LUSKER & LUSKER
[2015] FCCA 2468
•18 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LUSKER & LUSKER | [2015] FCCA 2468 |
| Catchwords: FAMILY LAW – Parenting and property dispute – amounts of time not ultimately substantially in dispute – small property pool – family report writer wholly opposed to father’s application for change of residence – father ultimately abandoning claim for change of residence – 10/4 regime ordered – both sides seeking 70 per cent property division in their favour – orders for 50/50 property division made. |
| Legislation: Evidence Act 1995, s.141 |
| Goode v Goode [2006] FamCA 1346 Stanford v Stanford [2012] HCA 52 Ogilvie v Adams [1981] VR 1041 |
| Applicant: | MS LUSKER |
| Respondent: | MR LUSKER |
| File Number: | MLC 4944 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 22, 23 and 24 June 2015 |
| Date of Last Submission: | 24 June 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 18 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Thomas |
| Solicitors for the Applicant: | Lanham Lawyers Pty Ltd |
| Counsel for the Respondent: | Ms Swart |
| Solicitors for the Respondent: | MacPherson & Kelly Lawyers Pty Ltd |
DRAFT ORDERS
Children’s Orders
That the father and mother retain joint parental responsibility for the long-term care, welfare and development of the child X born (omitted) 2008, and Y born (omitted) 2013.
That the said children reside with the mother.
That the father spend time and communicate with the children from:
(a)Friday 3:30 pm until Monday 9:00 am each alternate week;
(b)From 3:30 pm Thursday until 9:00 am Friday in the other week.
(c)On all School Term Holiday periods for one week , and in default of agreement the second week;
(d)In the Long Summer Holidays, on a week about basis;
(e)Easter:
(i)In 2016 Thursday 6.00pm until 12:00 pm Sunday and each alternate year thereafter;
(ii)In 2017 12:00 pm Sunday to 6:00 pm Easter Tuesday and each alternate year thereafter.
(f)On Christmas Eve 2015 from 12:00pm until 12:00pm Christmas Day, and every alternate year thereafter;
(g)On Christmas Day 2016 from 12:00pm until 12:00pm Boxing Day; and every alternate year thereafter;
(h)On Father’s Day from 10:00am until 5:30pm should that day not fall on a contact day. (Note: This appears to ignore School hours).
(i)From 3:30pm until 6:30pm on each of the children’s birthday; and
(j)As may otherwise be agreed between the parties in writing.
The Father’s time with the children be suspended as follows:
(a)On Christmas Eve 2016 from 12:00pm until 12:00pm Christmas Day, and every alternate year thereafter;
(b)On Mother’s Day from 10:00am until 5:30pm should that day not fall on a contact day or weekend and complying with school hours.
Changeover will take place at School/Childcare where practicable but otherwise at the (omitted) Police Station.
That both parties and/or their agents are restrained from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party or other party’s family in the presence or hearing of the children, and from permitting any other person to do so;
(b)Discussing parenting disputes and/or issues with or in the presence of the children;
(c)Passing messages through the children;
(d)Unreasonably questioning the children about happenings in the other parties household;
(e)Involving the children in any form of dispute between the parties or otherwise.
That if either party intend of transporting the children outside the State of Victoria, they must provide the other party with written notification of same, including departure and return dates, destination, travel itinerary, accommodation details and contact telephone number, at least 7 days prior to the proposed travel.
That each party will provide to the other party a contact number and address for the children when the children are in that party’s care and notify the other party of any change to those contact details within 7 days of the change occurring.
That the mother shall authorise all Schools and Childcare facilities the children may attend to provide the father with copies of all School reports, photographs, newsletters and notices and any other information a parent is entitled to receive, and also to enable the father to attend and/or participate in any event or activity that parents are usually able to attend, subject to any school policy in relation thereto.
The parties participate in counselling as indicated in this judgment.
Property Orders
(To be drawn by the parties following consideration of the Reasons for Judgment).
IT IS NOTED that publication of this judgment under the pseudonym Lusker & Lusker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLC 4944 of 2014
| MS LUSKER |
Applicant
And
| MR LUSKER |
Respondent
REASONS FOR JUDGMENT
(As Amended in Court on 18 September 2015)
Introductory
This is a parenting and property dispute. The parenting dispute concerns X, born (omitted) 2008, and Y, born (omitted) 2013. The parties’ positions as to what orders the Court should make in respect of the children have been fluid, but in the ultimate it is agreed that there be an order for equal shared parental responsibility. Further, given that the father in final submissions abandoned his claim for a change of residence, the dispute about the parenting matters boils down to the father’s proposal for a 9/5 regime and the mother’s countervailing proposal for Friday to Monday in one week and an evening in the other week. There are a few other minor disputes about Easter and the quantum of time on special days to which I shall return.
So far as property matters are concerned, the major difference between the parties is the percentage of the distribution of the property pool. Each of the wife and the husband seeks a 70/30 split in their favour.
For the reasons that follow, I am going to order that the children spend four nights per fortnight with their father, and I am going to divide the property 50 per cent to the wife and 50 per cent to the husband.
Agreed or Uncontroversial Facts
The applicant mother was born on (omitted) 1988 and the father on (omitted) 1984. They met in 2007 and appear to have started living together in 2008.
In late 2007 the couple went overseas together and spent some time with the husband’s father in (country omitted). Two things can be said about this trip and its aftermath. First, the husband’s father sent an email to the husband (and I infer his sister) in which he was extremely critical of the mother. The mother became aware of it and was very upset by it (as would be reasonable given its terms).
I note that the father in his affidavit material is extremely critical of what he asserts was the mother’s behaviour on this holiday, but despite any affront either of them had felt, their relationship clearly progressed because X was born as previously noted on (omitted) 2008.
It is worthy of note even at this stage that both the parties have quite a lot to say about these matters and that their remarks now must reflect a measure of hindsight as, on any view of the matter, their relationship progressed to parenthood within a short while of the alleged deficient behaviours asserted.
The parties married on (omitted) 2010 and separated, as both agree, in June 2014. The mother obtained an Intervention Order on 2 June 2014 and her assertion that this was the final date of separation seems unchallenged.
The mother worked until the birth of their second child Y. I shall return to her employment history later. The father ceased work shortly after the marriage in 2010 (he is a qualified (occupation omitted)) as a result of lymphoma, for which he was extensively treated with chemotherapy. He is now back in work as a (occupation omitted) at a salary of $58,000 per year.
Following separation the parties sought assistance from various counsellors. The success of such counselling is open to question. The children underwent supervised time with the father (they had remained in the mother’s care) by orders made on 30 July 2014 and this progressed to unsupervised time including one overnight time each alternate weekend by orders made on 6 November 2014.
The Parties’ Affidavit Material
The affidavits of each of these parties are substantial. On the part of the mother they contain a lengthy history of alleged abuse, in the form of emotional and psychological abuse rather than physical violence. The mother does assert one instance in 2012 (paragraph 12, affidavit filed 6 June 2014) in which she asserts that the father pushed her onto a bed and attempted to strangle her. The father denies this. In the main however the affidavit material can be described as asserting extreme volatility of temper and mood and angry outbursts associated with the same on the father’s part.
The affidavits of the father deny all such misconduct, although there is some admission of angry debates between the parties. By way of contrast he asserts that the mother’s behaviour is volatile and unconstrained and in particular he made reference to an alleged angry outburst in front of the counsellor, Ms L, to whom the parties were at one time referred.
I do not propose to traverse the affidavit material of the parties in any great detail. This is because the areas of dispute between the parties have become so refined that it is not profitable to do so. I have read and re-read the entirety of the file and have proper regard to the materials filed but in view of the expert evidence given and the view
I take of the evidence given in Court, it is neither necessary
or appropriate to wallow in the mutual accusation and self-exculpation that these affidavits represent.
The Professional Evidence
I do not propose to deal in any detail at all with the reports provided by the (omitted) Children's Contact Service which recount the father’s supervised time with the children. It is sufficient to note that the parties agreed that time proceed to unsupervised time including overnight time in November 2014. Clearly the reports, while relevant, have been overtaken by events.
