go well thereafter.
In August 2013 the father took the mother’s car. The police were involved. (Exh “BB”) The explanation he offered in oral evidence is inconsistent with the police records of contact with him on the issue. It was restored to her by court order a month later.
On 14 August 2013 the mother commenced proceedings in the Federal Circuit Court seeking orders as to parenting, property and spousal maintenance.
In September 2013 orders were made restraining the parties from dealing with their property by way of sale, or mortgage. Shortly thereafter orders were made for spousal maintenance and the father was assessed at minimal child support.
On 14 February 2014 interim parenting orders were made at the interim hearing that relevantly provided that:
(1)The child live with the mother,
(2)The child spend time with the father each alternate weekend from 7.00 pm Friday to 7.00 pm Sunday commencing 21 February 2014 with changeovers at the mother’s home at Suburb D.
In late February 2014 the mother asserts the father took the child to an age inappropriate show. That weekend the child returned home unwell. Two weeks later the child J was distressed and asserted that the father had accused her of being disrespectful and spoilt when at dinner in a restaurant at which the child A was present.
The next day the mother received a SMS message from the father:
“DOCS want to come and remove [the child] today. What do you want me to do?”
Despite the mother contacting the police and then the father, the issue remained unclear (Exh “AA”). The father in his oral evidence was unable to throw any light on the circumstances, alleging that he could not recall who had contacted him from the Department and asserting that the subject phone had now been recycled. A note that he “would have made” as to his phone call with a male person from the Department was not available.
On return to the mother the next evening the child told the mother that the father intended for him to live with his father. The child said he did not want that to happen and no longer wanted to go with his father just in case it happened. The child expressed his dislike for the father’s then girlfriend and the fact that he was constantly asked questions about his mother’s circumstances.
On 2 May 2014 the father attended at the mother’s home seeking to spend time with the child. He was accompanied by the police. The child was not made available.
Thereafter the father ceased spending time with the child.
Proceedings were transferred to this Court from the Federal Circuit Court in October 2014.
In 2015 the mother unilaterally changed the child’s school nominating her partner as the alternate school contact and not the father, who was not included on the enrolment information. The mother concealed the change of schools from the father.
The mother asserts that notwithstanding her encouragement to do so the child refuses to spend time with the father save for one occasion in the company of his sister at McDonalds in August 2015.
Regrettably 12 months later on 5 August 2016, shortly before the commencement of this trial, the father attended at the mother’s home in company with two police officers to collect the child for weekend time. The child did not go.
On 14 August 2016 the child J sought to speak to the father about what had occurred. A long argumentative conversation on phone loudspeaker ensued, regrettably in the presence and hearing of the child.
The mother complained to the police about what were perceived as threats from the father and in doing so regrettably involved the child in the complaint against the father. The child was interviewed at length by detectives.
On 22 August 2016 the father messaged the mother that he had attended at her home again on 19 August 2016 to collect the child. The mother asserts he did not attend.
On 30 August 2016 an interim apprehended violence order was made against the father for the protection of the mother and the child restraining the father, inter alia, from going within 500 metres of the mother’s home and from contacting them except through legal representatives.
The father repeated his attendance at the mother’s home in company with the police on 2 September 2016. The interim apprehended violence order of 30 August 2016 came to the police attention and the father was arrested and taken to the police station.
The father again attended at the mother’s home on 16 September 2016 in company with two police officers. The child refused to accompany him.
The father continues to denigrate the mother on social media.
In oral evidence the father was of the view that the rehabilitation of his relationship with the child could only occur if her new husband was “off the scene”. The father was of the view that he could overcome the strong wishes of the child to have no time with him by the child being ordered to live with him and have no contact with the mother or her new husband for 12 months and that he would provide the child with therapy.
Family Consultant Interventions
The nature of the parties’ conflictual relationship is clearly evidenced by the allegation and counter allegation made in the context of a Child Inclusive Conference (Exh “J”) in January 2014:
RISK FACTORS
• The mother alleged that there was family violence during her relationship with the father and there were “one or two AVO’s” protecting her and the children. She said that the father was charged with assault however, she “withdrew”. The mother stated the father used to “scream” at her and was controlling. She said that he “sometimes would take the keys off [her] so [she] didn’t have the car”.
• The mother alleged that the father stole her car after their separation. She said that the car was registered to him but she used it to transport the children. She stated that she reported this to the police. She alleged that he had threatened her and she had voice recordings of this, which she had taken to the police.
• The father denied stealing the mother’s car and said that he took it to register it and obtain a pink slip. He stated that the mother was experiencing delusions with regards to her belief that he stole her car.
• The father denied that he was violent or threatening towards the mother and stated that she used to throw knives at him, threaten to kill herself and attempt to drive into oncoming vehicles. He said that there was one interim AVO against him which was dismissed and he was charged with assaulting the mother in 2008, which was also dismissed at Court. The father said that the mother had previously attempted to obtain other AVO’s against him, but the police declined because there were no “incidents”.
• The mother alleged that the father had told her that Court Orders were made on 3 January 2014 for him to spend time with the child. She said that the father lied about this.
• The father denied telling the mother incorrect information that the Court had made an Order regarding the spends time arrangement for the child. He said that when he went to pick up the child to spend time with him, the mother would threaten him with the police. The father alleged that the mother did not support him having a relationship with the child.
• The father stated that he had concerns about the mother’s mental health and sought that she undergoes a psychiatric assessment. He said that she took appetite suppressant medication in the past, which he thought may have had an impact on her mental health. He said that the mother did not engage in counselling (with Ms M), other than an initial session.
• The mother stated that both she and the father previously took appetite suppressant medication. She said that she had been prescribed anti-depressant medication, which she was no longer taking and had previously attending counselling. She denied any mental health diagnosis.
• The father alleged that the mother was motivated by money and, if he did not give her money, she would not allow him to see the child.
As to the parties’ co-parenting relationship the Child Inclusive Conference Memorandum reported:
• The mother said that the child spent irregular time with the father after their separation (2008). She said that, prior to the Child Inclusive Conference, the last time the child spent time with the father was 24 December 2013.
• The mother alleged that the father had “never had any interest” in the child. The mother stated that she and the father did not communicate and she “ignores his messages” and did not respond to him.
• The father stated that he and the mother had a parenting plan in 2009 which “worked” and he spent regular time with the child. He stated that the mother deliberately did not communicate with him and was “evasive”.
• The mother stated that she had concerns regarding the father’s parenting of the child and stated that the father did not listen to the child and did not spend quality time with him. She said that the child was scared of the father “because of what he’s seen and heard” during their relationship.
• The father said that he had concerns regarding the mother’s parenting and alleged that the mother treated the child as a child younger than he is, for example, spoon feeds him. He alleged that the mother had previously asked the child a lot of questions about spending time with him, which caused the child anxiety.
Notwithstanding the intensity of the conflict between the parents the child appeared mostly to rise above it and form his own views. The memo reported:
• The child aged 9 years and 11 months, presented as a softly spoken and reserved boy. He said that he lived with his mother and two older sisters, J and L, who looked after him when the mother is out.
• The child said that, the last time he saw the father was around Christmas time and this was “okay”. He said that, previous to this, he saw the father “every week”. The child stated that he did not like seeing the father because the father did not let him do what he wanted to do. He said that he did not feel safe with the father because “he doesn’t let [him] do anything”.
• When the child was told that the mother suggested he might see the father once per month, the child stated, “or every second weekend is fine”. He said that he did not like to camp on the father’s property because the cows were “annoying”. The child said that, when he spent time with the father, he would like the father to plan an activity that he (the child) might like to do.
• The child stated that he recalled witnessing the father push open the bathroom door when he and the mother were in there, but he did not recall witnessing any other occasions of seeing his parents be violent towards each other. The child said that he recalled them arguing.
• The child said that the mother cooked dinner for the family. He denied that the mother spoon fed him and he laughed at the suggestion.
• At the end of the CIC, the child spent a brief period of time with the father in the Court foyer, with the mother’s and the child’s agreement. The child was observed to be smiling and talking to the father in an animated manner.
The interviews for the Child Dispute Memo were conducted on 31 January 2014. As can be seen above, the relationship between the parents and then the father and child deteriorated significantly thereafter.
