McGregor and McGregor
[2013] FCCA 236
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCGREGOR & MCGREGOR | [2013] FCCA 236 |
| Catchwords: FAMILY LAW – Property – consideration of principles and application to circumstances of the case – consideration of whether to split superannuation entitlements to effect an equal distribution or to adjust distribution of available assets to then require no superannuation split – consideration of contributions of the parties and adjustments pursuant to the provisions of section 75(2) – orders effecting a finalisation of the financial relationship between the parties – consideration of making orders pursuant to the provisions of section 116(1)(b) of the Child Support Assessment Act and departure from administrative assessment – dismissal of that aspect of application. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61B, 61C, 61D, 61DA, 65DAC, 65DAE, 75(2) |
| Lansa & Clovelly [2010] FamCA 80 AIF v AMS (1999) 199 CLR 160 Chappell & Chappell (2008) FLC 93-382 U v U (2002) 211 CLR 238 Pastrikos and Pastrikos (1980) FLC 91-987 Whitely and Whitely (1996) FLC 92-684 In the Marriage of Clauson (1995) FLC 92-595 In the Marriage of Ferraro (1993) FLC 92-335 In the Marriage of Lee Steere (1985) FLC 91-626 Russell and Russell (1999) FLC 92-877 |
| Applicant: | MR MCGREGOR |
| Respondent: | MS MCGREGOR |
| File Number: | MLC 2636 of 2009 |
| Judgment of: | Judge Coker |
| Hearing dates: | 11- 14 February 2013 |
| Date of Last Submission: | 14 February 2013 |
| Delivered at: | Townsville |
| Delivered on: | 24 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr MacFarlane |
| Solicitors for the Applicant: | Perisic & Thomas |
| Counsel for the Respondent: | Ms Carter |
| Solicitors for the Respondent: | Wilmoth Field Warn |
| Counsel for the Independent Children’s Lawyer: | Ms Dowler |
| Solicitors for the Independent Children’s Lawyer: | Foster & Associates Lawyers |
ORDERS
PARENTING
That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, [X] born [in] 1998, [Y] born [in] 2003 and [Z] born [in] 2004, subject to the communication and notification of such decisions to the Father, including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.
Notwithstanding Order 1 herein:
(a)The Mother be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her.
(b)The Father be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with him.
That the children, [X] born [in] 1998, [Y] born [in] 2003 and [Z] born [in] 2004, live with the Mother.
That the Father spend time with the children commencing no earlier than 6 months from the date of these Orders, strictly subject to and contingent upon the Father having satisfactorily completed the following:
(a)Intensive Parenting Treatment Program as nominated by the Independent Children’s Lawyer; and
(b)Men’s Behaviour Change Course as nominated by the Independent Children’s Lawyer.
That upon written confirmation provided to the Mother of the Father having completed the programs nominated in Order 4 herein and subject to the passing of 6 months from the date of this Order, then the Father spend time with the children, at all reasonable times as may be agreed and failing agreement, as follows:
(a)Each alternate weekend from 5.00pm Friday until 5.00pm Sunday during the gazetted school term;
(b)For one half of all gazetted school term holidays, excluding the end of term 4 Christmas school holidays, as agreed and failing agreement, for the first half of all school holidays, being from the first Friday at 5.00pm until the second Sunday at 5.00pm;
(c)For one half of the gazetted end of Term 4 Christmas school holiday period in each, as agreed and failing agreement
(i)For the second half 2013/14 Christmas school holiday period commencing at 5.00pm on the fourth Sunday following the commencement of the gazetted school holiday period, and concluding at 5.00pm on the Sunday preceding the re-commencement of term 1, and in each alternate year thereafter;
(ii)For the first half 2014/15 Christmas school holiday period commencing at 5.00pm on the Friday of or following the last day of school and concluding at 5.00pm on the fourth Sunday, and in each alternate year thereafter.
(d)That should the parent who has the children on Christmas Day in any year be residing at their permanent residence, then the parent who does not have the children with them may spend time with the children as agreed and failing agreement, from 3.00pm Christmas Day until 12.00 noon on Boxing Day.
That should the children not be in the care of the Father on Father’s Day commencing in 2014, then the Father is to spend time with the children from 9.00am until 5.00pm.
That should the children not be in the care of the Mother on Mother’s Day, then the Mother is to spend time with the children from 9.00am until 5.00pm.
That should the children not be in the care of the Father on the Father’s birthday, then the Father shall spend time with the children for 4 hours on a non-school day, or for 2 hours if a school day, at times to be nominated in writing by the Father to the Mother.
That should the children not be in the care of the Mother on the Mother’s birthday, then the Mother shall spend time with the children for 4 hours on a non-school day, or for 2 hours if a school day, at times to be nominated in writing by the Mother to the Father.
That on the children’s birthdays, the parent with whom the children are not living spend time with the children for 4 hours as agreed and, failing agreement, from 1.00pm until 5.00pm on a non-school day, or for 2 hours as agreed and, failing agreement, from 5.00pm until 7.00pm if a school day.
That changeovers occur at a location as agreed between the parties, and failing agreement, then at the commencement of the Father’s time with the children outside the Father’s home and the changeover at the conclusion of the Father’s time with the children outside the Mother’s home.
That the Mother shall authorise any school which the children attend to provide school notices, newsletters, reports and photographs directly to the other parent at their own cost.
That the Father be at liberty to attend any school functions and/or extra curricular activities that occur from time to time, upon the commencement of him spending time with the children pursuant to these orders.
That the parents advise each other of their address and telephone number, and further advise of any change within 24 hours of such change.
That the parents shall advise each other of any medical treatment or serious accident any child or the children may suffer in their care as soon as is practicable.
That the Father, his servants or agents, are restrained and an injunction issue restraining them from:
(a)collecting any of the children and taking any of them away from the Mother’s care and control at any time the children are living with the Mother under these orders;
(b)in the event any child leaves the care and control of the Mother and presents to the Father at a time that the child is to live with the Mother under these orders, the Father shall immediately return the child to the care of the Mother.
That the Mother and the Father are restrained and an injunction issue restraining them, their servants or agents from:
(a)denigrating, intimidating mocking or humiliating the other parent in the presence or hearing of the children or from allowing the children to remain in the presence or hearing of any person otherwise doing so; and
(b)discussing these proceedings with any child or the children or allowing the children to remain in the presence or hearing of any person doing so.
That the Mother utilise funds, set aside for the therapeutic treatment of the children, for the purpose of specialist therapeutic treatment as may be recommended by the children’s doctor or other treating medical professionals, and for the purposes of engaging behaviour-management specialists or counsellors to assist with adopting behaviour-management strategies for the children.
That upon the expiration of the appeal period, that the Independent Children’s Lawyer be discharged.
PROPERTY
That upon the sale of the real property situate at Property S, in the State of Victoria, the proceeds of the sale be applied as follows:
(a)Firstly, to pay all costs, commission and expenses of sale;
(b)Secondly, to discharge the mortgage and any other encumbrances attaching to the real property;
(c)Thirdly, to pay $15,000 to the Wife to be held on trust and disbursed in accordance with Order 18 herein;
(d)Fourthly, to pay to the Wife the sum of $135,209.85;
(e)Fifthly, to pay to the Husband any balance remaining.
That unless otherwise specified in these Orders, save for the purposes of enforcing any moneys due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including property in the possession of such party at the date of these orders);
(b)Except as otherwise provided in these Orders, each party forego any claims they may have to any superannuation benefits falling into or earned by the other;
(c)Insurance policies remain the sole property of the owner named therein;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which the parties are entitled pursuant to the Orders;
(e)Any joint tenancies of the parties in any real or personal property or estate is hereby expressly severed.
That each party do all acts and things and execute all deeds and instruments necessary to give effect to the Orders and that if either party refuses or neglects to sign any document within 7 days of a written request to do so, the Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to the provisions of section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.
That all outstanding applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym McGregor & McGregor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
MLC 2636 of 2009
| MR MCGREGOR |
Applicant
And
| MS MCGREGOR |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to orders sought, both in respect of parenting of three children and the division of property to be effected between the mother and the father. The applicant is the father, Mr McGregor and the respondent is the mother, Ms McGregor. The children the subject of the parenting application are [X], born [in] 1998 and therefore about fourteen and a half years of age, [Y], born [in] 2002 and therefore about ten and a half years of age and [Z], born [in] 2003 and therefore nine years of age.