The Reports of Dr G (Annexed To His Affidavit Sworn 25 November 2014)
Dr G’s reports into both of the parties were essentially unremarkable. I note that in his interview with the father, the father referred to a Facebook message allegedly sent by the mother (annexure L 5 to his affidavit filed 25 July 2014) in which the mother appears to admit falsifying the allegation of strangling already referred to.
I further note that the father put in issue material from a previous counsellor, Mr D, which described the father in essentially negative terms, asserting that what Mr D said was wrong and unprofessional.
Dr G’s diagnosis was that he was “...unable to make a diagnosis of a psychiatric disorder”. Nonetheless, Dr G noted the material from Mr D and if that assessment was accurate then, “Mr Lusker must therefore have been lying to this examiner, thus suggesting that he may indeed be suffering from a significant personality disorder”.
Under the heading Prognosis (page 15 of 30) Dr G said:
“Upon the history available, this examiner is not able to state at this point in time that Mr Lusker is at risk of any particular future behavioural or psychiatric issues related to a psychiatric disorder.
However, if the version of events provided by Mr Lusker is accurate, it would appear that Mr Lusker would require appropriate counselling to enable him to more fully appreciate the nature of his negative behaviours and the likelihood of them impacting upon his children.”
In respect of Ms Lusker, Dr G’s assessment was in many ways similar, and his prognosis read (page 28 of 30):
“Upon the history available, this examiner is not able to state that Mr Lusker is at risk of any particular future behavioural
or psychiatric issues related to a psychiatric disorder. However, if the version of events provided by Mr Lusker is accurate, there would be a risk of future alienation by Mr Lusker of her children from their father.”
Dr G’s conclusions in respect of the two parties essentially repeated these qualifications. Dr G was not required to give evidence and be cross-examined.
The Report and Materials from Mr D
Mr D was not called to give evidence and be cross-examined.
If I understood the matter correctly, neither party sought to press Mr D’s evidence upon the Court. If I have misunderstood this aspect of the matter I would only say that the tenor of some of Mr D’s communications seems to suggest that he enters somewhat heavily onto the playing field at least at one point.
While his remarks were clearly highly critical of the father, and do indeed, as Dr G said, offer support for the mother’s position, I have not seen him give evidence and must approach his materials in any event with considerable caution in the light of this omission.
The Report of Dr J
Dr J, whose report was received into evidence as exhibit M1, (although it was in fact already filed on affidavit – no one including me, noticed) saw the parties pursuant to Court Orders for the preparation of a family report. Her report is dated 27 October 2014. At page 1, having noted that each parent makes many serious allegations against the other, Dr J said:
“Mr Lusker argues that her relationship with Mr Lusker has been characterised by his violent rages and erratic and dangerous behaviour. She claims that Mr Lusker’s parents and sister have also behaved in unusual and manipulative ways.”
Having dealt on page 2 with Mr Lusker’s allegations of erratic and dangerous behaviour on the part of the father Dr J noted:
“In my interview with her, Mr Lusker stated that she did not consider that Mr Lusker might deliberately harm the children, but said that she also believes that Mr Lusker has an undiagnosed psychiatric condition which means that he might behave in a way that places the children in physical danger, such as driving erratically when he is angry.”
On page 2 Dr J noted:
“Mr Lusker denies all Mr Lusker’s allegations about him and contends that all the conflict between them was precipitated by Mr Lusker. He argues that Mr Lusker has a difficult personality, suffers symptoms of anorexia, has mood swings and is inclined to angry outbursts.”
I note that Dr J conducted psychometric testing with both of the parents.
At page 3 Dr J noted the parties’ current living arrangements. The mother lives in Property H (in the former matrimonial home) and works as a (occupation omitted) at a (employer omitted). The father is employed as a (occupation omitted) and lives in (omitted) with his mother. X was noted to attend (omitted) Primary School in prep, and Y attends a day care one or two days per week while Mr Lusker is (employment omitted).
Dr J noted the parties’ versions of the history of their relationship and the mutual allegations of inappropriate blameworthy conduct (including their families) and noted at pages 3 to 4:
“I also noted that an apparently significant feature of their relationship problems centred on changes in their relationship when Mr Lusker was diagnosed with non-Hodgkinson lymphoma in (omitted) 2010. I understand that he underwent treatment and was ill and recovering from his illness for about 18 months.”
Having described her observations of the parties with the children, which it is not necessary to paraphrase, Dr J commented on the psychometric testing she had undertaken. At page 17 she observed:
“This pattern of results suggests that Mr Lusker may be reluctant to admit to relatively minor faults or personal problems, and he may be blindly uncritical of his own behaviour and insensitive to negative consequences associated with his behaviour. Accompanying this appears to be some reluctance to acknowledge limits to his capabilities. His results suggested that he may minimise or perhaps even be unaware of, problems and also the effects that any such problems have had upon his life and the lives of others. At the same time, this pattern of results also suggested a tendency to portray himself in an unduly negative light.
With these indications, any further interpretation of the clinical scales for Mr Lusker is not recommended. While a defensive profile is not very meaningful in those facing serious allegations, the tendency to exaggerate symptoms was unusual, but can also sometimes be seen in individuals after a life threatening illness (where over vigilance to pathology can be expected).”
At page 17 Dr J observed about Mr Lusker:
“People who score like Mr Lusker on these scales do tend to be those who have an interpersonal style that is characterised
by exceptionally strong need to be accepted by others, sometimes to the point of dominating their interactions with others. They can be some time so overcommitted to acceptance that they lose their sense of individuality. People who score like this tend to avoid conflict in relationships but are also often unwilling to accept any hint of hostility in themselves.
Ms Lusker's PAI test results on the Paranoia Persecution Scale suggested that she may be prone to beliefs that others are attempting to obstruct or impede her efforts. Sometimes these feelings can centre on mild feelings of jealously but can also represent delusional beliefs of conspiracy and intrigue. This hypothesis is supported by an elevated score on the Schizophrenia Psychotic Experiences scale. This combination of scores suggests that Ms Lusker may be likely to entertain some ideas that others find unconventional or unusual and may involve delusional beliefs. Others are likely to describe her as peculiar or perhaps eccentric and she may have difficulty with reality testing.
Ms Lusker’s results on psychometric testing were consistent with my clinical impressions of her.”
In her summary and recommendations Dr J noted the absence of any psychiatric information, which might significantly change her conclusions and recommendations. The following relatively lengthy extract at pages 18 to 19 of her report is nonetheless worth setting out:
“Both parents make serious allegations against the other. Ms Lusker claims that Mr Lusker is aggressive and violent towards her and she believes that he has significant mental health problems. She argues that the children need to be protected from their father and is seeking for their time with him to be supervised indefinitely. She believes that Mr Lusker requires psychiatric treatment.
Mr Lusker alleges that Ms Lusker is seeking to discourage his relationship with the children and makes knowingly false allegations against him to achieve this.
Both parents accused the other of moodiness and an inclination towards verbal abuse. They each make allegations against the other parent’s family members.
Assessment of Ms Lusker was unusual. She appeared to be a highly intelligent woman who perceives herself as a high achiever, but I gained the impression that she is somewhat self-indulgent and judgmental of others. Psychometric testing found a defensive bias in Ms Lusker’s test results that was inconsistent with her account. Further interpretation suggested that she may be inclined to suspiciousness and irrational fears with poor reality testing. This was consistent with my clinical assessment of her.
My assessment of Mr Lusker found a genial man who appeared to have a very indulgent upbringing. It seemed that his diagnosis and treatment of cancer had been a very traumatic time for him and unlike his usual experience, and I wondered at how much this experience contributed to his disillusionment in Ms Lusker and the ending of their relationship. When completing psychometric testing, Mr Lusker provided a profile with indications of both defensiveness and exaggeration of symptoms. This result is not inconsistent with those facing serious allegations but concurred with my assessment of him as someone who might be quite immature and be oblivious to his contribution to problems.
Assessment of both children suggested they have many individual strengths and they each conveyed the appearance of great trust in the world to meet their needs. This type of presentation in young children tends to be very telling about the type of care they have historically received in their family.”
