MADDISON & MADDISON
[2014] FCCA 1741
•6 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MADDISON & MADDISON | [2014] FCCA 1741 |
| Catchwords: FAMILY LAW – Financial – Property Adjustment Orders made. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC, 75, 79 |
| Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 MRR v GR [2010] HCA 4 T & N (2004) 31 Fam LR 281 Stanford [2012] HCA 52; (2012) 293 ALR 70; 47 FamLR 481 Hickey & Hickey & Commonwealth [2003] FamCA 395, (2003) 30 FamLR 355, FLC 93-143 |
| Applicant: | MR MADDISON |
| Respondent: | MS MADDISON |
| File Number: | BRC 4784 of 2012 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 6, 7, 8, 20 November, 20 December 2013, 27 June and 25 July 2014 |
| Date of Last Submission: | 25 July 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 6 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Ms McDiarmid |
| Solicitors for the Respondent: | Craig Ray & Associates |
| Counsel for the Independent Children’s Lawyer | Mr McGregor |
| Solicitor for the Independent Children’s Lawyer | Jones McCarthy Lawyers |
ORDERS
PARENTING
The father and the mother have equal shared parental responsibility for the children X born (omitted) 1997; Y born (omitted) 2002 and Z born (omitted) 2003.
The father be responsible for the day to day care, welfare and development of the children when they are spending time with him pursuant to these orders.
The mother be responsible for the day to day care, welfare and development of the children when they are living with her pursuant to these orders.
That the children live with the mother.
That the children Y and Z spend time with the father at all reasonable times as may be agreed between the parties and failing agreement as follows:
(a)Each alternate weekend from after school Friday to before school Tuesday;
(b)For one week during the gazetted school holiday periods at the end of terms 1, 2 and 3 being the first week in even numbered years and the second week in odd numbered years;
(c)For three one week periods during the gazetted school holiday periods at the end of term 4 being the first, third and fifth weeks in even numbered years and the second, fourth and sixth weeks in odd numbered years.
That during all gazetted school holiday periods, the time referred to in Order (5)(a) be suspended.
That for the purposes of Order (5)(a):
(a)In the event the father is unable to collect the children from school at the commencement of his period of time he is to advise the mother at least 24 hours prior of his inability to do so and his time will commence at 8am the following day;
(b)In the event the father is unable to deliver the children to school at a reasonable hour on a Monday or Tuesday he is to advise the mother of his inability at least 24 hours prior and the father’s time with the children will conclude at 6pm the night before.
That the father is restrained from taking the children on work related travel:
(a)Against their wishes; and
(b)In excess of 48 hours.
That in the event the father is not already spending time with the children Y and Z pursuant to these Orders he is to spend time with them on the following special days:
(a)On Father’s Day from 9am to 9am the following day;
(b)On the father’s birthday:
(i)If it falls on a school day from after school to before school the following day;
(ii)If it falls on a non-school day from 9am to 5pm;
(c)On Y and Z’s birthdays:
(i)If they fall on a school day form after school to 6pm;
(ii)If they fall on a non-school day for between three (3) and five (5) hours with the father to advise the mother of the specific times.
That in the event the mother is not already spending time with the children pursuant to these Orders she is to spend time with them on the following special days:
(a)On Mother’s Day from 9am to 9am the following day;
(b)On the mother’s birthday:
(i)If it falls on a school day from after school to before school the following day;
(ii)If it falls on a non-school day from 9am to 5pm;
(c)On the children’s birthdays:
(i)If they fall on a school day from after school to 6pm;
(ii)If they fall on a non-school day for between three (3) and five (5) hours with the mother to advise the father of the specific times.
That unless otherwise agreed, changeovers pursuant to these Orders are to occur at the children’s school or otherwise inside the main entrance of the (omitted) Shopping Centre.
That in the event that a parent is unable to care for the children Y and Z for a period of time due to ill health or work commitments for a period greater than 24 hours, then the other parent must be given the first opportunity to care for those children during that period.
That each party keep the other party informed of changes to their respective residential addresses and/or home telephone numbers and/or mobile telephone numbers and/or email addresses within 48 hours of any such change.
That each party keep the other informed of the names and addresses of any and all medical practitioners who are involved in treating or caring for the children.
That each party authorise the children’s medical practitioner/s to discuss with the other party the children’s health and medical treatment.
That the father and mother inform the other as soon as it is reasonably practicable of any medical condition, significant health issue and/or illness suffered by the children and authorise any treating medical practitioner to give the other parent such information that he or she may reasonably request pertaining to such condition.
That the father and mother authorise the children’s school to provide to the other parent copies of all school reports and any other reports on the children’s progress and behaviour issues and all notices received from the school including newsletters, parent letters and general notices.
That the father and mother authorise the children’s school to inform the other parent of all extra-curricular activities that occur at the children’s school including parent/teacher meetings, sporting/special events and any other activity to which the parents are invited.
That the father and mother authorise the children’s school to contact the other parent in respect to school photographs and that provision of such photographs must be arranged by the father and mother with the school directly.
That each parent consult with the other parent in relation to:
(a)The enrolment of the children into extracurricular activities including any groups and associations; and
(b)The children playing or being involved in any sporting activity or tuition and attendance at school camps.
That each party is restrained from:
(a)Denigrating or criticising the other, the other’s partner or the other’s extended family to or in the presence or hearing of the children;
(b)Discussing with the children these proceedings (save and except for the effect of the terms of these Orders insofar as the Orders affect the children); and
(c)Engaging in acts of domestic violence towards each other.
PROPERTY
That within seven (7) days of the date of these orders the parties do all such acts and things and sign all such documents as may be necessary to instruct the solicitor for the wife to pay out of monies held in the trust account of Craig Ray & Associates to the parties as follows:
(a)$40,000 to the husband; and
(b)The remainder to the wife or as she directs.
That in accordance with s.90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment within the meaning of s.90ME of the Act becomes payable in respect of the husband’s interest in the (omitted) Superannuation Fund, the wife is entitled to be paid (by the Trustee of the (omitted) Superannuation Fund) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001 (Cth), using a base amount of $164,138 and there is a corresponding reduction in the entitlement the husband would have had but for these orders.
The operative time for Order (23) is twenty eight (28) business days after the service of these Orders on the Trustee of the (omitted) Superannuation Fund, and in the absence of any application by the Trustee to the Court pursuant to Order (25) below, the Trustee of the (omitted) Superannuation Fund shall be bound by the terms of this Order.
Liberty is reserved to the said Trustee to apply to this Court about the Orders made or the form thereof within the period of twenty eight (28) days after service of a copy of these Orders on the Trustee.
That each of the applicant and respondent retain all other items of personality currently standing in their sole name or possession including but not limited to all motor vehicles, shares, money standing in any bank account, furniture, furnishings and personal possessions except as otherwise provided for in these Orders.