The main thrust of the proceedings before me related to the issue of the parenting of the children. The parents’ positions, in respect of property, were perhaps understandably based on a hope or expectation that they would be successful in their applications in relation to the children.
PROPOSALS
The orders that were sought by the parties were detailed in the outlines that were filed in relation to the proceedings, though it should be noted that the orders that were sought by the father were varied from what had previously been the case, in that he no longer sought an order with respect to all three children living with him but rather, that the two boys, [X] and [Y], live with him and that [Z] live with the mother. He did, however, seek orders which would be effective in ensuring that the children were together each weekend, either in the care of one or the other of their parents and that they would spend the entirety of school holidays together, again, either with one parent or the other.
The mother’s position in relation to the matter was simply to say that the appropriate course to follow was for her to have sole parental responsibility and, that all three children should live with her. The mother also proposed that time to be spent by the father with the children should be of fairly limited compass, in that it was not to include school time but rather, only alternate weekends from 5pm Friday until 5pm Sunday, as well as one half of school holidays.
The mother’s proposal, no doubt influenced by the recommendations of the family report writer, Dr J, was that any time to be spent by the father with the children should be the subject of a moratorium for a period of at least six months and longer if the father were not to have completed an intensive parenting treatment program, as well as a men’s behaviour change course, both to be nominated by the independent children’s lawyer. I shall come, obviously, to the evidence of Dr J in relation to the matter a little later in these reasons but note, that there was an independent children’s lawyer appointed and that the independent children’s lawyer, through counsel, indicated strongly, at the commencement of the proceedings, a preliminary view.
That view was to the effect that the recommendations of the family consultant were supported to the extent that the children should live with the mother, that contact and communication between the children and the father should be suspended for a minimum of six months, that the mother should have sole parental responsibility and that thereafter, certain steps should be taken with regard to ensuring that there was specialist therapeutic treatment available for [Y] and [X].
As well, various other orders were proposed, including, perhaps understandably in light of the degree of acrimony that still exists between the parties, injunctions in respect of non-denigration, mocking or humiliating behaviours toward the other parent or discussing proceedings with or in the presence of the children.
It was noteworthy that the independent children’s lawyer’s position, at the commencement of the proceeding, was that there should be intensive professional services for both the boys and the father but that there was no specific recommendation, for example, in relation to therapeutic intervention with regard to [Z] or specialist courses or assistance available in relation to the mother. At the conclusion of the proceedings, however, the position taken by the independent children’s lawyer was, if anything, firmed, in that the indication given was that the independent children’s lawyer now confirmed that having heard all of the evidence, the recommendations in relation to the parenting of the children remained the same with respect to with whom the children live and more particularly, with respect to a moratorium being required in relation to any time spent or communication by the father with the children for a period of at least six months and perhaps longer if it were considered necessary to effect further therapeutic intervention or, in fact, if it were unfortunately the case that the father had not fully participated in such therapeutic interventions.
The independent children’s lawyer’s position also, however, seemed to have expanded in respect of recognising that [Z], the youngest of the three children, had also been effected by the acrimonious relationship between the parties and the apparent enmeshment of the boys in their father’s position in relation to the matter, such that she and also the mother, should have the opportunity and be directed to participate in various therapeutic interventions. I shall, obviously, come to that aspect of the matter later in these reasons.
EVIDENCE: THE PARTIES AND THEIR WITNESSES
It is necessary, however, that I should consider the evidence of the parties in relation to the matter, in light of the issues relating to parenting. The issues were identified succinctly in the report of Dr J, which was dated 8 November 2012 and which was admitted as an exhibit to these proceedings on 14 February 2013. Dr J identified five issues in dispute or alternatively, issues that were identified by him at the time of assessment. They were as follows:
a)the living arrangements for the children;
b)the time the children spend with each parent;
c)the ability of each party to foster and promote a relationship with the other parent;
d)the (alleged) history of violence within the family and the implications thereof on the children;
e)any risk to the children associated with spending time with each parent.
Those matters loomed large in relation to these proceedings and were, as I indicated, the primary thrust of evidence, cross-examination and submissions at the conclusion of the conduct of the case.
The parties indicated, in their material, that various witnesses were to be relied upon in order to support their position in relation to the matter. From the parties’ perspective, however, the parents themselves, along with Dr J, were the primary witnesses. The father also, however, relied upon the evidence of Ms M.
Ms M had provided an affidavit, filed 21 January 2010 but was required to give some evidence and to be available for cross-examination, in relation to what she had said. It appears clear that
Ms M has retained a relationship with the father and that there appears to be quite regular visits by Ms M to the father’s residence or the father and the boys to her residence, such that Ms M was able to comment upon her observations of the relationship between the father and the boys. Not surprisingly, Ms M commented upon the close relationship between the boys and their father and the apparent ease at which all are when dealing with each other.
Ms M was asked about her relationship with the mother though, of course, that now seems somewhat old in time, it being the case that their relationship came to a somewhat abrupt end, at or about the time of separation.
I found Ms M an honest witness. Of course, she was only speaking of what she had observed and in more recent times, and only in relation to observations with regard to the father and the boys but I accept that what she did see was a close relationship between the father and the two boys.
I note, however, that she also indicated that the boys continued, in her interaction with them, to make references to what they would appear to indicate are the failings within the mother’s household. In particular, she said they complained to her that they are not fed well enough at the mother’s residence and also, that they have been the subject of physical assaults at the mother’s residence, though it was not exactly clear, from her evidence, whether it was suggested that their complaints related to the mother striking them or the mother asking others, in particular, it would seem, her brother, the children’s uncle, Mr V, to physically discipline them.
In that respect, I accept that such statements are made though, of course, there is a very big difference between accepting the making of such statements and the acceptance that such physical assaults or neglect, actually occurred.
Insofar as the mother was concerned she indicated that she intended to rely upon the evidence of a number of supporting witnesses who had filed affidavits, prior to the previous hearing in August 2010. Those deponents included Ms R, Ms H, Ms J and Ms V.
None of those witnesses were required for cross-examination by either counsel for the father or counsel for the independent children’s lawyer, and whilst I therefore accept their evidence as honest and forthright, I would obviously note that it was evidence based on events preceding the last hearing, than the circumstances that now exist some two and a half years or so after the hearing in August 2010.
Also required, however, was the mother’s friend, Ms G, as well as the mother’s brother, Mr V. Ms G and Mr V are in a relationship and have been a couple for a considerable number of years. Ms G’s evidence was provided through her affidavit of 10 August 2010, but also arose from her oral evidence.
Ms G was asked about her relationship with the mother and noted that whilst she may not be what might be termed, “her best friend”, she was certainly one of her best friends and that she and the mother, no doubt on occasions in conjunction with Mr V, met perhaps on two or three occasions each week. Some of those visits would seem only to be passing visits and others of longer duration.
Ms G was asked particularly about the allegations relating to the mother’s physical disciplining of the boys, as well as the alleged assaults that have been perpetrated, particularly upon the child, [X], by Mr V. Ms G indicated that she had not seen Mr V hit [X] and to her recollection did not know of situations where Mr V had sworn at the child or, in fact, any of the children.
She was also asked about her recollections of the relationship between the mother and the father just prior to separation, and she was obviously aware of the fact that the relationship between the mother and the father was one that was seriously deteriorating. Ms G’s evidence, however, was that the mother did not, to her knowledge, denigrate or abuse the father, either directly or in the presence of the children prior to or subsequent to separation.
Ms G’s evidence I thought was generally uncontroversial, thought it would not be expected that she would be called to give evidence in relation to issues with regard to the mother, which were not of a favourable nature. The compelling quality of her evidence, however, related to her observations of [X] and his behaviours. In particular she noted that she had been head butted by the child, and though that seems to have been a few years ago, it would no doubt have been a distressing and disturbing incident for her.
She was gracious enough, however, to indicate that she could not definitely say whether the assault was an actually intentional one or whether it had occurred during the movements that happened as a result of the confrontation between she and the child.
She also, however, confirmed that she had been called by this young boy, who is only 14 now and must therefore, at the time that it occurred, only have been 10 or 11 years of age, a “fucking dog”. She was asked if she was outraged and understandably she indicated that she was and had told him to leave the house. Interestingly, she was also asked whether she had asked [X] to apologise and indicated that she had not done so, because there was little point in asking anyone to apologise if they didn’t wish to or didn’t consider that they had to.