The Family Report: July 2015
A family report was ordered on 12 February 2015 for the purpose of the proceedings in this Court (Exh “I”).
At the time of the report the mother was living with her partner in the property at Suburb D with the children. The child had been moved unilaterally by the mother to a school closer to the suburb in which she and her partner were building a home.
It was the mother’s position that it should be up to the child, then aged 11 to decide if he wanted to spend time with the father. The mother suggested to the family consultant that the child identified her partner as his father.
The mother expressed concerns over the financial aspects of the case including child-support, asserting that as a consequence of the lack of child support it was necessary for her to sell her home. It is of some concern that the mother stated to the family consultant “if the finances were settled, she would do what she needed to do to fix the relationship between [the child] and the father”… But that this would not include overnight time or time with the father’s partner. She suggested that the child’s time with the father needed to be incremental and supervised by her partner.
It is clear that the father’s time with the child by the time of the report had been very limited. The father identified to the family consultant that he had attended at the mother’s home to pick the child up between June and August 2014 but on occasions no one was home, on occasions the child was unwell or on occasions the child had something else on. The father had had three phone calls with the child between September 2014 and July 2015.
The father reported to the family consultant:
…that [the child] was “very anxious” and witnessed the conflict between him and [the mother], and [the mother’s] behaviour. He said that, previously, if he was standing at the door talking to [the child] at a changeover, [the mother] would “intervene and say he’s ([the child]) got something on”.
The father expressed to the family consultant that it was his view that the child was becoming aligned with the mother in the following terms:
…[the mother] was anxious and scared for [the child’s] well-being in any scenario and thought that no one else could care for [the child] like she did. [the father] explained that this made [the child] anxious and, when they used to spend time together, he would worry about being on time to changeovers.
32. [The father] claimed that [the mother] had alienated [the child] from him. He said that, if the Court considered it appropriate, [the child] could live with him but, because [the mother] had always been [the child’s] primary carer, this may be difficult for him to manage and he did not want this upheaval for [the child]. [The father] said that he wanted [the child] to have a good relationship with [the mother] and him, and he did not want to be eliminated and excluded from [the child’s] life.
The father, reports the family consultant, considered that the problems between him and the mother were highly enmeshed with the property matters, and considered that the parenting arrangements would improve once the property and finances had been settled.
The father acknowledged that the child had told him previously that he wanted to spend time with him alone without the father’s partner. The father did not consider this was justified but would agree as he wanted to see the child.
The child’s presentation: July 2015
The child was interviewed for the purposes of the preparation of the report. The enmeshment of the child in the issues is painfully clear as is his ongoing alignment with the mother.
The family reporter notes:
46. [The child] presented as a confident and assertive boy. He said that he understood that he was attending the Family Report interviews because [the mother] had told him that she and [the father] had had a discussion to “solve this”, but it had not been solved.
47. [The child] said that he had not seen [the father] for more than a year. He said that this was because he had “made [the] decision not to see him”. A explained that he did not feel safe with [the father] because of the “way he treated me, [the] way he acts, [the] way he treats Mum and everyone”. [The child] said that, when he had previously spent time with [the father], they “did nothing”. He then said that [the father] once took him to an “over 18’s place” and security had told them that they could not enter.
48. [The child] said that he had concerns about the way [the father] acted. He provided the example that he was “straight forward” and would say “you can’t do that” or “eat your food”. [The child] added that [the father] treated [the mother] with “no respect” and that he “disrespects her” and “only cares about money”. [The child] was not able to provide examples of how [the father] disrespected [the mother].
49. [The child] said that he knew when [the mother] went to Court because he “sees”. He stated that she is stressed and angry.
50. [The child] reported that neither of his sisters spent time with [the father] any longer. He said that, when he previously spent time with him, [the father] did not listen to him and did not want to do the activities that [the child ] suggested. [The child] stated that this had been like what was recommended by the family consultant in the Child Inclusive Conference (that activities be considered that [the child] might be interested in).
51. [The child] said that [the mother] had recently telephoned [the father] and said “ring back if you care about [your] son”. He claimed that [the father’s] partner answered the phone and said to [the mother] “what do you want, [mother’s first name]?” and hung up on her. [The child] said that he did not like [the father’s] partner because she did not treat him with respect. He stated that he had overheard [the mother’s] telephone conversation.
52. [The child] reported that [the mother] and Mr [G] encouraged him to spend time with [the father]. He said that Mr [G] was “nice, treats me with respect” and “understands where I’m coming from”.
53. [The child] confirmed that he played soccer. He said that it would be “fine” if [the father] sits and watches him play, but he did not want him to speak to him. [The child] said that this was because [the father] would use the opportunity to talk to him about why he was not spending time with him. [The child] said that he may agree to spend some limited time with [the father] if someone went with him (Mr [G] was suggested by [the child]).
54. [The child] reiterated that [the father] was “not a safe person to be around”. When asked, he said that he was not worried that [the father] would physically harm him, but he was concerned that he would keep him in his care. [The child] claimed that he had overheard [the father] talking about this and, and such, he did not trust him.
55. [The child] stated that [the father] “knows” how he felt but said that “he’s lying all the time”. He stated that [the father] lied and he ([the child]) did not like it. [The child] said that [the father] had lied about “the car and money”.
56. [The child] spontaneously stated, “anyone can be a dad, but not a father”. He said that Mr [G] was like a father to him. [The child] reported that he felt protective of [the mother] and was concerned that she was stressed and angry, which he considered was caused by [the father].
57. [The child] discussed his dog in depth and his close relationship with the dog. He said that he did not want the dog to accompany him to [the father’s] house because the dog would be scared at an unknown house.
58. [The child] was advised that an observation session with [the father] would be occurring. [The child] initially refused to participate, but then suggested that [L] might accompany him. While [L] declined to be officially interviewed, she agreed to accompany [the child] into the observation session and [the father] agreed for her to be present.
The family reporter noted several concerns arising out of the observation session between the father and the child.:
…One was that [the child] said that he felt unsafe with [the father] but qualified this by denying that he was physically unsafe. From his interview, it appeared that [the child’s] views on safety were more related to feeling respected, rather than risk issues. However, during his interview, [the child] provided vague statements on being respected and how [the father] had treated him and members of his family. It was not clear that [the child] actually understood the meaning and implications of his words and it cannot be discounted that he was repeating things he had been told or had overheard.
83. [The child] was also seen to verbally challenge [the father] and he appeared to have no restraint in telling [the father] that he did not consider him his father. Although [the child] would likely have known that this would be a hurtful thing to say, he did hesitate in doing so. This may be because he wanted to hurt [the fathr] for hurting him, that he did not feel any empathy for [the father], or that he enjoyed hurting [the father]. If it is either of the latter two options, then this is extremely concerning and may indicate significant mental health issues for [the child] in relation to his relationship with his father.
84. [The child’s] laughter during that observation session indicated that he either did not take the session seriously, thought it was funny to hurt [the father], was nervous, or felt a sense of power over the situation. [L] also joined in the laughter, but it was unclear what her motivations were. It was of note that [the child’s] verbal challenges to his father were not said in an aggressive tone and he did not move from sitting next to him, but were rather said in a calm and at times, sarcastic tone. In any event, it appears highly likely that [the child] does feel some amount of hurt or anger regarding [the father].
85. It appeared that [the child] and [the father’s] relationship would not become a positive and satisfying one without significant therapeutic support and assistance. It is unknown if therapy would result in an improvement in the relationship, depending on how [the child], [the father] and [the mother] responded to it. It may be the case that, once the financial and property matters are finalised, [the mother] is able to give [the child] support regarding his relationship with [the father]. It may also be the case that the relationship is now beyond repair for [the child] and he may strongly resist spending time with [the father] due to feeling extreme negative feelings towards him..
After an observation session with the father and the child that is described in detail in the report the family reporter in evaluation opined:
74. [The child] presented as a highly confident and assertive boy. He showed no hesitation in voicing his views and, although he indicated that he did not want to attend the family report interviews, he still engaged with the process. Given his age and developmental stage, the Court could place some weight on his views.
