MANIFOLD & ALDERTON
[2020] FCCA 2650
•21 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANIFOLD & ALDERTON | [2020] FCCA 2650 |
| Catchwords: FAMILY LAW – Property – Lotto Win. |
| Legislation: Family Law Act 1975 (Cth), ss.79(2), 79(4) (a) - (c), 79(4) (d) – (g), 75(2) |
| Cases cited: Zyk and Zyk [1995] FamCA 135 |
| Applicant: | MR MANIFOLD |
| Respondent: | MS ALDERTON |
| File Number: | BRC 10209 of 2012 |
| Judgment of: | Judge Demack |
| Hearing dates: | 19 & 20 September 2013; 5 March 2018; 2, 3 & 4 September 2019 |
| Date of Last Submission: | 4 September 2019 |
| Delivered at: | Rockhampton |
| Delivered on: | 21 September 2020 |
REPRESENTATION
Tranche 1
| Counsel for the Applicant: | Mr Byrne |
| Solicitors for the Applicant: | Pearson & Associates Solicitors |
| Counsel for the Respondent: | Ms McDiarmid |
| Solicitors for the Respondent: | Michael Lynch Family Lawyers |
Tranche 2
| Counsel for the Applicant: | Mr Shoebridge |
| Solicitors for the Applicant: | Simonidis Steel Lawyers |
| Counsel for the Respondent: | Ms McDiarmid |
| Solicitors for the Respondent: | Australian Law Group |
Tranche 3
| Counsel for the Applicant: | Mr Shoebridge |
| Solicitors for the Applicant: | Simonidis Steel Lawyers |
| Counsel for the Respondent: | Mr B Dodd |
| Solicitors for the Respondent: | Best Wilson Buckley Family Law |
ORDERS
Parenting
That all previous Parenting Orders be discharged.
Parental Responsibility
That the Mother and Father have equal shared parental responsibility for all decisions to be made in relation to the children’s, long term care, welfare and development.
That the Mother have day-to-day responsibility for the children’s care, welfare and development when the children are spending time with her.
That the Father have day-to-day responsibility for the children’s care, welfare and development when the children are spending time with him.
Living Arrangements and communication
That the children live with the mother and spend time with the Father at all times as may be agreed between the parties, but failing agreement, as follows:
(a)Each alternate weekend, from the conclusion of school Wednesday (or 3.00pm in the event of a non-school day or if the children are not otherwise attending school) until before school Monday (or 9.00am in the event of a non-school day or if the children are not otherwise attending school);
(b)For one half of the school holidays periods (as gazetted by the school/s the children attend from time to time), with the Father to spend time with the children in the first half in all even numbered years and the second half in all odd numbered years;
(c)That for the purposes of determining the allocation of time during each school holiday period, the holiday periods commence on the last day of the school term and conclude on the first day of the new school term;
(d)That where a public holiday or student free day occurs immediately adjacent to a school holiday period, those days are to be considered as part of the school holiday periods;
(e)The number of nights in each school holiday period is to be used to calculate one-half of the school holiday period and if there is an uneven number of nights, the Father will retain the child for the one additional night; and
(f)That paragraph 4(a) and 4(b) of these Orders will be suspended during the school holiday periods.
That the children shall spend time with the Mother and the Father on special occasions at all times as may be agreed between the parties, but failing agreement, as follows:
(a)In relation to the Christmas special days, the children shall spend time with the Father from 5.00pm Christmas Eve until 5.00pm Boxing Day in 2021 and each odd numbered year thereafter and with the Mother from 5.00pm Christmas Eve until 5.00pm Boxing Day in 2020 and each even numbered year thereafter;
(b)In relation to the Easter special days, the children shall spend time with the Mother from 5.00pm Good Friday until 5.00pm Easter Sunday in 2020 and each even numbered year thereafter and with the Father from 5.00pm Good Friday until 5.00pm Easter Sunday in 2021 and each odd numbered year thereafter;
(c)In the event the children are not otherwise living with the Mother on Mother’s Day pursuant to these Orders, then the children shall spend time with the Mother from 7.00pm the Saturday before Mother’s Day until the commencement of school the Monday following Mother’s Day, with the Father to return the children to the Mother at Suburb B McDonald’s on Saturday;
(d)In the event the children are not otherwise living with the Father on Father’s Day pursuant to these Orders, then the children shall spend time with the Father from 7.00pm the Saturday before Father’s Day until the commencement of school the Monday following Father’s Day, with the Mother to deliver the children to the Father at Town B McDonald’s on Saturday; and
(e)On each of the children’s birthdays, the non-resident parent shall spend time with the children from after school until 8.00pm and in the event of a non-school day from 3.00pm until 8.00pm, with the non-resident parent to collect and return the children from school and/or Town B McDonald’s.
That the Mother and the Father be at liberty to telephone and/or Skype the children each Wednesday between 5.30pm and 6.00pm, or at any other time as agreed between the parents and with the parents to ensure the children are available to receive that communication.
That the parents will each facilitate the children communicating with the other parent at all reasonable times as may be requested by the children.
Changeover
That unless otherwise agreed between the parties and/or provided for in these Orders, changeovers are to occur at the children’s school/s or in the event, changeover is a non-school day, changeover is to occur at Town B McDonald’s.
That the Mother and the Father may have a nominee attend changeover, on the condition that such nominee is a responsible adult known to the children and not less than 4 hours’ notice by text message is provided to the other parent that a nominee will be attending changeover.
The children’s schooling and extra-curricular activities
That each parent is hereby authorised to obtain from the children’s schools all notices, letters, school reports, notice of excursions and invitations and to attend parent/teacher interviews or other activities to which parents are invited and, in the event that such documents are provided to one parent while the children are in their care, they will ensure that the other parent receives a copy in a timely manner.
That each party, if required, shall authorise the children’s schools to inform the other parent of all extra-curricular activities that occur at the children’s school including parent/teacher meetings, sporting/ social events and any other activities to which the parents are invited.
That in the event the children bring to the home of either party any school, sport or other social activity newsletters, parent letters or general notices, the parent receiving the information will provide a copy to the other parent in a timely manner.
That both parties shall be entitled to attend any public or school social, sporting or educational event involving the children, including but not limited to the first day of school, performances, concerts, sporting events, school activities, fees and functions, Christmas parties and other special occasions and that both parties inform the other party of such events in a timely manner.
That neither party will enrol the children in any further extra-curricular activities that will impact upon the other parent’s time with the children without the prior written consent of the other party, such consent not to be unreasonably withheld.
Specific issues
That each parent shall keep the other parent informed of the names and addresses of any and all medical practitioners or other health professionals who are involved in treating or caring for the children.
