MCCULLY & MCCULLY
[2013] FamCA 860
FAMILY COURT OF AUSTRALIA
| MCCULLY & MCCULLY | [2013] FamCA 860 |
| FAMILY LAW – CHILDREN – With whom the children shall live spend time and communicate – children shall live with the father – mother restrained from having any contact with the children for a total initial period of six months – time with the mother will commence as two hours supervised contact on each alternate weekend provided she first receives psychological intervention – supervised time is to continue for a 24 month period thereafter the father may decide how time between the mother and children is spent. FAMILY LAW – CHILDREN – Best interests – father to have sole parental responsibility – children are to be enrolled in mainstream education – where the presumption of equal shared parental responsibility is rebutted by evidence that the mother has had an extreme emotional reaction to separation and does not have the capacity to cooperate with the father – where the children have had no current meaningful relationship with the father – where the mother has been unable to separate her own interests from the interests of the children causing psychological harm – where the mother alleged violence and abuse perpetrated by the father that was not substantiated by the evidence – where the mother is active in her church and the children had been home schooled. FAMILY LAW – PROPERTY – Adjustment of property interests – former matrimonial home to be sold – final division of the property pool 55/45 in favour of the wife – where an adjustment of 15 per cent is made in favour of the husband as the children will be in his full time care – where an adjustment of 10 per cent is made in favour of the wife as she needs to upgrade her skills and gain employment while the husband has the capacity to earn a higher wage. |
| Family Law Act (1975)(Cth) ss 60CC, 64B, 75, 79, 106, 121 |
Stanford & Stanforfd [2012] HCA 52
| APPLICANT: | Mr McCully |
| RESPONDENT: | Ms McCully |
| INDEPENDENT CHILDREN’S LAWYER: | Krstina Wooi |
| FILE NUMBER: | (P)NCC | 1519 | Of | 2011 |
| DATE DELIVERED: | 1 November 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATES: | 8, 9; 11,12;15,16,17;19 July ;23 August 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Mooney |
| SOLICITOR FOR THE APPLICANT: | Hunter Family Law Firm |
| RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McMahon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Wooi |
Orders
That all previous parenting orders in relation to the children Y McCully born … 2000 and S McCully born … 2002 (“the children”) be discharged.
That the father shall have sole parental responsibility for the children.
That the father shall advise the mother in writing of decisions taken by him in relation to long term issues for the children including but not limited to school education, religious instruction and serious ill health.
That the children live with the father.
That until the commencement of first school term 2014, the mother is restrained as follows:
(a) From spending time with the children;
(b) From communication with the children by any means whatsoever;
(c)From approaching or attempting to approach the children in any location.
In the event that the mother takes the steps set out in this order, then the mother shall have time with the children in accordance with Order 7 from the commencement of first school term 2014 The steps to be taken being as follows:
(a)To obtain a referral to a Child and Family Psychiatrist or Clinical Psychologist with qualifications in family therapy (“the therapist”) being a therapist other than Mr G, Psychologist;
(b)To commit to and engage in treatment and/or therapy with the therapist to address the following matters:
(i)The responsibility the mother has for undermining the relationship between the children and their father;
(ii)The damage done to the psychological and mental health of the children in the period from May 2010 and following;
(iii)The steps the mother may be able to take to assist the recovery of the children by acknowledging to them her role in the damage done to them and in any other way.
(c) To provide to the therapist the following documents:
(i)Two reports by Dr B, Forensic Psychiatrist dated 9 October 2012 and 7 May 2012;
(ii)Report by Mr P, Regulation 7 Family Consultant dated 23 January 2012;
(iii)Memorandum to the Court of Mr C, Family Consultant dated 6 September 2011;
(iv)These Orders and Reasons for Judgment.
(d) To provide the father with written confirmation from the therapist that:
(i)Treatment and/or therapy has been committed to by the mother and commenced;
(ii)Documents have been received in accordance with Orders 6(c) of these Orders;
(iii)The therapist is willing to advise the father in the event that therapy is discontinued by the mother before the course of treatment or therapy recommended by the therapist has been completed.
In the event that the mother has taken all of the steps in Order 6 herein, then she shall have time with the children after the commencement of first term 2014 as follows:
(a)For a period of six months, for two hours on each alternate weekend to be supervised by a person nominated by the father at a location including a Contact Centre nominated by the father;
(b)At the conclusion of the period specified in Order 7(a) and continuing for a further period of six months, four hours on each alternate weekend to be supervised by a person nominated by the father at a location nominated by the father;
(c)At the conclusion of the period specified in Order 7(b) and continuing for a further period of 12 months, six hours on each alternate weekend to be supervised by a person nominated by the father at a location nominated by the father;
(d)At the conclusion of Order 7(c) at such times and places to be nominated by the father in any event, being no less than the time set out in Order 7(c).
At the conclusion of the period referred to in Order 5 above, the mother may forward to the children, care of the paternal grandparents, birthday and Christmas cards and small gifts which the father is at liberty to view before providing to the children which provision shall be at his absolute discretion.
In the event that the mother chooses not to take the steps set out in Order 6 then the contact between the mother and the children shall be permanently confined to the sending of cards and gifts in accordance with Order 8.
The father shall obtain a referral for the children to a child psychiatrist or suitably qualified clinical psychologist to provide treatment and/or therapy to the children and either of them and to that end the father is granted leave to provide the following documents to the children’s treating therapist:
(i)Two reports by Dr B, Forensic Psychiatrist dated 9 October 2012 and 7 May 2012;
(ii)Report by Mr P, Regulation 7 Family Consultant dated 23 January 2012;
(iii)Memorandum to the Court of Mr C, Family Consultant dated 6 September 2011;
(iv)These Orders and Reasons for Judgment.
Each of the parents shall take all steps requested of them by the children’s treating therapist in relation to therapy for the children and in particular, the father shall seek advice from the children’s treating therapist as to whether the children should have one or more termination sessions with their previous therapist, Mr G, Psychologist.
The father shall enrol the children at school noting that the children or either of them might attend on a limited basis initially and that liaison with the school counsellor may be required to facilitate re-entry for the children to formal education.
The father is authorised to obtain a Passport for each of the children without reference to the mother.
The father shall advise the mother in writing of any periods of time when the children will be absent from Australia for the purposes of overseas travel with him.
In the period before the return of Exhibits to the tendering party, Exhibit 18 shall not be released without an application to a Judge of this Court.
The mother is to advise the father of her current residential address and contact telephone numbers and of any other address for correspondence required by these Orders.