75. The relationship between [the child] and [the father] appeared to be severely, and possibly irrevocably, damaged. There appeared several possible reasons for this. These include that [the mother] has purposefully alienated [the child] from [the father]; that [the child] has rejected [the father] because he perceives that [the father] has failed him; or that [the child] has rejected [the father] and aligned with [the mother] because of his ongoing, chronic exposure to the conflict. It is also possible that a combination of these factors has led to the destruction of the relationship between [the child] and [the father].
...If the Court does find that alienation has occurred, as opposed to realistic estrangement, then the Court will need to determine whether or not the relationship can be salvaged and how this might occur. From [the child’s] presentation, it appeared that, if the relationship could be salvaged, it would need significant therapeutic intervention. It is not considered that [the father] would have the capacity to support [the child] in a change of residence.
78. [The child] appeared to have an inappropriate amount of information regarding his parents’ separation and the ongoing disputes. It is unknown if [the child] has directly been told information or has been exposed to it indirectly. In either event, [the child] has made sense of his circumstances by blaming one parent ([the father]) and siding with the other parent ([the mother]). This may be because he felt that he had to ‘choose a side’ so as to avoid experiencing a loyalty conflict within himself. This may or may not have been directly induced by a parent.
The family reporter’s recommendations were succinct:
It is recommended that:
• Parental responsibility be matter for Judicial determination
• That the child live with the mother
• That the child spends time arrangements be a matter for Judicial determination. If the Court considers that the child should spend time with the father, then it is recommended that this be done with therapeutic support.
Subsequent to the Report
The family report was released to the parties on 23 July 2015.
On 1 September trial directions were made and the parties otherwise consented to the following orders:
(1)That the parents shall attend upon family therapy with Dr [O], Psychologist or any other therapist nominated by the Independent Children’s Lawyer and for this purpose the parents shall:
(a)Within seven (7) days obtain a referral and mental health plan for A from his treating GP;
(b)Within fourteen (14) days of the date of these Orders, contact the therapist with a view to arranging initial consultation;
(c)Attend upon appointments as advised by the therapist;
(d)Ensure the children’s attendance at appointments as required by the therapist;
(e)Each pay half the cost of the therapy;
(f)Follow the reasonable directions of the therapist.
(2)That the parents shall do all things and provide all necessary consent for the child [A] to enrol in the Anchor Program and for this purpose the parents shall:
(a)Within fourteen (14) days of the date of these Orders, contact Uniting Care with a view to arranging an initial consultation;
(b)Attend upon appointments as advised by the Anchor Program facilitator;
(c)Ensure the child’s attendance at appointments as required by the Anchor Program facilitator;
(d)Each pay half the cost of the program;
(e)Follow the reasonable directions of the Anchor Program facilitator.
IT IS NOTED THAT:
A.In respect to the orders made by consent, that in default of Dr [O] being available to undertake therapy under the terms of the Mental Health plan, the Independent Children’s Lawyer will obtain a nomination from Dr [O] as to a suitably qualified practitioner who will.
It is now apparent that such orders, not having been complied with, were a triumph of hope over experience.
The mother and father spoke with the counsellor at the Anchor program and the program did not continue due to the ongoing therapy with Dr O (Exh “M”).
Dr O (Exh “DD”) saw the father on 15 October 2015 and the mother on 19 January 2016. The notes from the mother’s appointment reveal:
Very hostile towards father…doesn’t see [the child] life missing anything…Mr [G] much better father figure….identifies with Mr [G] as father.
Dr O notes the mother “became quite hostile when this was challenged”.
The child was seen on 17 February 2016: the Doctor’s notes variously record:
very outgoing, very assured. I don’t want to see Dad…He’s not a nice person…waste of time being here, won’t come to appointments.
Concerningly the notes also record:
The judge hates him….Mum tells my sisters…hasn’t paid anything like child support…
He’s not worth anything to me...He doesn’t listen to me…old enough to make up my own mind…I’ll refuse to come to apt with father.
The mother was clearly not committed to the therapeutic process with the notes recording:
Helpless to encourage [the child]. not going to push him…have done what court expected…not willing to bring [the child] in for apt with father…[the child] needs to get on with his life.
In the shadow of the above the father saw Dr O on 17 March 2016:
Angry frustrated with not seeing [the child]. Believe [the child] being alienated…(Mother) has been undermining me for long time…property issue - family money issue.
The father reconnected with Dr O again in August 2016 requesting a further effort to have the child in for a joint session. The mother refused to engage.
The enmeshment of the child
From the above discussion it is readily apparent that the ongoing conflict between the parties had seen the child become more and more aligned with the mother.
The father has done little to ameliorate the situation. He has continued the conflict with the mother over almost every aspect of their financial dispute. He recently unilaterally involved the police in attendances at the child’s home seeking to exercise time that he had not sought for a considerable period. He demonstrated little capacity to consider the effect of his actions on the child. This was later reflected in the child’s views communicated to the family consultant during the trial.
Yet the mother clearly has consciously engaged the child in the conflict, the ongoing litigation and the issues both financial and otherwise that remain unresolved.
Significant blame must also be ascribed to the mother’s conduct.
The notes from Dr O tell a very different story to the “wronged and innocent mother” that she sought to present to the Court.
The mother’s oral evidence was given in a terse, abrupt and where possible self-serving manner. She reveals very little reflective capacity to understand the impact of her conscious and unconscious actions on the child. She has either wittingly or unwittingly done much to damage the child’s relationship with his father.
She should have been alert to the ramifications of ongoing conflict in her circumstances where she partnered with a man who has a poor relationship with his own children, aged 22, 18 and 14, who have not been to his new home even though he has resided there for more than 12 months. Despite this the mother promotes him as an ideal substitute father figure for her son and her new partner regards himself as the father figure and protector to her children.
The family reporter’s oral evidence
The family reporter gave her oral evidence after the father’s legal representation had withdrawn on short notice during the trial. To assist the father, counsel for the ICL was invited to cross examine the family reporter first.
Due to the age of the report, arrangements were made for the child to see the family reporter before she gave oral evidence.
The family reporter’s notes as to the updating conference with the child became Exhibit “KK" in the proceedings.
The family reporter records in those notes:
(1)The child reported that he had not spent time with the father and had only seen him when he came to the door with the police on Fridays. The child described seeing the police at his front door as “scary” and that this had happened a couple of times.
(2)The child said that he felt scared “to see what happens” on Fridays and that the father was “threatening and scary”.
(3)That the child was aware that there was an apprehended violence order that protected him from the father but that despite this the father kept sending the child text messages that appeared to include copies of messages that the father had sent to the mother.
(4)The child reported that the father had been arrested by the police at his house.
(5)The child reported that since the phone call referred to above that he had listened to he had ensured that his windows were shut at night as he was worried that the father will “do something”… “take me or injure someone”.
(6)The child reported that the father currently appeared “stressed out” and for that the idea of supervised time with the father was not an option.
(7)The child expressed his disappointment in the father who he felt had let him down in the past. He was of the view that his father did not respect him and that he was “not a good dad… It’s over with dad, he ruined it”. In saying these words the child to the observation of the family reporter became upset.
(8)Tellingly the child was of the view that the mother would “hate it” should he spend time with the father. The child concluded that he is “scared of this guy, don’t want to see his face”.
In her oral evidence the family reporter agreed that there were cracks appearing in the father/son relationship as early as the initial child inclusive memorandum.
The family reporter agreed that there were three possible reasons for the ultimate deterioration in the father/child relationship. They were identified as purposeful alienation by the mother, the child’s own experience of his father and a perception that that has not met his expectations and that the child has aligned with the mother seeking to protect himself from the conflict by aligning with one of his parents. The family reporter agreed that the present circumstances could be as a result of any one of the three factors or any of them including all three combined.
In seeing that the ongoing exposure of the child to the parental conflict was and is psychologically damaging to the child, the family reporter was strongly of the view that the child’s exposure to conflict needed to stop. The family reporter was unable to see a way forward in the relationship between father and child.
The following exchange between counsel for the ICL and the family reporter then occurred:
The problem is, isn’t it, that even if there was a scintilla of hope for this relationship back then with the help of therapy and what have you, the last 18 months and the prolonging of the conflict and the things that have happened and, can I suggest, the things that you’ve read in the affidavits have closed that door as well, haven’t they?
I think so, yes.
And in making the comments that you do, no doubt you have factored in that children who don’t have a relationship with a parent are at risk of demonising that parent and that having some impact on their own self-esteem and their own self-worth?