That each parent shall authorise each of the children’s medical practitioners or other health professionals to discuss with the other parent the children’s health and medical treatment.
That the Mother and the Father shall 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 each party shall advise the other of changes to their residential address and/or home telephone numbers and/or mobile telephone numbers within 24 hours of any such change.
That the parents shall communicate by way of email or text messages.
That the parents undertake to the Court that whilst the children are in their care they will not denigrate the other parent and/or the other parent’s partner and family in the hearing or presence of the children and will use their best endeavours to ensure that others do not denigrate the other parent and/or the other parent’s partner and family in the hearing or presence of the children.
That neither parent use physical measures to discipline the children.
That the parents are to seek a Consultant Paediatrician together, with a referral being sought from the children’s treating Medical Practitioner. Both parents are to attend the initial consultation for both children.
Overseas travel
That pursuant to section 65Y(2) of the Family Law Act 1975 each party is permitted to take the children out of the Commonwealth of Australia for the purpose of a holiday during any period where the children are spending time with that parent provided that:
(a)The travelling parent provides the other parent with 30 days written notice of their intention to travel with the children; and
(b)The travelling parent provide to the other parent 14 days prior to the children’s departure date:
`a general itinerary and telephone numbers at which the children may be contacted while outside of Australia;
(i) copies of the pre-paid return tickets for the children’s travel; and
(ii) in the event that there is a material change in that itinerary or telephone number, the party shall forthwith notify the other parent of that change.
That unless otherwise agreed in writing between the parties, the Mother and the Father are restrained from taking the children to or via a country that is not ratified the Hague Convention on the Civil Aspect of International Child Abduction.
That the other party provide to the travelling party, not less than 14 days prior to departure, the passport in their possession, or earlier if required for the purposes of obtaining visa or other necessary travelling documentation.
That within 14 days of a written request, each party will do all such acts and sign all such documents as may be required to apply for a passport, renewal of passport or any other documents deemed necessary for the purpose of the children’s travel including but not limited to visas. The children’s passports shall be held by the Mother and released to the Father within 14 days of said request and the passport shall be returned to the Mother within two (2) days of the Father and the children’s return to the Commonwealth of Australia.
That each party shall provide any details requested in relation to the passport for the child (for example passport number, expiry date) that they have in their possession to other parent within 7 days if such a request.
That all outstanding parenting applications be dismissed.
IT IS NOTED:
(A)That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.
Property
That the husband forthwith retain as his absolute property, the title and possession of and the wife forthwith relinquish and/or transfer all right, title and interest that she may have in and to the following property and financial resources:
(a)That the furniture, chattels and effects currently in the husband’s possession;
(b)the husband’s bank account(s);
(c)the Motor Vehicle 1;
(d)the husband’s superannuation entitlements; and
(e)all other proprietary interests of whatsoever nature in the husband’s current possession and/or control.
That the wife forthwith retain as her absolute property, the title and possession of and the husband forthwith relinquish and/or transfer all right, title and interest that he may have in and to the following property and financial resources:
(a)The real property, registered in the Mother’s sole name, located at C Street, Suburb D, in the state of Queensland and more particularly described as Lot ... on Survey Plan ... and described in title reference ..., subject to the mortgage liability secured against the property in favour of the Commonwealth Bank of Australia (the C Street, Suburb D property);
(b)The household contents, chattels and personal belongings in the Mother’s possession; and
(c)The Mother’s interest in bank accounts including her Commonwealth Bank of Australia Smart Access account and her E Bank account;
(d)The Mother’s entitlements to superannuation with Military Super & Benefits Scheme and Super Fund G;
(e)The liabilities in her sole name, including in respect of her credit card liabilities.
(f)the Motor Vehicle 2; and
(g)all other proprietary interests of whatsoever nature in the wife’s current possession and/or control.
That the Father shall be solely responsible for and meet payment of all liabilities in his sole name and/or in the name of the Mr Manifold Trust.
Transfer of vehicle
That within twenty-eight (28) days of the date of these Orders, the Mother and the Father shall do all acts necessary and shall sign all necessary documents to transfer to the Mother’s sole name, the Father’s right, title and interest to and in the Motor Vehicle 1, with registration number ..., free from encumbrance.
Time share
That within twenty-eight (28) days of the date of these Orders:
(a)the Mother and the Father shall do all acts and things and execute all documents necessary to transfer to the Mother, at the expense of the Mother, all of the Father’s right, title and interest in and to the Time Share in H Timeshare owner number ...08, with the wife to be responsible for all outstanding levies.
Caveat removal
That within twenty-eight (28) days of the date of these Orders, the Father shall do all acts and things and sign all documents necessary to remove the caveat lodged on the C Street, Suburb D property, being caveat number ....
Other financial orders
That within twenty-eight (28) days of the date of these Orders, the Mother and the Father shall do all acts necessary and shall sign all necessary documents to remove the Father’s name from the J Group.
That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
That all outstanding property applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Manifold & Alderton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ROCKHAMPTON |
BRC 10209 of 2012
| MR MANIFOLD |
Applicant
And
| MS ALDERTON |
Respondent
REASONS FOR JUDGMENT
The parties commenced their relationship in 2000 and then commenced cohabitation in 2001. They married in 2008. They had a daughter born in 2008 and a son born in 2009. In early 2012 the wife had a lotto win of over $1 million. On 25 April 2012 she told the husband that the relationship was over and he left their shared home four days later.
Since then the parties have been in dispute with respect to the parenting arrangements and their final property outcome.
The Respective Positions
The father/husband is the applicant. He initially sought orders that the parents have equal shared parental responsibility and the children live with the parties on a week about basis and that during school holidays their time be shared equally. Apart from other orders with respect to special days how handovers would be attended to and how the parties will exchange information, the father sought an order that the children be left with the maternal grandfather for no more than four hours at a time.
With respect to property matters the husband sought an equal property adjustment.
At the trial in 2019, the father sought sole parental responsibility and for the children to live with him and to spend time with the mother on alternative weekends from school on Fridays through to school on Monday, along with half of school holidays. He had changed his position because of the difficulties the parents had had in making earlier orders work.
The mother/wife is the respondent. She earlier also sought orders with respect to equal shared parental responsibility and at the outset sought that the children live with her and spend time with the father, relevantly, from school Wednesday to school Thursday in one week and from school Friday to school Monday on the other week. She also sought that holidays be shared on a week about basis. During the course of the trial she changed her position to be in line with the view of the family report writer, that the time with the father should be from school Thursday to school Friday in one week, and then in the other week, from school Thursday until Sunday 5.00pm.