Each parent is restrained from denigrating the other in the presence or hearing of the children and to the best of the ability of each of them, will ensure that third parties are likewise restrained.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
IT IS FURTHER ORDERED:
That the parties shall forthwith do all acts and things and sign all documents necessary so as to list and sell the former matrimonial home namely D Property in the State of New South Wales and more particularly described as Lot 1 on Deposited Plan …, County of …, Parish of ..., Folio Reference … (“the home”) be listed for sale by private treaty and in particular:
(a)the price shall be the equivalent to the mean of the two current market appraisals by licensed Real Estate Agents;
(b)one such market appraisal must be obtained by and at the expense of the respondent and one must be obtained by and at the expense of the applicant; and
(c)such appraisals are to be made not more than seven days apart from each other;
(d)each party must forward to the legal representative for the other party a list in writing nominating three Real Estate Agents to have carriage of the sale;
(e)upon receipt of the notice in Order(d) above each party must respond to the notice within seven days of receipt of such notice;
(f)if either party fails to respond within seven days or the parties fail to reach agreement within seven days of the notice envisaged in (d), either party may approach the President of the Hunter Valley Family Law Practitioners Association to nominate the Real Estate Agent who is to have carriage of the sale from the lists of each of the parties;
(g)if either party fails to forward a list of nominated Real Estate Agents as envisaged in (d) the President shall choose the Estate Agent from the list provided to him.
In the event that the home is not sold by private treaty and/or contracts have not been exchanged within three months of the date of listing the property for sale by private treaty pursuant to Order 21 hereof, or such further time as may be agreed upon in writing, the parties will immediately do all acts and things necessary to list the home for sale by way of auction to be held within a further eight weeks and in particular:
(a)place the home with a local licensed auctioneer as agreed or in the absence of agreement with such auctioneer as recommended by the agent;
(b)pay to the auctioneer any sum required for advertising expenses in relation to the auction;
(c)give such directions as are necessary to a solicitor appointed by the parties for the preparation of a contract of sale and for the contract of sale to be made available to the auctioneer prior to the auction;
(d)execute the contract of sale, co-operate in every way with the auctioneer in relation to the auction sale of the home and execute all other documents necessary to complete the sale;
(e)to attend upon the auction sale and negotiate with the highest bidder on a bona fide basis in the event that the reserve price is not reached and shall act on the advice of the auctioneer; and
(f)vacate the home on completion of any contract for sale.
The reserve price of the property will be such amount as agreed between the parties and failing agreement within 14 days after the nominated date the reserve price will be determined by the valuation already provided by Adept Valuations of $400,000.
Upon the sale of the D property the sale proceeds shall be disbursed as follows:
(a)payment to the wife’s parents the sum of $147,585.67.
(b)payment of any agent’s fees, legal fees and costs of sale and advertising costs;
(c)payment of rates, taxes and outgoings;
(d)the net balance to be paid 57% to the wife and 43% to the husband.
That the husband shall do all things and sign all documents necessary to assign to the wife or rollover to a fund nominated by her, her interest in the McCully Superannuation Fund.
That the husband transfer his interest in the Hyundai vehicle and the Kawasaki … motor bike to the wife and deliver those vehicles to her if not already in her possession.
That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these Orders or any subsequent Orders:
(a)the parties be solely entitled to the exclusion of the other to all property in the possession of such party (including choses-in-action) as at the date of these Orders;
(b)insurance policies remain the sole property of the beneficiary or beneficiaries named thereunder; and
(c)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That except as otherwise provided, each of the parties shall retain to the exclusion of the other all right title and interest to any item of personal property, bank account, savings account or investment account, furniture and motor vehicles currently in their possession or control and each party will indemnify the other party in respect to any liabilities relating to any such property retained by either one of them.
That in the event of either party refusing or neglecting to sign with three days after receipt of a written request to do so any documents necessary to put into effect the terms of these Orders the Registrar of the Newcastle Family Court or such other person appointed by the Court is hereby appointed to execute such documents on behalf of that party pursuant to the provision of s106 of the Act.
That each party do everything necessary to prepare the property for sale.
That the Husband be granted leave to personally attend or have any employee of the Husband attend on the former matrimonial home at any time between the hours of 8.00 am and 5.00 pm for the purpose of preparing and maintaining the home for sale provided 24 hours notice is given to the wife.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McCully & McCully has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCC1519 of 2011
| Mr McCully |
Applicant
And
| Mr McCully |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are competing applications for parenting and property orders. The applicant father is Mr McCully (“the father”). He is 40 years of age and is an animal health professional. He has been a partner in a practice and is in transition out of that partnership. The father lives in a de facto relationship with Ms K, aged 41 years.
The respondent mother is Ms McCully (“the mother”). The mother is aged 40 years and is not in the paid workforce. She receives a Centrelink benefit and has home schooled the parties’ two children. The mother does not refer to any new partner since the parties separated.
The parties met in 1999, they began to live together in 2000 and married in 2003. There are two children born to the marriage, Y in 2000 and S in 2002. The boys are now aged 13 and 11.
The parties separated on 1 April 2010 and were divorced in 2011.
The mother and children remained living in the family home, a rural property. Immediately after separation there were a few weeks of harmonious shared care of the children; five days with the mother and two days with the father. Thereafter the relationship between the parents became extremely acrimonious, in part at least because the mother learned that the husband had formed an association with his current partner. The shared care arrangement came to an abrupt end.
After that time, the relationship between the children and their father deteriorated to the point where there was no relationship. The children generally refused to speak to the father and when they did, spoke to him rudely and dismissively.
Visits pursuant to interim orders repeatedly failed. There were painful scenes of the children being brought by their mother to a changeover point, refusing to speak to their father, sometimes refusing to get out of the car, ignoring him up to the point where it became intolerable and the visit was terminated.
Applications and Orders during the proceedings
The father was legally represented throughout the proceedings. The mother represented herself in this final hearing and the directions and other short applications in this Court prior. She had also represented herself in the Federal Circuit Court before the matter was transferred to this Court on 23 November 2012. The mother did instruct solicitors at particular times.
On 21 June 2011 the father filed an Initiating Application (for parenting orders only). He sought orders for the children to live with him and to spend reasonable time with their mother.
On 1 September 2011 the mother filed a Response in mirror terms, residence with her, time with the father by arrangement between the parents. There were also orders for specific issues including change of surname and continuation of home schooling by the mother. There were some orders relating to financial support of herself and the children.
During 2012 orders and directions were made in the Federal Circuit Court for the preparation for hearing of all issues in dispute, parenting and property.
In particular on 29 May 2012, an order was made, for the second time, that the mother file a Response in support of property orders. There was a notation to the orders confirming notice to the mother that if she failed to comply the matter could be heard undefended. The mother did not file an Amended Response including property orders.