It was a mature assessment of the situation with regard to a child who clearly at that time was determined to get his own way, behaving in the most appalling manner and unfortunately, her own observations were to the effect that the behaviours of [X] had in no real way changed or improved since the time of separation. I accept Ms G’s evidence in relation to that particular aspect of the matter and consider that she is both an honest and forthright witness.
Also called for the mother, though not initially a witness, was Mr V. Mr V became significant in relation to these proceedings when a tape of a record of interview for the child, [X], was produced somewhat late in time, and allegations were made by [X] that he had been seriously assaulted by Mr V. The record of interview was conducted on 12 January 2012. The recording is noted as a video and audio recorded evidence tape and was viewed by the parties, their legal representatives, Mr V and Dr J, for the purposes of all being available and able to comment upon the contents of that tape.
Quite simply, the tape of January 2012 related to the complaint made by [X] that he had been the subject of an assault by his uncle some six weeks or so before. That would put the alleged assault in the latter part of November or early December 2011. It had not, apparently, been the subject of comment by the child for some five or six weeks to his father and that of itself seemed somewhat surprising. The child, however, made a number of allegations with regard to the circumstances of the assault and it was noteworthy that in relation to the recorded evidence Dr J made comments about the evidence and what he thought of the comments made by [X].
He noted in his evidence, that having viewed the video and audio recorded evidence, that he would not be able to determine whether it was an accurate or truthful relaying of events, but in particular there was:
· a paucity of eye contact;
· an inconsistency between what Mr V allegedly wrapped around his hand to assault the child, in other words whether it was a rag, a shirt or some other piece of cloth; and
· that there appeared to be no accuracy or specificity in relation to the date or time that the assault was alleged to have occurred.
He noted finally as follows:
All I can say is, he presented to me as a difficult 14-year old boy and presented as more confident and assured than would be expected of a child of that age.
My viewing of the tape also gave rise to more concerns as to the genuine nature of the assault alleged by [X] than would normally, I think, have been the case. In any event, it is noteworthy that Mr V has not been the subject of any charge or inquiry in relation to the allegations.
Mr V denied generally any of the allegations of physical abuse or threats, including a threat of a sexual assault and seemed to me to be generally unshaken in relation to that in cross-examination. I would note, however, that he did appear to be somewhat uncomfortable in the witness box, though that is not an uncommon situation.
Mr V is clearly supportive of his sister. He noted the difficult interactions that she has with her sons, and in particular, the child, [X], and when asked about verbal abuse by both [X] and [Y] of the mother, indicated that he had heard both of the boys on various occasions, but perhaps more regularly out of the mouth of [X], make statements such as, “she was a slut,” and numerous other things which he did not elaborate upon but which seemed generally to be acknowledged as being abusive and foul references made toward the mother.
He was asked how the mother reacted to such statements being made to her and I think perhaps as an understatement, simply indicated that she was hurt by what had been said by the boys to her.
I was generally impressed with Mr V. No doubt he was outraged to be in a situation where allegations of such a serious nature were made in respect of his behaviours. I note, as I did earlier, that no charges have been laid in relation to the matter and the most common indicators in material involving authorities investigations with regard to these children is that there is a general lack of evidence and lack of basis upon which there can be any substantiation found, in relation to the allegations.
I was assisted by Mr V’s evidence and would think that he was in a difficult situation, a supportive brother and uncle to the mother and children, the subject of these proceedings.
I turn then to the evidence of the parties. The father is 53 years of age and the mother is 37 years of age. The parties were in a relationship for a period of about 16 years, though it should be noted that at the time that they commenced their relationship there was, proportionally, a very significant age gap, the mother being 17 years of age and the father 34 years of age.
That age gap would be a significant factor in respect of the type of relationship that developed between the mother and the father, because, quite simply, it would be a case of the father having had far more worldly experience than the mother and there being, no doubt, a reliance by this young girl, at the commencement of their relationship, upon the experience and advice of her partner. In my assessment, that would have been the commencement of what might in one respect be described as, a power imbalance between the mother and the father and that is something that has continued through and into the relationship just prior to separation, as well as from 2009 to the present time.
The parties, however, had their three children and no doubt experienced many good times during the relationship up until it would appear 2005, when the relationship deteriorated. The mother described in her material and recounted to Dr J, concerns about family violence as well as actual physical violence being perpetrated upon her during the relationship, and whilst indicating to Dr J that it was a recurrent theme during the majority of the relationship, it appears clearly to have indicated that domestic violence and intimidating, harassing and overbearing actions on the part of the father, increased significantly from 2005 onward, and according to the mother certainly from a psychological or emotional perspective, have continued subsequent to separation.
The father’s position in relation to the matter was more direct, in that he indicated that the mother had been a good and responsible mother up until about 2005 and that thereafter her behaviours and attitudes had altered, such that he was critical of her parenting and her behaviours generally.
Unfortunately such views held by the father appear clearly to have been communicated to the children, he indicating in his own evidence that when the children, or certainly [X] had inquired about the difficulties in the relationship and the separation that had occurred, he advised the child that his mother, “had been a good woman”. The father’s failure to realise that making such a statement, clearly indicated that there were changes of a negative character, in relation to the mother being communicated to the child, does him no credit and reflects either upon a total lack of insight as to the effects of his behaviours upon the children or even more seriously a direct knowledge or understanding on the part of the father that words and thoughts can cut like knives.
To have made such a statement to the boys or to [X] would clearly have a deleterious effect upon the boys’ relationship with their mother, specifically when it is clear that the boys’ relationship with their father is one, which was described by Dr J as being almost, “an idealisation of the father”.
I do not intend to specifically address all aspects of the evidence of both the mother and the father in these proceedings. Their evidence went over a considerable period with the father in the witness box for over a day, as was the mother. What is perhaps more appropriate is simply to note a few of the behaviours and actions of each of the parents and to comment upon then.
The father loves his children dearly. Very clearly, the boys at least, return that love and affection and it appears noted by all, including the mother and Dr J, that the boy’s relationship with the father is one of perhaps, over enthusiastic idealisation. The father can do no wrong in the boys’ eyes but what that means is that they have a “rose-coloured view” of their father’s behaviour and correspondingly, a very negative view of what their mother might or might not be doing.
The father was critical of the mother’s parenting. I have already commented upon the issue that arises from his statements with regard to the mother having, “been a good woman.” What the father also sought to emphasise, however, was that the mother was unable to discipline or control the children and that appears characterised by the appalling behaviour and language displayed by [X]. What the father unfortunately seemed entirely unable or unwilling to realise was, that to a significant degree, if not entirely, it was a result of his behaviours and actions, as well as inactions.
The father knew of the way the boys spoke to the mother. The father appeared through acquiescence, to encourage such behaviours and that was commented upon by Dr J, as well as by the mother. Tragically, [Z] appears to have seen it and commented to Dr J about the reactions of the father when the boys talked about their misbehaviour and swearing in the presence of and directly to the mother.
The father seemed determined to suggest that, if he said nothing about that, that he could not be held responsible for the behaviour of the boys. Such a misguided view is troubling in the extreme, because it reflects on the father’s lack of appreciation of his influence upon the boys and his responsibilities, in relation to the parenting of the children.
The father’s suggestion, that he was able to control the boys and to act appropriately in relation to their discipline, though, in fact, discipline was not really necessary, was also troubling. The father’s acquiescence, as I have indicated, was no more strongly shown than on the Tuesday evening, following the second day of the trial.
The child, [X], had not gone to school for those two days. Whether the father was or was not aware of that is unclear, but what is clear is that the parents, in conjunction with their legal representatives, agreed that the previous arrangement with regard to the father spending time with the boys on a Tuesday would not occur, because of the fact that they were all to come home from court after a long day, and that it would be impossible to make any real arrangements for the father to spend time with the children, other than for a few minutes, and an alternative arrangement, which was agreed to be put in place, would occur.
When the mother, at about 6 pm, advised the boys that that was what was to be the case, the boys reacted in a most inappropriate manner. They indicated that they would go to their father’s and it would appear when the mother went off to the bathroom shortly thereafter, the boys simply left the home and either made arrangements to get to their father’s residence or contacted their father to collect them. The father did so and texts were then sent to the mother indicating that he would provide them with dinner and bring them home.