By the conclusion of the final tranche of the trial the mother, sought orders for the children to live with her, for the parents to share parental responsibility and for the children’s time with the father to be from school Friday to school Monday in alternate weeks and for half of all holidays.
With respect to property matters the wife initially sought that she received 70% overall of the pool and a 5 percent adjustment attributable to spousal maintenance. At the later trial, she sought 85% of the pool as it then was.
The evidence and the history of the litigation
The trial was initially held in September 2013. It was reopened in March 2018 and again in September 2019. I heard the second of the contravention proceedings between the parties on 9 April 2019 and gave my decision on 17 April 2019.
The husband/father is the applicant. He relies upon the documents as set out on page 10 of his outline of case filed 28 August 2019. The mother/wife is the respondent. She relies upon the documents as set out at page 17 of her outline of case document filed 28 August 2019
A family report was prepared by Mr K dated 10 May 2013. Ms L prepared a family report dated, 22 September 2007. And a third family report was prepared by social worker, Ms M, dated 1 July 2019. All three family report writers were required and made themselves available for cross examination over the three tranches of the trial.
A consultant paediatrician was also called: Dr N. Dr N is the children’s treating paediatrician and he has a long-standing relationship with the children and the mother. At the trial in 2019, he had last spoken with the father in July 2016. He was required for cross-examination and made himself available by telephone.
A valuer was required for cross-examination, Ms O.
The mother’s father, Mr P, was required for cross-examination and made himself available. As was Ms Q who witnessed an event at the school in June 2018.
The Background Facts
The applicant father was born in 1973. The respondent mother was born in 1981.
The parties met in 2000 and commenced their de facto relationship in 2001. On 25 April 2012 the wife told the husband that she wanted him to leave their home and he did so on 29 April 2012.
Together they have two children X, their daughter, born in 2008 and Y, their son, born in 2009. Both children have some special needs: X has autism spectrum disorder and Y has attention deficit hyperactivity disorder and post-traumatic stress disorder.
The father is a customer service officer and consultant. He lived with his father, until his father’s passing, in Suburb R, a suburb of Brisbane, which is about 46 kms from where the parties lived at final separation and the area where the mother continues to reside. The mother lives in City S.
The Law with respect to the parenting matters
The best interest of the children are my paramount consideration. I’m mindful of the objects and principles of part seven of the Family Law Act. Here the mother’s final position was to seek that the parents have equal shared parental responsibility and that the children live with her and spend time with the father. The father’s final position was that the children live with him and that he have sole parental responsibility.
Parental responsibility as the starting point for consideration. It is a presumption that parents will have equal shared parental responsibility which is rebuttable on the basis of family violence or child abuse. There is no family violence between these parties. Although these parents are unable to agree on many things in their conflict appears to be intractable, it does not seem to me that it amounts to child abuse for the purposes of rebutting the presumption of equal shared parental responsibility. Equal shared parental responsibility is something which should be made after a consideration of the best interest factors. So my remarks about the separate best interest factors, as relevant to these proceedings, will be reparable to not only the issue of parental responsibility but also the issues with respect to with whom the children live in the time they spend with the other parent.
Because of the distance involved between the parties and their intractable conflict, neither party was seeking an order for the children to live with their parents on an equal time basis. The father seeks orders that the children’s time with the mother be from school on Friday to school on Monday on for half of school holidays. The mother likewise seeks the children’s time with the father be that same timeframe.
Of course it is open to the court to consider all arrangements with respect to with whom the children live in the time they spend with the other parent. It seems to me it is necessary for me to not only consider the best interest factors but also the reasonable practicability factors.
Best Interest Factors
The benefit to the child in having a meaningful relationship with both of the child’s parents
Central to the determination before the court is whether the mother is able to support the children having a relationship with the father. The third family report prepared by social worker Ms M, concluded with the view that the children should live with the father who should have sole parental responsibility on the basis that the children were tightly enmeshed with their mother. And because of the parents’ conflict predominantly arising from the mother’s view of the father, unless the children were living with him, the children would not be able to have a proper relationship with their father. Further Ms M was concerned about the care that the mother provided in circumstances where Y was exhibiting distressing behaviours including saying that he wanted to kill himself and engaging in head banging and being unable to sleep in his own bed. Ms M was concerned about the length of time it took for the mother to engage a psychologist for Y. Ms M was concerned that the children would not be able to have a healthy relationship with their father if they continue to live with their mother.
Ms M acknowledges that for the children to move from their mother’s primary care to their father’s will create a significant disruption to them and will be distressing.
They would grieve for the loss of their mother. On the other hand, their life adjustment is not making headway in her care. I conclude that they would be likely to thrive in their father’s positive environment after they have settled in there.[1]
[1] paragraph 178
There have been many times when the mother has, indeed, complied with the court orders. Quite separately, however there have been times when the mother has wholly failed to comply with the court orders. In July 2018 the father filed a contravention application and in September 2018 the mother admitted contravention of orders without a reasonable excuse and was placed on a bond, make up time was ordered as were costs.
In December 2018 the father learned that the mother had unilaterally enrolled the children in distance education in a further contravention application was filed. A further contravention application was heard by me on 9 April 2019 and the decision was made on 17 April 2019 that the mother had failed to comply with earlier orders. The mother was again placed on a bond and was to attend upon a family consultant.
Notwithstanding what the children told Ms M, their presentation when in the company of their father was completely at odds with what they had said. That would seem to indicate that the children’s relationship with the father is loving and warm notwithstanding the things that they had said. The mother has been subjected to two contravention proceedings and in the final tranche of the trial she gave evidence that she would comply with court orders into the future. It is certainly the case that the mother’s behaviour in the past has not indicated an actual compliance with court orders without incident. It is difficult to accept her assertion that things will be different in the future.
Compliance with court orders, in family law matters, is best done with not only an intention to put the orders into effect but also with a real lived intention to want to put the orders into effect and to support the children’s relationship with their father through compliance with court orders. The parties’ entrenched conflict would seem to indicate that it is likely to continue into the future. It is difficult to see that the conflict will end in the event that the children are in the father’s care anymore that it will end if the children are in the mother’s care there is no logical basis for me to consider that the parents relationship will be any improved if the children are in the father’s care. It may be the case that the children will then be less exposed to the mother’s view of the father (and to some extent the maternal grandfather’s view of the father) if they were to live with the father, but they would still be seeing the mother on a regular basis and as a consequence she would have every opportunity to continue to express those views.