Having dealt with the children and noted the good relationship they have with both parents, Dr J continued at page 19:
“It is my assessment that these parents likely come from over indulged parenting backgrounds and separately they appear likely to have quite high expectations of the care and support that should be afforded to them. I consider that the conflict between them likely emerges from similar intransigence in their positions. The example given by each party about the point
of final separation and their desire to sleep in and that the other parent should care for the children and take X to swimming lessons seems to show much about their relationship.
I consider that both parents are likely to be quite selfish, but I do not consider that either parent represents any significant risk to the children. Although having said that it does not seem likely that either parent has any great capacity to understand the children’s needs to be protected from their conflict or motivated to support the children’s relationship with their other parent.
Although I have not made any assessment of extended family members, I also do not have any significant concerns about them and consider that all these allegations emerge from the sense of tribal warfare that appears to have grown in this family and the petty jealousies towards each other’s family of origin.
While I do not have information from the parties’ psychiatric assessments, I do not consider, on the information available to me, that Mr Lusker needs to be supervised with the children.
It seems likely situational couple conflict around the end of their relationship can explain much about the allegations on both sides.
I consider there are few significant risks to the children outside of their parents’ acrimonious relationship but I do not expect this to abate without some therapeutic intervention. Both parents impressed as quite insightless about what they bring to the conflict and neither seems inclined to prioritise the children over their own needs.”
Dr J went on to recommend that the parties attend counselling to enable them to build a cooperative co-parenting arrangement and recommended spend time, “something like an alternate weekend and some time in the other week of a few nights would seem to suit them better”, in respect of the father’s time.
The Evidence Given At Court
What follows is taken from my notes. It does not purport to be a transcript. Neither does it purport to cover each and every piece of evidence given. I endeavour to give a sufficiently accurate description of those parts of the evidence that struck me as being of significance.
The Applicant Mother Evidence-In-Chief
The mother adopted her affidavit as true and correct. She responded to criticisms advanced by the father as to telephone contact in terms that I found reasonable.
So far as the $130,000 received by the respondent father from the TAC claim is concerned she said that $65,000 was allotted to her bank account. $10,000 was spent on a holiday in (country omitted) and $5,000 allocated to the mortgage over the family home. She said $13,500 was paid to her own parents to repay a contribution to stamp duty and $5,000 on a bathroom renovation. $21,000 was spent on a new car for the husband and $7,000 for a new projector. She said the rest was spent in miscellaneous expenses.
When taken to some of the husband’s financial records she said that there are a number of payments she had not seen until the father annexed them to his affidavit material. She denied ever having suffered from bulimia or being anorexic and denied ever asserting
to the father that her own father had acted inappropriately towards her.
The Mother under Cross-Examination
The mother denied reading disclosure documents from the father
and said she had not seen income tax returns. Her evidence as to when and if she had received (omitted) Bank documentation appeared to me
to shift ground as the questions proceeded. She said she knew there had been some money advanced by the paternal grandfather but said that the documents marked annexure L10 to the father’s affidavit filed 22 June 2015 had never been in the document drawer at home and she had not seen them.
The mother agreed there were no real assets of the parties when the relationship commenced. Each had a car. When questioned about the $100,000 received in 2013 the mother said she recalled where the money went and that she had a good memory. She said the parties were getting by before the receipt of those funds. They were not wealthy but were keeping their heads above water.
The mother took leave when X was born, without pay, but she received a baby bonus and was off work for six months. The father took time off because of his cancer, but fortunately had income insurance. She did not know if he was on 75 per cent of his full pay but it was certainly less than usual. She said that she was unable to say if the paternal grandfather was financially generous, notwithstanding the various payments evidenced by annexure L10.
The wife confirmed that the email at the commencement of their relationship sent by the paternal grandfather had upset her. She said she and the father read it together. She was adamant that this was so.
The mother conceded that the paternal grandfather bought a house in (omitted) which was made available to the couple rent free for under a year. She complained that the respondent’s mother and sister had kicked them out.
The mother said the parties lived with her parents for 11 months during which time they were able to save. She said that the parents and X had been to (country omitted) on his payout money. She seemed unclear whether any of this was paid for by the father’s income insurance.
The mother stuck by paragraph 60 of her affidavit sworn 16 June 2015 and her assertion that she made significantly greater financial contributions to the matrimonial assets. She said she was employed the whole time and had secure employment. She professed to be unable
to remember what she had earned in 2014 to 2015 but conceded that she earned $13,000 in the financial year ending 30 June 2014, $32,860 for the financial year ending 30 June 2013. This incapacity
to remember her earnings for the most recent year was surprising given her assertion she had a good memory. Indeed she was driven
to concede that she was not the major earner in the course of the cross-examination but said that she controlled the money and that the father would waste it if not. She conceded that as she had prepared
the father’s income tax returns they were probably correct.
The mother confirmed that she is a casual (occupation omitted) at the (employer omitted) and earns about $550 a week on average. Her Family Tax Benefit remains the same but the parental benefit goes up and down depending on her income which she is required to report fortnightly. The mother confirmed that her family would either
go guarantor or be co-owners to refinance the house and buy the husband out. This would be a gift/loan from her family.
The mother was cross-examined about Ms L's Report. She did not agree with it and said that there were only three sessions with Ms L. She denied that Ms L was sufficiently informed to make the recommendations she made. The mother gave evidence about Y’s childcare which is every Wednesday and every day when she works. She said there might be difficulties with childcare on Tuesdays. She already has counselling on that day when she sees Ms T on a weekly basis.
The mother said that she discusses everything with Ms T and
is trying not to go back over things. The counselling is lowering her anxiety about what had happened and Ms T had recommended that she continue treatment until she is “past it”. She has discussed Ms L’s report with Ms T. They are focusing on her bodily reactions and her being sufficiently successful that she was able to be in court without getting too emotional.
The mother referred to her endeavours to give Ms L materials and Ms L’s failure to study it. She said she gets very anxious if she is in the same room with the father. Ms L had asked her to be in the same room as the father and she did do this on one occasion. She said she listened to the father’s lies. She said the father called his daughter a compulsive liar and at this point she told him not to say that. She said she was crying and left the room. She said she was upset and had said, “don’t use X in your lies”. She said she had spoken to the father and said at the end, “I don’t want to be your friend. I will never be your friend. You don’t feel any remorse”. She said, “You are smiling”, because he was looking out of the window.
The mother admitted that she had called the father a psychopath.
She said he was a liar and she disapproved of him. He was dangerous and untrustworthy.
The mother said that Ms L’s report attacked her because she had not used her services.
The mother said the father was very cooperative in the sessions with Ms L and acted as if he did what he was told, but outside the sessions he was wholly different. Incidents had occurred at changeover at the Police Station before and after sessions with Ms L. The mother went on to give evidence of three matters which had taken place in a week that she wanted Ms L to address, but she had refused. One was a dispute over some shoes for X. This aspect of the applicant’s evidence was given with very considerable pressure of speech.
Cross-examination continued on the following day and the mother confirmed that her earnings in 2009 were $10,812, in 2011 $23,052 and in 2012 $34,987. Her income tax returns were exhibited as exhibit R3.
The mother confirmed that she had taken X to see Ms R after she had seen Ms L because X had to see somebody. She has seen this Child Psychologist for five out of six sessions arranged through Kids in Mind. The mother had attended the second and fourth sessions and took her to the first. X had told her mother that she was having nightmares and X told this to the General Practitioner (“GP”) also. The mother was not sure why this was happening but it seemed to happen when she returned from seeing her father.
Ms R advised that there was no need to continue with counselling but had suggested that X not come to the mother’s bed every night. This has been tried and seemed to work. The mother confirmed she had her own psychologist arranged through Victims of Crime Assistance Tribunal (“VOCAT”).
The mother was cross-examined about various chattels set out
at paragraph 6 of the husband’s final orders (marked MFI-1).
She confirmed that the husband can keep his Ford (omitted).
The Suzuki motorbike (paragraph 6.2) according to the mother
is X’s and she has not ridden it for a very long time. The mother said she will ride it if she wants. It was a present to her and should remain where it was.
So far as chattels (paragraph 6.4) were concerned the mother said there were no tools left because the father had taken them. There was only the lawnmower left and she needed it.
Item 6.6 – the home theatre projector is embedded into the property and valued with the house.