Yes.
Is that right? And that’s a risk that you think that you’re prepared to counter in making the recommendations that you make?
Yes. I think [the child’s] – the harm that [the child] experiences from the ongoing conflict is so bad that, weighed against the relationship, to me it seems like it’s worse.
I suppose, to put in simple terms, if there was no order for the father to spend time with the child, that would be a great pressure reliever for child and mother to some degree; would you agree with that?
Yes.
And that – do you think that spells the end of any possibility that [the child] would seek out his father in a few years’ time or subsequently?
I don’t know.
Later the family reporter said in response to counsel for the ICL:
Is there anything that [the father] can do in, perhaps, a non-intrusive way over the next couple of years to try to put himself in a better position to have a relationship with [the child] in his late teens or in his early adulthood?
Not that I can think of.
What about if – could he stay in touch by sending gifts, and cards, and observing special occasions, and at least letting his son know that he continues to think about him and care for him?
Yes. But not with any – containing anything about wanting to spend time with him, or anything of that nature.
In response to a question from the Court the family reporter replied:
HIS HONOUR: So, Ms [P], it was put to the mother during her cross-examination that, perhaps notwithstanding [the child’s] reluctance to spend time with his father, but the father demonstrating an interest and engagement by engaging in school things such as interviews, parent teacher interviews, and being able to attend school functions and other activities, which is a public occasion, she certainly had no objection to that, or any other extracurricular activity that might be in a more public domain, that would demonstrate to the child that the father is interested in him in some way, and perhaps at least lay the seeds of a foundation for a relationship into the future, to remediate itself. What do you see about that sort of proposal, if he’s not excluded from that type of engagement?
My only concern would be that if [the child] thinks both of his parents are at the same place, even in a public place, that he would become anxious about that – about conflict arising, which would potentially embarrass him. For a child of his age, that’s a significant issue. But if he was able to see his father without his father directly approaching him, and trying to engage with him, and not have to worry about the conflict arising, that may be something that he could – that [the child] could manage.
As to the parental conflict and conduct the family reporter said:
And whether they have been the subject of influence, manipulation, or whatever. Do you have a view about any degree to which what [the child] is saying has been influenced by his mother or members of her household?
I think it’s possible, but whether or not it has happened, I think his view is now so entrenched that the outcome is the same.
And even if the mother was – even in some small way, or large way, attempting to alienate the child from his father, his father has through his own actions played right into her hands, hasn’t he, with some of the things he has done?
Yes.
For example when, after not seeing the child for some considerable time, he attends at the child’s premises on three occasions in August and September of this year, in the company of New South Wales Police?
Yes.
The father had little reflective capacity as to his conduct as is evident from the following exchange:
HIS HONOUR: …the evidence from the father during his oral evidence was in terms of what responsibility he would accept for the current state of play in relation to the child, and [the father’s] response was, “Well, I wasn’t there more for the child.” What does that say to you, in the context of all that you know about this matter, about the father’s reflective capacity? That in the context of this matter?
That his reflective capacity is minimal.
Can you just explain, for the benefit of the Court, the concept of reflective capacity and its importance in the context of parenting?
The ability to reflect on your own actions, both positive and negative, and have those reflections inform your future parenting decisions and actions. So should you reflect that you’ve done something negative upon the child, obviously through that reflection you would make – or learn alternate ways to manage a similar situation should it arise again that wouldn’t be negative. So if a person has minimal reflective capacity, then it’s unlikely that they would be able to identify negatives within their parenting, and their behaviour towards the child, and it may be repeated again in the future.
And having regard to that response given by the father, in his oral evidence, would it be your opinion that he – any reflective capacity that he has is pretty narrowly focused?
Yes.
The father’s lack of reflective capacity is demonstrated by his cross examination of the family reporter during which he focused on narrow factual issues and aspects of the conflict between himself and the mother. There was nothing constructive: no seeking out of solutions or a pathway forward for his relationship with the child.
Ultimately the following was put to the father:
HIS HONOUR: [Mr Lotta], why don’t you put a proposal to the witness. You’re the father. If you’ve got some solution, put it to the witness so she can express a view on it.
The father’s response was to briefly explore a change of residence for the child, then resume in a most unfocused way with his questions to the family reporter.
As to a change of residence the family reporter responded to the Court’s query as follows:
You say in your response to [the father] that a change of residence for this child would be harmful to [the child]. Can you explain the ramifications of a change of residence in the present context for this child?
Well, this child and this family, I think that he hasn’t spent time with his father for some time. He holds an extremely negative view of his father, and he is of an age where he has clear views, and those views, as I’ve said before, are very entrenched. I think changing his residence would cause him extreme distress. And given that he has been exposed to ongoing conflict and for a long time, I don’t know psychologically how he would manage that. I don’t think he would be able to manage that well at all. And he’s also of the age where he could physically change his own residence if he wanted to, which is another potential risk issue.
And what would be the effect of a circumstance where, say, there was a hiatus in any time with the mother should there be a change of residence, if there was like a blackout period of three months or six months or 12 months where he had no relationship with his mother?
He would likely be extremely distressed by that and anxious about his mother’s wellbeing.
Parenting: the statutory pathway
The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Parental responsibility
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption relevantly does not apply where:
(a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
(b)…
(c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA (4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time (s 65DAA(6)). There is no such consent in this matter.
It is clear in this matter that a consideration of the child’s best interests below particularly in the context of the ongoing parental conflict and strongly expressed views of the child are not indicative of the presumption applying and it will not apply. The mother will hold parental responsibility for the child by reason of the best interest considerations discussed below.
Best Interests
The primary considerations: s 60CC(2)
The primary considerations are:
(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.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The child’s relationships with both parents are overshadowed by the issues discussed above, primarily the overshadowing spectre of the ongoing parental conflict and enmeshment of the child in that conflict by both parents.
The manner in which the child can have a meaningful relationship with the father is clouded by his own conduct, lack of reflective capacity and the child’s own strongly held views and the need to fashion orders protective of the child from the ongoing conflict in both the short term and long term.
This leads to the conclusion that in the present circumstances the child cannot benefit from time with the father except in limited circumstances where he may engage in the child’s schooling or other occasions where that attendance of either or both parents is to be expected.
It is otherwise clear that it is important for the child to continue in the primary care of the mother.
Section 60CC(2)(b) – need to protect
This is an overwhelming consideration in the context of this matter and must be given priority over issues as to relationship. In the light of the matters discussed in the context of the child’s best interests and with particular reference to the evidence of the family reporter whose evidence is accepted by the Court, there are significant risk factors in the child’s engagement with and/or time with the father on a regularised basis.
This consideration, which is to be given primacy, is supportive of the orders sought by the ICL and the mother.
The additional considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations:
(a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;
(b)The nature of the relationship of the child with:
i) Each of the child's parents; and
ii)Other persons (including any grandparent or other relative of the child);
(c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii) To spend time with the child; and
iii) To communicate with the child;
(ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i) Either of his or her parents; or
ii)Any other child, or other person (including any grandparent or other relative of the child);
with whom he or she has been living;
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)The capacity of:
i) Each of the child's parents; and
ii)Any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)If the child is an Aboriginal child or a Torres Strait Islander child:
i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)The likely impact any proposed parenting order under this Part will have on that right;
(i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)Any family violence involving the child or a member of the child's family;
(k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i) The nature of the order;
ii) The circumstances in which the order was made;
iii) Any evidence admitted in proceedings for the order;
iv)Any findings made by the court in, or in proceedings for, the order;
v) Any other relevant matter;
(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
(m)Any other fact or circumstance that the court thinks is relevant.
Consideration has been given to those matters. The more relevant considerations are discussed below.
Child’s views
The child’s views are explored above. They are not to be regarded as determinative but as one of the best interest considerations.
The views of the child have been expressed in circumstances where both parents have put pressure on the child in allowing the child to be exposed to such significant parental conflict. Such pressure has been overt, such as the father’s attendances in company with the police and insidious, such as the mother’s undermining of the father/child relationship by permitting the child to be exposed to the conflict and her views of the father.
The family reporter warns of adverse consequences for the child should there be orders contrary to his wishes. Due regard must be had to such possible consequences.