The father seemed to believe that this was an indication of his control and of the boys’ obedience to him. I could not disagree more. In my view, it was one of the most telling examples of the fact that the boys were “the tail wagging the dog”, rather than the other way around. The boys left their mother, contrary to the agreement that was reached between both of the parents. It was clear that the father either chose not to or failed entirely to realise that the boys were acting in complete defiance and disobedience of his direction, in relation to the matter.
More telling, however, was the fact that their defiance of the mother and their failure to obey the agreed course of both of their parents, resulted in them again achieving exactly what they had hoped to achieve. They got time with their father contrary to their mother’s wishes, notably, however, contrary to their father’s express wish and he did nothing about it. He allowed the disobedience to occur and then seemed to suggest that it was him who was able to control the boys.
That, along with many other similar examples, gave me real concern that the boys and particularly [X], were the puppet masters in relation to this matter and that, as the father was perfectly happy to see the boys behaving in a manner which would, he hoped, eventually result in them coming to him, he did nothing to control such behaviours.
I seriously doubt that the father’s ability to control the boys’ behaviours, and in particular the behaviours of [X] would continue with such ease, if the boys and again particularly [X], were to be in his full-time care for any significant period of time. The position with regard to both of these boys and their future, but more particularly if with the father, is one that gave rise to very real concerns about future expectations, in relation to where their lives might end up
Dr J expressed similar concerns in relation to the children and I must say that my very real impression was that the father’s failure to appreciate in any way, the out-of-control spiral of [X]’s life especially, was a matter of very great concern. The father had no appreciation of the harm that was being caused to this boy by the behaviours of both parents, but particularly as a result of the father’s lack of appreciation of his responsibilities as the adult in the relationship. The future does not bode well for these boys, particularly [X], unless radical steps are taken with regard to change.
As I said, I have no doubt as to the father’s love and affection for the children and in particular the boys love and affection for him, however, I am overwhelmed by the concerns that I have in relation to the parenting of the father and the long-term effects upon the boys. The impression I gained was that the father had either no insight into his behaviours and their effects upon the children or, as I have indicated, was determined to achieve his own goals and knowingly behaved in the manner that he did, acquiescing to the boys’ bad behaviour and encouraging, either overtly or covertly, their disrespectful, arrogant and disruptive behaviour in the mother’s house and by extension, at school and in society generally.
The evidence presented in relation to [X]’s school behaviour and his attitudes in relation to women, as well as making various racist and homophobic comments do not bode well for the future and are without doubt a direct result of the lack of any control or appropriate guidance provided by the father, in relation to such matters. The father relied upon the suggestion that he did not know what was going on in relation to much of the children’s lives and particularly in relation to the extreme difficulties that were being experienced by the mother in relation to [X] as well as [X]’s school, in relation to his behaviours and attitudes.
He relied upon a lack of knowledge and a failure of others to inform him about such issues. The fact is, of course, that the orders that existed at the time were in relation to equal shared parental responsibility and it was not simply the responsibility of the mother or the school to advise the father about such matters, but the father had a direct responsibility to assess the child’s progress and to be proactive in relation to obtaining information with regard to all of the children’s progress, but in particular addressing issues in relation to the out-of-control spiral that appears already to have overwhelmed [X], in relation to his attitudes and behaviours.
The father’s suggestions, therefore, that his parenting was exemplary fall so far short of the mark that it is troubling that such a suggestion should even be made by the father when commenting about his relationship with the children and his parenting of the children.
The mother loves the children but her relationship with them and especially [X], appears to be an extremely difficult one. It is a problem that appears enhanced by the influence of [X] upon his younger siblings. The clear impression that arises from much of the material, is that [X]’s disruptive and disrespectful behaviour, within the mother’s household, is affecting [Y].
For example, noted by Dr J, but also commented upon by Ms G and
Mr V was that [Y] also had spoken to the mother in disrespectful and inappropriate ways. That could only be the result of [X]’s influence, particularly when it is noted that the mother’s unchallenged evidence in relation to the last two or more years of having the children primarily in her care, is that the two younger children are generally acquiescent and compliant in relation to arrangements, with regard to the conduct of the household.
It is clear, however, that [X]’s behaviour is nothing short of appalling. The mother indicated that on an almost daily basis, there were difficulties in getting the child out of bed and his general response when she tries to get him moving in the morning, because the whole family has to get moving for school as well as attending at the mother’s work, is to respond to the mother when she wakes him with the words, “Fuck off, bitch.”
Tragically, the younger siblings must be influenced by this behaviour. One could not imagine that [Y], in particular, would not start to form the view, if he has not already done so, that he can get his own way through rude, abusive and overbearing behaviours.
The actions of [X] in the mother’s household were described by both Dr J and Mr V as being a situation that might be seen as wearing the mother down. I could not imagine a more obvious consequence of the behaviours of [X] and it must be an almost daily challenge for the mother to engage again in her attempts to provide parenting and direction for a young man so off the rails.
It must be an even more difficult task for her when it is clearly indicated in every respect, that the father takes no real responsibility in relation to seeking to control such behaviours and, in fact, to all intents and purposes acquiesces in such behaviours and through such acquiescence, encourages such future behaviours.
The mother is not without blame, however, and whilst similar to the evidence of the father, I do not intend to explore and comment upon every aspect of the behaviours of each of the parties, it is clear that there have been failings on the mother’s part. Her decision at Christmas time 2012, to holiday with her family in Queensland is perhaps understandable, but one must be concerned as to the appropriateness of the course that was taken by her.
She had her solicitors communicate with the father’s solicitors on 11 December 2012 about a wish to change arrangements, in relation to time to be spent by her with the children at Christmas time. The father’s solicitors responded three days later with an indication that he was not willing to make a change in relation to the time and that he expected the arrangements, pursuant to the previous orders, to occur.
There was no further correspondence by the mother’s solicitors in relation to the matter and one can only assume that that was because the mother determined either not to further engage their services, commenting regularly about the costs that she was being asked to incur, or determined that she would simply act in the manner that she had previously decided, which was to absent herself with [Z] from Melbourne and, therefore, not spend time with the boys.
The mother did indicate that she may have sent a text to the father, but whilst there was obviously opportunity for that to be sought out, no such evidence was provided and I am more inclined to the view that, perhaps because of the wearing down to which I have already referred, the mother simply did not further pursue the issue in relation to a change of time with the boys, but absented herself. Thus not spending Christmas Day with the boys.
That might be understandable, but it also fails to appreciate the effect upon these two boys. Whatever their behaviours towards the mother might be, and I have already commented that in many respects it is a disgrace, she is their mother, she is the adult, and the decisions to be made in relation to parenting are those for which she is responsible. A failure to spend time with the boys could easily be interpreted by them as a lack of desire or wish on her part to further a relationship with them, particularly on a day so important as Christmas Day.
Unfortunately, I do not doubt that the father would have encouraged such a belief on the part of the boys and that it would have been emphasised to them that they had the opportunity for time with their mother, but that she was not interested or willing to involve herself. The mother’s desire to spend time with her family was understandable, but at least in this instance, it is clear that the decision that she made in relation to the children was not one that was entirely child focused, but more centred on her own needs, perhaps for some support and a break from the difficulties inherent in attempting to parent these children.
The mother indicated that she had not punched [X] as he alleged, but at least on one occasion, had brushed shoulders with him on an intentional basis, following an exchange between them. She has also raised her voice and on occasion, she says, used words such as, “bloody hell” or “Jesus Christ”, in her exchanges with him. One can easily be critical of such behaviours but when fully aware of the disgraceful abuse perpetrated upon her, particularly by [X] and with the encouragement, as I say, overt or covert, of the father, one cannot be overly sensitive to an outburst on occasion, particularly as it appears clear that the mother is, on some instances, simply drawn down into a situation of depression and distress.
The mother loves these children. If she did not love her boys as dearly as she does, she would not be here in the Court fighting for what she considers to be in the best interests of the boys. As Dr J so appropriately noted in his evidence, an easy out and the comfortable way to deal with the difficulties that the mother is currently experiencing would be to give up on the boys, to allow them to live with their father and to have a far more quiet and settled life than is available to her.
The mother’s determination to provide for the boys in a way that she says will ensure that they grow up to be the best young men and young adults that they can be does her nothing but credit.