That the husband and wife do all such acts and things and sign all such documents as are necessary to implement the terms of these Orders and that in the event of either the husband or the wife failing to do so within seven (7) days of the receipt of the written request of the other party, a Registrar of the Federal Circuit Court of Australia, is appointed and empowered pursuant to s.106A Family Law Act 1975 to execute all such documents and do all such acts and things to implement the terms of these Orders.
That not before 1 January 2015 and no later than 31 January 2015 the parties do all such acts and things and sign all such documents as are necessary to close all accounts with the Australian Scholarship Group in respect of the children X, Y and Z and to instruct the Australian Scholarship Group to distribute all such funds equally to the parties.
IT IS NOTED that publication of this judgment under the pseudonym Maddison & Maddison is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 4784 of 2012
| MR MADDISON |
Applicant
And
| MS MADDISON |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of X, Y and Z have not been able to reach agreement in relation to future parenting arrangements and their property settlement following the breakdown of their marriage. I propose to address the two applications separately however to avoid repetition I will rely on any findings of fact in my consideration of the parenting application when I turn my mind to the property application.
Parenting Application
The father would like the children to live with the parents in a shared care arrangement whereby the children would live with the mother for four days in week one of a two week cycle and three days the other week. This would see them living with the father for the same amount of time. During the school holidays he would like the children to spend alternating whole holiday periods with each parent for the holidays at the end of terms one, two and three and for half of the end of year holidays. Although the father would like all three children to live in accordance with this proposal at the conclusion of the hearing he did not seek any order that X be included. The father asked the court for orders that the parents equally share parental responsibility for the children.
The mother also sought an order for equal shared parental responsibility but was opposed to the shared care order sought by the father. The mother would like to see orders that would provide for the two younger children to live primarily with her and to spend time with the father from after school Friday to before school Monday on the first and third weekends of each month. She would like the children returned to her care if the father is unable to care for the children during this time. The mother also sought orders for special occasions and communication by electronic means. The mother’s proposed minute of order also included a number of specific issues and injunctions which I will not repeat in this introduction. Although the minute of order sought by the mother did not make provision for school holiday time at the conclusion of the hearing counsel for the mother informed the court she was open for the two younger children spending some holiday time with the father but not for lengthy block periods.
The children were independently represented. It was submitted on their behalf that the parents should have equal shared parental responsibility and the children live primarily with the mother. The ICL argued there should be no orders in relation to X spending time with the father but the two younger children should spend time with him from after school Friday to before school Tuesday and for half of the school holidays.
The Evidence
At the trial the father relied on:
a)Initiating Application filed 30 May 2012;
b)His Affidavits filed:
i)30 May 2012;
ii)22 August 2012;
iii)5 November 2012
c)Affidavit of Mr B filed 30 May 2012;
d)Affidavit of Ms M filed 30 May 2012;
e)Affidavit of Ms V filed 4 June 2012;
f)Affidavit of Mr J filed 4 October 2013; and
g)Affidavit of Mr R filed 4 October 2013;
The mother relied on:
a)Her Response filed 17 August 2012;
b)Her Affidavit filed 4 November 2013;
c)Affidavits of Ms T filed:
i)18 October 2012; and
ii)1 November 2013;
d)Affidavit of Ms S filed 18 October 2012;
e)Affidavit of Dr V filed 4 November 2013;
f)Affidavit of Mr G filed 5 November 2013; and
g)Affidavit of Mr J filed 5 November 2013.
The ICL relied on:
a)The affidavits of Ms R filed:
i)20 December 2012;
ii)22 July 2013; and
iii)5 November 2013;
b)The Affidavit of Dr L filed 22 March 2013;
c)The transcript of proceedings dated:
i)20 August 2012; and
ii)22 August 2012.
A number of documents were tendered into evidence.[1]
[1] ICL1 – Independent Children’s Lawyer proposed minute of order.
The mother filed an Application in a Case on 27 May 2014 seeking a re-opening of the hearing. When that application came before me on 27 June I granted that application and listed the matter for further evidence and submissions on 25 July. I have in determining the substantive application also had regard to the documents filed in relation to the application in a case. Those documents are:
a)The mother’s affidavit filed 27 May 2014;
b)The affidavit of Dr V filed 27 May 2014;
c)The affidavit of Mr A filed 3 June 2014;
d)The father’s affidavit filed 20 June 2014;
e)The mother’s Amended Application in a Case filed 24 July 2014; and
f)The mother’s affidavit filed by leave 25 July 2014
A number of further documents were tendered at this stage[2].
[2] F5 – A copy of report dated 28 October 2013 from Mr J.
I have had regard to the written evidence relied upon by the parties and the ICL set out above; the tendered documents; and the oral evidence given during the hearing. Throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. Although I will set out some background facts at this stage I propose to address factual disputes and issues when I address the specific considerations further in these reasons.
The father is 54 years of age. He has recently moved to (omitted) where he lives in rental accommodation. He runs his own business as a (omitted). He was born in (country omitted). The family lived in (country omitted) for some of his childhood and they migrated to Australia in 1975. The father has one child, A and a step-daughter, Ms B from a prior marriage.
The mother is 43. She is a (occupation omitted) with her own (business omitted). At the time of the final hearing she remained living in the former matrimonial home in (omitted) but since its sale she has been living in rented accommodation in (omitted). The mother was born in (country omitted) and immigrated to Australia in 1985 with her family. Prior to her relationship with the father the mother had her first child, W in 1991.
The parties commenced their relationship in 1996 and married on (omitted) 2001. Although they separated on a final basis on 3 April 2011 they had previously separated for about six months in 2005/2006. They have three children together:
a)X born (omitted) 1997;
b)Y born (omitted) 2002; and
c)Z born (omitted) 2003.
The children have lived primarily with the mother since separation. X’s relationship with her father is fractured. Y and Z have spent alternate weekend time with the father and some limited holiday time. There have been ongoing difficulties between the parents in making arrangements and decisions for the children.
There is a history of family violence in the relationship although the parties disagree as to the extent of it. I will address this issue later in this judgment but I note that Domestic Violence Orders were made in 2004 and 2011.
Legal Principles – Parenting Proceedings
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[3] and must consider the best interests of the child as the paramount consideration.[4]
[3] S 60B
[4] S 60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[5] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[5] S 60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[6] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[7] This presumption may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[8]
[6] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[7] S 61DA
[8] S61DA(2) & (4)
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[9] If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[10]
[9] S65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[10] S65DAA(2)(c) & (d)
Determining the best interests of the children – the s.60CC considerations
The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors in a thematic way. The father’s Initiating Application was filed on 30 May 2012 prior to the commencement of the 2012 amendments. I am therefore required to consider the s.60CC factors that applied at that time. In light of the significant issue at trial being the extent of family violence I propose to address the risk of harm issues first in this judgment.
Risk of harm[11]
[11] S.60CC(2(b); (3)(j) and (k)
The evidence of both parties establishes that there has been a history of family violence during the relationship and the children have been exposed to it. The parties though disagree as to the extent of the violence. The wife has invited the court to make the following findings:
a)That the father was verbally, physically and sexually abusive of the mother during their relationship;
b)That the father was physically and emotionally abusive of the mother’s daughter Ms S;
c)That the father’s conduct towards X has caused her psychological harm; and
d)That the father has caused emotional harm to Y and Z and unless his behaviour is addressed they will suffer psychological harm in the long term.