On 12 December 2012 the matter came before this Court for the first time. Both parties advised me that they would be legally represented for the hearing. They were directed to be present with their legal representatives on the next occasion for trial directions.
On 22 February 2013 directions were made. The mother was not legally represented. A notation was made confirming notice to the mother that if she sought a further release of funds for her legal expenses she should file an Application in a Case. There had been an earlier release to her of $10,000 for that purpose.
By commencement of hearing the father was seeking orders[1] for sole parental responsibility, that the children live with him and there be an extended period of time when they not have communication of any kind with their mother before the restoration of some regular weekend and holiday time. Detailed property orders were also sought.
[1] Further Amended Response of Father filed 11/04/2013
The position of the mother was for shared parental responsibility of the children, residence with her and time to be spent with the father dependent on the Court finding that the father did not pose an unacceptable risk to the children.[2] This Response document had been prepared and filed by solicitors on behalf of the mother. No property orders were sought. A Joint Balance Sheet had been prepared.
[2] Amended Response of Mother filed 07/11/2011
On the morning of the first day of a 10 day hearing, the mother filed a Case Outline in Court which included a fresh set of orders (63 orders sought), including property orders for the first time. Reliance on this document was opposed by the husband and by the Independent Children’s Lawyer. The document was rejected. Likewise, the mother sought to rely on a supporting affidavit previously filed in the Federal Circuit Court and the same objection was raised and ruling made. The mother sought no orders in respect to property until it was too late for the father to be reasonably expected to respond.
The mother did include some evidence in her affidavit relating to financial matters, together with a Financial Statement. There was very little cross-examination of either party regarding financial matters. Submissions were likewise brief.
I did consider that the mother had not focused on the financial aspects due to understandable concentration on the parenting issues. I therefore offered the mother the opportunity to make further submissions on an adjourned date which she accepted.
On the first day of the hearing, 8 July 2013, out of courtesy to the Court, counsel on behalf of the maternal grandparents, foreshadowed an application by his clients to intervene in the property aspect of proceedings. There was an alleged debt owed by the parties to them. Counsel was hopeful of a negotiated outcome for that issue which proved to be the case. The maternal grandparents did not become parties.
On 12 July 2013, the fourth day of hearing, I became concerned about the welfare of the children. Just before lunch the mother stated that she “did not want to go on with the case”. Arrangements were made for the mother to consult with a duty solicitor. Whilst that was happening concerns were raised with me by the Independent Children’s Lawyer and her Counsel about the safety and welfare of the children. I shared those concerns. The children were in the family home being minded by a friend of the mother.
The Court took the step of asking the Independent Children’s Lawyer to contact the maternal grandparents to see if they were available and willing to give evidence in relation to their grandsons. They were. Both grandparents made themselves available at Court that afternoon. Each gave evidence and was cross-examined. Interim orders were made:
(a)For the children to be brought to the home of the maternal grandparents in Newcastle by the friend who was caring for them.
(b)For their maternal grandparents to have parental responsibility and for the children to live with them.
(c)For the mother to be restrained from removing the children from her parents’ care.
On the afternoon of that day the mother indicated her wish to proceed with the hearing and the evidence continued.
On 15 July 2013, the fifth day of hearing, Counsel for the maternal grandparents again appeared and made an application under s 121 of the Family Law Act 1975 (the Act) for the release to his clients of the expert reports. This application was granted over the opposition of the father and the Independent Children’s Lawyer and with the consent of the mother.
It then emerged that the maternal grandparents had already been supplied with the expert reports by the mother, after the children came into their care. Counsel for the maternal grandparents had been unaware of that fact.
In any event, I decided that in the unusual circumstances, where the Court of its own motion had invited the maternal grandparents to attend the Court and had then made orders for them to have parental responsibility for the children pending further order, I should grant leave for the release of the documents.
This was for the dual purpose of the maternal grandparents understanding a little more of what gave rise to their grandchildren coming into their care on a temporary basis, and also to enable counsel to advise the maternal grandparents about any proposed application.
In granting the leave pursuant to s 121 of the Act, I indicated that my preliminary view was that an application to intervene was unlikely to be successful for two reasons. The first, because there would be inevitable delay in the matter being heard and determined. The second, because the maternal grandparents represented a neutral place of safety for the children, which should not be jeopardised.
Subsequently on behalf of the father and the Independent Children’s Lawyer, oral applications were made to vary the interim order for parental responsibility, such that the maternal grandparents had an order for residence only. I did not grant those applications nor dismiss them, on the basis that while the children were in the care of the maternal grandparents, parental authority was needed in the event of any emergency involving the children, or any questioning of their right to keep the children in their care. I noted that those applications could be revisited. They were not, other than in final submissions.
On 17 July 2013 the hearing concluded in all respects other than the further property submissions in August.
On 19 July 2013 I made interim parenting orders, pending the delivery of these Reasons. Those orders provided for a change of residence for the children to their father with a restraint on any contact and communication between the children and their mother. On that day the children moved into the care of their father with the assistance of the maternal grandparents, after several hours of resistance.
On 23 August 2013 there were further submissions by the mother regarding the property issue. There was also a confirmation by the father of the sale of his interest in the professional practice and an outline of the implications for the Joint Balance Sheet. Those matters are discussed in that part of these Reasons relating to property settlement.
The Issues
The main issues for determination are:
(a) Parenting
1.Unacceptable risk. There are counter allegations of serious misconduct by both parents:
a.The mother alleges and the father denies that the father:
- sexually abused the child Y in April 2010;
- was cruel to animals in the presence of the children in particular pet dogs and a cow;
- was violent towards her, not physically but in other controlling ways.
b.The father alleges that the mother has violent impulses and has assaulted:
- one of his employees;
- himself;
- his former Barrister during the course of these proceedings.
2.The capacity of each parent to meet the children’s needs; physical, emotional, and financial.
3.The relationship of the children with each of their parents and whether it would be possible for the children to maintain relationships with both parents.
4.The education of the children. The mother proposes that she continue to home school both boys as she has done since 2010. The father proposes that the children now enter formal education and in particular, a State High School reasonably near to his home.
5.Faith. The children are members of a Protestant Christian faith. The mother converted to that religion as an adult. The father was raised in that faith but is no longer a member of the church and indeed is no longer in his own estimate, religious. Both boys were named in the Protestant Christian Church and when they did attend formal school, it was a Protestant Christain Church school they attended. They have recently been baptised.
(b) Property
1.Whether the former matrimonial home in which the mother and children have been living since separation should be sold.