Whilst there may, on occasions, be instances where, from the outside looking in, criticisms could be made of her behaviour, I am very much of the view that the mother’s attitude to the responsibilities of parenting and her recognition of the importance of her role in providing guidance and direction for the boys so far outweighs the father’s attitude to parenting, that there is no comparison in relation to such matters.
The real tragedy here, and I commented upon it at the conclusion of the proceedings, is that the two most important people in the lives of these three young children have been determined to achieve what they consider to be best for the children and the children have been, as a result of that acrimonious and continued exchange, the collateral damage to the relationship breakdown between the parents.
I was far more impressed with the mother and her understanding of the needs and behaviours of a parent than I was of the father. The mother has certainly, on occasions, reacted poorly to the behaviours of the children and to the actions and encouragement of the father, but it is clear that she, despite the horrendous difficulties that have been thrown up at her, has continued to fight for her children and for what she considers to be in the best interests of the children. The mother’s actions, therefore, cannot be lauded more highly.
Significantly, I would also find that the mother was generally a more forthright and honest witness than the father. I am certainly inclined to the view that where there is conflict as between the version of particular incidents given by the father or by the mother, that the mother’s version would be a far more accurate and honest recitation of what occurred than would be the father’s view, which would be couched very much in terms of what he wished to achieve through the evidence that he would give.
EVIDENCE: THE FAMILY REPORT WRITER
I need, obviously, to comment upon the evidence of Dr J, as contained both within his report of 8 November 2012 and his oral evidence given in this matter. I note that counsel for the independent children’s lawyer, at the very commencement of submissions, indicated that the independent children’s lawyer’s view had been reinforced following the hearing of the evidence and in particular, consideration of the evidence of Dr J.
Counsel indicated that the evidence of Dr J was, in the assessment of the independent children’s lawyer, thorough, considered and compelling. I could not agree more wholeheartedly. In my assessment, the evidence of Dr J given in relation to this matter, was of the highest calibre. He was clearly a most expert forensic psychologist, having been involved in both studies and practice over a significant period of time, giving him insights and appreciations of the family, which were of particular assistance.
Dr J’s report was of very great help in assisting in the assessment of the parties. For example, at paragraph 10 under the heading, ‘The Adults’, Dr J says the following:
Mr McGregor arrived early to his appointment. He presented in casual attire and bearing a crutch (owing to recent knee surgery). There were no obvious signs of major mental illness apparent from his presentation – he exhibited logical associations and euthymic mood. Consultation with Mr McGregor was somewhat challenging, owing to his manner, domineering pattern of engagement and tendency to become tangential discussing certain topics. In fact, elements of his presentation, particularly his tendency to be overly concrete and holistic about certain issues, raised concerns about his level of honesty during the interview.
The assessment of Dr J, encapsulated in a few sentences, exactly what I would find in relation to the father. He was a domineering man and as I noted earlier in these reasons, I have absolutely no doubt that at the commencement of the relationship between a 17 year old girl and a 34 year old man, the position taken by the father would be that he was older, more experienced and therefore, best able to decide the direction of their family and that that would be what would occur.
Dr J’s assessment of the mother, again, was reflective of my own impressions in relation to the matter. He noted that:
She engaged well throughout the consultation and appeared to be participating in a transparent manner.
Dr J explored with both parents but particularly noted exploring with the mother, issues in relation to concerning patterns of behaviour in relation to the children. He notes at paragraph 20 as follows:
She described that the eldest child, [X], had exhibited aggressive behaviour – mainly towards her (but also towards other children at times), that he was emotionally aloof with her, he would often refuse to engage in conversation with her, and he was frequently verbally and psychologically abusive towards her. She provided several examples of these behaviours, including a recent incident in which [X] pushed her down stairs after she tried to confiscate [Y]’s iPod. She described that often in the morning when she would try to rouse [X] to get ready for school, he would simply respond with “get fucked bitch”. She also reported that [X] had recently been suspended from school – the latest in a series of sanctions relating to problematic behaviour.
Dr J was able to comment about the effects upon the mother of such behaviours, primarily from [X] but also, it appears on occasions, exhibited and displayed by [Y] and at paragraph 23, commenting upon the means by which such behaviours might be addressed, noted:
Ms McGregor was pessimistic about the prospects of co-parenting effectively in the future. She indicated that she would prefer the children have a relationship with their father, but not if it is detrimental to their longer term well-being. In turn, she did not provide any examples of how she had actually promoted the children having a relationship with their father. She reported that the communication between the parents has essentially ceased, save very infrequent text messages relating to practical arrangements for the children. She described that when [X] and [Y] are with their father, she is not able to contact them by phone. She also described that [Z] had recently ceased spending time with Mr McGregor, apparently refusing to attend the visits enshrined in the parenting orders.
Dr J noted a family in conflict and under the headings with regard to children and their relationships, spoke about his observations and opinions in relation to [X], [Y] and [Z]. Dr J also spoke about his observations of the parents’ interactions with the children and commented in that report, but also in his oral evidence about concerns with regard to the interaction between the children and their mother, as well as the interaction with their father.
Dr J’s evidence was most impressive in relation to this matter. His evaluation of the family unit is telling. In paragraphs 40 through 52, he says the following:
40.Mr McGregor and Ms McGregor are currently in dispute regarding the parenting arrangements for [X] (14), [Y] (10), and [Z] (8). Mr McGregor maintains that it is in the best interests of the children to live with him, at the home in Property S that was once the marital residence. The respondent mother, Ms McGregor, has asserted that the children should remain living with her, as they have done for several years now.
41.Interviews conducted as part of the present assessment were problematic for a number of reasons. In particular, it appeared that Mr McGregor and the two oldest children had a pre-determined interest in presenting in a certain manner. They were wholly negative about Ms McGregor, unable (or willing) to see any positives that she may present with, and prone to minimising their own misconduct while questioning that of their ex-partner/mother. In total, they impressed with questionable sincerity, and while such information will obviously require testing, they are not viewed here as behaving candidly during interviews.
42.It is apparent that the relationship between the parents became particularly difficult in the latter stages, from 2005 onwards. Both parties acknowledge that there were periods of separation, conflict, and diverging social interests. It is likely that the substantial age difference exacerbated the challenges within the relationship. Separation was acrimonious, and is likely to have left the parties with an ongoing degree of ill-will, mistrust, and animosity (particularly in the case of Mr McGregor).
43.Further to the above, there is substantial evidence of physical violence within the relationship. Upon his own admission, Mr McGregor “grabbed” his then wife on at least one occasion in an aggressive manner, though in all likelihood this was part of a broader pattern of intimate partner violence. Police attended on multiple occasions to intervene, and Ms McGregor has repeatedly taken the step of pursuing Intervention Orders. Since separation,
Ms McGregor has claimed ongoing verbal and emotional aggression via telephone and text message, though direct evidence of this harassment was not sighted.
44.Mr McGregor has raised concerns about the children’s safety while in the care of their mother. This appears particularly oriented around physical aggression and neglect. Upon consultation, there was no substantial evidence that the children are being abused while in the care their mother. Their presentation was not marked by the hallmarks of a neglectful home environment, such as being underweight, dishevelled, unclean, or unkempt. Although there is some evidence that Ms McGregor’s brother has been involved in the physical discipline of the children, this does not appear to have continued. DHS have apparently not deemed the situation critical enough to become actively involved. Perhaps the most telling piece of information that dispels any idea of abuse was provided by [Z], arguably the most reliable of all people interviewed, who reported the
Ms McGregor does not use corporal punishment with the children. Therefore, while it cannot be ruled out conclusively, there is little information to support Mr McGregor’s claims that the children are being mistreated while in the care their mother.
45.It is clear that there are substantial behavioural concerns relating to the two eldest children. At the most fundamental level, it is alarming that they refer to their primary caregiver, and biological parent, as a “dog”, “slut”, “whore”, and “bitch”. They have also demonstrated behaviour towards their mother during observations that was profoundly disrespectful and quite disturbing to observe. Physical violence too has started to emerge towards Ms McGregor, with some recent examples of both boys acting physically towards her mother. This behaviour has been described by Ms McGregor herself, but importantly, it is also been described with some level of detail by the youngest child in the sibship, [Z]. [X] has exhibited further conduct difficulties while at school, which has resulted in several sanctions including a recent suspension. While there are some interventions in place for the children, including a youth worker from Child First (who is assisting with [X]’s behaviour), a substantial level of treatment is required if the current trajectory of misconduct is to be addressed.