As I have noted earlier this application was filed prior to the 2012 amendments. I am therefore required to determine this matter on the basis of the definition of family violence that applied at the time of the filing of the application and was found in s.4 of the Act:
“family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety”
The mother gave evidence of various acts of violence from the early stages and throughout the relationship. She described the father having rages when he felt the house was not tidy enough or his dinner was not cooked when he got home. She described incidents of him throwing clothing over the stair case bannisters, throwing furniture around and upending lounge chairs; kicking holes in walls; smashing a phone; grabbing her by the throat and being verbally abusive including calling her a “fucking bitch”.
The mother gave evidence of an incident in early 2011 where she alleged that when the husband returned home from work he lost his temper over the house not being clean enough. He said to the mother “the house is a pig sty, you live like a pig. What have you been doing all day sitting around on your fat ass watching TV”. The mother went up to bed and was followed by the husband some ten minutes later and he turned the bedroom lamp on saying to her “what do you think you are doing”. She told him she was going to bed and he replied “no you’re not I’m not done with you yet bitch”. He said “you are a pathetic gutless creature, have you look at yourself lately? Have you seen what you’ve become? A fat fucking lazy bitch. No one else would ever want you”. After this type of comment continued for a while he changed and got into bed and tried to snuggle up next to her. She told him not to touch her but he asked “why not?” The mother replied: “after everything you have just done and all the names you have just called why do you think?” He said he had got it out of his system but was told by the mother that she was not fine and told him again not to touch her. At this point the father climbed on top of her pinning her down with his knees on her shoulders. He stuck his penis in her mouth until he ejaculated. The mother was crying and the father said “what is wrong with you? You are my wife” he then turned over and went to sleep.
The father denied this accusation. He presented as offended by the suggestion that he would do that to his wife. I was not persuaded by his denials but rather I found the mother to be credible in her account of this incident and am satisfied on the balance of probabilities that on this evening she was subjected to verbal, physical and sexual violence by the father. The mother said that she had been raped on two previous occasions by the father. An accusation he denied. There was insufficient evidence for me to find this accusation proved.
The mother gave evidence of another serious incident that occurred on 3 April 2011 which was the night the parties separated. She said that her friend, Ms T was over for a celebratory dinner. The father arrived home and appeared to be angry. They exchanged words over the preparation of a spreadsheet and the mother’s spending of money. After Ms T left they again argued. During this argument the mother slapped the father across the face and he slapped her back saying “Bet you didn’t see that one coming did you bitch”. He then picked up a container of weed-killer and threw it at the mother. It smashed on a cupboard and spilt over the mother. When the mother bent down to pick up the broken container the father grabbed it off her. She slipped in the liquid and fell onto the floor. X had gone downstairs. She told the mother to go up and get changed. The mother then texted Ms T to return to the house. The father followed the mother upstairs into X’s room. He was yelling and pushing the mother in the chest. The mother was knocked off her feet by the father’s pushing. She landed on X’s bed and every time she tried to get up the father would push her down again. At this time X was pleading with the father to stop. The father then accused the mother of breaking his finger. When X tried to phone the police the father told her not to. X was getting hysterical by this stage and the mother attempted to remove herself from X by going outside onto a landing. The father followed the mother out and continued to push her against the banister. X kept screaming at her father pleading with him to stop. Ms T and her husband arrived at this stage. The mother got the children together and left with Mr and Ms T. The father yelled: “Take the fat fucking lazy bitch with you and don’t ever let her come back here again”.
Ms T gave evidence of the younger children appearing frightened when they heard the father arrive home as they were still up after their bed time. They quickly went to bed. She could hear the father in the kitchen banging pots around and saying “I shouldn’t have to come home to this slop”. She said the mother then offered to heat up his dinner. She heard the parties arguing. Ms T offered to leave but the mother requested her to stay. She did leave around 10pm but received a text message 40 minutes later. Ms T and her husband lived very close to the home and were there within a couple of minutes. She knocked loudly on the door and could hear crying and running inside. X opened the door screaming and was hysterical saying “help mum, Dad’s going to kill her!” The mother then ran to Ms T and asked her to help her get the children. When she went up the stairs the father asked her what she was doing there. She said he was towering over her and she felt intimidated. She described him as being ‘right up in my face’. He told her that it was none of her business and not to get involved. At that point her husband walked up the stairs and when the father saw him he withdrew his aggression and said “Hi Mr M how are you?” Despite opposition from the father the mother left with the children. Ms T heard the father yell: “get the useless fucking lazy bitch out of my house and don’t bother bringing her back”. She described observing the mother having a reddened and bruised face. X was very scared and agitated and kept asking Ms T to ensure the doors were locked. X said she was worried the father would come to the house and hurt them.
The father gave evidence of arriving home that night around 8.30pm. He said that the mother and Ms T were in the kitchen dining area and had consumed a number of wines. He served himself dinner and felt that Ms T was uncomfortable with him around so he went and ate his dinner in the television room. He heard the mother and Ms T whispering. He said that after Ms T left he returned to the kitchen and found the mother sitting at the kitchen table intoxicated. He said she was angry with him and started to verbally abuse him because he had visited his parents. He said they began arguing and both were raising their voices. The mother struck him across the face and he slapped her back. He said that he had been physically assaulted by the mother previously but he had never retaliated until this time. After he slapped her she began to punch him in the chest. He stepped away and picked up a plastic bottle and threw it at the kitchen cupboard. The bottle split on the bottom when it landed on the kitchen floor. He bent down to pick it up and as he did so the mother then had another swipe at him. She missed, slipped and fell flat on the floor landing on the left side of her body with her face taking some impact. He then emptied the bottle into a bucket in the back yard. Upon his return to the kitchen the mother stood there yelling abuse at him. He yelled back telling her to calm down and that she had had too many drinks. He then saw X come into the kitchen. The mother asked X to call Ms T and to get her to come up to the house. The mother then said she needed to get changed and that the fluid was burning her skin. He followed her up stairs asking her to discuss the matter rather than always running away. She went into X’s room and he followed her in with X. He said to her why couldn’t she be open and honest. The mother told him to get out of the room and then started to lay into him with both her fists. During the punching he tried to protect himself by placing his hands over his face. He said one of her punches broke his right little finger. To stop her he pushed her on to the bed. He said the bed had roller wheels and it then moved across the room. He accused the mother of making an act of it and dramatizing the fall. According to the husband it was soon after that Mr and Ms T arrived. He said the mother and X walked downstairs. Ms T came upstairs to wake the two younger children to take them away. He told them to leave the two girls alone as they were asleep. The mother then came up the stairs, woke the girls and took them downstairs. The mother, all three children and Mr M & Ms T then left the home.