The evidence
The father, Mr McCully
The father relied on the following documents:
1.Second Amended Initiating Application filed 11 April 2013;
2.Affidavit of himself, Mr McCully, sworn 10 June 2013, filed 11 June 2013;
3.Financial Statement sworn 10 June 2013, filed 11 June 2013.
The father is presently living with his partner Ms K at Mid North Coast town E. He recently acquired a property in Town X, acreage with a three bedroom house. The father planned to live there with his partner together with the two boys and their horses, if orders permitted.
The father gave his evidence in a straightforward way. He readily made appropriate concessions. He denied any physical assault on the mother, financial control of her or otherwise any untoward conduct towards her.
I formed the impression through his evidence that the parties had both been loving parents, who used reasonable methods of discipline such as verbal instruction, sending the children to their room or at the highest causing them to stand facing a wall for a period of time and that neither had been physically harsh with the children.
I accept the evidence that prior to separation the father had had a close and loving relationship with both his sons and that they had talked to him and confided in him.
When the child Y was a baby, the father cared for him at home for a few months and the mother worked to support the family. During that period of time Y suffered a burn injury. To the extent that the mother raised this incident as evidence of neglect or abuse I reject that allegation. Overall I have the impression that both parents were focused on their children and went about parenting in a thoughtful way.
The father worked long hours throughout the relationship; 50 to 60 hours a week at least. He apparently expressed frustration with his own commitment from time to time and referred to having tried not to be as driven by work as his own father had been. In this he considered he was not always successful. A complaint raised by the mother and the children was that the father was not at home and available to them as much as they wished. It is a complaint entirely inconsistent with the allegation that he was a cruel and abusive husband and father.
The father was cross-examined by the mother about an incident where he smashed a mobile phone in front of the children. I accept his explanation that he was frustrated with a call which told him he had to come into work at a time when he had made a commitment to play with the children. That he chose to break the phone in frustration in front of the children, speaks of someone under considerable pressure. It was hardly an ideal response but the evidence does not support a finding that it was done as a threat or demonstration of authority.
Likewise, the incident where the father became frustrated rounding up one of the mother’s milking cows. He resorted to using a car to force the animal into the transporting vehicle, which ultimately led to injury to the cow and subsequent euthanasia. He conceded that it had not been the best course. The evidence does not support a finding of cruelty or of an abusive display to frighten the children.
I accept that at times during the marriage, in social settings, the father drank to excess and relied on the mother to transport him home with the children in the car when he was intoxicated. Again, my impression was that the father experienced considerable internal pressure which unfortunately he relieved by drinking at social events. This would have had an adverse impact on the children obviated by the mother being sober and sheltering them from the father’s condition.
Home schooling
The father was asked about the children’s change from formal education to home schooling. In 2007, 2008 and 2009 they attended the small Protestant Christian School where the father’s own father was the Principal. Thereafter they were taught at home by their mother.
The father had denied in his affidavit that the children were subject to bullying at the level asserted by the mother. However he did consent to the children being removed and home schooled by the mother. The mother cross-examined the father about his having confided in her during the marriage that he had found it difficult to be a child in a school where his father was a teacher, because of the efforts that his father had made to ensure that he did not favour his own son. He agreed that he had found it stressful.
I take it from this cross-examination that the mother was putting the proposition to the father that just as he had found it stressful to be taught by his own father, the parties’ children had found it stressful to be in the school where their grandfather was the Principal and that they had been teased accordingly. I accept that there must have been some substance in this for the father to accede to the mother’s request that the children be thereafter home schooled. Certainly the father was conscious that Y in particular was distressed at school in 2009 “struggling with school interaction” and had threatened self harm.
The child Y was taken to see Dr M to assist him with his emotional difficulties. Both parents describe Y as a very sensitive child who is hard on himself and cannot forgive his own mistakes.
The father described both children as having become very upset in reaction to the news that their parents were separating and that Y had been stoic holding himself together whilst the younger son had been more overtly distressed.
When they first separated, the parties arranged for the children to spend five days a week with their mother and two with their father. The father readily conceded that the mother had been entirely flexible about whether those days were week days or weekend days, depending on his work commitments. The time had worked well, although there were some practical difficulties associated with the fact that the father lived initially in a caravan park and subsequently in rooms above his practice. There is also some suggestion that the father did attend to work for periods between 10 minutes and an hour at times when the children were in his care and that they were disappointed about that.
The “Queensland holiday incident” 2010
The parties had booked a family holiday on the Gold Coast. They separated in April 2010 just before they were due to leave for Queensland. The arranged holiday was so soon after separation that the parties decided to attend together in any event, presumably not to upset the children. The family was accompanied by a young woman, H, who had come into their care previously by arrangements with the Department of Family and Community Services (DoFaCS), together with her boyfriend, N.
The mother left the holiday early, leaving the father with the children and the young people. Her explanation to the father was that it was too difficult to manage the situation where they were separated and on a family holiday. It is easy to accept that it was an awkward situation.
The mother says that family arrived at the resort on a particular day and she then saw the father buying quantities of alcohol, consuming a large amount of alcohol on that evening. The sleeping arrangements were that H and N had the double room and that she and the father slept apart, each sharing a bed with one of the children. The father shared with Y. Two days later Y is said to have told his mother that his father had been touching his bottom and that he could feel his father’s erection against his back.[3] The mother responded to the child as follows:
I am going back home. I want you and [S] to come with me. Please come with me.
[3] Affidavit of the Mother filed 21/06/2013, par 132(i)
The mother said Y refused to leave. She then advised Y that if he was not going to come back with her he was not to share a bed with his father and that if such events happened again he needed to yell out and tell H and N. The mother then left for home.
The mother conceded that she did not speak to her husband about what Y is alleged to have said to her. Her explanation is that she was upset and confused about separation “and did not want to anger [the father] with what [Y] disclosed to me”. It seems an extraordinary response. If the mother believed that her son had been molested she was choosing to leave him unprotected.
I do not accept that the mother believed that the father had used their older son for his own sexual gratification, that is, that he had sexually abused him. It may be that the boy complained to his mother in the way she described and she understood that there was an innocent explanation involving the father being asleep and intoxicated. In any event on her own evidence she did not raise the matter with the father or report it at that time.
When the incident was later reported to JIRT Y was interviewed. He stated that his father was asleep in the same bed with him, that his father had rubbed his bottom and he could feel his father’s “hard penis” in his back.
The father says that he heard nothing from the mother of any allegation of inappropriate touching until 2011.