46.Behavioural issues in children are not uncommon, particularly when the children are in late-childhood and early-adolescence. However, behavioural disturbances that are so alarmingly spiteful and targeted towards one parent (particularly when the other parent is idealised), raises questions regarding aetiology. Undoubtedly, complex behaviours of the type noted here tend to be multiply determined by a range of factors, though the very strong opinion here is that the children have been supported in their abuse of their mother by their father. In short, Mr McGregor does appear to have knowingly and deliberately attempted to disaffect the children from their mother. There is little other explanation for how the older two children have come to so holistically portray rejection of their mother, while at the same time, venerate their father. It is likely that he has toned down this behaviour in more recent times, now that there is a degree of professional involvement with the family, meaning that his endorsement of the children’s disturbing behaviour towards their mother has become more passive and subtle (i.e. laughing or an amused look). His refusal to openly challenge [X] and [Y] when they speak in a demeaning manner about their mother is evidence of his complicity. In addition, he also appears to have modelled certain behaviours for the children during his relationship with Ms McGregor, which further compounds his more recent efforts to undermine their relationship with their mother. Overall, it seems incredulous to suggest that Mr McGregor has not played a role in how the children have come to treat their mother.
47.In light of [X] and [Y]’s fundamental rejection of their mother, which has included an ongoing pattern of verbal abuse and cold/contemptuous interactions, it is questionable whether the current parenting arrangements are best for the children. That their egregious behaviour towards their mother has continued over 2 years suggests that the current parenting arrangements have not had the desired effect of containing the difficult parenting dynamic. Therefore, the options that remain are that (i) the children’s contact with their father be constrained further, and/or contingent upon Mr McGregor undergoing treatment or being supervised, (ii) that the children’s time with their father be suspended for a period (i.e. minimum of 6 months) to allow him to develop strategies to reverse the difficult behaviour in the children, or (iii) the children are placed in the substantive care of their father, and continue to have weekly/fortnightly time with their mother. None of these options are particularly palatable, and each will almost certainly carry a number of predictable (negative) consequences. Should the first of these options be entertained by the Court, it is likely to result in the children blaming their mother and becoming further resentful. They would also continue to have some contact with their father, which appears to be salient in perpetuating the difficulties noted. It may, however, minimise the sphere of influence surrounding Mr McGregor. The second alternative would perhaps reflect the degree of seriousness inherent in the current matter, and the overwhelming concern held for the children at present. It would allow time for the children to focus on their relationship with their mother without the ambient influence of their father. It would also provide a point of aspiration for Mr McGregor in terms of addressing his difficult parenting practices. In the Consultant’s opinion, it is the preferred option. The third possibility would be a recognition that the situation between the older boys and their mother has become too entrenched and too insidious to continue. Assuredly, it is an undesirable option and would potentially reinforce and embolden Mr McGregor, though it would remove the children from an environment that is quite dysfunctional, and allow them to focus entirely on their social and educational development. It would unfortunately place them in an environment where demeaning and aggressive behaviour towards women appears replete, which will certainly have ramifications for the boys when they become young men (and eventually enter their own relationships).
48.Appropriate consideration has been given to the merit, or otherwise, in parenting arrangements that separate the sibling group. However, it is recommended that, should the Court pursue an option in which the older children transition to their father’s care, [Z] would benefit from continuing to live with her mother. Although there is some possibility that this will result in a dislocation between the siblings – should [X] and [Y] ultimately live with their father – this would be offset by the fact that there is already some fracturing of the sibling relationship along gender lines. If there is a separation of the siblings, regular contact between them will be important to maintain the relationship.
49.Mr McGregor requires professional intervention. Even if his denials during interview are to be accepted, he has still acknowledged a number of behaviours that do not serve the children well. Therefore, at an absolute minimum, he requires intensive parenting skills treatment designed to assist him with gaining insight into how these behaviours influence the children, but also on basic behavioural principles. In addition, there may be merit in Mr McGregor completing a men’s behaviour change program, in order for him to address his attitudes towards violence and his tacit approval of his sons’ behaviour towards their mother.
50.Regardless of which parenting arrangement is implemented by the Court, it is recommended that [X] and [Y] both be linked in with a suitably qualified practitioner for intervention around the behaviours of concern. Although [X] is currently linked in with the youth worker, an additional level of intervention, perhaps via a clinical psychologist, would be desirable given the level of behavioural disturbance. Similarly, a substantial intervention for [Y] is required, beyond the post separation group work that he has completed already.
51.It appears that other parties have had some involvement with the children at times in the past, namely
Ms McGregor’s brother. It is understandable that she has sought support from other adult males in managing the children. Notwithstanding, this has been something that has evidently not resulted in long-term benefits, and in turn, it should be constrained in the future.
52.Unfortunately, the current matter appears to be a situation in which the parents will never engage collaboratively in relation to the children. It is possible that this may one day come to disadvantaged the children if, for example, there was some fundamental dispute about schooling, hobbies, school camps, religion, medical treatment etc. As a result, shared parental responsibility is problematic, and the Court may need to consider the appropriateness of this continuing given the issues identified here. Should the children continue to live with their mother, she would logically assume responsibility in this scenario.
I could not agree more with the assessment and evaluation of Dr J. He was questioned about that evaluation and his subsequent recommendations in the report. He noted in particular that when looking at the various alternatives that might be able to be put in place with regard to the parenting of the children, that there were various factors to be weighed up. He noted, for example, the “easy out” that the mother might have had if she were to suggest that [X] and perhaps also [Y] were to live with the father and that he had also given thought to that but then said:
I had to weigh it up. My feeling was that the pattern of the boys’ time with their father gave a mechanism for things to go wrong.
It was the first confirmation of the concerns that Dr J had about the father’s direct influence upon the boys and their behaviours, as a result of that support of the father. He was asked also about the mother’s acknowledgement that she had yelled at the children, had used some bad language directed toward them, and it was put by counsel for the father that if, in fact, she had behaved in that way and had, in fact, struck the children, that it might explain the determination expressed by the boys to live with their father.
Dr J, I think in a most considered response, indicated that if that was the case and that the mother was the arch manipulator and untruthful witness that was being suggested, then it would explain the children’s determination to live with their father, and that their reactions would then be understandable. But he then went on rather significantly to note that he wasn’t convinced that that was the case.
His impressions in relation to the boys was similar to mine, in that they were encouraged to behave in a certain way, either through direct manipulation by the father or through acquiescence inferred from his failure to chastise them or correct such behaviours, and that as a result of that, they were setting out to achieve goals and were simply telling tales and exaggerating instances, far beyond what had actually occurred.
Interestingly, Dr J comments in relation to the inquiry by [X] at the end of the video, and audio recorded evidence tape, about whether the police were going to do anything more was not, as was suggested, a show of frustration but rather an indication of this young man showing little respect for authority and seeking to achieve what he wanted to gain, which was the right and the opportunity to live where he chose which happened to be, at this time, with the father.
Dr J said that he did not agree that it was a cry of frustration by [X] at the end of his interview with the police officer when asking what might be done, but rather the child actually seeking validation for what he wished to achieve and could be more easily interpreted as simply a call by the child that, “Can I now go and live with my dad.”
Whilst Dr J was accepted by counsel for all parties at the commencement of his evidence as being an expert whose opinions could be relied upon, he was challenged in relation to the basis upon which he had made his assessments in relation to the family dynamics and, in particular, it was suggested by counsel for the father that Dr J had been influenced in his view of the father, by the comments that had been made by O’Dwyer FM in the previous decision.
Dr J, I thought, gave a most professional and proper response in relation to that, explaining his obligations as a professional and the inquiries that he had taken. He noted that it was to the forefront in his mind that it would be necessary to account for his views and opinions. He noted that the evidence that is relied upon in relation to such determination of views and opinions comes from a whole range of resources including, not only the affidavit evidence of the parties as well as their oral evidence during interview, but from documents that were produced, either by way of subpoena or otherwise, and that all such matters, including the reasons of O’Dwyer FM on the previous occasion, would need to be looked at, but would then need to be professionally examined in a methodical and appropriate way.