In her first family report, Ms R, reported what X had to say about this incident:
[133] When asked how her parents get along, X reported that her father had hit her mother in the face and shoved her the last time they lived together and she (X) had witnessed it. X said she was sleeping and heard her father yelling at her mother. She came downstairs and saw her father hit her mother and her mother fell on the ground. Her father had thrown weed killer at her mother and it hit the wall and went on her mother’s clothes. She went with her mother into the other room to change her clothing as the weed killer was burning her skin. Her mother sent a text message to Ms T to ask her to come over. X said her father shoved her mother onto the bed and it slid over to the wall as the bed was on wheels. Her father then accused her mother of breaking his finger and said – You ‘f’ing bitch. X recalled that she felt very scared and picked up her phone but her father turned to her and said – don’t you dare call the police.
[134] X reported that when her mother went out onto the balcony her father followed her and continued pushing her mother. X said she thought that her father was going to push her mother over the balcony and she was telling her father to stop. Ms T and her husband arrived and her father became even angrier. X said she was really scared and went out to sit in their car. It is noted that X was crying as she related this story. X recalled that her father was up close to Ms T’s face telling her not to take his children. Finally Ms T came out with Y and Z. Her father was shouting ‘bring my children back’. When her mother and Mr M came outside they left and stayed the night with Ms T.
This interview took place in December 2012. X’s version is largely consistent with the mother’s.
There can be no doubt the events of that night have had an emotional impact on the parties, X and also Ms T. Recollections of facts can be clouded by emotion. I am satisfied both parties engaged in argumentative behaviour earlier in the evening which got out of hand. Both parties were physically violent to each other and engaged in verbal abuse of each other. The father’s description of the mother making an act of it and dramatizing the fall leaves me with the impression that the father was attempting to minimise his own culpability for this incident and was indicative of his perception of the mother. Although the mother’s account of the events may have been affected by her emotional response to the events of the evening, overall I preferred her evidence where it differed from the father’s.
The police documents that were tendered showed that there has been police involvement with the parties in 2004, 2005 and 2011 in relation to domestic violence. Domestic Violence Protection Orders were taken out in 2004 and following the incident on 3 April 2011. On each occasion these orders were cross orders applying to both parties.
The order made 17 May 2011 relating to the incident the previous month, was a twelve month order. Notwithstanding this order and the mother’s move from the former matrimonial home she asked the father if she could continue her (omitted) business from the home where she had a room specifically set up to see clients. He agreed. On 9 August the mother was conducting her business from the home when the father wanted to speak to her about seeing the children. He knocked on the door of the (omitted) room and spoke to her through the door even though she told him she was busy with a client. Later that day the father received a phone call from the police for him to attend a police station to provide a statement in relation to the events earlier that day. By this stage the father had commenced his job as a (omitted) travelling to (omitted). He indicated he could not attend that day but would do so on his return. The previous day the father had received a phone call from the mother’s solicitor requesting he vacate the home so the mother could move back in. The father refused to do so.
The mother sought a variation of the Domestic Violence Order on 12 August 2011 seeking to have the father excluded from the former matrimonial home. She was successful in her application on 6 September 2011 when an order was made requiring the father to vacate the property and not go within 100 metres of the mother or her place of residence. He vacated the home two days later.
The father was also summonsed to appear in the Brisbane Magistrates Court to answer an alleged breach of the DVO. He pleaded guilty to this charge on 18 January 2012 and was fined $250.
The mother’s adult daughter W gave evidence of the father assaulting her when she was about eight years of age. She said that he had grabbed her by the arm and swung her into her room and kicked her onto her bed. He later applied a cold compress and asked her not to tell her mother. Her mother though found out when she had touched her leg. W begged her mother not to say anything about it as she was frightened. She described another incident when she was 11 years of age where the father picked her up by the neck and held her against a wall. She said that she was so scared that she urinated herself and could barely walk after he let her go. She said he would grab her by the face and scream at her from inches away, slap, kick and push her. She accused him of calling her nasty names such as: bitch; pig; selfish creature; little shit. She said he would threaten to kill her on numerous occasions. W was 12 years of age she ran away from home. She did not return to live with her mother and the father until she was pregnant with her first child. She described an incident during her pregnancy where the father lost his temper at her for putting a bowl in the wrong place. She accused him of holding a knife and waving it at her. She threatened to call the police but he said that would only make it worse for her mother. She left the home that night and moved in with her grandparents. W was banned by the father from visiting the home after that night. She has received extensive counselling since she was 11 years of age. Although these allegations were denied by the father he conceded he had problems with W as a child and had handled the situation badly. I found W to be a credible witness and accept her evidence.
Ms T gave evidence of caring for the three children when the mother was in hospital in May 2013. She answered the home phone and received verbal abuse from the father. He said he wanted to talk to the girls and said: “you lying fucking bitch don’t stop me from talking to them. They should be out of bed now”. She described the father yelling through the phone to the children and they presenting as scared. X eventually hung up the phone. I accept her evidence.
When X was interviewed in October 2013 by Ms R she told the report writer that all of her life the father had become angry over little things that annoyed him. She described his anger as: yelling, screaming, smashing things, breaking the door, kicking the wall and using profanities. X said that the father had whipped two of their dogs. She said there were brief periods of happiness in the home but that that would only last for a short while until her father would become angry again.
When I consider all of this evidence in relation to violence, noting I have not addressed all of the allegations, I am satisfied the mother has been the primary victim of verbal, physical and sexual violence by the father. W has also been a victim of verbal and physical abuse when she was a young and vulnerable child. Ms T has also been subjected to verbal assaults by the father. The three children but especially X have been exposed to this violence by the father.
Although the mother has also used physical violence and verbal abuse at the father, overall I am satisfied she has been fearful of him for the majority of the relationship. In light of the history of violence that fear is reasonable.
I am therefore satisfied there has been family violence as defined in s.4 of the Act as it then was and is applicable to this case. It is no wonder the mother is concerned for the welfare of the children if they are to spend extended periods of time with the father. The mother did not seek an order preventing the children spending time with the father as she was clear in her evidence that he can be a good father and appropriate in his care of them when he is not angry or does not lose his temper. It is for this reason that she was opposed to the children spending extended block periods of time with the father. I will address this particular issue later in this judgment. However I am satisfied that the father has a serious problem with controlling his anger. The children have witnessed this and have been fearful of him at times. There is a real risk of long term emotional harm to these children if they were to continue to witness and/or be subjected to his anger and outbursts. Although there was no evidence to find these particular children have been subjected to physical abuse by the father there remains such a risk in my view if the father is unable to effectively address his anger management issues. If it was not for the mother’s evidence of the father being a good parent and appropriately caring for the children at times I may have declined to order any time between the younger children and their father.