The child’s age renders it appropriate not to simply ignore his wishes notwithstanding the causal factors that may have shaped those views.
The evidence of the family reporter is accepted and the child’s age and the child’s views in the relationship context in which they are expressed are indicative of the child’s wishes being afforded significant weight.
The child’s relationships
These are considered in the discussion above especially as to the child/parent relationships. The child also has established sibling relationships with his older sisters in the mother’s home. It is to be inferred these present to him some relief from the inter-parental battle. The child also has a good relationship with the mother’s new husband.
Parental engagement
The parental engagement in the child’s life decisions as far as the father is concerned has been marred by the fractured relationship more recently with the child. The causative factors have been considered above. What the future holds is, at this stage, a guess. Should the father be able quietly and slowly win back some confidence in the child’s relationship with him then there could in the long term be a positive engagement by him in the child’s life.
Obligation to maintain
There have been issues as to the father’s ongoing obligation to pay child support. They will be dealt with, it is to be inferred, through the Child Support Agency. The father paid a lump sum of $23,760 in child support arrears on 30 September 2016. He asserts with funds provided by his fiancée and paid without his knowledge. Otherwise, the mother will assume the primary obligation to maintain the child.
Effect of change
The mother proposes the maintenance of the status quo save for the discharge of the orders as to the child’s time with the father. The father proposes a change of residence such that the child will live with him with that outcome not supported by the family reporter for reasons given or the ICL. The risks to the child of such a change are strongly indicative of the child’s present primary residence with the mother continuing.
Parental capacity
There are inherent deficits in the parental capacity of both parents. The mother by reason of her insidious involvement of the child in the escalating – inter-parental conflict, whether consciously or unwittingly. The father for lack of insight into the impact of his behaviours on the child and his exposure of the child to conflict.
It is regrettable that the outcome of the parental inadequacies is the fracturing of the father/child relationship at a stage where the child’s views presently demonstrate no alternative but to give due regard to them. Is there prospect for remediation of parental capacity? If any, it will, it appears, be a slow process.
Maturity of the child
This has been discussed above in the context of the child’s wishes and a consideration of the family reporter’s various reports for the Court. This factor is indicative of significant weight be afforded to the child’s views.
Parental attitude
Various aspects touching upon this consideration are included in the discussion above. The only conclusion can be that both parents have significant parental inadequacy. Long term the child may suffer from the hiatus in his relationship with his father.
Family violence
The relationship of the parties ended in 2008. Much of the assertions by the mother and indeed the father are relationship-based at or about the time of separation. They have little relevance in the current context. There is at present an interim Apprehended Violence Order taken out in circumstances that occurred just before trial. The proceedings remain on foot.
The circumstances leading to the interim AVO demonstrate the mother’s inappropriate readiness to involve the child in allegations against the father and in the criminal process. They also indicate the father’s lack of insight (again reflective capacity) into the impact of his “in your face” behaviours as far as the child is concerned.
This litigation over parenting must end. The child is at an age near where the Court will not engage in parenting disputes much longer as the child’s wishes will be an overwhelming consideration by reason of age. It is expected that orders to be made will be the end of the matter. It is in the best interests of the child that orders be made substantially as sought by the ICL.
The ICL’s Costs
At the conclusion of the trial the ICL sought an order that the mother and father pay the ICL’s costs equally.
The ICL seeks an order that the mother pay her half of the ICL’s costs in the sum of $6,400.50. The father consents to paying his half.
The law as to costs is well settled. Section 117 of the Act provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs.
Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just.
The relevant considerations in relation to an order for costs are set out in s 117(2A).
They are the following:
a)The financial circumstances of each of the parties to the proceedings;
b)Whether any party has legal aid and the terms of any grant of aid;
c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
g)Such other matters as the Court considers relevant.
Section 117(5) provides:
In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
A question arises as to the actual meaning of the legislative intent for the Court to “disregard the legal aid funding” of the ICL, because that terminology is susceptible to ambiguity. As opined by Austin J in Gahen & Gahen (No 2) [2013] FamCA 936, it could conceivably mean either:
(a)The Independent Children's Lawyer should be presumed to be unfunded, so as to generally incline the Court to order the parties’ contribution to the Independent Children's Lawyer’s costs; or
(b)The Court should not be swayed by either the presumed ampleness or scarcity of the Independent Children's Lawyer’s legal aid funding when determining whether to order the parties’ contribution to the Independent Children’s Lawyer’s costs.
In De Roma & De Roma [2013] FamCA 566 Watts J explained why the former is the preferred connotation, since the purposes of the legislative provision was to protect the public purse.
The threshold presumption as to each party bearing their own costs has no application to the ICL, who is not a party.
The law is well settled that there is power under the section, subject to other statutory provision referred to below, to make orders for or against the ICL and the Court may make such order as to costs of the ICL and in such proportions in relation to each of the parties as the Court considers just: (De Roma & De Roma (supra)).
Section 117(3) provides:
To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
Section 117(4) provides:
However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
The court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
Both parties are privately funded. The issue is the contribution by the mother, if any, to the ICL’s costs. The father has agreed to pay his half. The ICL’s costs total $12,801.00. The ICL seeks a payment of half from each of the parents.
As to the mother it was submitted that her liability for ICL’s costs was a matter for the Court, contending that the father should pay the whole of the ICL’s costs.
As to the relevant considerations: the respective financial circumstances of both parties are indicative of a comfortable capacity to meet any liability for the ICL’s costs, neither party is in receipt of a grant of legal aid, there is no issue as to the conduct of the proceeding generally, nor relevantly has there been any failure to comply with court orders. Otherwise, the father has been unsuccessful in respect to the orders sought by him whereas the mother has achieved substantially the orders sought by her. The consideration of the child’s best interests as set out above is plainly indicative of both parents being the cause of the child’s non-existent relationship with the father.
The participation of the ICL in these proceedings has been productive in ultimately determining appropriate orders to be made.
The father has agreed that he should pay his contribution to the ICL’s costs. In the circumstances it is appropriate that the mother do so as well. An order will be made accordingly.
Property
A consideration of the property aspect of this matter has been hindered by the lack of forensic preparation on both sides but particularly that of the husband and the failure of the husband to make full and frank disclosure of his financial dealings particularly post separation. Much of the evidence referred to below has been sourced from subpoena or other material tendered into evidence at trial or arising as a result of cross-examination.
The wife at the commencement of trial in summary sought an adjustive payment to her from the husband of $1.08m (and in default of a sale of the husband’s Suburb B property) and a split of 70 per cent of the husband’s superannuation to her.
The husband sought no order as to property adjustment, asserting at the commencement of trial that it would by unjust and inequitable to make any further or other order for adjustment in the circumstances outlined below.
At cohabitation
At the commencement of cohabitation and thereafter the husband held various positions as an employed professional until July 2003. Thereafter he practised on his own account as a professional. Otherwise, early in the period of cohabitation the husband conducted a business that to some extent supplemented his income.
The wife was in full-time employment until September 1995 and thereafter engaged in various part-time jobs and for a short period had her own business. Once the husband commenced practising as a professional on his own account she assisted him in and about the conduct of the practice. She was paid a wage and superannuation by his practice for her efforts.
At the commencement of cohabitation the husband had an interest in three real estate properties:
(1)A one third interest in a property at Q Street, Suburb E as a consequence of various intra family transactions (Exh “U”). The property was otherwise owned by his brother Mr S and his brother Mr T as to one third each.
The parties occupied the dwelling on the property from late 2003 to 2006.
In December 2008 the parties separated. Subsequently on 2 March 2009 Mr T transferred his interest in the property to Mr S for a recorded consideration of $150,000. Mr S appears to have sourced these funds from his family law settlement five years earlier and invested mostly on Westpac Term Deposits (Exh “EE” and “FF”). The funds, it appears, came from his February 2009 Term Deposit (…89) with Westpac by withdrawal on 2 March 2009 of $151,565 (Exh “EE”).
Otherwise relevantly Mr S had further funds of $312,183 lodged in October 2008 in Term Deposit (…40) maturing on 15 February 2009 with that Term Deposit then rolled over to 15 May 2009 with a maturity balance of $319,705 (Exh “FF”). The capital of the Term Deposit remained intact until maturity on 15 May 2009. He also had about $62,000 available in his company accounts (Exh “FF”)
(2)A duplex property on the NSW South Coast. This property was purchased by him in January 1991 for $60,950 as vacant land. After development of the property it was sold by him in June 2002 for $313,000 (Exh “T”). The net proceeds of sale are not known.