Dr J noted that he tried always to maintain his objectivity, and I should note specifically here that I have absolutely no doubt whatsoever as to the professional and appropriate role that was taken by Dr J, in relation to the assessment in respect of this matter.
Dr J was asked particularly about the evidence that had fallen during the trial relating to the disobedience and appalling behaviour exhibited by both the boys, but particularly [X], in the mother’s household and the contention by the father that he did not have such difficulties and, in fact, had no problems whatsoever with discipline and control of the boys. Dr J was definite in his response when he indicated that he did not accept that that was the case. Rather, he said that he believed that the boys had an idealised view of their father and that they therefore did things to placate him.
He noted, however, that behavioural issues in the mother’s house not occurring in the father’s house was not a reflection of the mother’s lack of ability to discipline or control the children, but was rather a reflection of the boys’ determination to achieve a goal, in other words to live with their father, and that, therefore, the behavioural issues that the mother was forced to deal with on a daily basis did not arise in the father’s house, simply because there were a different set of goals sought by the boys in the father’s house.
The fact that they did not misbehave as they did in the mother’s care was no reflection, therefore, of the control and discipline that the father had over the children but rather, perhaps, a reflection of the children’s wish to placate and satisfy the father that they had behaved in an entirely different way at the mother’s home. I agree with that assessment in relation to the children’s behaviour.
Dr J also was asked in various ways and by various counsel about the possible improvements that might occur in relation to the children’s behaviour, and particularly the boys’, if they were able to get their own way and, in other words, to live with the father. He said, tellingly, that for the parents or the Court to acquiesce to the behaviours of the boys, allowing them to achieve what they want, would only reinforce with them the belief, already perhaps apparent with [X], that bad behaviour achieves goals and that there is no need to act in a respectful and appropriate manner.
Dr J noted that there already appeared to be with [X], entrenched antisocial and anti-authoritarian views and that they went far beyond what might sometimes be expected as simply, teenage acting-out.
Dr J also commented about the future behaviours of the boys if they did not get their way and be able to live with their father, and noted that there was perhaps a far more expansive view that needed to be looked at, than simply the boys getting their own way and, therefore, starting to behave. He indicated, perhaps in line with the concerns about already entrenched anti-authoritarian views and behaviours, that there would be, he thought, potential effects on a future for the boys and that those effects would be that they would not be settled and stable members of our day-to-day society, but rather would be at the extremes.
Dr J noted in his interaction with [X] that the child was, as he put it, domineering and obstinate. He indicated further, that in his view it was a situation of [X] in particular displaying an abject disregard of authority and that that certainly did not auger well for the future.
I was most impressed with Dr J’ evidence in this matter. As was indicated by counsel for the independent children’s lawyer, Dr J was a considered and compelling witness. His consideration of the behaviours of the children, particularly [X], and the causes of such behaviour, as well as the future effects of such behaviour was telling in relation to this matter. I have no doubt that Dr J, at length, considered the various alternatives and means by which the future best interests of these children could be achieved, and that, being mindful of the behaviours of each of the parents, and perhaps the personalities of each of the parents, the considered view of the children living with the mother, and that there be a moratorium of some significant time with the children’s interaction with the father, was an appropriate and proper consideration. I was most assisted by Dr J’s evidence in relation to this matter.
THE LAW - PARENTING
I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, is the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the children. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010. His Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented through from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136] The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137] Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138] But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139] The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140] No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141] The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142] Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143] “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144] Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145] Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146] Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147] A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148] The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149] If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150] The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151] An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152] Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
DISCUSSION – PARENTING
Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.”
Exactly that situation arises here. The difference between Lansa & Clovelly and this case, however, is that there was some indication that the report writer in that case was hopeful that a decision about parenting would see an abatement of the conflict between the parties. There was also evidence in Lansa & Clovelly of the fact that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the child.
PROPERTY PROCEEDINGS
Before turning to those orders, however it is necessary for me also to address the issue of property settlement to be effected between the parties. As I noted at the commencement of these reasons, the parents’ positions in respect of property was based on the expectation of them being successful in their applications. In relation to property, the proposals of the parties were respectively as follows:
Father’s proposal
14.That the parties do all acts and things and sign all documents within 60 days to place the former matrimonial home located at Property S in the State of Victoria on the market for sale.
15.That the proceeds be divided as follows:
(a)Firstly to pay all costs and commissions of sale;
(b)Secondly to pay any outstanding rates and apportionable outgoings of or with respect to the property;
(c)Finally the balance divided 55% to the Husband and 45% to the Wife.
16.That there be a superannuation splitting Order for the sum of $6,000.00 to be transferred to the Wife from the Husband’s superannuation.
17.That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(d)each party be solely entitled to the exclusion of the other to all other property (including choses-in –action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the former matrimonial home deemed to be in the possession of the Husband);
(e)except as otherwise provided for in these Orders, each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;
(f)insurance policies remain the sole property of the owner named therein;
(g)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(h)any joint tenancy of the parties in any real or personal property is hereby expressly severed.
18.That the Wife pay the Husband’s costs of and incidental to these proceedings.
19.Such further and other orders as this Honourable Court deems appropriate.
Mother’s proposal
13.The Husband and the Wife sign all documents and do all things necessary for the sale forthwith, and by no later then (sic) 14 days after these orders are made, the real property situate at and known as Property S (“real property”) in the State of Victoria and upon competition (sic) of the sale, the proceeds of the sale be applied as follows:
(i)first to pay all costs, commission and expenses of the sale;
(i)secondly, to discharge the mortgage and any other encumbrances affecting the real property;
(ii)finally, from the balance thereafter:-
(a)the equivalent distributions to bring about 65% property adjustment in favour of the Wife; and
(b)the remainder to the Husband.
14.If the parties cannot agree on a reserve price then the President of the Real Estate Institute of Victoria is to set the reserve price.
15.The Husband immediately, and by no later than 14 days, vacate the real property to prepare it for sale;
(i)that the Husband vacate the real property in a clean and properly kept condition; and
(ii)that the Wife be able to attend the property to clean and attend to gardening and any other maintenance issues that may be needed to be attended to prior to sale.
16.The parties hold their respective interests in the real property upon trust pursuant to these orders:
(i)neither party encumber the real property without the consent in writing of the other party.
17.Unless otherwise specified in these orders, save for the purposes of enforcing any moneys due under these or any subsequent orders:
(a)each party be solely entitled, to the exclusion of the other, to all other property (including property in possession of such party at the date of these orders);
(b)except as otherwise provide din these orders, each party forego any claims they may have to any superannuation benefits falling into or earned by the other;
(c)insurance policies remain in the sole property owner named therein;
(d)each party be solely liable for and indemnify the other against any liability encumbering any item or property which the parties are entitled pursuant to these orders; and
(e)any joint tenancies of the parties in any real or personal property or estate is hereby expressly severed.
18.That the superannuation entitlements of the Wife and the Husband be divided as follows:
(a)50% to the Wife;
(b)50% to the Husband;
(c)That there be a cash adjustment of $6,000 rather than a superannuation split.
19.Pursuant to s.106A of the Act, the Principal Registrar of the Court is appointment (sic) to execute any deed or instrument in the name of a party who has refused or neglected to comply with a direction or my orders and the Principal Registrar shall do all acts and things necessary to give validity and operation to the deed or instrument.
Child Support Orders
20.That pursuant to Section 116(1)(b) of the Child Support Assessment Act 1986 (“Cth”) the Court depart from the administrative assessment in the special circumstances of this case.
21.That the Husband be ordered to pay to the Wife the outstanding child support arrears in the amount of $10,107.23, and any further accumulated arrears, from any property adjustment made to the Husband.
22.That the Court Order a lump sum payment to the Wife with respect to child support upon the Husband concluding his County Court of Victoria personal injury matter commencing on 11 April 2013.
Other Orders
23.Costs of an incidental to this proceeding.
The situation changed slightly however at the conclusion of the hearing when, by consent, it was agreed that notwithstanding whatever might be the final outcome in relation to property settlement, that steps be taken to place the property at Property S on the market for sale, and for the distribution of proceeds of any sale to be effected in accordance with an agreed formula.