I am satisfied he has attended a course designed to address anger issue run by Anglicare entitled ‘Living Without Violence Program’. A letter from the Specialist Counsellor at that programme dated 26 August 2013 was tendered.[12] The father had attended two assessment sessions and 15 individual counselling sessions where he was described as having participated and was fully engaged. In light of the history of violence it is quite understandable that the mother would be reluctant to accept the father has changed his behaviours. I found the father to have minimised his involvement in past violence between the parties. This leads me to conclude he lacks insight into his behaviour. I am not satisfied that ordering the father to attend further anger management courses or counselling will achieve any significant change given he has already had some intensive personal counselling and he still appears to lack insight into his behaviours.
[12] ICL 3
I am satisfied that the children’s best interests would be served by limiting the opportunities for the parents to come into contact with each other. This can be addressed by having the children transition to and from each home at their school where ever possible.
The children’s relationships[13]
[13] S.60CC(2)(a); (3)(b), (c) and (d)
The children have been primarily cared for by the mother all of their lives. It is not surprising therefore to see in the family report that the writer considered the children to each have their primary attachment with her. Ms R also observed the children to have strong bonds with each other. She considered Y and Z to have a loving and close attachment with their father and observed them to be comfortable with him. X’s relationship with her father though has been compromised. She has been significantly affected by her observation of the father’s anger and violence. Although the father recognises the reality that his relationship with X is currently fractured he perceives the reason for that as being X’s desire to support the mother. I find he lacks insight into the reasons why X’s relationship with him is estranged however to his credit he appreciated the importance of not pressing for orders in relation to X spending time with him.
The observations of the report writer suggest that the sibling relationships appear to be strong. This was not disputed by either party.
The father has been critical of the mother suggesting she is not committed to promoting a positive relationship between him and the children. Notwithstanding the mother’s concerns about the father’s anger and violence she has ensured the younger children spend time with him and has sought orders that would provide for regular time. Although she was not supportive of extended block periods of time particularly over the long summer holidays, overall I am satisfied that the mother is supportive of Y and Z having an ongoing relationship with the father. I am also satisfied she will not stand in the way of X re-engaging with the father.
The children’s views[14]
[14] S.60CC(3)(a)
I propose to give some considerable weight to the views of the children in light of their ages. X is 16, Y is 12 and Z 10. Having said that Y and Z are a few years younger than X. Although I will be giving considerable weight to their wishes this factor in and of itself will not be determinative of the matter as it needs to be considered along with all the other factors.
X has made it clear that she does not want to see her father. Although the father does not appear to accept the reasons for her decision, he is mindful of her age and does not seek any orders that are contrary to her wishes. Y would like to continue to live primarily with her mother and spend alternate weekends with her father. Z also would like to continue to live with her mother and have weekend time with the father. When the children told the family report writer they wanted to spend weekends with their father they were referring to Friday after school to before school on Mondays. In effect the children wanted to continue the current arrangements.
The evidence would suggest all three children have been deeply affected by the ongoing conflict between the parents. They have heard the father denigrate the mother and this has made them sad. Y said that she had fun with her father but when he spoke badly about her mother her feelings would get hurt.
Practical difficulties[15]
[15] S.60CC(3)(e)
The parties will under their respective proposals continue to live in the greater Brisbane area. There are no practical difficulties that would prevent the children from spending regular time with each parent although with the father living in the (omitted) area and the mother in the (omitted) area an equal shared care arrangement, whilst not impossible, would require careful managing to ensure the children get to school on time and see their friends regularly. The mother has also raised concern that the father is not consistent with his time with the children. She said he has at times cancelled period of time or been late collecting or returning them or has wanted to make alternate arrangements as to when and where the children would be handed over. This has made it difficult for her to manage her own day to day life. I will address this issue later.
Parental capacity and responsibility[16]
[16] S.60CC(3)(f) &(i) and S.60CC(4)
There is no dispute that each parent has the capacity to meet the children’s day to day needs particularly: ensuring they are fed properly; attend to their homework; and receive appropriate medical care. The children’s emotional needs however have not always been met well by either parent. The ongoing conflict between them has had a negative impact on the children’s emotional well-being. It was particularly disappointing to hear in evidence the father’s conduct upon hearing what arrangements the mother had made for the care of the children whilst she was hospitalised. Whilst I can have some sympathy for the father feeling he should have been offered the opportunity to care for the children, his reaction showed not only lack of personal control but a lack of insight into the children’s emotional needs at that time. He did not appear to have any regret in telling Z that her mother might die.
The father accused the mother of relying on alcohol to excess throughout the relationship such that her parenting can be compromised at times. I was not persuaded to accept his evidence entirely although I am satisfied the mother has in the past relied on alcohol to address some of the relationship issues she was experiencing. Dr V was aware that the mother had suffered depression for some time. He had read Dr L’s report. Dr L had concluded the mother had a history of recurrent mood disorder in the nature of major depressive disorder. Dr V agreed with this assessment. Dr L had also concluded that the mother had minimised her alcohol intake but Dr V did not consider the mother had a current alcohol intake problem.
I am satisfied the mother has in the past had an issue with excessive alcohol intake but I am not satisfied there is sufficient evidence to find she currently has a problem in this area. In any event there was no evidence that her parenting was compromised by her drinking.
Background issues
The proposals of either party would ensure Y and Z experience their cultural heritage in each party’s home and with extended family.
Limiting further proceedings[17]
[17] S.60CC(3)(l)
The level of conflict between the parents raises the prospect of further proceedings. I am of the view that although both parties conceded, the father more willingly than the mother, that they have at times been able to communicate effectively, there is a risk of heightened conflict if the parties come into contact with each other unless it cannot be avoided. I propose therefore to make orders that will see the children move between the respective homes from their school whenever possible.
Presumption of Equal Shared Parental Responsibility
I am satisfied the history of family violence is such that the presumption of equal shared parental responsibility has been rebutted. It was submitted by the ICL that notwithstanding its rebuttal I should still make an order for the parties to equally share this responsibility. Both parties sought such an order.
For the purposes of the Act, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[18] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[19] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[20] A major long-term issue in relation to a child means an issue:
[18] S61B
[19] S61C
[20] S65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[21]
[21] S.4
Parents need an ability to communicate effectively in order to address these issues as and when they arise. I am concerned that in this case these parents may not have that level of communication. I am particularly concerned the mother may feel intimidated at times when trying to communicate with the father. I infer though by the mother’s request that I make an order for equal shared parental responsibility she has some confidence at least that on the issues covered by such parental responsibility they will be able to exercise the responsibility effectively for the children. Children would certainly benefit from having input from both parents provided the parents are able to do so in a child focused way. Despite my concerns as to their ability to communicate in light of the request of each party and the support of the ICL for an order for equal shared parental responsibility I will make such an order.
Consideration of Equal Time or Substantial and Significant Time
Having indicated my intention to make an order for equal shared parental responsibility I am required to commence my consideration by assessing whether an equal time arrangement is in the best interests of the children and reasonably practicable. The father urges such a finding. Neither the mother nor the ICL however support such a finding as being in the children’s best interests.