The mother readily conceded that the children had spent time with the father in two day blocks after the holiday and ongoing before she made the report. The proposition was squarely put to the witness that she made a report to DoFaCS after learning that the father had a new relationship with his current partner, Ms K. She denied that. In my view there is no other cogent explanation.
I am certainly unable to find that there was any sexually abusive touching by the father of Y in April 2010. I note that the children remained with their father on holiday and thereafter, on returning home, enjoyed regular contact with him. Their only complaint was that he attended to work at times when they were with him. Something may have made Y uncomfortable when he shared a bed with his father during that holiday, but there is no evidence to justify a finding of unacceptable risk for Y in the care of his father.
Incidents of cruelty
The mother alleges that the father was deliberately cruel to the family dog, put his hands around its throat in a strangling motion and laid him motionless on the ground before the children. She agrees this was an incident where the dog was attempting to eat one of the family hens. The dog was a large cross-breed. The father gives an explanation that the dog had a tendency “to get hold of chooks” and that he had hold of a chook and was biting into it. He said he put the dog in a headlock until he released the chook.
The children may have witnessed this incident and been worried about it, although they live on a rural property with farm animals, but it appears that it has become an exaggerated incident in their minds.
Time between the children and their father
After the complete breakdown of the parent’s relationship in May 2010, the children did not see their father again until Christmas 2010. The mother made it clear to the father that he was not welcome to come to the home and that he was not to contact her or the children. The mother drew no distinction between her feelings of disappointment and betrayal and the children’s feelings about their father. She at no time reassured them that although their parents had separated their father had not left them, that he loved them.
The father conceded that he knew the children thought that his actions in taking up a relationship with his current partner, was adultery in the eyes of the church at which the boys attended. He knew his own parents were critical of him, and supportive of the mother.
Twelve months passed before the father made an application to the court. Most unfortunately the children developed an increasingly negative view of their father during this period, at least in part because they believed and were allowed to believe that their father had abandoned them. By the time contact resumed in 2011 the boys were fearful hostile and resistant.
In 2012 on one of the occasions when the children spent overnight time with their father in the home of his parents, they ran away to a neighbour’s home. The neighbour rang DoCS and the mother. The father took the children to the police station with a copy of the Family Court orders and a police officer spoke to the boys. The father reports that they thereafter stopped trying to run away. It was not an unreasonable course of action for him to take for their safety.
Clearly the children were protesting strongly the overnight visits. They would not eat the food that was provided, they declined to leave their rooms and regularly texted their mother in anticipation of being collected. Ultimately the father removed their mobile phones, which had become an obstacle to an easy relationship being restored between himself and the children.
The father was optimistic about his ability to manage the children’s distress in the event that they came to live with him. Despite the fact that at the time of hearing they would not speak to him, would not sit down with him and aggressively repelled any attempts by him to touch them, he believes that they have an agenda of protest and that once in his home and with the appropriate assistance, this conduct would fall away. He acknowledged they would be at first upset.
The father has taken a step of selling his interest in the professional practice and I accept cleared the decks to have whatever time he needs exclusively with the children to have them settle into his home. He has been thoughtful about the assistance that he will need in re-integrating them into formal schooling and has investigated services in Community Health and a psychologist who would be able to assist him. Gifts, cards and messages forwarded by the father have been returned un-opened. The father has taken on a challenging task.
The mother has referred to the father, either as the “devil incarnate” or the “devil in person”. The boys regarded T-shirts brought back from an overseas trip by their father, featuring Chinese dragons, as references to the devil.
At times the mother has made statements about the children committing suicide. At Court in 2011 the mother is reported to have said:
Have the kids, the kids will commit suicide, their blood will be on your head, everyone is against me.
This was directed both to the father and to his then Barrister. If the mother has made such statements at home, or has expressed distress at that level in front of the children, they are likely to have experienced considerable concern for their safety.
The mother apparently suffered an episode of depression in about 2006. She sought help and medication was prescribed. The current state of her mental health, at least as assessed by Dr B in 2012, is good. However she appeared to be strongly affected by separation. During the course of her cross-examination of the father, the mother displayed how deeply hurt she had been by the father taking up a new relationship within weeks of their separation in April 2010. Clearly by her questioning, she considered that the new relationship had commenced before separation and was perhaps the reason for it. It seems likely that she has been unable to forgive the father for the conduct that she perceives in this regard.
Of course the mother is entitled to her own feelings about separation and to her own views about the conduct of the father. The difficulty for the children is that she has not concealed her feelings and beliefs from them. They have become ever increasingly hostile towards their father, to his partner, whom they have not met and to their paternal grandparents.
It appears that the mother retrospectively looks back on the marriage and sees only negatives; the father’s drinking to excess on occasions, H having her boyfriend to stay in the home, the way the father treated the family dog and the cow, and is now unable or unwilling to see anything good in the father or his future relationship with the children. I do not accept her view as realistic. It seems clear that the father has shown anger at times in the presence of the children which did not affect in any permanent way the strong relationship between them.
On the second day of the hearing the mother asked two questions of the father as follows:
Q:What would you provide with sole custody (that you want) versus shared custody (that I’m asking for)?
A:The key factor is a clear knowledge that their father is a person who really does love them and is not a person to be feared.
Q: That couldn’t be done with shared custody?
A: The last few years tell me that it is unlikely to be successful.
In my view the father displayed considerable insight and genuine commitment to the children in those answers. A less committed person would have long since ceased to attend contact visits where previously loving and compliant children were silent, uncommunicative, disobedient and rude.
The father also revealed sensitivity as a parent in answer to his questions about overseas trips. The father has been in the habit of taking his leave from work as an overseas holiday, including voluntary work. He expressed an intention to include the children in those trips and in the voluntary work if they showed an interest in that work, but in the event that they were not interested, then he would do something different with them. He remained unprovoked by the mother’s suggestion to him that the voluntary work was to make the trips tax deductible.
Attitude to financial aspects of the marriage
In relation to property matters, the questioning by the mother revealed that she did not recognise or acknowledge that payment by the father of the mortgage on the former matrimonial home for the past three years was support for the children and herself. She focused entirely on child support payments and even more on the cost of swimming lessons for the children.
The mother has taken a position of not engaging with the father over any of the property matters in dispute, simply opposing any particular course of action such as the sale of his interest in the practice and the sale of a property owned by the family trust.
The mother did not dispute that after separation she expressed a wish to have nothing to do with the father’s business, that she resigned as trustee of the family trust, that she gave instructions to the husband that she did not want distributions from the trust in the future, that she opened an independent account and generally withdrew from the parties’ joint financial affairs.
She has had the use of the family home with the children and the father has paid child support. The father has alone managed his business, the company and the family trust, as well as being in fulltime employment.