Of course it cannot be said that all of this is wholly the mother’s fault. The earliest family report by Mr K had the father describing himself as having been submissive[2] to Ms Alderton. And in the family report by Ms L she assessed[3]
both parents continue to engage in high levels of antagonism, reactive behaviours and ill thought through their actions and decisions.
[2] paragraph 84
[3] paragraph 82
Having observed these parties over a number of years and a number of court events, I have become satisfied that there will be no ending to their disputes with each other and that in their own ways each parent manages to perpetuate the disputes. It is certainly the case that it is the mother who has been the respondent to contravention applications, noting that will the mother has unilaterally suspended the children’s time with the father on two occasions for periods of months, rather than the father, but that can’t be taken as simply meaning that she is always the one who was at fault. The father’s failure to engage in matters to do with the children’s health through having a proper and respectful relationship with their treating paediatrician is a good example of when the father needs to reflect upon his own behaviour.
If the children were to move into the father’s care, as Ms M’s evidence makes plain, there would be a great need for the children to be receiving assistance. The father, by the final tranche of the trial, had really done very little to work out how he might support the children save as to say that he had spoken to his general practitioner about it.
However, there are a number of serious points which indicate that the mother’s attitudes and behaviours demonstrate such a fixed view of the father that it is impossible for me to consider that things will be better in the future.
Not only has the mother withheld the children from the father for significant periods of time but she is also made a number of unilateral decisions which have adversely impacted the children’s time with the father. For example she enrolled X into sports for children with autism which occurred on weekends and then unilaterally advise the father that he then wouldn’t be able to see X in the way that the orders provided. There was no evidence that the father could not have taken X to those sports lessons. The mother unilaterally enrolled the children in distance education at a time when their school will was having difficulties in their own communication with the mother and where they had asked her to cease volunteering on a Friday. The school had become concerned, it would seem, that they were finding themselves involved in parenting matters and the mother was using the school as an opportunity to be removing the children before the father would attend to collect them.
In the contravention hearing that I did in April 2019, I examined what the mother told Mission Australia and what subsequently happened when the children were to be going into the father’s care during school holiday times when X was to be going off on a sports camp. The mother was found to be at fault.
Dr N has over the years become partisan arising from the many things the mother has told him and which Dr N has had to take on as facts in his assessment of the children which includes, it would seem, that Y’s diagnosis of post-traumatic stress disorder is as a result of things the father has done to Y as recounted to Dr N. At the final tranche of hearings, Counsel for the mother, on instructions, acknowledged that the children should probably see a new consultant paediatrician so that both parents can be involved in that process, it probably now being too late for the father to have a good working relationship with Dr N.
The mother is inclined to believe, it would seem, the things the children tell her about what happens at their father’s home. X has told the mother that the father wants her to sit in the front seat of the car so that if there is a crash, she will die first, before Y. This would seem to be an extraordinary and baseless thing for X to have said. Likewise, the mother reporting that Y has said that the father told him to pee on the seat and to sit in it, because sitting in pee is good for you, would appear to be an extraordinary and baseless thing for Y to have said. And the mother should have taken no notice of these things that the children said save as to correct X and to remind X that her father loves both of them and to correct Y and to tell him to not be silly. The mother’s failure to do that reflects upon her poorly.
I am very much left with the impression that the mother sees little of worth in the children’s relationship with their father and that she views herself as being the superior parent with little requirement to involve the father in either decision-making for the children or parenting generally. The children have a lovely relationship with their father, notwithstanding this exposure and their mother’s home to her attitude which seems also to be shared by her father.
The balancing act, then, is removing the children from their primary carer to their father’s care which will create so many significant changes for them and whether the father has the capacity to adequately support the children through those changes. Ms M gave her view that the children would need significant support in transitioning from the mother’s care to the father’s care. I am concerned that the father has not demonstrated how he would attend to that and I am further concerned as to his capacity to be able to support that in happening in a way which would minimise the distress and harm to the children.
It seems to me that another way forward for this family is to increase the time the children spend with their father so that they have more exposure to him and a little less exposure to their mother. Plainly that will require further travel between the parents’ homes and for the children, between their father’s home and the school. It would allow though the children to continue to be in the mother’s primary care and to not be disrupted and distressed by such a significant change in their circumstances whilst increasing their time with the father with whom it would be to their benefit to have a meaningful relationship.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
In the 2018 tranche of the trial there was a reference to a concern held by the mother, apparently, about the father’s interaction with the child of a friend of his, called Ms T. She said that in 2016 X had raised some concern about the father and Ms T. The mother says she made a complaint to the Department of child safety in 2016. Although affidavits were filed in May 2016 and July 2017, these matters weren’t referred to in those documents. The family report writer interviewed the parties in September 2017 and again the mother did not raise any issues of any inappropriate matters to do with Ms T and the father, although the maternal grandfather mentioned it. In the affidavit filed by the mother in February 2018 she briefly mentions Ms T in a single paragraph. Plainly, evidence needs to be relevant to any parenting or property matter which I need to determine. If there is an allegation to be made about the father’s behaviour towards another child then the court needs to have a clear understanding of what the issue is said to be. There is no evidence which supports the notion that the father has done anything improper with respect to the child Ms T. There is no evidence that the father is a risk to either X or Y with respect to any behaviours of a sexual nature.
It seems to me that the fact that this evidence was contained in the mother’s material in the way that it was primarily demonstrates the mothers lack of trust and her ongoing dislike of the father.
The mother has expressed concerns with respect to the father’s alcohol intake. Shortly before the 2018 tranche of the hearings the father was asked to undergo a liver function test. The results of the test are in Exhibit 8 appear to indicate that the readings were within normal range. In any event at the time that the mother sought that the father’s alcohol use be examined through these pathology means, she was seeking orders that would have the children with the father during term time for three nights in every alternate weekend and for half of school holidays. In those circumstances it cannot be said that the mother considered that the father’s use of alcohol was such that the court should be concerned about the safety of the children in his care arising from any alcohol misuse or abuse. There is no concern from the Court that the father’s alcohol consumption is a source of risk to the children.
The father has expressed concern about whether the children can be left alone in the care of the maternal grandfather. The maternal grandfather lives in the mother’s home and she is his carer for social security benefit reasons. The father had sought an order that the children never be left alone in the care of the maternal grandfather for periods in excess of four hours. Ms M spoke with the maternal grandfather for the purposes of the third family report. She formed the view[4] that Mr P conveyed strong antipathy towards the father. It certainly seems that Mr P supports his daughter wholeheartedly and his views of the matter would seem to be no different to hers.
[4] paragraph 42
The real risk of harm that these children face is finding themselves in an ongoing circumstances where their parents are in entrenched conflict and where their views of their parents is overly informed by their mother’s view of their father. The mother says that she will do things differently into the future. That remains to be seen.