In order for an equal time arrangement to work well, and therefore be in the children’s best interests, parents need to be able to communicate openly and effectively. They need to be flexible with arrangements and co-operative in relation to day to day issues that arise such as children needing some-thing back at the other parent’s home or getting to an extra-curricular activity when the date has been changed. I am not satisfied these parents have that ability. It also helps if parents have similar household rules and share similar ideals for their children’s futures.[22] These parents have totally different parenting styles which might be manageable for the children if they lived in one home primarily and spent regular but shorter periods in the other home but may become overwhelming if they had to live in each household on an equal time basis. The children have not expressed a desire to live in this arrangement and such an arrangement would also be contrary to their wishes. The father lives in the south west region of Brisbane and the mother in the north west region. Whilst the distance between the respective homes is not too far to rule out a shared care arrangement completely, the distance would have some impact on the children and the parents at times. This will be particularly so when the children want to visit friends or have extra-curricular activities. When I consider all of these factors I am not satisfied such an arrangement would be in the best interests of these children.
[22] See T & N (2004) 31 Fam LR 281.
Having made that finding I am then required to consider whether a substantial and significant time order would be in the children’s best interests and reasonably practicable. This was urged upon me by the ICL who argued that their best interests would be served by an order providing for the children spending time with their father from after school Friday to before school Tuesday. It was submitted this would enable to father to become more involved with their schooling and being there for them outside of the weekends. This would enable him to attend to some of their day to day needs such as having their lunches made, ensuring their homework was done and getting to and from school and activities. The report writer had in her report recommended from after school Friday to before school Monday but in her oral evidence suggested that the time could be extended to the Tuesday morning. This would not be consistent with the children’s wishes for a continuation of the current arrangement which is what the mother wants.
Notwithstanding the practical difficulties raised by the mother as to the fathers availability to care for the children at times and his changes of arrangements, I have been persuaded by the ICL’s arguments that the children would benefit by having their father more involved in their day to day care on days other than weekends. For this reason I am persuaded to make an order that the children spend alternate weekends with their father and that the weekends be extended to include the Monday nights.
Discussion
A significant issue in the parenting dispute was whether the children should spend half of the school holidays with each parent in extended block periods or the mother’s proposal that during the long holidays at the end of the year the time spent with the father is limited to blocks of one week at a time. The mother was concerned that if the children were spending long periods of time with the father there would be a greater risk of them being exposed to his anger. She was also of the belief the children did not want to spend such long periods with the father.
On 20 November 2013 I made interim orders for the children to spend the 2013/2014 school holidays with the father in three one week block periods. The ICL submitted that ultimately it would be of benefit for the children to have the extended block periods with the father so they could go away with him on a holiday. They would also be able to go away with the mother under such an arrangement. It was submitted that if I shared the mother’s concerns I might want to consider a two week block and a later one week block for the 2014/2015 year before moving to the three week block.
For the reasons I have addressed when I considered the risk of harm issues, I am satisfied that there is merit in the mother’s concern. Although I understand why the father and the ICL would seek the usual half school holiday blocks when I balance the benefit of an ability to travel for a holiday with the risk of harm issues I am persuaded it is appropriate to err on the side of caution and order that the children spend no more than one week block periods with the father during the school holidays. During the long school holidays at the end of the year the appropriate arrangement would be for three one week periods.
The mother also sought an order that in the event the father was unable to care for the children for more than 24 hours during a period of time he is to spend with them pursuant to the parenting orders the mother should be offered the opportunity to care for them during the period of absence. I made an interim order to that effect on 20 November 2013. The father opposed this order. He was critical of the mother not affording him such an opportunity when she went into hospital. The father works as a (omitted) which sees him travelling away from home regularly. Therefore this issue might arise from time to time. Parents should be able to exercise their parental responsibility and make arrangements for the care of the children if they need to be away. Such arrangements could be opportunities for children to spend some extra time with grand-parents or extended family, especially if such periods are for relatively short time frames. In this case the order sought is for periods in excess of 24 hours. In my view having regard to the close relationship between the children and the mother it would be appropriate for them to return to her if the father is going to be away for more than 24 hours. The mother did not seek that such an order be a mutual order. I am however of the view that it should be. The mother’s decision to not have the father care for the children whilst she was in hospital last year led to a significant conflict which could have been avoided if the father was offered the opportunity to care for the children.
In early January 2014 when the younger children were spending time with the father pursuant to the interim orders I made in December 2013, he accepted a job (occupation omitted) from (omitted) to the (omitted) at (omitted) in (omitted) Queensland. The distance travelled was in excess of 4,000km. He decided to take the children with him rather than return them to their mother. She was not happy about his decision which she considered to be inappropriate. The mother was particularly concerned for the children’s safety on the road and their supervision especially whilst they were at (omitted). She also believed that the travel would have been boring and uncomfortable for the children given the temperatures during the trip were in excess of 40 degrees during the day. The father said the vehicle was air conditioned and he saw the job as an opportunity for the children to see (omitted) Queensland for the first time. I accept the father was sincere in his belief that the children would benefit from the travel. However the children were confined to the cab of his vehicle for much of five days. Although they would have had an opportunity to see the landscape as they drove past there was not much opportunity for them to experience the (omitted). Although I am satisfied the father provided appropriate supervision and ensured the children were fed and had appropriate sleeping arrangements I am not surprised the mother was concerned for their welfare given the lack of trust between them. I do not consider the father’s decision to take the children with him was a child focused one, especially since the travel was for five days. It would have been six but for one of the girls having a headache and wanting to get home. I do not criticise the father for taking the opportunity to earn an income but he should have returned the children to the mother rather than taking them on this extend trip. If the travel had have been only for one or two days I might have been less critical of the father.
When the father was offered a job to travel to (omitted) the girls declined his request for them to accompany him which he respected. I accept the father’s evidence that he needed to earn an income and had to take the jobs that were offered to him but it would seem that the girls do not wish to travel on such long distances with the father during the holidays. It is reassuring to see that they have a positive relationship with him such that they are confident to tell their father that they do not want to go with him. In light of his decision to take the children on the long job in January however I am satisfied it is appropriate to make an order limiting such work related travel with the children to no more than 48 hours and only if they agree to accompany him.
The mother gave evidence of the father not always being able to deliver or collect the children at the times provided for in the orders. This has made it difficult for her to plan her work commitments and go about her day to day life without disruption. I was not persuaded the father appreciated the impact on the mother of these disruptions or if he did he was not bothered by it. Whilst I understand his work commitments and traffic flows make it difficult for him to always be on time there needs to be some mechanism that will enable on the one hand some flexibility but on the other give each party some certainty as to what arrangements should be put in place for the children’s care. The ICL was correct in submitting that the court can only do so much to help parties. They have to make appropriate arrangements themselves. I would prefer that the parties do not come into contact with each other for the reasons I have already addressed. It is for that reason that I will make orders for the children to be delivered to and collected from school. However the mother’s evidence was that she had to collect the children at the father’s request quite early some mornings when he was unable to take them to school. The father conceded that there had been occasions when he has woken the children at around 5am because of his work commitments. This would happen in many families but it is not appropriate in my view for the father to rely on the mother to also change her plans to fit in with his inability to make appropriate arrangements to get the children to school at a reasonable time. I propose therefore to make an order that in the event the father is unable to collect the children from school in accordance with these orders he is to advise the mother at least 24 hours prior of his inability to do so and his time will commence at 8am the following day. In the event he is unable to deliver the children to school at a reasonable hour the father’s time with the children should conclude the night before at 6pm. He should give the mother at least 24 hours notice of his inability.