Item 6.7 – despite the fact that she conceded that it belonged to the father before the parties met, the mother said that this fish tank at the matrimonial home was the children’s and should remain there.
Item 6.8 – the mother said she had never seen two signed motorcycle posters and did not know what counsel was talking about.
Item 6.9 – the mother said she did not think the tyre from the first motorbike was in the garage.
Item 6.10 – the mother said there was only one TV unit in the house which was bought together by the parties and should remain there.
Item 6.12 – the mother said she wanted to keep the desktop computer with dual screens because the husband had taken everything else.
Item 6.13 – the mother was agreeable to the father having the
TAC prescribed desk chair.
Item 6.14 – the mother was not aware what the chest and table loaned by Ms S were and did not think they were in the garage in any event.
So far as the father’s claim in Item 7 was concerned, the mother said she could not afford the hard drives. She said she wanted the photographs of her giving birth returned.
It was then put to the mother that when she was interviewed by Ms L she was screaming and spitting. She did not agree. She said she was crying her eyes out. She denied saying that the respondent was “a shit husband” and did not say “he should die”. She had said that “he hurt her”. She felt completely used and abused, “and you don’t seem to care that you hurt me so badly”.
The mother denied that she could have gone on for 45 minutes and said that Ms L interrupted after several minutes and stopped her.
The mother indicated that she disagreed straight away with Ms L about X. She denied that X’s views were influenced in any way by her and that she had said that she had not told X to say anything to Ms L. She confirmed that she read Ms L’s report very quickly and said it was not true that X was never uncomfortable with the father. She said X tends to get shy and shut up shop. She said that Ms L did not hear X out.
The mother confirmed that X knows that she does not like
the father and knows she does not want a friendship with him and knows that she is uncomfortable with him. X still knows that her father is her dad and knows that her mother misses her overnight when she goes to stay with him. She confirmed that X had been having sleepovers with her father since December 2014.
The mother said that she disagreed with Ms L’s report and
did not think a lot of what was asserted in it happened. There was
a conversation with Ms L about the father’s family and the mother confirmed that she told Ms L that she did not think the father’s family should be there every single time the children spend time with him.
When it was put to her that she was upset by emails received from the father’s family, the mother denied this. She said she was used
to it because it happened all the time. She said that the paternal grandmother and Aunt were in Melbourne and were on the scene a lot before the separation. They were not much help at all and tried
to make things difficult for the parties on purpose to cause trouble between them.
The mother was taken to Ms S’s affidavit filed 25 July 2014. She denied that this aunt was present when X was born. She said her relationship with the sister was very volatile and she never knew where she stood. She said the sister would lie about her to the father and upset him. She was, however, X’s godmother.
The mother confirmed that the sister had been to (country omitted) with them for three weeks and for some of the time slept in the same room as X.
The mother was cross-examined about Dr J’s report. She said she had no specific opinion of it and did not really understand it. She did not agree with the assessment of herself. She said, “I know what has gone on”.
The mother said she realised that she was hypervigilant and paranoid. She said this stemmed from her experiences and she was working to fix this. She said it did not affect her decisions about the children. She said she wanted the children to have a relationship with their father but was concerned of what happened during the relationship. The issue of concern was mainly his psychological problems. The mother said the children get manipulated and brainwashed a lot and that his family was there all the time which might led to issues for the children.
She said that Dr G's Statement of Facts was wrong about the father. The father presents a wrong image of himself.
The mother was taken to annexure L-8 to the father’s affidavit filed 22 June 2015 (annexure L-5 to his earlier affidavit). She said she had never seen the message and has never sent it. She said she first saw it in his affidavit. She accused the father of forwarding this message and said it contains mistakes that she would never make. I will return to this matter in due course.
The mother was further cross-examined about telephone time but as
I have earlier said, I found this aspect of the evidence unremarkable.
In re-examination the mother gave further assessments of the parties’ income during the relationship (noting that it is clear that the father’s income was somewhat higher). The mortgage was reduced to $410,000 from a starting figure of $444,000.
The parties borrowed to buy the Territory car. She had fourteen and
a half thousand dollars and the paternal grandfather gave the rest.
The Evidence of Ms A
Ms A was called and adopted her affidavit as true and correct. She gave evidence about an incident that took place in the early hours of 10 March 2014 when she brought the mother home from what was obviously a long night out.
When Ms A and Ms Lusker arrived home the front gate was locked and the mother had to climb the neighbouring fence and knock on the door. It took a long time to wake the father up and an argument took place when he did. Ms A gave evidence as finding the father’s behaviour threatening and unusual, but it is sufficient for these purposes to note that while she was clearly a truthful witness she was equally clearly extremely partisan.
I can state shortly that I am not at all surprised that the father was irritated at being woken up from a deep sleep well after 1 in the morning. It appears that he was somewhat unrestrained in moving around when he got up in the morning, and I have little doubt that he was not concerned for the particular wellbeing of either Ms A or the applicant given they had distressed him.
Ms A struck me as being young for her years and her affidavit, in my view, is in part a reconstruction arising out of her feelings of friendship for the mother.
The Evidence of Ms G
Ms G was another of the witnesses called by the mother to try and illustrate what was said to be the disturbed and disturbing behaviour of the father. Once again it is sufficient to say that I thought Ms G was a good witness, but almost all aspects of her evidence were slightly exaggerated. I note that she made a very honest concession that on one occasion the mother had yelled back at the father but she was, in my view, a clearly partisan witness.
It should be noted once again that the parties were plainly in the habit of going out late at night and drinking a lot and this may well have fuelled some of the difficulties that they had.
The Evidence of Ms R
Ms R is a sister of the applicant mother. Her affidavit gave details of an occasion when the father was drunk at a social occasion. She was cross-examined about her descriptions of the father’s inappropriate conduct. She confirmed that X has a bond with her paternal grandmother and aunt but that she still sees the mother’s family and that they do not talk about the father’s family.
The picture that emerges from this witness’ evidence suggested an absence of self-control on the part of the father from time to time, and
I thought she was generally a fair witness.
The Evidence of Ms M
Ms M is a further sister of the applicant mother. Her affidavit once again gives instances of inappropriate conduct by the father, most particularly in bad language and intemperate behaviour. It is sufficient for these purposes to say that Ms M was a palpably honest witness who was clearly being truthful.
The Evidence of Ms P
Ms P is the mother of the applicant mother. She likewise gave evidence of what one might describe as intemperate and inappropriate conduct on the part of the father. Once again, she gave evidence
of swearing by the father in her presence. She conceded under cross-examination that the father did not break a door upon the incident referred to in paragraph 11 of her affidavit but said the father was very noisy.
She confirmed that the children had a close and loving relationship with both extended families and through her a text was tendered
as exhibit R6. This is a message from the witness to the applicant mother on 17 October 2013 suggests quite clearly that at least on that occasion the mother had “bagged” the father in front of a number
of people the previous evening. Once again it is sufficient to say that Ms P was a palpably honest and a believable witness.
The Evidence of the Father
The father adopted his affidavits as true and correct with one minor correction and confirmed that his superannuation is now worth $25,971.
Under cross-examination the father confirmed that he had a salary and income protection throughout the relationship. He was not quite sure how much he had earned throughout it, but in the ultimate confirmed that his income for the tax year ending 2010 was $43,000, 2011 was $28,000, 2012 was $53,000 and 2013 was $52,000.
The father confirmed that he received $100,000 in round figures from his TAC payment after paying his lawyers.
When asked why the mortgage had not reduced more he said that only the minimum was paid. The TAC payment was used on the property and holidays. He was not working at the time and needed the money for his family. The mother worked and she controlled the finances and had him on a tight budget. He did confirm however that he went to (country omitted) for a friend’s wedding.
The father gave evidence as to the mother’s alleged bulimia and anorexia but this does not take the matter much further.
The father was cross-examined about annexure L-8 (the inculpatory text allegedly sent by the mother). He said that he was sleeping in the spare bed when the mother sent it and he replied. He said she came running down and told him to “delete, delete, delete”. He took a screenshot.
He denied hacking the applicant mother’s Facebook account. He said that his password accessed a joint account, but she then changed passwords on 9 January 2014. Annexure L-8 was sent in March-April 2014.