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
When the children were seen by the family report writer, Ms L, in September 2017 they both expressed a wish to keep the current arrangements in place and to not increase their time with their father.
When the children were seen by Ms M in June 2019, X said words to the effect that she missed her father when she was with her mother and she misses her mother when she was with her father, and that she misses her mum more than her dad however.[5] Y, who was then in year four said[6]:
It is bad going over to Dad’s place. He wants to live with Mum for ever. He said that Dad is, ‘really rude’. He said that he yells at him. One time he yelled at him when he asked whether he could go back to Mum’s-because Mum said that they were allowed to ask if they wanted to come home.
He said that he didn’t see Dad for a long time this year and he really loved that. He loves being with Mum. I noted that Dad said he had been blaming himself for not being able to see Dad. He couldn’t remember this. He wants to be with Mum all the time-not even to go to school unless it is home-schooled. X wants to live with mum too.
[5] paragraph 131
[6] paragraphs 143 and 144
Notwithstanding what the children told to Ms M, when they went to spend time with him during the interview, she observed them to greet their father in a loving manner, which was easy and comfortable and showed no sign of resistance[7].
[7] paragraphs 153 and 154
The children, of course, had always been in the mother’s primary care and it is perhaps unsurprising that they felt bonded to an attached to their mother and didn’t want to lessen their time with her. Further the parents have been in such dispute with each other that it is plainly palpable to the children, and as a result the children’s views about their relationships with their parents and the level of time they should spend with each parent has been infected by the dispute.
The nature of the relationship of the child with each of the child’s parents; and other persons; The capacity of each of parent and any other person to provide for the needs of the child, including emotional and intellectual needs; The attitude to the child, and to the responsibilities of parenthood, demonstrated by each parent; the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The children were aged about 3 ½ years and 2 ½ years when their parents separated in 2012. In the early months after final separation the children spend limited time with their father, which took place either at the mother’s home or at a nearby park. The father had moved house (the wife having remained in the house they had shared) and he needed to set everything up at his new home. The children commenced spending overnights with him in June 2012.
An interim order was made on 11 February 2013 which provided for the children to spend time with the father each Sunday from 9 am until 3:30pm. In May 2013, pursuant to a further order, the children’s time with the father was expanded to be from nine till five on one Friday in every two week period and in the other week from 9 am on Saturday until 5pm on Sunday. This plainly allowed the children to spend more expanded periods of time with their father than had previously been the case.
When Mr K prepared his report dated 10 May 2013, he had formed the view that the children’s relationship with their father was a good relationship and had greatly improved since the parents’ separation. “It also seems that he has gained much confidence and capability in being able to care for them without their mother being in close proximity.”[8]
[8] Paragraph 86
It seems to me to be clear that the children have a good relationship with their mother. The children have always been predominantly in the care of their mother who seems to have provided for the children’s needs, noting that the children have extra needs arising from their separate diagnoses. The mother has attended all of their medical appointments having arranged them, and plainly has established a useful relationship with the treating paediatrician. The second family report writer formed the view that the mother was child focussed. It is noted as the children have been in the mother’s care in the father’s lack of child support payments, the mother has therefore exclusively met the financial burden of the children since 2013.
From October 2017 to the children were spending time with their father from Friday afternoons through to Monday mornings along with alternative weeks of school holidays in block periods.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child or other person with whom he or she has been living
The children have been in their mother’s primary care for their entire lives. Plainly for them to leave their mother’s care would have a significant emotional consequence for them. It is noted that they would also be leaving the home that they have lived in for the past seven years that they share with their maternal grandfather who has lived with them since 2010.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The children’s parents live a significant distance apart. The distance is exacerbated by the bulk of the travel between their parents needing to happen in the before school and work traffic in the end of the day school and work traffic. It seems that the journey is approximately 47 minutes at its quickest but more likely an hour during busy traffic.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other relevant characteristic of the child
It is important to bear in mind the diagnoses which each child has. X has autism spectrum disorder and Y has attention deficit hyperactivity disorder and post-traumatic stress disorder. Plainly these children require their parents to be responsive to their particular needs.
Any family violence involving the child or a member of the child’s family, Any family violence order
The parents’ relationship is toxic and their communication is dysfunctional. Their relationship when it was intact did not have the characteristics of family violence. There is no family violence order in place.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
The parents have long been in litigation and there have been two separate contravention applications determined by the Court. It is a matter for the parents whether they can find a way of communicating with each other and working together into the future. It seems to me that it is the mother who has to do a significant amount of work to improve her attitude towards the father.
Reasonable Practicability
How far apart the parents live from each other
The parents continued to live a significant distance apart and the driving would seem to be predominantly city driving and in the before school and after-school traffic. When they were younger the father was of the view that the travel was of no difficulty to the children as they would simply play on their iPads while sitting in the car. Often he would visit a family friend with the children on their way home at the commencement of them coming into his care. Of course it is not only the school run which requires travel. If the children are to attend to any extracurricular activities which they do in the area where they live with their mother then the burden of travel would fall on them on each of those occasions as well.
The children are no longer young and are better able to withstand travel in a car. I am also mindful of the fact that they live in the greater Brisbane area and that it is part of the experience of people living in large urban areas that time will be spent travelling in the usual course of life.
The parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents
The difficulties that the parents have experienced in putting orders into effect have not really been to do with the difficulties arising from the distance between their respective homes but rather to do with their attitudes and issues to do with communication. It would seem to me that the parents have the capacity to implement an arrangement for the children spending substantial and significant time with the parent with whom they not living.
The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind
The parents’ communication has long been a point of difficulty between them. There are many examples of their poor communication including the father feeling as though the mother didn’t consult with him before signing X up with the sports team but rather simply informing him through to more serious issues such as whether or not the father has been engaged in the process of the children being assessed with respect to significant medical conditions. It seems to be acknowledged between the parents that they’re co-parenting is not good. Ms L described it at paragraph 52 as toxic with limited trust and goodwill and that neither had any confidence they could build a co-parenting relationship in the future. It would seem within the issues of the parents’ co-parenting relationship, the father’s own presentation needs to be better understood. In the family report by Ms L at paragraph 25 she speaks of the father seeking to present himself as being victimised and ignored by the children’s professional support network. X has long been a patient of Dr N’s and the father did not seek to participate in any assessment of X for over six months. It has been acknowledged by the mother that it would be appropriate for a new paediatrician to now be engaged so that any difficulties arising from Dr N having become part of can be overcome. It seems to me the children are now in a position to be doing more travel between their parents respective homes given that they are now aged.