The mother sought an order that the father not transport the children in a motor vehicle unless that vehicle has adequate seating for all occupants and fitted with appropriate seat belts. This order was sought as the father has travelled across Brisbane with the children on occasion without the appropriate seats. He accepted that this was not appropriate but appeared to minimise the safety issue by saying it was for a short distance. I am not surprised therefore that the mother seeks such an order but I accept the ICL’s submission that the order is unnecessary as it would merely be stating the law.
A number of other specific parenting orders were sought by the parties but not the subject of submissions or dispute despite different wording used by them in their respective minutes of order. I do not intend to address each of them in this judgment in light of the lack of dispute as to their substance.
For the reasons set out in this part of the judgment I will make the parenting orders set out at the commencement.
Property Application
The wife introduced the property aspect to these proceedings in her Response filed 17 August 2012. She sought an order for the husband to transfer to her the former matrimonial home and an order for a superannuation split. By the end of the final hearing the wife sought the sale of the home; the payment out of the proceeds of sale certain defined debts and a distribution of 75% of the remaining proceeds to her. She continued to seek a superannuation splitting order.
The husband filed a Reply on 5 November 2012 seeking the sale of the home and the payment out of certain debts (different to those sought by the wife) and an equal division of the superannuation. In his written submissions tendered at the final hearing his position was for property adjustment orders that would provide for an equal distribution of the net non-superannuation assets. In relation to the superannuation he proposed the following:
The Superannuation’s [sic] funds be prorated at the number of years of the relationship (14 years) divided by the age the superfunds commenced at 18 years of age by each party.
The parties relied on the affidavit material referred to above in the parenting application and also their financial statements.
On 20 November 2013 I made orders for the sale of the home and the payment of certain debts with the remaining funds to be held on trust until the delivery of this judgment. When the matter came before me after the re-opening I was advised the property sold for $630,000 which was significantly less than the parties had hoped. The net proceeds of sale after the payment out of expenses and debts amounted to $122,493.91 which is currently held the trust account of the wife’s solicitor.
Legal Approach
In determining property proceedings the court is firstly required to identify according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property that is available for distribution between them. It is then necessary to determine whether it is just and equitable to make an order altering the parties’ interests in the property. If so satisfied the court must then consider the contributions made by each of them under the various s.79(4) considerations before looking at their future needs by reference to the s.75(2) factors. [23]
[23] S79(2) & (4), Stanford [2012] HCA 52; (2012) 293 ALR 70; 47 FamLR 481. See Hickey & Hickey & Commonwealth [2003] FamCA 395, (2003) 30 FamLR 355, FLC 93-143 for approach prior to the High Court decision in Stanford
Is it just and equitable to alter the property interests?
In Stanford[24] the majority held:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
[24] [2012] HCA 52
I am satisfied that it is appropriate in this case to alter the property interests of the parties in light of the demise of their marriage and the fact that the maintenance of the current legal ownership of their property would not afford them justice and equity.
The property of the parties
The parties reached agreement as to the existence of certain assets and for the most part reached agreement as to their value. Similarly they were in agreement in relation to the majority of the liabilities. Although the parties agreed to include the superannuation in the list of assets, the husband in his written submissions at the conclusion of the hearing, argued for an adjustment to superannuation based on a pro-rata formula taking into account the years the parties were in their respective funds and the length of the relationship. I was not persuaded to adopt this approach given the modest pool and the accumulation of the majority of the superannuation occurred during the relationship. I also did not benefit from any evidence as to the parties’ respective superannuation balances at the commencement of the relationship.
Tendered into evidence was a document entitled: Maddison Joint Asset Pool[25]. It is reproduced below:
[25] Exhibit C1 – Maddison Joint Asset Pool
Assets
Wife Values
Husband Values
Matrimonial Home Property C
$720,000
$720,000
Lancer motor vehicle (Wife)
$13,430
$13,430
(omitted) Four Wheel Drive motor vehicle (Husband)
$10,810
$10,810
Husband's (omitted) business
$8,483
$2,700
Wife's (omitted) business
$400
NK
Wife’s superannuation with (omitted)
$36,147
$36,147
Husband’s superannuation
$264,558
$264,588
Sub-total:
$1,053,828
$1,047,675
Liabilities
(omitted) Bank home loan
$340,198
$340,198
(omitted) Bank loan 2nd mortgage
$43,392
$43,392
Loan from (omitted)
$6,000
$6,000
Husband’s visa card
$17,663
$17,663
Husband’s liability for school fees
$15,310
$15,310
Wife’s liability for school fees
$9,038
$9,038
Wife’s personal loan with (omitted) Bank
$29,597
Nil
Wife's (omitted) Mastercard
$800
$800
Wife's (omitted) Bank loan
$629
$629
Sub-total:
$462,627
$433,030
NET POOL:
$591,201
$614,645
(omitted) Fund
$17,892
When the matter came before me in July 2014 an updated table of assets and liabilities was tendered in light of the sale of the former matrimonial home and the payment out of the liabilities. The wife had sought to include two new items as liabilities totalling $30,000 but as there was no evidence to support the claim made by her I rejected their inclusion in the new list. The updated list is reproduced below:
Assets
Wife Values
Husband Values
Monies held in the trust account of Craig Ray & Associates being the net proceeds from the sale of Property C of $213,457.13 after payment of monies as per Order 7 of the Order made by the Honourable Court made on 20 November 2013 and 20 December 2013
$122,493.91
$122,493.91
Lancer Motor vehicle
$13,430.00
$13,430.00
(omitted) Four Wheel Drive
$10,810.00
$10,810.00
Husband's (omitted) business
$8,483.00
$2,700.00
Wife’s (omitted) business
$400.00
NK
Wife’s superannuation
$36,147.24
$36,147.24
Husband’s superannuation
$264,558.00
$264,558.00
SUB-TOTAL
$456,322.15
$450,139.15
The wife argued that I should ascribe a value of $8,483 to the husband’s (omitted) business whereas the husband argued for a value of $2,700. No formal valuation was obtained which is understandable given the costs that would have been incurred in doing so and the modest value of the business. The wife adopted her figure from the documents used to prepare the husband’s 2012 tax return. In essence her value is solely the plant and equipment excluding the (omitted) Four Wheel Drive motor vehicle which is listed as a separate item. I have not been able to determine how the husband has arrived at his figure. I am satisfied that the figure adopted by the wife is the best figure available and given it was the figure ascribed by the husband in his tax return I will use it for the purposes of this decision.
The husband said he did not know what value should be ascribed to the wife’s (omitted) business. The wife had said it is only worth $400. The nature of her business is really her personal exertion and the modest sum she has included relates to her equipment. I accept her value.