I note the respondent father conceded that he had tried to access the applicant mother’s Facebook account but failed (this contradicting what he told Dr G).
The father denied all of the general misconduct alleged against him.
The father said he had read Dr J’s report. He said he had done things that are wrong and he admitted this. He sometimes was egged on in disagreements and he had lost a lot of friends through his relationship with the mother. He said, “you could never win an argument with Ms Lusker because she was too smart and you usually just walked away”. He confirmed that he is six foot two and the mother is around about five foot four-five.
He nonetheless maintained that he was stopped from leaving the premises when she took his keys, but admitted he could have just walked out.
In regards to the occasion when the mother was said to have screamed in the presence of Ms L, he said that she commenced to scream at 11.10 am and continued for 45 minutes or at least 35. He said Ms L tried to stop her. He said he hoped that she would say everything she hated about him, “and afterwards we could get on with being parents”. This latter aspect of his evidence was clearly sincere.
The father gave evidence about the interaction with Ms L and the fact that Ms L had asked Ms Lusker to get it off her chest, following which she spoke for some 35 to 45 minutes. The mother was angry and teary at the same time. He has not spoken to her since.
The father confirmed that he had been beaten up by the applicant mother’s father who hit him four times in the face. He said he had never been in a fight.
The father said he had made far greater contributions to the property pool. He said a lot of the loans from his father were cash to pay out credit cards. They were just verbal loans which would not stand up
in court. There were other expenses paid out of the payment from the TAC including the bathroom renovation and a wedding overseas.
He was not working at the time. His father had made oral demand
for repayment of the loans. Some of what his father had given was gifts and some were cash loans because there was trust in family relationships.
The father confirmed he took his bed when he moved out. The bedside tables belonged to his mother. He took the TV in the garage and
a second-hand water system. The mother had failed to pay his car registration after separation.
The father described his time pursuant to the Court orders and said
he was concerned that X was saying at the Contact Centre that she did not want to stay at his home. He enjoyed his overnight time with the children. He had asked if the mother had girlfriends over and X had said that she had had a boy over. He said he had a great relationship with Y but he felt that X was suffering more as she was older. He now gives more attention to Y.
The father conceded that he had told X that she could tell him secrets and the mother would not know. He said he would not want to take the children from her but she was not doing reader with them. There was some pressure of speech at this point.
The father says he pays his own mother now and again for accommodation but that he had renovated her house. He plans to move into the former matrimonial home in the event that he is able to do so.
The Evidence of Dr J
Dr J adopted her report as true and correct.
Dr J under Cross-Examination by Counsel for the Father
Dr J confirmed that she had not changed her opinion after reading Dr G’s report. She had seen Ms L’s report. She noted that Y was now two and needed to see his father regularly. They were both resilient children who should see him in two separate periods. The configuration of which nights’ was not relevant at all, and changeover at the Police Station should stop.
Dr J said the situation had changed because X had formerly been happy but was now very embroiled in the parents’ conflict. This would get worse if nothing changes and both parents were responsible. The outcome if a relationship with the other parent is not promoted would be very serious and would manifest in their teenage years.
It would manifest as a lack of trust in anyone.
While expressing warmest admiration for her as a colleague, Dr J thought Ms L was very strong and not suitable for this particular family. She had made alternative recommendations. The parties will need long-term assistance and there would be no chance of success if the mother was not on board. The therapy would have to involve joint sessions and if this did not occur the prognosis for the children’s future was very poor. She said that the mother was likely to border on delusional in some aspects of her beliefs.
Dr J noted that the children were very attached to their mother who provided very good care. It would be a great loss if residence was to be changed and would be huge and dramatic to the children. It was hard to see that this was an appropriate arrangement when the children were so young. So far as changeover is concerned the problem was not the Police Station, it is the parents meeting face to face. It was hard to see whether or not four nights would be too much per fortnight for Y. The amount of time is not so important, keeping the parents apart is important. Y is a very placid little boy and his elder sister would help him.
Dr J confirmed that a week of time with the father in School Holidays would be acceptable.
The Evidence of Ms S
Mr Lusker is the sister of the respondent father. She adopted her affidavit as true and correct.
Under cross-examination Mr Lusker gave evidence of her involvement in X’s life. In my view this was unremarkable. She is clearly very attached to the children and X in particular.
The Evidence of Ms L
Ms L adopted her affidavit which annexed her report as true and correct.
Under cross-examination by counsel for the respondent father, Ms L confirmed that the mother did not vent for some 45 minutes. She said it was her role to contain this venting and had indeed felt that it was useful at the end. She said that the mother was inappropriate and very aggressive and became extremely upset and angry and was highly offensive. She was not afraid. The father had said, “we were friends once”, and this upset her.
The children were warm in their relationship with their father but quite demanding of his attention. When it was put to Ms L that she had recommended a 9/5 arrangement she said the mother was opposed to the father. What she had said did not validate restrictive time although transitions were a problem. X was embroiled in the dispute and the arrangements were more important than time. The children were not spending enough time with the father and Y needed predictable regularity. Ms L confirmed that she had not had the full Court file and this was not appropriate. She would only recommend psychiatric reports if the dispute continues.
Under cross-examination by counsel for the applicant mother Ms L confirmed she had seen the mother three times and was aware the mother was trying to tell her about her fears of the father. The mother constantly presented material about breaches of the Intervention Order.
Ms L did not think it was premature to have a joint meeting at the second consultation and at the end of that second meeting she was in fact really hopeful. Thereafter however the mother informed her that she did not wish to proceed with the counselling.
The Submissions of the Parties
Counsel for the father conceded that the father did not persist with his order seeking a residence change. He accepted that the children would be grief stricken if they left their mother. He sought final orders on
a 9/5 basis and half School Holidays. He sought from Thursday
to Monday in one week and Thursday to Friday in the next week. Counsel for the father submitted that the mother’s evidence showed that childcare was available to enable changeover to take place for the father on the day he would collect, namely Thursdays. Childcare would be of benefit to Y who already attends on Fridays and Mondays.
Counsel submitted that telephone time was problematic and should occur at the children’s request. He sought time on either Monday
or Tuesday afternoon and a further telephone call halfway through the School Holidays. The father seeks to have the children at Christmas Eve this year. He had the children with him until 4:00 pm on Christmas Day last year and this year wants Christmas Eve.
The father wanted to ensure that both children spend three hours with him on each of their birthdays. He agreed with therapy at the mother’s choice of Practitioner and undertook to pay half the costs of joint sessions and any costs associated with him alone. He sought that both parties be at liberty to provide my judgment to the counsellors and any other documents requested by the family therapist.
The father proposed that on Mother’s and Father’s Days the children spend 5:00 pm Saturday to 5:00 pm Sunday with the respective parent.
Counsel noted that equal shared parental responsibility was agreed, as were orders in relation to school reports and events. So far as medical decisions were concerned he sought that there be no children’s counselling unless the counsellor was agreed. He said that Ms L was correct that there were no police charges outstanding against him. What has occurred is that the mother has an application to add the children to the extant Intervention Order.
So far as property matters were concerned, counsel referred to the document marked MFI-2. The savings ((omitted) Bank) asserted in the sum of $3,400 for the wife and the insurance payment from (omitted) of $5,600 were expressly abandoned.
There was a dispute about the loan from the husband’s father in the sum of $27,000 which the Court would need to determine. There was no application for a superannuation split and it was submitted that both parties should keep their respective superannuation because the father’s superannuation was under $20,000 and this was fairly close to the mother’s. I would interpolate and say that this submission was one I accept.
The father sought a 70/30 contribution in his favour because of his greater contributions during the relationship. It was accepted that s.75(2) factors would depend obviously on the spend time regime.
The father pays Child Support.
It was strongly submitted that the TAC payment of $102,000 and the husband’s father’s contributions were significant. It was not asserted however that the father’s earnings were substantially greater than those of the mother. It was common cause that an updated valuation of the matrimonial home was to be provided.
Counsel clarified that in School Holidays the father sought half the term holidays and a week-about arrangement in the summer with changeover at a Police Station where necessary.