The impact that an arrangement of that kind would have on the child
For the children’s time with the father to increase will allow the children to have more time with him, away from their mother and allow them to enhance the relationship that they have. It seems to me, on balance, that increasing the children’s time with their father while still allowing them to have their mother’s primary care, will provide an opportunity for them to form their own views about their parents based upon their own experiences.
Parental Responsibility and the child’s time with each parent
I acknowledge the father’s concern about the mother’s ongoing difficult attitude and whether there can be said to be any reliance placed on her assertions that things will be different in the future. I also acknowledge that the children have always been in the mother’s primary care and save for this important issue about their relationship with their father, the mother has otherwise, for the most part, attended to their parenting properly. It cannot be said that the mother is a perfect parent. There are some concerns that she failed to respond in a timely way when it seemed clear that Y needed some psychological support. But it is the case that no parent is perfect and it is to be remembered that the father is essentially untested as the primary carer of the children.
Although the mother had earlier sought an order for sole parental responsibility that seem to not be pressed on a final basis than the mother sought orders for equal shared parental responsibility. Although the father sought an order for sole parental responsibility, I would understand that application to go hand-in-hand with his application for the children to live with him. In the circumstances where I have formed the view that there are no issues of family violence or child abuse which would cause me to rebut the presumption of equal shared parental responsibility and where I have otherwise formed the view that notwithstanding the difficulties between the parents, they should both be involved in their children’s lives in any decision-making that needs to happen for them, I am satisfied that the parents should have equal shared parental responsibility for the children.
I am satisfied that it would not be consistent with the children’s best interests for them to leave their mother’s primary care, but rather the children’s time with their father should be extended so that they are spending more time in his care during school term. As the children get older they will no doubt be able to form their own views about their parents and their parents’ dispute and the way that has improperly involved them.
The orders that I make with respect to the parenting matters then will include that the children live with the mother and spend time with the father, during term time, from the conclusion of school on Wednesday through to the commencement of school on Monday on alternate weeks. School holidays will be shared.
I am further satisfied, that notwithstanding the maternal grandfather’s requirement for a carer (the mother) arising from his own health needs, given the ages of the children, there is no requirement for their protection to be met by limiting the length of time that he can provide care for them in their mother’s absence. The children are old enough to call for help, if he becomes unwell, and the mother is familiar enough with her father to be mindful of his health when determining whether she may leave the children in his care.
The parenting orders will come predominantly from the mother’s draft. I will include an order which requires the parents to seek out a new consultant paediatrician for the children.
The law with respect to property adjustment
These proceedings are determined pursuant to s.79 of the Family Law Act 1975. Section 79(2) requires that an order only be made if it is just and equitable to make an order. As the parties to this proceeding have separated on a final basis, I am prima facie satisfied that it is just and equitable to make an order adjusting their property.
The steps the Court is required to undertake to resolve such applications are as follows:
a)To identify and value assets and liabilities of the parties;
b)To assess the contributions of the parties under ss.79(4)(a) - (c);
c)To consider the matters set out in ss.79(4)(d) – (g), which include the matters in s.75(2) so far as they are relevant, and to determine whether any adjustment should be made as a result to the contribution-based entitlements;
d)To make such an order as the court considers appropriate.
The Pool
This is exhibit 8, from the third tranche of the trial.
| Property | Ownership | Wife's value | Husband's value |
| Real property | |||
| C Street, Suburb D (the C Street, Suburb D property) | Wife | $435,000 | $600,000 |
| U Street, Suburb R (the U Street, Suburb R property) | Husband's interest is not known | Not known | |
| Bank accounts | |||
| ANZ Access Advantage account (#...25) | Husband | Not known/ requires updating | $1,580 |
| ANZ Online Saver account (#...33) | Husband | Not known/ requires updating | Nil |
| ANZ account (#...41) | Husband | Not known/ requires updating | Closed |
| Commonwealth Bank Smart Access account | Wife | $63 | $2,533 |
| E Bank account | Wife | $602 | $2,532 |
| Commonwealth Bank EFT account | Wife | $43 | |
| Furniture, chattels and motor vehicles | |||
| Furniture in wife’s possession | Wife | $350 | Nominal |
| Furniture in Husband's possession | Husband | $10,000 | Nominal |
| Motor Vehicle 2 | Wife | $1,000 | |
| Motor Vehicle 1 | Husband | $34,000 | $10,000 |
| Motorbike | Husband | $6,500 | Nil |
| Tools and contents | Husband | $6,760 | |
| Other | |||
| Timeshare | Joint | $6,000 | $8,000 |
| Partial property settlement | Husband | $200,000 | |
| J Group | Joint | Exclude | |
| Add back: costs paid to Husband from sale proceeds | Wife | $3,500 | |
| Property | Ownership | Wife's value | Husband's value |
| Add back: credit card of Ms Alderton to be paid from sale Proceeds | Wife | $2,000 | |
| Add back: personal loan of Ms Alderton to be paid from sale Proceeds | Wife | $15,000 | |
| Corporate structure | |||
| Mr Manifold Trust • ANZ Business Extra account(#...91) - $4,235.38 as at 29.7.19 | Husband | Not known | Bank account - $4,235 |
| Superannuation | |||
| Military Super & Benefits Scheme | Wife | $35,622 | $35,165 |
| Super Fund G | Wife | $4,066 | $13,003 |
| Super Fund G | Husband | $73,221 | $73,220 |
| Super Fund V | Husband | Not known | |
| Liabilities | |||
| Commonwealth Bank mortgage secured against the property | Wife | ($28,350) but exclude | ($27,601) |
| Credit card | Wife | ($7,954) | |
| Credit card | Wife | ($1,052) | |
| W Finance Loan | Wife | ($9,502) but exclude | |
| Z Finance Loan | Wife | ($3,000) but exclude | |
| Balance of fees owing pursuant to costs order | Wife | ($13,556) but exclude | |
| Husband's share of the outstanding fees owing to AA (timeshare) | Joint | ($1,044.87) | |
| Total | $803,176.13 | $743,167 | |
The real property was valued in 2013 at $460,000. It is presently on the market and had not been recently valued; the wife wants to retain the property. In the circumstances where there is no updated valuation, there seems little that I can do to understand its’ current value.
It seems to me unlikely that the husband has furniture in his possession in the amount of $10,000 and that the wife’s furniture in her possession is as little as $350. It seems to me that the parties’ personal furniture, chattels and possessions, being of modest value, should simply be not included in the pool.