In her questions as to how the father would support the children if he was not employed, having sold his share of the practice, it appeared to be no part of the mother’s thinking that in the event that the children lived with their father she would have an obligation to make a financial contribution.
In the same way the mother asked the father what his plan was to pay down “the [L] loan”. This is a reference to monies lent to the parties by the mother’s parents. If it is the case that the mother considered that she herself had any responsibility in respect of this loan, her questions did not reveal it.
The father had gone onto the home property to remove a van owned by the parties. Clearly there had been great difficulty in organising for the father to simply come onto the property, for the gates to be unlocked and for him to take the van away with the mother’s consent.
It was raised with the father by the mother that he controlled the parties’ finances, a proposition that he denied.
I accept that for several years the parties together spent more than the father earned and that by about 2009, a new system was implemented by him where a fixed amount was transferred fortnightly from one of his business accounts to a joint account, which both parties used for the benefit of themselves and the household. I conclude that the mother felt that this was unreasonable and insufficient, but I do not consider that it was financially controlling in the sense that the mother was left without resources, or had become powerless in the relationship.
Overall my impression of the father was that he had been naive in expecting that the mother would easily accept his new relationship, within four weeks of separation and would encourage the children to enjoy a relationship with the father’s new partner. He failed to take the initiative in advising the mother of his new situation and that may have been an error of judgment. However he could not have anticipated the level of the mother’s angry vengeful resentment, which has been sustained for more than three years and which has clearly unravelled the children’s relationship with their father.
Ms K, the father’s partner
Ms K is 41. She is a paraprofessional and has no children of her own. She gave open straightforward thoughtful responses. She impressed as a person who had truly given consideration to the tasks she would take on in the event that the two children came to live in the household with herself and the father. She had considered the possibility that the children might blame her for the breakdown of their parent’s relationship and for everything that had been difficult for them since that time. She appeared to have accepted that her relationship with the father might not withstand the impact of his having the fulltime care of the children.
She showed sensitivity to the situation of the children, reflecting that she remembered what the separation of her own parents had been like. She indicated that she was willing to take advice and to create space for the children to have time alone with their father. I accept that she would be sensitive to the children’s needs and supportive of their religious affiliation to the Protestant Christian Church. She is a person with close family in the vicinity and has discussed the management of the step-mother role with close family members who have offered to help.
Ms K gave an illuminating response to a question asked by the mother, namely how she would give the children space with their father (as she had said she would in answer to a question from counsel for the Independent Children’s Lawyer). Ms K said this:
If it turned out that the children couldn’t tolerate my presence in the household, I’d move separately.
I considered Ms K has genuinely given consideration to the priority that the children will take over her, in the life of the father, at least for a period of time, if the children live in the household. Ms K also indicated that she would completely support the children’s contact with the mother, provided it was consistent with any Court orders and I accept her evidence in that regard.
Having heard her evidence, I am confident that Ms K is genuine in her wish to support the father as a parent of his children and to assist the children if she can.
Mr McCully Snr, the paternal grandfather
Mr McCuklly Senior was a teacher for 44 years before retirement, 36 of those years as a School Principal. I consider that his career has given him specialist knowledge of children and young people in different settings. He previously enjoyed an excellent relationship with his two grandsons, as he continues to do with his daughter’s two children of similar age.
The paternal grandfather has understood that he and his wife were excluded from the lives of the children by the mother, who decided that their loyalty to their son was a disqualifying factor for continuing involvement with their grandchildren.
The paternal grandparents were initially extremely supportive of the mother and the children and, I infer, were quite disapproving of the father having a new partner whilst married to the mother, although separated. For about six months there was regular contact and a warm relationship. Both grandparents resisted the notion of “sides” in the matter, while the mother persisted with loyalty demands.
On 20 November 2010 the paternal grandmother repeated to her husband something the mother had said to her, that is, that they, the grandparents, should separate themselves from the mother so that they could support their son. The mother then hugged the paternal grandmother. In retrospect, this was the mother saying goodbye to them. It is from that time that the grandparents have not been able to see the children, other than in Court ordered visits between the children and their father.
I consider that this was manipulation by the mother. She was really rejecting the grandparents for failing to support her to the exclusion of their son, but did not tell them so in a candid manner. Her actions also show complete indifference to the boys’ feelings for their grandparents.
The mother accused the grandparents of trying to influence the children to see their father. To the extent that they did, it is hardly unreasonable. The mother complained to the minister of their church that the grandparents talked to the children about seeing their father. The mother is unable to accept that the children should be seeing their father and that it would be reasonable for grandparents to engage with their grandchildren to understand why that was not happening.
The paternal grandfather became concerned about the mother’s state of mind when she expressed extreme fear to him on 9 July 2011,[4] the fear extending to herself and the children being killed by the father. The mother also expressed the view to the paternal grandfather that the fact that he and his wife were minding the father’s dog, meant that they both supported their son and “this is completely unacceptable to me”.
[4] Affidavit of Paternal Grandfather filed 24/05/2013, par 22
I conclude that the mother initially felt supported by the paternal grandparents and was gratified by their anger toward their son, but in time became disillusioned when they continued to support him as well, “It’s one or the other not both”.[5]
[5] Affidavit of Paternal Grandfather filed 24/05/2013, par 28
The paternal grandfather has attended at contact visits, including overnight stays in his own home, which must have been emotionally painful and quite infuriating. He watched as his grandson was openly rude to his father, would not meet his eyes and would not comply with any reasonable requests. On many occasions the children would not get out of the car when brought to a contact visit by their mother.
The paternal grandfather was present, but did not intervene, on an occasion when the father warned the child S what he would do if the child did not get out of the car. The father picked him up and carried him out of the car and held him on his knee. The mother regarded this as manhandling of the child and sufficiently serious to telephone the police. She herself made no effort to insist that the children get out of the car, spend time with their father, nor did she leave.
During the course of cross-examination, when specifically asked, she said that she “would have” told the children to get out of the car. I do not accept that evidence. It does not appear in her affidavit, nor in any of the affidavits of any other witness. I conclude that the boys had her overt support for running a campaign of resistance to spending time with their father. I consider that she drew gratification from the failed contact visits.
The paternal grandfather is obviously concerned about the children’s education. He expressed this concern in the most tactful way during cross-examination, noting that home-schooled children often have gaps in their education, strengths and weaknesses, and he would be pleased to assist them with their homework, once any areas where they had fallen behind had been identified.
Extraordinarily, the mother asked the paternal grandfather whether he had given her any financial assistance, in a way that suggested that he should have. There was a continuing theme of resentment in the mother’s questioning of the grandparents relating to emotional and financial support by them of their son.