Counsel for the mother was succinct. He submitted that time spent should be Friday to Monday in one week and an evening during the off-week.
The father’s proposals in relation to birthdays and Christmas
are accepted, but it was submitted time on Mother’s and Father’s Days should be from 10:00 am until 4:00 pm on the day.
The mother wanted to have the children for all of Easter because
it is an important ceremony for her. She wants the regime she proposes to continue until Y is at school age, except that the posited Thursday in the off-week from 3.30 pm to 6:00 pm could then increase. The mother was content to undertake family therapy as proposed.
So far as property matters were concerned it was submitted that
the $27,000 allegedly received from the husband’s father should not
be included in the pool. It was submitted that the $102,000 from the TAC was a windfall gain spent on lifestyle choices. Counsel accepted that superannuation should stay as it is but sought a 70/30 split in his client’s favour. This was based essentially on the s.75(2) factors as the mother would be the resident parent. The mother wanted to retain the matrimonial home and the children go to school nearby. Counsel confirmed that communication by text message between the parties was acceptable.
In reply counsel for the father confirmed that time over Easter was
in issue.
Some Observations about the Witnesses
I have already, I think, commented on all the ancillary witnesses (family members and friends) called by the parties.
As earlier indicated the mother seemed to me under cross-examination to shift her ground on occasion and some of her answers were hard to believe. The assertion that she did not know if the husband’s father was financially generous, when if nothing else he paid for her to go to (country omitted) at the start of the relationship, is unbelievable. The mother’s asserted good memory contrasted vividly with her incapacity to remember her income in relatively recent years and I note that she was driven to concede despite her earlier assertions to the contrary that she was not the major earner in the relationship.
In the ultimate the mother struck me as being a naturally anxious and nervous person, who clearly was very stressed by the proceedings (as is only natural) but her pressure of speech on occasions was very marked. A number of her observations were not responsive to questions put
to her and it is clear that she is totally resistant to the views of external observers including the professionals in the event that she does not agree with what they say.
The mother was not shy at asserting forgery in respect to the annexure L-8 to which I have already referred.
Turning to the father he was at times likewise not a satisfactory witness. What he had to say about seeking to hack into the mother’s Facebook account and failing directly contradicts what he told Dr G. Clearly he has not been truthful on all occasions.
Likewise with the mother, he had a tendency to regard himself as hard done by with a complete lack of insight as to whether his own conduct might have contributed to the unfortunate outcomes that obtained. Like the mother some of his evidence was given under pressure of speech and he was at times non-responsive in his answers to questions put to him.
In the end it is perhaps sufficient to remind ourselves of what Dr J had to say about these two witnesses in a passage I have already set out above. I will nonetheless repeat it now:
“It is my assessment that these parents likely come from over indulged parenting backgrounds and separately they appear likely to have quite high expectations of the care and support that should be afforded to them. I consider that the conflict between them likely emerges from similar intransigence in their positions…
I consider that both parents are likely to be quite selfish, but
I do not consider that either parent represents any significant risk to the children.”
I note and repeat Dr J’s findings that despite the criticisms each extended family makes of the other, these are more likely to arise out of the toxic dynamic between the families than anything else.
This brings me to the evidence of Dr J. Dr J was an outstanding witness. She was direct and responsive to the questions put to her and was clearly telling the truth. She was giving evidence within her area of professional expertise and I accept her evidence without qualification.
In Ms L’s case her position was slightly more complicated because she was perceived by one of the parties to be partisan. It is sufficient to say however that I thought Ms L was a convincing witness who answered questions directly. While I accept Dr J’s observation that Ms L was not a good choice for the family therapy in which this family sought to engage, this should not be taken as a significant criticism. The significant aspect of Ms L’s evidence for these purposes goes to what the demeanour of the mother was on the occasion of the venting process that has been earlier described. I make it clear that I accept Ms L’s evidence.
Findings about the Disputed Areas of Fact
These parties met and started cohabiting in 2008. Their relationship lasted for a little over five years but was attended by a measure of volatility. It got off to a rocky start because of the extraordinarily insensitive and inappropriate email sent by the father’s father and the relationship with the father’s family was always likely to be skewed thereafter.
Following the birth of X it is clear that her Aunt, Ms S, engaged with her very significantly, although a lot of the posts and interactions, while clearly affectionate, are expressed at a somewhat immature level.
I have no doubt that the mother was the primary carer of these children at all times. That is the evidence of Dr J and there is no reason to doubt it. The father’s final position effectively concedes as much and it is noteworthy that so much material was put on to the contrary effect.
There is no doubt that the counselling process with Ms L was a disaster. The mother took against Ms L and there is equally no doubt that following an insensitive remark (as she perceived it) by the father that the mother completely lost her self-control and screamed and carried on for quite a period of time.
The mother herself concedes that she is hypervigilant and this has clearly informed her approach to the parenting issues, but no one says she is anything other than a good mother. Dr J has found that neither parent represents a risk to the children and that is a finding I accept.
I will deal with the matters going to property issues separately.
The Statutory Pathway
The Full Court of the Family Court set out the statutory pathway in Goode v Goode [2006] FamCA 1346 at paragraph [65] as follows (subsequent statutory amendment does not diminish the force of the guidance given):
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order
of the Court or the provisions of a parenting plan made between the parties.2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent
or a person who lives with a parent has engaged in abuse
of the child or family violence (s 61DA(1) and 61DA(2)).3. If it is appropriate to apply the presumption, it is to
be applied in relation to both final and interim orders unless, in the case of the making of an interim order,
the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).4. The presumption may be rebutted where the Court
is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each
of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests
of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).6. The Act provides guidance as to the meaning
of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time
is defined in s 65DAA to mean:(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows
the parent to be involved in:(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to
be determined in accordance with the child’s best interests.9. The child’s best interests are ascertained
by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers
it appropriate, an order that the child spend equal
or substantial and significant time with each of the parents. These considerations would particularly be so if one
or other of the parties was seeking an order for equal
or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.11. The child’s best interests remain the overriding consideration.”
Equal Shared Parental Responsibility
The Court is going to make parenting orders and it is therefore required to consider whether there should be an order for equal joint shared parental responsibility. The Court is required to make such an order unless the presumption in favour of such an order is rebutted because there has been abuse of the child or family violence or it would conflict with the best interests of the child.
As I understand the matter, both parties seek an order for equal shared parental responsibility and in one sense that is the end of the matter.
Nonetheless, it is clear that I should make a finding (having omitted to do so thus far) as to the mother’s assertions of family violence. I have left this matter to now because it is a striking matter. I do not accept that the email which is twice exhibited, the second time as annexure L-8, is a forgery prepared by the father. The father’s evidence about this matter was given with conviction (“delete, delete, delete”) and the terms of the mother’s email are consistent with the slightly immature way in both she (and for that matter the father and some of his family) style their Facebook posts.
It is a significant matter to assert a forgery on this scale and it is a matter to which s.141 of the Evidence Act 1995 applies. I am quite satisfied having seen and observe the parties give their evidence that the father did not strangle the mother and that this was an invention prepared by the mother because her own father had assaulted the husband.
Having made this finding, however, it does not mean that I otherwise accept all the father’s self-exculpation. He clearly has a very significant temper and has on a considerable number of occasions both behaved somewhat oddly, certainly immaturely and petulantly and as I find on occasions behaved in a fashion that can only be described as being in a violent temper.
This is of course clearly family violence within the extended definition in s.4AB of the Family Law Act 1975 (“the Act”).
Nonetheless, I am brought back to Dr J’s finding. Neither parent represents a risk to the children. In all the circumstances, and bearing in mind the parties’ agreement as to the matter, there should be an order for equal shared parental responsibility.
Equal Time or Substantial and Significant Time
The Court is then required to consider whether it is “consistent with the best interests of the child and reasonably practicable” for the child to spend equal time with both parents.
This aspect of the matter can be dealt with shortly. Neither party seeks equal time. The tenor of Dr J’s evidence, although it was not put to her that equal time was appropriate, was clearly against any such proposal. In my view given that neither party proposes it, and given that the children have spent a vast majority of their time of recent times with the mother it is not in their best interests.