By 2013, the wife had spent $102,244 by way of legal fees, with another $24,556 held in trust by her solicitor and the husband had spent $54,916 by way of legal fees. The husband says those monies should be added back into the pool. The wife’s legal fees have in part been funded, apparently, by taking out a $50,000 mortgage over her home that mortgage was not otherwise included in the pool. In the event that it was included in the pool and I added back otherwise the wife’s legal expenditure and the husband’s expenditure we would be at a point where the matters cancelled each other out. In the circumstances I decline to add back in the parties legal expenses incurred thus far.
The parties’ bank accounts are as they are. The parties each have a motor vehicle in their possession.
There is the jointly owned timeshare which has a disputed value and which is not valued. It has fees associated with it. The wife seeks that the husband pay outstanding levies but also seeks that she keep the timeshare. It seems to me in the circumstances where she seeks to keep the timeshare she can also be responsible for any outstanding payments.
The fact that the parties cannot even agree on what their respective superannuation policies hold, is an indicator of their inability to work with each other.
At the time of the third trench of final hearing, the husband had a financial resource of an unknown amount arising from his father’s passing and any entitlement of the husband has from his father’s estate.
In the circumstances that it is not possible to quantify the pool precisely.
Contributions
In 1996 the applicant built a house in Suburb BB which was owned with two of his brothers. When the house was subsequently sold in 2002, the applicant received his one third interest in the property: $28,000. When he met the respondent in 2000 he had the interest in that house; a motor vehicle, which he had purchased for just over $2000 and which are year into the relationship he sold for $100 when the motor was blown; he had a motorbike which he had purchased for $6800; some and shares and a life policy with CC Insurance; personal furniture and effects; and superannuation of an unknown but modest quantity.
The respondent moved into the house that the applicant co-owned with his brothers. She had minimal superannuation and funds in the bank and had her own personal furniture and effects.
Both of the parties were employed. The respondent was working at a local business while doing a traineeship in customer service. She later did some studies in hospitality and obtained casual work at the Employer DD and at a local business. She also did some work in retail. She joined the Military in 2004 which provided the parties with subsidised rental accommodation. She left the Military in 2008. Since then she has not been in paid employment and has been the primary parent to the children.
The husband has worked doing labouring and as a tradesman. He was injured at work in 2002 and received WorkCover payments for a period of time, may be about five months. He subsequently worked as a factory worker and as a supervisor in labouring settings. His back pain has continued and he complains that it prevents him from now working on a full-time basis. At times he has worn a back brace and been able to work. Prior to his ceasing work, the applicant was earning a good income: in 2010 $72,401; 2011 $87,345; and in 2012 $89,172.
Both of the parties contributed their income to their joint living expenses.
In 2007, the wife received a gift from her mother in the amount of $5000 and then in 2008 she received a gift from both of her parents in the amount of $10,000. The $5000 was deposited into their first home savings account. Part of the $10,000 was used for their wedding and the balance was used for regular spending.
In early 2012, the respondent won $1,105,274.31, in the lotto. She alone had purchased the ticket and had used money that her mother had left with her in early 2012. The money was as a result of having sold items on her mother’s behalf via eBay. When the person had come to collect the items they had given $38 in cash to the wife. When she went to give her mother that cash her mother said that she should keep money and buy something for herself and the children.
She purchased a ticket in early 2012 using the cash. The lotto was drawn and she received her lotto winnings in mid 2012.
The wife’s evidence about the purchasing of the ticket and her source of funds to do that was the subject of cross examination. The wife had not called her mother as a witness in her case and so the evidence came from the wife alone. I am satisfied that the wife’s evidence was truthful as it would seem that buying lotto tickets was not an ordinary part of what the parties expended their money on. She had held the money in her wallet that she had received from the person who came to buy her mother’s belongings and plan to give it to her mother when she saw her next. It is unsurprising that the maternal grandmother was aware that finances were tight in her daughter and son-in-law’s home. And it seems unsurprising that the grandmother would say to her daughter to keep the money for herself and buy something. The wife’s evidence at paragraph 50 (D) of her affidavit filed 25 January 2013 includes that she would not have bought a ticket using hers and her husband’s money but as she had the money from her mother she thought “why not”.
I am satisfied with that evidence. The failure by the wife to call her mother to support the eBay/items/payment in cash/keep it for yourself issues does not trouble me in circumstances where the evidence otherwise has a ring of truth to it and where the wife was cross-examined and her evidence remained consistent.
The reason this is relevant is because the circumstances of the purchasing of the ticket are relevant as to whether the matter should be seen as a contribution by one party or a windfall which is effectively the contribution of both parties. (See the matter of the Zyk and Zyk [1995] FamCA 135). It would seem to be the case that these parties were not in the habit of buying lotto tickets. It would seem to be the case that the mother’s purchase of the lotto ticket was a spur of the moment decision coming soon after her mother said that she could keep the $38. The reason the wife had the $38 can be considered to be a gift from her mother to her and the children arising from the maternal grandmother’s natural love and affection for her daughter and grandchildren. The purchase of the ticket was the wife’s action and the wife’s action alone. She did not use matrimonial funds or any jointly held assets to purchase the ticket. I am satisfied that the lotto when, therefore, should be perceived to be a contribution by the wife to the party’s financial circumstances. I note that it came very late in the parties’ marriage, and indeed was probably what precipitated the wife advising the husband that the marriage was over. At the point of final separation, the lotto winnings were the single asset of real substance of the parties.
Before they separated less than a month later, the parties paid off their credit card debt and repaid money to the husband’s father in the amount of $3000. They also used the money to prepay a planned trip to Country EE in late 2012.
In mid 2012 the wife told the husband that the marriage was over and in mid 2012 the wife advised the husband that she proposed that he receive $300,000 from the gold lotto and his furniture and personal effects. In mid 2012 the wife transferred $300,025 to his sole bank account.
The wife says that she understood that the parties had agreed that this would be their property adjustment, and the husband disputes that he agreed to that although his evidence about this is a little difficult to understand clearly. It would appear that in the first instance although he felt as though he had no option but to agree, he seemed to be acquiescing to the outcome on the basis that he would have a reduced child support agreement. The parties did attend a solicitor together on 1 May 2012, but the solicitor declined to see them. So no property orders or other document or agreement was entered into.
The husband left the home that the parties were sharing at the end of April 2012 and took with him furniture and his personal effects.
Since final separation and with the lotto wins to hand the wife subsequently purchased a block of land and built a house on it, she paid significant legal fees, and put money into a fund for the children secondary school and university fees and some other monies into a savings account in the children’s names.
The house that the wife built on the land that she had purchased cost her a total of $560,000. At the trial in 2013 the house was said to be worth $430,000. The valuer, Ms O, was required for cross-examination. Her evidence included that in the market in 2013 the building of a new house plus the cost of the land is often more than the current market value would be of that property. She attributed this reality to the market being low and censored global financial crisis.