(3)A block of vacant land also on the South Coast. This property was purchased by him in November 1991 for $59,950 and later sold by him in June 1998 for $65,500 (Exh “T”). The net proceeds of sale are not known.
On 25 November 2014 he withdrew $278,563 by transfer. This left the account with a nil balance and an available redraw of $387,999.
On the same day the father deposited to his Westpac account (…62 above) the sum of $278,563.
Westpac Investment Loan Account (…36) and Offset Account (…90)
This loan has a credit facility of $40,000. It appears to operate much like a personal overdraft account for the father. Funds to the credit of and interest accrued on the Offset Account were credited against any outstanding loan balance. There were available loan funds of about $40,500 as at January 2013. As at February 2015 the loan account balance was nil with available funds of $33,484.
As at 29 September 2016 the husband asserts his outstanding loan balance was $61,749. There is no explanation for the drawings to that extent since February 2015.
These accounts relate to the husband’s personal circumstances after separation and as such the liability should not be brought to account in a way that requires the mother to assume any responsibility for it.
Westpac Choice Account (…88) in the name of the husband
The account is a mixture of the husband’s income from his practice not deposited to the practice account, dividend income and rent from Suburb E.
On 11 February 2015 a deposit of $402,760 marked “Fnds tfr to pay [Mr S]” was paid into this account. As discussed above these funds substantially derived from the husband’s accounts operated in the name of the child A
On 13 February the husband withdrew $375,000 marked “Payment Estate of […]”. The funds were credited back to the account on 16 February and again withdrawn on 17 February 2015. The purpose of this payment and to who is not known. It is significant that at this time the husband asserts that he “repaid” to his brother Mr S the $400,000 allegedly loaned to him to make the payment off the wife’s mortgage in March 2009.
The Mr S “loan and repayment”
The husband’s initial oral evidence was that his brother Mr S had a property settlement a few years before in early 2009 and received half of the proceeds of sale of a home at Suburb V that sold for $950,000. Such evidence is consistent with funds held by Mr S in 2009 as referred to above. Yet Mr S paid from those funds $150,000 to his brother Mr T in March 2009 to acquire his brother’s one third interest in the Suburb E property. The remainder of Mr S’s funds remained on Term Deposit thereafter.
The husband asserts he was provided with a St George Bank cheque to fund the payment of $400,000 to the wife’s mortgage. The evidence of Mr S is that a deposit by cheque of $400,000 was paid into the wife’s St George Bank mortgage account on 19 March 2009: Annex “A” to his affidavit.
Notwithstanding in 2014 receiving a Subpoena to Produce documents relating to the alleged provision of funds to the husband Mr S did not do so.
As to the alleged repayment to Mr S in February 2015 such was made from funds substantially withdrawn from the child A’s accounts as referred to above following a purported demand from Mr S several days before for repayment.
Such repayment was made the day before the Court made consent orders restraining the husband from using those funds yet the husband knew full well that the funds had been already disbursed by him. He consented to an order that was hollow and of no effect. His conduct makes a mockery of his professional obligation to the Court as a legal practitioner.
The evidence, such as it is, is indicative of funds available in early 2009 to the husband in the these accounts:
$297,000 X Sub Sec $297,013 credit
eSaver Child J $ 52,295 credit
eSaver Child L $ 53,359 credit
$402,667
being used by him to fund the initial payment of $400,000 to the wife’s mortgage.
As at 12 September 2008 funds of about $105,700 in the children’s accounts for J and L had been withdrawn by the husband. The fate of the credit funds in the $297,000 X Sub Sec account are not known and such account does not appear in any subsequent banking documents.
The evidence of the husband such as it is as to his purported dealings with his brother Mr S is not accepted. The strong inference is that the “transactions” were a sham in an effort to conceal significant accrued funds available to the husband from income as at separation and thereafter.
The Child J’s Endowment account
In March 2014 the wife accessed the child J’s endowment account realising $14,479. She applied these funds to the purchase of a car for the child L for $6,600. Otherwise the funds have been retained by her and expended on day-to-day living. She will remain indebted to the child as to the funds expended by her.
Spouse Maintenance
An order for interim spouse maintenance in favour of the wife was made in the sum of $400 per week on 14 November 2013. The husband failed to comply with the order and on 17 July 2015 he was ordered to pay $14,800 in arrears. He did not. His public company shares valued at $13,657 were sold by way of enforcement.
Child Support
The wife applied for a child support assessment subsequent to separation.
The husband’s 2010 tax return asserted a taxable income of $37,605. The husband’s 2011 tax return asserted a taxable income of $21,788.The husband’s 2012 tax return asserted a taxable income of $0. (see Exh “MM”) As discussed above significant funds were diverted to the accounts for the child A or accounts other than the husband’s practice account with the only inference being that he sought to dishonestly represent his true income for child support purposes and for the purpose of these proceedings.
The husband asserted that his income was only $5,000 per annum for the 2011/2012 year and $35,335 in the year ended 30 June 2013. His child support obligation for the children L and A was assessed at $39.40 per week for the period January 2014 to March 2014, at $0 for the period March to June 2014 and at $9 per week for the period July 2014 to November 2015.
By way of departure decision the husband’s adjusted child support income for the period July 2014 to August 2017 was set at $115,000 per annum plus CPI adjustments annually.
The husband paid accrued child support arrears that as at 20 September 2016 were $23,760 shortly before trial. The husband somewhat ingenuously thought that his then fiancée may have paid it on his behalf from her funds.
The wife’s Suburb F property
In January 2015 the mother commenced cohabitation with her now husband Mr G. They married in 2015.
In May 2014 Mr G purchased a block of land at Suburb F for $509,000 plus purchase costs. The purchase was funded by a CBA bank loan of $388,000 and a borrowing from Mr G’s brother of $150,000.
Subsequently in October 2014 the mother and Mr G contracted for the construction of a home on the property at a build price of $485,964. Upon completion of the construction the property was transferred to the joint names of the mother and Mr G.
Funds available to the mother from the sale of the Suburb D property have been applied in payment of construction and of completion costs. The total cost of land purchase and construction and completion of the home was about $1.2m.
In August 2015 Mr G received $297,500 from his property settlement with his former wife and those funds were applied to repay the outstanding CBA loan. It appears that he remains indebted to his brother for $150,000.
The Suburb F property is now unencumbered and has an agreed value of $1.25m. However, to properly reflect the assets retained by the wife it is more appropriate to include in the asset pool the net funds received by her from the sale of the Suburb D property of about $782,000.
Mr G is in full-time employment earning about $100,000 per annum. He has a child-support liability of $1,600 per month in respect to his children.
The mother at present
The mother now resides with her new husband. She asserts that she is actively seeking work with flexible hours in order that she can drop off and collect the child A, who is nearly 13 years of age, from school each day.
The mother and her present husband in January 2016 purchased a motor vehicle subject to finance after she traded in her then vehicle for $23,000 cash. The trade in has met payments on the motor vehicle and some living expenses.
The husband at present
The husband proposes to engage in the artificial insemination of cattle in the future, although he did indicate to his general medical practitioner that he may resume part-time professional work in mid-2017.
The husband was first diagnosed with cancer in August 2009. By July 2015 he was clear of any markers for the cancer. Not surprisingly the husband has had psychological intervention for severe depression over the last 12 months.
The husband’s “failure to disclose”:
In Chang and Su [2002] FamCA 156 the Full Court of this Court said:
67. The law to be applied and the approach that may be adopted in cases where, through the lack of a full and frank disclosure, the Court is unable to fully ascertain the extent of a party's wealth, is well settled (see Stein v Stein [1986] FamCA 27; (1986) FLC 91-779; 11 Fam LR 353; Mezzacappa v Mezzacappa [1987] FamCA 20; (1987) FLC 91-853; 11 Fam LR 957; Black and Kellner (1992) FLC 92-287; 15 Fam LR 343 and Weir v Weir (1993) FLC 92-338; 16 Fam LR 154).