This brings the Court to consideration of the father’s proposal for a 9/5 regime which would clearly be substantial and significant time within the meaning of the Act. The mother’s proposal does not meet that test.
When you take a step away from the heat of the parties’ battle this is a dispute about two nights in each fortnight (something really closer to one and a half nights) and it is a measure of the parties’ intensity that they should have fought so hard over such a relatively small battleground.
In the particular circumstances of this case the resolution of this difference of opinion requires consideration of the matters set out in s.60CC of the Act.
Section 60CC(2) – The Primary Considerations
Both parties agree that it is in the best interests of the children to have a meaningful relationship with both parents. Nothing more needs to be said about this aspect of the matter than that.
The Court is also required however to consider the need to protect the children from abuse or family violence and is required to give this greater weight (s.60CC(2A)).
I have however already dealt with the question of family violence in some detail above. I would refer to and repeat the remarks I have made there. Once again it is not necessary in the circumstances to say more.
Section 60CC(3) – The Additional Considerations
Section 60CC(3)(a)
Given their age, the children have, of course, expressed no views with any clarity and even if they had, their immaturity would be highly relevant. I note that X is sufficiently insightful to be concerned about the interfamily dynamic and expressed some relatively minor reservations about her parents’ fights and the possibility that her father might talk to her about the proceedings. Nonetheless, Dr J’s report is clear and suggests that the children have a good relationship with each parent.
Section 60CC(3)(b)
In a sense I have just dealt with this matter. The children have clearly been well cared for by their parents. Dr J observed at page 19:
“The observations were unremarkable and suggested that the children greatly enjoy their relationship with both parents.
In the observation with their father, the children showed trust in him in a way that conveyed a history of consistently responsive care towards them.
… There was no sense that either Y or X are fearful
of their father or wary of his moods.”
It seems to be something close to conceded that both children have sound and well developed relationships with members of each parent’s extended family. I note that the mother feels that the father may be over-dependent on his family, and certainly his sister has displayed a somewhat all-consuming interest in X at least from time to time. Once again however, I note Dr J’s observation that there is really nothing to say meaningfully against any of these persons and I accept that that is so.
Section 60CC(3)(c)
Nobody suggests that the mother has been anything other than an excellent mother. She has clearly looked after these children all their lives. The father was less involved than he asserts with the children but once again there is nothing to say he does not properly wish to participate in their lives and in the matters to which s.60CC(3)(c) refers.
Section 60CC(3)(ca)
In the particular circumstances of this case, this section adds nothing to the matters I have already expressed.
Section 60CC(3)(d)
Dr J was clear that a change of residence was wholly contraindicated and in the ultimate, and to his credit, the father conceded this. It is to be noted that the children have not spent a lot of time with their father since separation. Time recommenced on a supervised basis and only gradually moved to overnight time. The children have not spent multiple overnights with the father since separation.
In my view, the regime the father seeks of a single jump is slightly ambitious. I note that Dr J’s clear view was that there was no particular magic in any particular block of time, and I fully accept that that is so.
Section 60CC(3)(e)
Leaving aside the interpersonal dynamic between the parents and the difficulties they have had and continue to have with one another, there is no practical difficulty or expense in either regime for which the parents contend.
Section 60CC(3)(f)
Each of these parents is well able to provide for the children’s needs including their emotional and intellectual needs. The various criticisms advanced by the mother of the father are not supported by Dr J. The mother concedes that she is hyper vigilant and she clearly is. Should she fail to come to terms with this difficulty it is likely to cause problems for the children, and in particular X, who is already somewhat aware of her mother’s views.
Section 60CC(3)(g)
The children, as already described, are young and immature (although in X’s case she appears to be a remarkably thoughtful child for her age). Both the parents are, as Dr J said, inclined to selfishness arising from overindulged childhoods. Both struck me as being somewhat immature and lacking in insight. Nonetheless, I repeat Dr J’s observation that neither represents a risk to the children.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3)(i)
This is obviously an important subsection. Nonetheless, as things would have it, I have already addressed the matters that might be thought relevant to this under other subsections above. Both these parents love their children and wish to exercise their role as parents in a fashion that is completely unobjectionable. The difficulties they have arise from a mutual lack of insight and the various matters referred to by Dr J.
Section 60CC(3)(j)
Although there has clearly been family violence in the sense of the father’s angry outbursts, I have rejected the sole significant assertion of actual physical violence. This finding of course does the mother no credit. I should make it clear however that I am not finding that she has perjured herself. She has simply reconstructed events in the way that parties so often do and no doubt believes her story even though I do not.
Section 60CC(3)(k)
There is an Intervention Order in place. One would presume in the light of the case before this Court that the application of the mother to join the children to the Intervention Order will not proceed. Although concerning, it does not take the matter further.
Section 60CC(3)(l)
Everybody wants final orders and they are plainly what is required
in this case.
Section 60CC(3)(m)
There is no other relevant matter.
Conclusion on the Parenting Dispute
As I have indicated already, Dr J was not particularly committed
to any particular pattern of time. The dispute between the parties looked at objectively is one overnight in the off-week and one night
of the weekend on the other. Neither would be likely to be grossly prejudicial to the children’s long-term future and development.
Bearing in mind however that the children are still young and Y
in particular is very young, and bearing in mind also that the children have not spent extended time with their father thus far, the outcome that best suits the children’s interests is that they spend from Friday
to Monday with the father in one week and one night from after school to school the next morning in the other week. As I understand it,
the father’s proposal is that this occurs on Thursday to Friday and this appears, from what I understand the evidence to be, to be a workable outcome in view of the childcare arrangements and the mother’s timetable. The parties will need to confer about this aspect of the matter, and I will hear them if necessary.
As I understand it time of up to one week in School Holidays is not subject to a disagreement and at least until Y goes to school the long school summer holidays should, subject to any further submissions, be on a week-about basis.
The only other main matter in disagreement is that of Easter. No evidence of any significance has been called by either party to explain exactly what they want and why about Easter. The mother’s evidence was simply that Easter was important to her. I will make orders consistent with orders often made in relation to splitting the Easter on an alternate basis between them.
The dispute about Father’s Day is simply squabble. I have decided against an overnight stay. The order proposed will need some refinement.
Property Issues
The First Step – Should There Be An Adjustment To The Parties’ Property Interests?
As the High Court made clear in the case of Stanford v Stanford [2012] HCA 52, the first step in property proceedings is to identify the parties’ legal and equitable interests and decide whether it is appropriate that there be an adjustment.
In this case, however, as in very many cases it is clear that there should be such an adjustment. The basis upon which the parties conducted their affairs has radically changed with the failure of their relationship and both sides seek that there be a property adjustment. It is plainly appropriate that this should occur.
The Pool
As I understand it the asset pool is largely as set out in exhibit MFI-2 being the husband’s version of the asset pool.
The major asset in hard money terms is the former matrimonial home which has been the subject of an amended valuation forwarded to the Court by the parties on 31 July 2015. This values the property at $560,000 as is and $580,000 as if complete (a reference to certain works that have not yet been completed, most particularly in relation to a bathroom).
Accordingly the pool will be assessed on the footing as it stands as it is.
Asset Pool
Assets
| Ownership | Asset | Value |
| Joint | Property H | 560,000 |
| Mr Lusker | Ford (omitted) | 14,300 |
| Ms Lusker | Ford Territory | 7,700 |
| Ms Lusker | Suzuki (omitted) motorcycle | 600 |
| Mr Lusker | Kawasaki (omitted) motorcycle | 4,300 |
| Mr Lusker | Chattels, furniture and furnishings | 2,000 |
| Ms Lusker | Chattels, furniture and furnishings | 5,000 |
| Joint | Tools | 2,500 |
| Mr Lusker | Savings ((omitted) Bank) | 2,000 |
| Ms Lusker | Savings ((omitted) Bank) | 2,000 |
| Joint | Savings ((omitted) Bank) retained by the Wife post separation | 3,400 |
| Joint | Insurance payout from (omitted) retained by the Wife post separation | 5,600 |
| TOTAL | 609,400 |
Liabilities
| Ownership | Liability | Value |
| Mr Lusker | (omitted) Bank mortgage | 412,000 |
| Mr Lusker | (omitted) Bank Personal loan | 7,908 |
| Ms Lusker | (omitted) credit card | 2,300 |
| TOTAL | 446,508 |
NET TOTAL NON-SUPER: $133,192
Superannuation
| Member | Fund | Value |
| Mr Lusker | (omitted) Superannuation Fund at trial | 25,971 |
| Ms Lusker | (omitted) at trial | 15,373 |
| TOTAL | 41,344 |
NET TOTAL: $174,536
As things now stand, the only matters of disagreement are, as I understand it, the value to be allotted to various chattels (and as to who owns and should receive some of them) and the $27,000 alleged loan from the respondent father’s own father.