It seems to me, that other than the lotto win, the parties contributions during the marriage should be considered to be equal. The husband came in to the relationship with 1/3 interest in a real property which later amounted to something in the order of $28,000. The parties were in a relationship for nearly 12 years, which is not a short marriage. That earlier contribution by the husband did not translate into the further acquisition or improvement or conservation of any property of substance. When the husband sold that in shares, the money was used to pay down a time share loan. And when the husband’s life policy with cashed in, it was applied to debt. Both parties attended to working outside the home and contributing their income to their financial positions and the wife only ceased to work outside of the home when her childcare responsibilities for their first baby commenced.
Post separation, the mother has been the sole contributor for the financial requirements for the children has the father has not paid child support since 2013.
Both of the parties used the money from the lotto when that they each then separately held after final separation. The husband had something in the order of $180,000 in his bank account and had otherwise use the money including for the purchase of a new vehicle.
The fact that the property that the wife built in C Street, Suburb D was valued at less than what it cost her to build taking into account the price of the land and then the building of the home and the final payments for completing the property, perhaps requires some reflection. There is no reason for me to consider that the wife deliberately built a property which would be worth less than what she paid for it to be built, or that there was anything within her expenditure which was said to be unnecessarily extravagant or wasteful. The fact that a global financial crisis has impacted the value of homes in the area where the mother chose to build the property, is not a fact which the wife is responsible for. The wife built the property in the area where the parties had earlier chosen to live, so there can be no criticism of the wife on that front. I accept the evidence of the valuer that the market in the area is presently low, and again that is not the responsibility of the wife. I do not consider that the wife deliberately took steps or was frivolous in her decisions such that she should be held accountable for the difference in value between the house and what it cost her to build.
Section 75(2) Factors
(a) the age and state of health of each of the parties; (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
In 2013, the husband asserted that he was unable to work because of a back complaint. At the commencement of the final hearing, a number of objections were taken to evidence, and much of the evidence with respect to his apparent medical conditions was ruled as inadmissible. It would seem that up until the point where the husband had the $300,000 available to him, notwithstanding his difficulties with his back, he was able to work long hours consistently. For a time he wore a back brace, however there is no evidence that he raised the issue of back pain with his general practitioner between late 2010 and early 2012. Indeed the husband says, when talking about parenting matters, that he was not only able to work long hours that he was also able to manage with very little sleep, such that he rejected the wife’s assertion that when he worked night shifts he would spend most of the day sleeping. It would seem to be the case that his position is that he was able to manage on only three or four hours sleep per night. Those do not seem to be the actions of a person who is back pain is so debilitating that he is wholly unable to work. It would appear that the husband has taken little steps to find work which he may be able to do since choosing to stop work in 2012.
In 2013, there were enquiries made as to whether the wife may be suffering from a medical condition although that seems to have been inconclusive.
The mother’s last employment was in 2008 with the Military. She stopped work at the point when the parties’ first child was born. The children are no longer young, and the wife should be able to work outside the home to some extent.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
Since final separation, the children have been living with the mother and spending shorter periods of time with the father. The parenting orders that I have made contemporaneously with these final property adjustment orders will provide for the children to continue to live with the mother and to be spending time with the father in alternative weeks from school on Wednesday through to school the following Monday.
(d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain
At the trial in 2013, the father was paying child support in the assessed amount of $32.58 per month. It would seem trite to say that the cost of raising the children is in excess of that amount, and the wife has borne that cost alone.
In 2013, the husband was sharing his father’s home, paying a reduced rent of $50 per week along with contributing to utilities bills. He otherwise did not have any persons to support.
(e) the responsibilities of either party to support any other person
Although the mother does not have a duty to maintain her father, she continues to provide a home for him. The paternal grandfather has a disability and the wife is registered as his carer.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
In the wife’s application for spousal maintenance, I must necessarily disregard her eligibility for any pension.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
During the relationship the parties maintained a moderate standard of living. Neither party is seeking to assert that anything other than a modest standard of living is reasonable.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; (k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
Given that the period of the marriage during which the wife did not work was from 2008 when X was born through to final separation in 2012, it cannot be said that the relationship has stood in the way of the wife’s capacity to obtain an adequate income.
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation
Neither parent has re-partnered.
Consideration of Property Matters
It is submitted on behalf of the wife that even if the court found that the lotto when was a joint contribution then future needs factors would amount to a 20% adjustment in favour of the wife which would take her to a 70/30 apportionment in her favour. On behalf of the husband it was submitted that the wife’s care of the two children would otherwise be a 5% adjustment.
The husband seeks that the property be adjusted 50% each and for that to be achieved it would be necessary for the wife’s home to be sold.
Right at the point of final separation, the parties came into the possession of just over $1.1 million. I am satisfied that the lotto when was a contribution by the wife rather than a joint contribution. It really was the only asset of substance at that time. Since then it is become, in part, a house for the wife. There does not seem to be much left of the $300,000 that the husband received in 2012. It should be taken as being understood that he has had the benefit of that monies and indeed the wife seeks the $200,000 be added back into the pool to account for at least some of that money.
Attending to a final property adjustment order is not a mathematical exercise. It seems to me that the husband has had the benefit of 30% of the parties’ financial position at the time of final separation. It seems to me that the wife’s choice to build a house took not only the money that she had but has also resulted in a further mortgage. The assets the parties otherwise have includes superannuation held by each of them although the husband holds more than the wife does.
I cannot see how it would be appropriate in the circumstances of these parties’ situation for the wife to receive not only everything that she already has but to require from the husband a payment to her of the entirety of his superannuation plus potentially some further advance from him to her.
Likewise as I have formed the view that the lotto was a contribution by the wife alone, I cannot form the view that there should be an even distribution between the parties of their property.
In all of the circumstances, although I am satisfied that it would be just and equitable to adjust the parties property between them as they have separated on a final basis and they both ask the Court for a final property adjustment order, I am satisfied that the proper outcome with respect to the property proceedings is for the parties to each retain the items which they currently have in their possession or control and for neither of them to be required to pay any monies to the other party. I am satisfied that that is appropriate in the circumstances of these parties’ situation.
The wife seeks an adjustment in her favour for spousal maintenance. I am not satisfied that she is unable to work and support herself and I’m not satisfied that the husband has the capacity to support her. There will not be any further adjustment for spousal maintenance separate to the final property adjustment order.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Demack
Associate:
Date: 21 September 2020
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Consent
-
Jurisdiction
0
0
4