I do not doubt that the paternal grandfather would at all times be appropriately respectful of the mother in the children’s presence and would facilitate a relationship with both parents in a skilful way.
Mrs McCully, paternal grandmother
Mrs McCully Senior is a retired paraprofessional. It has clearly been extremely painful for her to lose all contact with these two grandchildren, whom she dearly loves. I accept that she felt shocked and saddened when she heard, second hand, that the association between the children and herself and her husband was considered to be “a dangerous association”. She was at a loss when the mother rejected them for continuing to emotionally support and assist their son.
The paternal grandmother is a member of the Protestant Christian church, as is her husband. Clearly the parties practise their faith and include the children who are also members of the church, in prayer and discussion of spiritual matters. The evidence does not support a conclusion that the children were forced into prayer or religious practice by their grandparents at any time. Rather they were included, which is appropriate given their own involvement in the church at this time.
The mother did not accept any responsibility for the children’s loss of the relationship with their grandparents. She repeatedly asked the paternal grandmother questions such as, “Have I stopped you seeing the children?” The grandmother quite reasonably said that although the mother had not got in between the grandparents and the children, that she had the idea that they were unwelcome. The evidence supports her view about that.
The paternal grandparents were not invited to their grandsons’ baptism in 2012 and learned about it second hand the night before that occasion. Had the mother been truly supportive of an independent relationship between the children and their grandparents, it is unlikely she would have failed to invite them to such a significant event in their spiritual lives.
The paternal grandmother was asked by the mother whether she would be willing to facilitate time with her if the children went to live with their father. She gave the most heartfelt response, “If the Court ordered that …, I’d love to.” I accept unreservedly that the paternal grandmother loves her grandchildren and has been devastated by the breakdown of the relationship with the children, as well as between the children and her son, the children’s father. I also accept that she would be compliant with any orders made, whether favourable to her son or not, and would do everything in her power to promote the children’s interests.
The mother, Ms McCully
The mother relied on the following documents:
a)Amended Response filed 7 November 2011;
b)Notice of Child Abuse or Family Violence filed 7 November 2011;
c)Affidavit Ms McCully filed 21 June 2013; and
d)Financial Statement Ms McCully filed 21 June 2013.
The mother was inconsistent as a witness. She was sometimes flat and appeared irritated by being questioned at all, at other times she was responsive and accurate. She very often said she could not remember and at other times, had a specific recollection of particular events. Increasingly during the course of her cross-examination on behalf of the father, she paused before responding and appeared to be musing with herself as to how to answer a question. She did not impress as candid and straight forward in the majority of her answers.
At times her evidence was simply strangely inconsistent with that of a loving parent. The most significant example of this is the Queensland holiday incident previously referred to in these Reasons[6] where the mother says the child Y was abused by the father in Queensland but she left him in his father’s care and went home.
[6] Affidavit of the Mother filed 21/06/2013, pars 118-134 inclusive
The mother was unable to offer an explanation for what had prompted her to make the complaint when she did and not before, other than that she had had her own stressors.
Another area of strange evidence was in relation to the family dog. In her affidavit, the mother had asserted that the children had become increasingly frightened of spending time with their father, and that some matters from the past had effected them, in particular, his having put a stranglehold on the dog to cause him to release a chook.
After separation the mother arranged for the dog to be put down. Either she shot the dog herself, which she denies doing, or a friend administered euthanasia. During her cross-examination the mother said that she had done so in the best interests of the dog itself, to avoid further abuse at the hands of her former husband if it was returned to him as he wished. When pressed further, the mother gave different evidence.
That the dog had bitten a friend of hers, who was insistent that the animal be destroyed and that the dog had also begun to attack foals. She kept the dog fenced off behind an electric fence for a month, whilst she decided what to do and under increasing pressure from her friend who had been bitten, arranged for the dog to be put down.
Notes to Balance Sheet:
Item No
2
The units in [F Practice] are owned by [TT] Pty Limited as Trustee of the [McCully] Family Trust and were sold on 19 February 2013. Settlement is still pending – Husband’s note.
3 This vehicle was owned by [TT] Pty Limited as Trustee of the [McCully] Family Trust was sold by agreement and the sale monies are held jointly in the NAB Account – Husband’s note. 5 This vehicle was owned by [TT] Pty Limited as Trustee of the [McCully] Family Trust and is currently in the wife’s possession – Husband’s note. 13 This vehicle was owned by [TT] Pty Limited as Trustee of the [McCully] Family Trust and was sold by agreement and 50% of sale monies was distributed to [the wife] and the balance was retained by the [McCully] Family Trust– Husband’s note. 14 This vehicle was owned by [TT] Pty Limited as Trustee of the [McCully] Family Trust and was sold by agreement and the entire proceeds retained by the Trust – Husband’s note. 21 This is a loan taken by [TT] Pty Limited as Trustee for [McCully] Family Trust and must be repaid to the [McCully] Family Super Fund – Husband’s note.
Wife has not been provided with any or up to date financial statements from date of separation – Wife’s note.
8 Husband has these items in his possession – Wife’s note. 19 Wife has not been provided with any or up to date financial statements from date of separation – Wife’s note. 20 Wife has not been provided with any or up to date financial statements from date of separation – Wife’s note. 4 Wife would like a forensic account to settle financial disputes – Wife’s note.
Analysis of Asset Pool
In respect to the joint asset pool, there was a subsequent change in interests and some items have been excluded.
Item 2The husband’s interest in the practice. Consistent with the note to that item that interest was sold for $500,000. The sale settled post hearing and the total net proceeds were applied to secured debt.
Items 19, 20Loans secured over the home and the practice amounting to $647,586. There was a shortfall of $147,586 after the total proceeds of sale of the practice interest were applied to the debt to the Bank. That shortfall was helpfully met by the wife’s parents to head off potential bankruptcy. Accordingly $147,586 continues to be owed to them.
Item 18 I exclude the interim distribution to the wife. It was used for legal costs. The husbands legal costs were paid from the funds of the trust
Items 13, 14These items were sold. The wife received 50 per cent of the proceeds of the car. The Trust received the other 50 per cent. Funds received by the Trust have been applied to the mortgage and living expenses of both parties.