Although the chattels have value in the sense that they would cost money to replace, there is simply no expert evidence as to the value of the chattels and in my view it is notorious that when sold second-hand very small prices are achieved for household items. Thus while I will allocate the various chattels sought by the parties in accordance with the evidence, they will be allotted no value in the pool.
This brings us to the father’s assertion that his own father is owed $27,000.
The evidence in respect to these matters is far from wholly clear. I have traversed in general terms the mother’s evidence about annexure L-10 to the father’s second affidavit. Although she acknowledged that the respondent father’s own father gave the parties money to buy her a car in 2008 she said this was a gift. She otherwise denied knowledge of the various receipts that comprised parts of annexure L-10.
The respondent father’s own father was not called to give evidence so I do not have the benefit of any direct evidence from him as to the basis upon which any funds were advanced.
I note that the advance dated 6 October 2008 of $7,000 towards a car purchase is addressed to, “Dear Mr Lusker and Ms Lusker”. It is signed however only by Mr Lusker and not by Ms Lusker. I accept that the applicant never saw it and there is no indication that she saw any of the other receipts. The term as to repayment was, “you can pay me back whenever you want”.
Other advances were made in very much the same terms.
Because none of these advances had any express term as to repayment, and because a number included phrases like, “pay me back when you are able” (24 January 2012) in my view the better view is that they were moneys advanced without any requirement to repay. Alternatively, having no express date for repayment, in some instances they were statute barred (see Ogilvie v Adams [1981] VR 1041).
I do accept that the respondent father’s own father advanced $27,000 to the parties because it is too big a step to assume that these documents are postdated forgeries. They were plainly created by the father and his own father contemporaneously but, as I say, their terms do not suggest they were other than funds advanced out of affection to be repaid as and when and by inference if the parties were able.
They were not enforceable loans within any meaningful understanding of that phrase. As counsel submitted, if not taken into account as part of the pool, they clearly constitute contribution standing to the credit of the father. The terms of the various notes permitted no other conclusion.
Contribution
Both parties sought to emphasise the significance of their contributions. The relationship was not one of greatly extended duration, lasting as it did from 2008 until 2014. The parties had little if anything at the commencement of the relationship. Notwithstanding assertions made by each party from time to time, it seems likely that their earnings were not wildly disparate although it does appear that the father made rather more by way of earnings than the mother. Nonetheless, she contributed throughout a substantial period of the relationship and had the primary caregiving responsibility. Ordinarily one would reasonably assess their contributions as equal.
The father puts it that his $102,000 TAC payment and the payments from his father radically alter the matters such that he should have a 20 per cent adjustment in his favour. The net value of this pool on any view is not large. It is something around about $160,000. One might think that an advance of $102,000 for the TAC payment and $27,000 by the father’s own father constitute a considerable proportion of it.
The difficulty of course is that the parties largely dissipated the $102,000. Indeed, the $27,000 was partly applied to a car and possibly to insignificant matters like a video camera, but has long since disappeared. It was subsumed in lifestyle choices in the main, it would seem the mortgage has declined by only a small amount throughout its life.
These are scarcely areas of precision. The Court is asked to do the best it can in the face of this somewhat confused and confusing evidentiary background. I think that the parties did gain from the TAC payment and the paternal grandfather’s contributions. However, in terms of net assets as they stand now, an adjustment of 10 per cent is, in my view, appropriate.
It should be noted that although the mother gave a detailed recitation of what the TAC payment was applied to, the precision of her figures stood in stark contrast to her incapacity to remember her income. I do not accept those figures. I accept that the $102,000 was essentially wittered away from time to time on lifestyle matters but that some of it (although one cannot say how much) was applied towards the mortgage. Doing the best I can, as I say, in this evidentiary vacuum it seems to me, and I emphasise that this is necessarily a matter of judgment and impression, that 10 per cent is an appropriate adjustment.
Future Needs – Section 75(2) Factors
Here the parties are roughly of an age. Neither proposes any change to their superannuation and, as earlier indicated, that is appropriate. They will not access their superannuation for many years to come in any event.
The mother will have the predominant care of the two young children for many years to come and her capacity to work will necessarily be impacted upon by that. She is presently obtaining casual relief work as a (omitted) and that is likely to continue for some considerable period of time. The father has a professional qualification and apparently is likely to continue to have employment albeit not at relatively munificent rates. His current wage is below average weekly earnings.
The mother’s health is unremarkable and that of the father is unclear. His lymphoma appears to have resolved but there is no evidence to suggest what his future may be. I cannot make any finding that his health is such as to make it appropriate to make an adjustment in his favour.
In all the circumstances, and bearing in mind the time regime which will involve eight holiday weeks a year with the father in addition to the time otherwise stipulated (producing a total more close to even than first analysis might suggest) an adjustment in the mother’s favour of 10 per cent is appropriate.
Just and Equitable
In my view a conclusion that the property pool should be split equally between the parties is eminently appropriate. They had nothing of any moment when they started, they dissipated such assets as would have skewed the matter significantly in the father’s favour throughout the relationship, and the s.75(2) factors do not that greatly assist the mother. An equal division is entirely appropriate.
Chattels
Proceedings which condescend to individual chattels are rarely attractive and this is no exception. I will deal with those matters set out in paragraph 6 of the document marked as exhibit MFI-1, being the final orders sought by the father, and deal with that seriatim.
Paragraph 6.1
It is agreed that the husband retains the Ford (omitted).
Paragraph 6.2
The parties’ positions are both spiteful. The Suzuki motorbike belongs to X and will remain with the mother. The father will retain his Kawasaki motorbike.
Paragraph 6.4
In the circumstances, I am bound to accept the mother’s assertion that the only tool remaining is the lawnmower and that the possessor of the property requires it.
Paragraph 6.6
I accept that the theatre projector and the like are part of the property and must remain there.
Paragraph 6.7
The mother concedes that the larger fish tank belonged to the father before they even met. Her assertion that it belongs to the children may or may not be true but the meanness of spirit that this dispute reflects does no credit to either party. Since however it belonged to the father before the parties met, it should be his.
Paragraph 6.8
I am bound to accept that these are lost.
Paragraph 6.9
If the tyre from the first motorbike is in the garage it should be given to the father. If not, it cannot be.
Paragraph 6.10
I accept that there is only one TV unit in the house and it should belong to the mother. I note if I remember correctly that the father removed another one from the garage.
Paragraph 6.12
I accept that the mother should retain the desktop computer. She seems to have a use for it.
Paragraph 6.13
It is accepted that the TAC prescribed desk chair should go to the father.
Paragraph 6.14
If this can be identified it should go to the father, but I note that the mother essentially denies that it is there.
Paragraph 7
I accept that the mother cannot afford the hard drives. If the father wishes to copy all photographs stored on the hard drive he can provide the necessary software to enable this to occur. Photographs of the mother giving birth while obviously intimate to her form part of the family record and should be available to both of the parties.
Conclusion
I believe that these very lengthy Reasons for Judgment have traversed all the matters the parties have seen fit to agitate. It has been a very lengthy journey given the relatively confined nature of the dispute. I have drawn draft parenting orders to give effect to these conclusions but will give the parties an opportunity to study them in case there are any matters I may have overlooked in respect of which further fine tuning may be necessary.
Further, given the mother’s proposal to retain the matrimonial home, which I think should be permitted, the parties will need to confer on the appropriate form of property orders in any event.
I certify that the preceding two-hundred and thirty-two (232) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 18 September 2015
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Standing
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Procedural Fairness
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Natural Justice
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Abuse of Process
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