68. In Black and Kellner (supra) the appellant had submitted that, absent findings as to the extent of his wealth, the order made by the trial Judge was plainly unjust. The key finding of the trial Judge was:
“...the failure on the part of the [husband] to disclose his financial position to the court and his attempts to conceal this matter from the court, which has left the court in the position of not knowing what the [husband’s] financial position is, except that he deliberately underestimated it."
69. Chief Justice Nicholson (with whom Ellis and Cohen JJ agreed), said in dismissing the appeal:
"As senior counsel for the wife pointed out, the first step in proceedings for a property settlement is for the court to ascertain the wealth of the parties and in this regard it is of interest to note the remarks of the Full Court in the case of Giunti and Giunti [1986] FamCA 15; (1986) FLC 91-759, particularly at 75,555 where the court commented:
‘It is obviously desirable as a general principle that the court should first of all identify the pool of assets available and evaluate it. If each party complies with his or her obligation to make a full and substantive disclosure of their financial affairs- see Briese and Briese (1986) FLC 91-713, affirmed by the Full Court in Oriolo v Oriolo (1985) FLC 91-653, there is no problem, although there may be disputes as to valuation.
However if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this court, not by outright refusal which would attract sanctions but by obfuscation and evasion.’
The Full Court in Oriolo and Oriolo, supra, referred with approval to the remarks of Smithers J in Briese and Briese, and it is perhaps worth reiterating a portion of his Honour's statement at 75,181 where he said, after referring to the decision of the House of Lords in Livesey v Jenkins [1984] UKHL 3; (1985) All ER 106:
‘... I believe that the conclusion of the House of Lords in the case of Livesey v Jenkins... is apposite, namely that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of discretion. This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required.
In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred.’
Regard also may be had to the decisions of this court in Stein and Stein [1986] FamCA 27; (1986) FLC 91-779 at 75,676 and Mezzacappa and Mezzacappa [1987] FamCA 20; (1987) FLC 91-853.
In the present case a similar situation arose. The assets of the parties could not be ascertained in full because of obvious non-disclosures.
It is apparent that if his income was more substantial than he claimed, then this would be reflected in the value of his practice and in this regard it is perhaps of interest to note that the wife's former husband's practice of a similar nature, was capable of being sold for a figure in 1973 terms which would if reflected in 1991 terms, represent a very substantial asset indeed. Finally, another part of a judge's obligation in cases of this nature in considering s 75(2) factors is to consider the respective incomes of the parties. Again, through the behaviour of the husband, this was something which the learned trial judge could not do.
It follows from what I have said that I do not believe that his Honour's judgment can be attacked upon the basis relied upon by the husband."
70. In Weir v Weir (1993) FLC 92-338; 16 Fam LR 154 the Full Court (Nicholson CJ, Strauss and Nygh JJ) dealt with an appeal against the refusal by the trial Judge to make orders in respect of unascertained property because he could not quantify it. The Court said at 79-593:
"This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti and Giunti [1986] FamCA 15; (1986) FLC 91-759 , and Mezzacappa and Mezzacappa [1987] FamCA 20; (1987) FLC 91-853 . It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature...
The wife has repeatedly during the course of these proceedings sought disclosure and discovery from the husband. Much of the financial evidence referred to above was only made available by way of subpoena notwithstanding that the subject documents were those of the husband who at all times had an ongoing duty of disclosure.
The husband’s trial affidavit did little to enlighten the proceedings with any knowledge as to his financial dealings particularly post separation.
The husband’s oral evidence as to financial matters was not consistent with objective documents and was in the most part self-serving and avoidant. His evidence could only be accepted as to matters in contention if it was the subject of objective verification.
It is patently clear that he has substantially misrepresented to the Court his financial circumstances post separation, particularly in attempting to conceal his financial dealings through the guise of his children’s trust accounts and through sham loans from his brother.
As a consequence the Court can adopt a more robust approach to the entitlement of the wife: see Stone [2015] FamCAFC 18, Georgiades [2015] FamCAFC 115.
The approach to property adjustment
The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan& Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or defacto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties present property rights without a consideration of s 79 (4) matters.
Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
The asset pool
At the commencement of trial counsel for the husband provided a draft Balance Sheet (Exh “D”) as follows:
Assets: Wife: Husband:
Wife 50 per cent Suburb F property $ 625,000 Agreed
Wife Credit Union $ 4,921 Agreed
Wife Motor vehicle 1 $ 10,000 Agreed
Wife German vehicle $ 50,000 115,000
Husband Suburb B property $1,250,000 Agreed
Husband interest in Suburb E property $ 733,333 366,667
Husband Motor vehicle 2 $ 15,000 4,500
Husband Motor vehicle 3 $ 17,000 2,500
Husband Motor vehicle 4 $ 16,000 Nil
Husband Motorcycle $ 9,000 1,500
Husband Company U $ 10,000 Nil
Joint Cattle $ 5,000 Nil
Joint Holiday Club membership $ 5,000 Nil
Liabilities:
Wife 50 per cent German car loan $ 31,177 Agreed
Husband Visa card debt $ Nil 19,921
Husband Debt to Mr W Lotta $ Nil 175,000
Husband Income tax debt $ Nil 7,800
Husband Home Loan $ Nil 61,749
Husband Rocket Equity Loan $ Nil 406,647
Husband Software debt (practice) $ Nil 7,740
Husband Legal costs $ Nil 85,000
Husband OSR Land Tax $ Nil 31,180
Husband Council Rates $ 8,473
Superannuation
Wife Super $ 44,133 Agreed
Husband Super $ 81,504
Otherwise the wife contended in Exh “D” for there to be notional property of the husband as follows:
Rent unaccounted for Suburb E $162,400
Westpac Account …42 $ 85,000
Westpac Term Deposit …12 $278,563
Sale of four cattle $ NK
Proceedings as to property were adjourned from 26 October 2016 to 12 December 2016 for submissions. It was ordered:
a) that the parties prepare a joint balance sheet with the first draft to be provided by the wife to the husband within 14 days and for the husband to respond thereto within a further 14 days,
b) that the husband file and serve an outline of submissions by 9 December 2016.
The husband failed to respond to the draft balance sheet, failed to file an outline of property submissions and failed to appear on 12 December 2016. Submissions were received from the wife’s counsel only.
During submissions from counsel for the wife an asset pool was contended for as follows:
Assets: Wife: Husband:
Wife 50 per cent Suburb F property $ 625,000 Agreed
Wife Credit Union $ 4,921 Agreed
Wife Motor Vehicle 1 $ 10,000 Agreed
Wife German vehicle $ 32,239 115,000*
Husband Suburb B property $1,250,000 Agreed
Husband interest in Suburb E property $ 500,000 366,667*
Husband Motor Vehicle 2 $ 15,000 4,500
Husband Motor Vehicle 2 $ 15,000 2,500*
Husband Motor Vehicle 3 $ 14,900 14,900*
Husband Motor cycle $ 10,500 1,500*
Joint Cattle $ 2,700 Nil*
Joint Holiday Club membership $ 10,000 Nil*
Liabilities:
Wife 50 per cent German car loan $ 32,239 Agreed
Husband Visa card debt $ Nil 19,921
Husband Debt to Mr W Lotta $ Nil 175,000
Husband Income tax debt $ Nil 7,800
Husband Home Loan $ Nil 61,749
Husband Rocket Equity Loan $ Nil 406,647
Husband Software debt (practice) $ Nil 7,740
Husband Legal costs $ Nil 85,000
Husband OSR Land Tax $ Nil 31,180
Husband Council Rates $ 8,473
Superannuation
Wife Super $ 44,133 Agreed
Husband Super $ 81,504 Agreed
Otherwise the wife contended again for there to be notional property of the husband as follows:
Rent unaccounted for Suburb E $162,400
Westpac Account …42 $ 85,000
Westpac Term Deposit …12 $278,563
Sale of four cattle $ 1,200
Various issues were raised during trial and submissions. Matters of contention as to assets are discussed below.
a) The wife’s Suburb F property interest: the wife in fact received about $782,000 from the sale of her Suburb D property. She has chosen to invest in a new build home that significantly diminished her funds down to an equity of only $625,000. In the circumstance it is appropriate that her net funds from the D property be included in lieu.