Item 21I am left uncertain about this debt. It seems likely that the Trust does not have the funds to repay these borrowed monies. Accordingly I have assigned the debt to the husband personally on the basis that he controlled the Trust funds for the benefit of both parties post separation and may have made an arrangement to repay or reach an accommodation
The adjusted joint balance sheet is as follows:
Assets:
1
J
D property
400,000
4
H
G.B. Society …
2,328
5
W
Hyundai Vehicle
23,210
6
H
Suzuki Bike
5,200
7
H
Tools and trailer
5,000
8
W
Horse equipment and furniture
10,000
9
H
2004 Holden vehicle
3,950
15
W
Kawasaki Motor Bike
2,400
16
W
Kabota Tractor
12,000
17
W
MF40 Back Hoe
4,000
25
W
Superannuation
50,981
26
H
Superannuation
77,564
Total
$596,633
Less Liabilities:
22
Debt to Wife’s parents (August 2013)
$147,586
Sale costs (est)
$ 10,000
$157,586
The net asset pool is $439,047.
(ii) Consider whether it would be just and equitable in the particular circumstances to make an alteration
The main asset of the parties is the family home at D. It is held in their joint names. By agreement between the parties and the wife’s parents, a certain sum is owed to them as a result of a recent payment of debt on behalf of the parties.
The wife has the occupation of the home. The husband and children are living elsewhere.
It is appropriate to alter interests which no longer reflect the parties’ consensual arrangements during marriage.
I therefore turn to consideration of the parties’ contributions, both financial and to the welfare of the family, to determine what those alterations should be.
(iii) Consideration of contributions of each of the parties and of adjustments pursuant to s 75(2) factors
Initial contributions
The parties began a relationship sometime in 1999.
At the commencement of the relationship the wife was living in a property at W. The wife’s parents had bought that property in July 1998 for $125,000 plus purchase costs. It is an agreed fact[39] that the wife and her parents agreed that the wife would buy the property from them by way of interest free loan. She repaid at about $100 per week.
[39] Exhibit 25
The husband had a Holden utility and some cash savings.
The husband moved into the W property with the wife in April 2000. By then the total of the wife’s repayments to her parents amounted to $10,171. The parties lived in the W property for about two years. The wife’s parents made a further contribution on her behalf by paying $3,415 for rates and repairs to the W home during the period the parties lived there together.
During their occupancy the parties spent money on improvements and jointly repaid the loan. The property was subsequently rented then sold.
The W property provided a home for the parties at modest cost. This initial contribution should be given some weight. I accept the submission of the wife that the provision of that house in W gave the parties “a really good start”.[40]
[40] Pierce v Pierce (1998) 24FamLR 377
During the relationship
During the course of the 10 year relationship the husband made the contribution of his income from employment and self-employment.
The parties had two children now aged 13 and 11. The wife became the main carer for the children. She was engaged in that role fulltime.
She also raised calves with some small financial benefit.
The husband was responsible for the majority of the financial support for the family.
The W home was sold in December 2002. The parties continued making loan repayments to the wife’s parents until December 2009, in a total of $32,173. The W home sale realised $229,000. A lump sum of $40,000 was paid to the wife’s parents. The balance of proceeds was used by the parties to repay monies to the wife’s parents and the husband’s parents bridging loan.
The parties then purchased the acreage at D which became the family home.
Post separation
After separation the wife and children remained living in the home, the husband living elsewhere. The husband supported two households through the joint funds in the McCully Trust Fund and paid child support and other family expenses from income. The wife had responsibility for the full time care of the children.
By the date of hearing, I consider that the contributions should reflect a ratio 60/40 in favour of the wife.
Section 75(2)
The parties are in their early forties and in reasonably good health, sufficient to be able to work. The wife has suffered from depression.
The husband has the fulltime care of the children which will affect his capacity to work fulltime. The husband has a capacity to earn a higher income than the wife, but he may be restricted for a period of time until the boys have settled into school and are more stable. He is unlikely to work very long hours as he did during the marriage.
The wife will have an obligation of course to pay child support when she returns to paid work. She may not be in a position to do so for some period of time. Her work skills will need to be refreshed. If she engages in the recommended therapy there will be a further investment of time and money.
Accordingly, there should be an adjustment in favour of the husband for his bearing the much greater financial burden of care of the children in the order of 15 per cent.
There should be an adjustment in favour of the wife on account of her need to upgrade her skills. She also has the obligation to repay the money agreed to be a debt between herself and her parents. I accept that repayment is required although there is likely to be considerable latitude granted over the time period in view of past history and to pay for and engage in a therapeutic relationship in relation to the children. That adjustment should be in the order of 10 per cent.
Accordingly the overall division should favour the wife 55/45.
(iv) Consideration whether adjustment is just and equitable distribution
The net asset pool is $439,047.
(a)55 per cent to the Wife:
-Goods in hand $102,591
-Cash $138,884 $241,475
(b)45 per cent to the Husband: .
-Goods in hand $ 94,042
-Cash $103,529 $197,571
The Wife will retain the following:
Hyundai vehicle $ 23,210
Horse equipment and furniture $ 10,000
Kawasaki Motor Bike $ 2,400
Kabota tractor (Item 16) $ 12,000
Backhoe (Item 17) $ 4,000
Superannuation $ 50,981
Total $102,591
The D property when sold will have the sale costs and the debt owing to the wife’s parents in the sum of $147,585. The approximate net proceeds, allowing $10,000 for costs of sale, will be $242,415.
The cash paid from sale of D to the wife in order to achieve the division of 55 per cent of total net assets is $138,884. That represents 57 per cent of the net proceeds of sale of the home.
The cash to be paid to the wife in order to achieve the division of 55 per cent of net proceeds in her favour will be:
(a) Cash $138,884
(b) Chattels vehicles and Superannuation $102,591
$241,475
The cash to be paid to the husband in order to achieve the division of 45 per cent of net proceeds in his favour will be$103,529. That represents 43 per cent of the net proceeds of the sale of the home
(a) Cash $103,529
(b) Chattels, vehicles and Superannuation $ 94,042
$197,571
The Husband will retain the following:
Greater account (Item 4) $ 2,328
Suzuki bike (Item 6) $ 5,200
Tools and trailer (Item 7) $ 5,000
Holden vehicle (Item 9) $ 3,950
Plus Superannuation Fund $77,564
Total $ 94,042
The outcome means that the wife will have a cash sum which she can use toward re-accommodation, equipment or its sale proceeds, a motor vehicle and superannuation. She will owe $83,805 to her parents to be paid as and when agreed.
The husband will have a cash sum to reduce debt on his present accommodation, chattels, equipment a car and his superannuation interest. He will owe $56, 109 to the McCully Super Fund.
I consider that the outcome is a just and equitable one for the Reasons stated above and Orders have been made accordingly.
I certify that the preceding three hundred and eighty-seven (387) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary delivered on 1 November 2013.
Associate:
Date: 1 November 2013.
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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