In the initial list of items for consideration there was dispute as to whether the wife’s personal loan with (omitted) Bank should be included in the list of liabilities for consideration. I had on 20 November 2011 ordered that the loan be paid out of the proceeds of sale of the former matrimonial home. Although it is open to the court to exclude that loan given it was taken out after the parties had separated, I am satisfied on the evidence the wife took out the loan to meet a credit card debt that existed prior to separation and to assist her in meeting joint financial commitments in relation to the former matrimonial home after separation. Given the loan has been paid out from the proceeds of sale it is not necessary now consider it as a distinct item.
I therefore find that the assets of the parties are as follows:
a)Monies held in the trust $122,493
b)Lancer Motor vehicle $13,430
c)(omitted) Four Wheel Drive $10,810
d)Husband's (omitted) business $8,483
e)Wife’s (omitted) business $400
f)Wife’s superannuation $36,147
g)Husband’s superannuation $264,558
Sub-Total $456,322
There are no longer any liabilities to be considered part of the property pool.
Contributions
I now turn to the assessment of the parties’ contributions. The parties were in a relationship for a period of about 14 to 15 years although they had a period of separation early on for about six months. At the commencement of the relationship the wife had about $4,000 in cash, a motor vehicle and personal items. The husband also had a motor vehicle and personal items. I do not have any evidence of him having cash savings at this time. Although the wife could be said to have made a slightly greater financial contribution at the commencement of the relationship I am not satisfied that that contribution warrants any significant weighting given the passage of time.
During the relationship the husband was the primary income earner and the wife the primary homemaker and parent. They should be assessed as making an equal contribution during this time.
The wife argued that she made a much greater contribution after the parties had separated both financially and by being the primary carer for the three children of the marriage. I accept that submission. The wife made the majority of mortgage repayments and attended to the payment of the rates on that property. She also made car payments. Her evidence was that over a twelve month period from October 2012 she made in excess of $37,000 in payments on the mortgage and car. I accept the husband having vacated the home and had rent to pay reducing his ability to contribute toward the mortgage. The wife also did or organised the majority of home maintenance in this period.
The husband argued that the wife had not presented the home well for the purposes of sale and after an open house inspection that he attended he became more involved in works to present the home better. The wife minimised his efforts in this regard. I am satisfied that the husband did do some work on the property to have it more presentable for sale but overall the wife had made a greater contribution in this regard and generally post separation.
The wife has also had the greater responsibility for the care of the children since separation with only limited child support paid by the husband.
Given the length of the relationship and the factors discussed above I am satisfied that overall the wife has made a greater contribution to that of the husband and I would assess that contribution at 55%.
Section 75(2) factors
Having determined the contribution elements the court is required to have regard to the provisions of section 75(2).
When the matter returned to court in July 2014 the husband had been disqualified from driving a motor vehicle for a period of three months. Given he earns his income as a (occupation omitted) he will be without an income during that three month period. The husband argued that there has been a down turn in the (omitted) industry meaning there are less jobs for him leading to an ability to hire contractors to work for him whilst he is disqualified. Although I don’t have sufficient evidence to accept the husband’s submissions, I am satisfied that there will be a period of three months when he is unlikely to earn much income if any.
The wife works as a (omitted) from her home but the evidence of Dr V suggests that she will not be able to work full time for some 12 to 18 months. Dr V who is her treating general practitioner gave evidence that the wife has presented with lethargy, aching and joint pains, and hypersensitivity of the tissues. Although her symptoms are consistent with a Fibromyalgia type syndrome she is yet to receive a diagnosis. I am satisfied the wife has a condition that has reduced her ability to work full time as a (omitted).
Whilst both parties are currently experiencing difficulties in their working lives I am satisfied that overall the husband is in a position over time to earn a greater income to that of the wife.
The wife has and will continue to have the primary care of the children. The husband’s financial support of the children has been limited. I am satisfied that that is unlikely to improve.
Overall I am satisfied there should be an adjustment for s.75(2) factors of 10% in the wife’s favour.
Discussion
When I consider my findings as to contributions and future needs I am satisfied an appropriate property adjustment between these parties would see the wife receive 65% and the husband 35% of the property pool. With a pool of $456,322 this would see the wife receive $296,609 and the husband $159,703.
The wife had sought a superannuation splitting order given the significant difference in their respective superannuation. This is also necessary given the limited funds available from the net proceeds of sale of the former matrimonial home. Procedural fairness has been afforded the trustee of the superannuation fund[26]. I am of the view that it would not be just and equitable for the husband not to receive any cash payment. In my view the appropriate cash adjustment would see him receive $40,000 which is around 33% of the funds held on trust. With a corresponding splitting order to accommodate the cash adjustments to the parties they would retain or receive the following:
[26] Affidavit of Mr A filed 22 May 2014
The wife:
Her Motor vehicle
$13,430
Her business
$400
Her superannuation
$36,147
Superannuation split
$164,138
Cash from the funds held in trust
$82,494
Total
$296,609
The husband:
His Motor Vehicle
$10,810
His business
$8,483
Remaining funds in his superannuation
$100,420
Cash from the funds held in trust
$40,000
Total
$159,713
I am satisfied this outcome is just and equitable as between the parties in all of the circumstances.
The parties also had a scholarship fund for the children’s education. They were concerned that if this fund was discharged prior to X completing her year 12 education the investment on it would be lost. They both submitted that any order I make in relation to it should come into effect after 1 January 2015. They also sought an equal distribution of this fund. I will order accordingly.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Associate:
Date: 6 August 2014
C1 – Maddison joint asset pool.
M1 – Photograph of hole in wall.
M2 – (omitted) Bank mortgage statement 16 October 2010 to 15 April 2011.
M3 – (omitted) Bank mortgage statement 16 April 2011 to 14 October 2011.
M4 - Second mortgage statements from (omitted) Bank 16 October 2010 to 15 April 2011 and 16 April 2011 to 14 October 2011.
M5 – Balance sheet of (omitted) as at 30 June 2012.
ICL2 – Certificate of Attendance of father at the Parenting After Separation course dated 21 March 2013.
ICL3 – Letter from Anglicare to the father dated 26 August 2013.
M6 – Photograph of bowl and vegetable scraps on the floor.
M7 – List of mortgage statements from 1 October 2012 to 31 October 2013.
F1 – Printout of text messages between the mother and the father.
M8 – Documents produced by Queensland Police under subpoena marked with pink tags.
F2 – Documents produced by (omitted) College, attendance record for X.
F3 – Letter from the father to the mother’s solicitors dated 10 October 2012.
F4 – (omitted) bank statement from 20 October 2010 to 19 January 2011.M9 – Child Support payment printout.
M10 – Photographs of the former matrimonial home from April 2014.
M11 – Letter dated 22 July 2014 from (omitted) College in relation to school fees for X.
M12 – Updated table of assets and liabilities.
M13 – Minute of order.
Key Legal Topics
Areas of Law
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Family Law
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