b) The German car is asserted by the wife in her Financial Statement to have a value of $50,000. There is no valuation evidence. It is encumbered in favour of manufacturer Finance for $31,177. Those figures will be adopted in the balance sheet.
c) The husband’s interest in the Suburb E property. It is contended by the wife that the property having an agreed value of $1.1m should be regarded as to one half that of the husband notwithstanding the legal title that sees him as a one-third owner. There was no issue taken with the brother’s purchase of another one third in 2009. It was suggested that by reason of the husband’s asserted improvement of the property by reason of the construction of a dwelling in early 2009 that he should be regarded as having a greater interest. Yet the evidence is that the husband and his family all were involved in the construction and its funding. There is no evidence that would support the wife’s contention. The interest of the husband will be as to one third.
d) The husband’s motor vehicle 2 has a value asserted by him of $4,500. In the absence of valuation evidence, his assertion against interest will be adopted.
e) The husband’s motor vehicle 3: has a value asserted by him of $2,500. In the absence of valuation evidence his assertion against interest will be adopted.
f) The husband’s motor cycle: has a value asserted by him of $1,500. In the absence of valuation evidence, his assertion against interest will be adopted.
g) The husband’s cattle: have a value asserted by him of $750. In the absence of valuation evidence his assertion against interest will be adopted. Otherwise, some 10 older stock had been sold in the ordinary course of his business in August 2015 and the proceeds it is expected formed part of his income and thus should not be included in the pool.
h) The husband’s holiday club membership: there is no evidence of value of same and the husband has an obligation to pay annual fees. It will be omitted from the asset pool but is a resource of the husband.
As to the mortgage liabilities secured over the Suburb B property as contended by the husband, he has adduced no evidence to suggest that the debts as asserted by him have any relevance to the matrimonial pool of assets. The parties separated in 2008. There is no evidence as to him drawing such funds against the facilities or of the application of such funds in a way that would require the debt to be included in the asset pool such that the wife would bear some liability for same. They will accordingly be excluded.
The husband also asserts various debts. The parties separated in 2008. There is no evidence adduced by the husband that would warrant any of the debts being included in a property pool for adjustment with the effect that the wife would bear some liability, therefore, they should be excluded from consideration.
As to the notional assets contended for by the wife:
a) Rent from Suburb E: there is no cogent argument as to why this income derived from the husband’s asset post separation should be capitalised and included notionally in a pool for adjustment.
b) Westpac accounts: these are accounts controlled by the husband some years after separation. His evidence is that he used the accounts in effect as his own. There is a strong inference that he did so to conceal income from the wife, the Child Support Agency and perhaps the Australian Taxation Office. The funds were derived by him from post separation income, consolidated into the accounts and later paid to his brother, Mr S. They should be regarded as financial resource of the husband.
c) Cattle: this has been dealt with above.
Accordingly, the notional asset pool for division is a follows:
Assets:
Wife Proceeds of sale Suburb D $ 782,000
Wife Credit Union $ 4,921
Wife Motor Vehicle 1 $ 10,000
Wife German car $ 50,000
Husband Suburb B property $1,250,000
Husband 33 per cent Suburb E property $ 366,667
Husband Motor Vehicle 2 $ 4,500
Husband Motor Vehicle 3 $ 2,500
Husband Motor Vehicle 4 $ 14,900
Husband Motor cycle $ 1,500
Husband Cattle $ 750
$2,487,738
Liabilities:
Wife 50 per cent German car loan $ 32,239
$2,455,499
Superannuation
Wife Super $ 44,133
Husband Super $ 81,504
$2,581,136
Otherwise the husband has financial resources of his holiday club membership and funds advanced by him to his brother.
Is it unjust and inequitable to make orders?
The parties’ cohabitation was over a period of 16 years with three children. Over that period they accumulated and sold various assets in the accretion of some wealth with the inference that such accretion should be for their ultimate benefit.
The parties’ substantial asset was held in the name of the wife and by reason of a previous arrangement between them it was transferred to the husband with certain funds then paid by him to the wife.
The husband contends for no adjustive order. However, such contention must, it is to be inferred, be founded on the assumption that no such order is necessary as a consequence of a consideration of the parties’ contributions and other relevant factors under s 75(2).
Such a contention can only be tested upon a consideration of those matters and then to a determination as to whether it would be just and equitable to make and order adjusting present property interests.
Contributions
From the discussion above and the financial history of the relationship, it is clear that the husband came into the relationship with a greater contribution than that of the wife. The lack of appropriate evidence makes it difficult to determine the actual significance of his contribution over and above that of the wife.
However, the Suburb E property is not one to which the wife lays claim as to any significant contribution. It is also clear that the husband had some funds from his South Coast properties owned prior to cohabitation. This circumstance must be given some weight in favour of the husband.
During cohabitation the wife at times worked, including in the husband’s practice and was the primary homemaker and carer for the parties’ three children. The husband was engaged in practice as a self-employed professional for most of the relationship. There is nothing to distinguish their contributions during cohabitation.
After separation at a time when the children were aged almost 13, almost 12 and 4, the wife assumed the primary care of the children. She received no child support for some time from the husband.
For a most significant period after separation to trial the husband has had occupation of the matrimonial property.
Counsel for the wife contended that contributions should favour the wife at 55 per cent/45 per cent. Such is not warranted.
Overall, the contributions should be assessed in favour of the husband at 55 per cent/45 per cent, such leading to a disparity of about $258,000 in favour of the husband.
Section 75(2) factors as relevant
The wife is aged 43 and in good health. The husband is aged 44 and in fair health, being in remission from recurrent cancer. He suffers from some depression as a consequence of his medical issues and the poor relationship with his son.
The property and resources of the parties are discussed at length above. The husband has a holiday club membership, a modest resource and otherwise funds of about $400,000 he paid to his brother, Mr S.
The wife does no work but has remarried and is supported by her husband. The husband proposes to work to some extent in an aspect of the cattle industry and may resume some work as a professional in 2017. However, his income circumstances must be treated with some caution by reason of his failures to disclose as referred to above.
The wife has the primary care of the parties’ son now aged 12. The husband will on present indication have little or no role in the child’s foreseeable circumstances leaving the wife with the significant parenting obligation.
Both parties have modest accumulation superannuation entitlements and by reason of age will have the opportunity, should they so choose to increase that entitlement. The wife seeks a splitting order but in the absence of notice to the trustee and by reason of the modest amounts in question such an order will not be made.
The wife has remarried and her partner at present provides financial support for her.
The husband has been recalcitrant in payment of child support that is presently assessed on an adjusted child support income of $115,000 per annum. There may be difficulties in enforcement but the husband will have assets to which recourse may be had.
Otherwise, the husband has adopted a cavalier approach to his obligation as to full and frank disclosure during the course of these proceedings and in his sworn evidence that belie his obligation to the Court as a legal practitioner. The Court cannot be satisfied that it is appraised of the husband’s true financial position nor as to the application of significant funds that have been run through various accounts in his control especially post separation. This is a factor to be given significant weight.
The wife contended for an adjustment in the range of 10 per cent to 15 per cent in her favour. An adjustment of 10 per cent by reason of the factors discussed above leads to a disparity of over $500,000 in favour of the wife.
In the circumstances an adjustment of seven and a half per cent in favour of the wife is called for, leading to a disparity of a further $387,000 in favour of the wife.
Overall, the wife would be entitled to 52.5 per cent of the adjusted pool set out above or the sum of $1,355,096.
Clearly such entitlement is not met by her retaining her present assets and in such circumstances it is just and equitable that there be an adjustment to the parties’ present property entitlements.
The wife has:
Assets:
Wife Proceeds of sale Suburb D $ 782,000
Wife Credit Union $ 4,921
Wife Motor Vehicle 1 $ 10,000
Wife German car $ 50,000
Wife Super $ 44,133
$ 891,054
Liability:
Wife 50 per cent German car loan $ 32,239
$ 858,815
Accordingly, the husband needs to pay to the wife an adjustive payment of about $496,000. He will be given time to pay and in default the wife may make application to be appointed trustee for the sale of the Suburb B property
In the circumstances such orders are just and equitable.
Orders will be made as out at the forefront of these reasons for judgment.
I certify that the preceding three hundred and twenty nine (329) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 6 February 2017.
Associate:
Date: 3 February 2017
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