The wife’s legal representatives have provided to the court a table of assets and liabilities that they say should be utilised for the purposes of determining an appropriate distribution of property between the parties. The legal representatives for the husband did not specifically provide any asset or liability line different to that proposed by the wife at the time of submissions, though in the Case Outline filed on 8 February 2013, a table of assets and liabilities which was generally in accord with what the wife suggested, was noted, with one particularly excepting being the inclusion of the wife’s loans and the husband’s legal fees. There does not appear to be any basis upon which that amount could properly be claimed and I am not satisfied that they should be included in the asset pool. It was also agreed, to the parties’ benefit, that the value of the former matrimonial home had increased in recent times and was accepted as being closer to $480,000 than the $430,000 used in original calculations.
THE LAW – PROPERTY
I will comment a little further in relation to the asset pool that I intend to rely upon, shortly, but firstly note that there is an accepted four step process required to be followed in relation to a property adjustment to be effected between the parties to a marriage. The line of authorities includes the following cases: Pastrikos and Pastrikos (1980) FLC 91-987, Whitely and Whitely (1996) FLC 92-684, In the Marriage of Clauson (1995) FLC 92-595, In the Marriage of Ferraro (1993) FLC 92-335, In the Marriage of Lee Steere (1985) FLC 91-626, Russell and Russell (1999) FLC 92-877.
DISCUSSION – PROPERTY
The first step therefore is to ascertain the pool available for distribution. What seems clearly to be agreed is the following:
The former matrimonial home $480,000
Husband’s motor vehicle 8,000
Wife’s motor vehicle 7,000
Husband’s shares 1,734
Part-property settlement received by wife 10,000
________
Total $ 506,734
––––––––
Also suggested for inclusion, at least from the perspective of the wife, is the cash payment received by the husband totalling $17,234, being a Table claim for his industrial injury, and a mortgage adjustment to account for the husband’s occupation of the residence without meeting his mortgage and other outgoing obligations in relation to the property. I am satisfied that both such amounts should be included as an add-back. The table claim is an asset available to the parties, though received by the husband subsequent to separation, and is a sum that should properly be included in any calculations.
I am also of the view, as was strongly argued on the part of the wife, that the mortgage on the property at the time of separation, was $278,479 and after the wife took a part-property settlement the total liability was $288,479. As a result of the husband’s occupation but failure to pay, it appears acknowledged that the liabilities attaching to the property will be in the vicinity of $300,000 for the mortgage and in that circumstance, the husband having had the benefit of the occupation of the property, should also bear the corresponding liability arising from the failure to meet the payments as and when they fell due. The further sum of $11,521 should be added back and I am satisfied that that is the appropriate course to follow.
The total therefore of the non-superannuation assets is $535,489, though the liabilities to be deducted seem agreed at a mortgage liability of $300,000. The equity in the non-superannuation assets therefore is $235,489.
The parties differed slightly in what they suggested was the value of each other’s superannuation entitlements but the most recent figures are those suggested by the wife, being $31,411 held in the husband’s name and $13,626 held in the wife’s name. For the purposes of this exercise I intend to adopt those figures totalling $45,037 as the superannuation available for distribution between the parties.
The next step of the four-step process to be followed is to determine the contributions of each party, both direct and indirect, to the acquisition and maintenance of the assets of the parties. At the commencement of their relationship in 1993, neither party had significant assets available to them and, during the relationship, contributed in accordance with their financial and physical capacities. Whilst I note that the father suggests that his contribution during the relationship was greater, as a result of him working full-time and the mother working on a casual or part-time basis, it is clear that each party contributed to the best of their abilities, and I would find that during the relationship the contribution of that nature was equal.
Additionally, however, the husband suggests that he made a significantly greater financial contribution as a result of the fact that he received, it was claimed, an amount of $225,000, though the best evidence would suggest that it was closer to $170,000, after costs and disbursements were deducted. The husband purchased, with the wife’s agreement, a [omitted] business, which in the end proved unsuccessful and therefore whilst such monies were received, the liabilities of the parties at the end of the relationship, did not reflect any significant reduction over and above the liabilities that would have existed without the receipt of the personal injury payout, or the unsuccessful operation of the [omitted] business.
I am satisfied therefore that there should be no adjustment made in relation to that financial contribution made during the relationship by the husband. In any event, the effluxion of time has eroded any benefit that would have been available to the husband by way of substantial contribution.
Following separation, the parties each at different times had responsibilities in relation to the children over and above the responsibilities of the other and I am not satisfied that post-separation either party made a contribution which would alter an assessment of an equal distribution in relation to what each party brought into the relationship or contributed to the relationship.
The third step to be followed is that which relates to an assessment of the future needs and obligations of the parties. Section 75(2) of the Family Law Act deals with adjustments that arise in relation to such issues and in this matter two factors loom large. The first relates to the husband’s uncertain medical future, noting in particular that the husband’s age and deteriorating health, particularly relating to his leg injuries mean that there are real concerns as to his future income-earning capacity. I acknowledge that that might be the case but am also of course aware, from the husband’s own evidence, that a compensation claim is on foot, and if unable to work in the future or to at least earn income equivalent to what he previously earned, compensation will be sought on that basis.
Whilst such a factor is a consideration to be looked at in relation to any adjustments in respect of property entitlement, I am not satisfied that I can find that there is so definite a basis to assess future needs that an adjustment in favour of the husband is appropriate.
The other factor to be considered in relation to the matter relates to the wife’s responsibility in relation to the primary care and provision for the three children of the marriage. They are presently 14, 10 and 9 years, and the wife will have the far more significant burden in relation to providing for the needs of the children now and into the future. Particularly when one is mindful of the fact that for at least six months and perhaps more, the wife will have the totality of time and therefore financial responsibility attaching to the children, and even thereafter, will have the vast majority of time and financial responsibility without any real expectation of significant child support or other financial support from the husband, it is appropriate that an adjustment be made in relation to those future obligations in favour of the wife.
The wife’s proposals in relation to property settlement were that there should be a 65% total adjustment in relation to assets immediately available, and an adjustment additionally, on a 50/50 basis, in relation to superannuation, though paid in cash in lieu of a superannuation split. A 15% adjustment, when one considers the section 75(2) factors, is appropriate in this instance, being mindful of the limited pool available for distribution and the unlikelihood of significant alteration to the financial circumstances of either of the parties.
The adjustment of 15% is appropriate in relation to the assets available for distribution. However, I am satisfied that an equal distribution of superannuation entitlements, providing some buffer into the future, is appropriate for each party. It provides for a greater sum to be available to the husband upon retirement, earlier than would be the case for the wife, but just as clearly, provides an opportunity for the wife’s future entitlements to grow and provide some security for her at retirement.
I was not initially of the view that there should be any adjustment in lieu of a superannuation split as was proposed by the wife. However, when considering a super split which would provide a slightly greater payment to the husband from available assets, and correspondingly a slightly greater superannuation pool to be retained by the wife, it became clear that there was no information available as to the husband’s superannuation fund or trustee, nor was there information as to procedural fairness having been afforded to that trustee.
It is perhaps understandable in the case of the wife that that would be what is proposed because she suggests simply that there should be a notional adjustment of $8,892 in lieu of the superannuation split. The father’s position was, however, to ask that there should be a superannuation splitting order, but his proposed orders, as well as his material, provided no information which would be required for the purposes of that properly being effected.
I am satisfied, therefore, that an adjustment as proposed by the wife, in lieu of a superannuation splitting order, would still be just and equitable, and most significantly would immediately bring to an end the financial relationship of the parties. I intend, therefore, to make orders which reflect an adjustment as proposed by the wife and the retention by each party of all superannuation entitlements held in their name.
Additionally, it should be noted that the wife proposed an adjustment pursuant to the provisions of section 116(1)(b) of the Child Support Assessment Act and for the court to depart from the administrative assessment currently in place. The proposal was supported by counsel for the wife in suggesting that there was no evidence of notice having been given to the Registrar of the Child Support Agency of an intention to seek a review, and that it was appropriate for a payment to be received forthwith.
From the husband’s perspective it was argued that whilst there were arrears, which the husband suggested totalled a little in excess of $9,000, it was premature to make a deduction or adjustment to the husband’s current entitlements when the husband’s opportunities to seek a review had not been fully examined.
I am not minded to make the adjustment sought by the wife in that regard. In my assessment, the debt, at least initially, is one due and owing by the husband to the Commonwealth, and if there is any adjustment to be made, then he is entitled to have that fully examined before the full force of payment should be brought to bear against him. The wife does not trust the husband to make the payment but, just as clearly, the husband is concerned that if an adjustment were made after payment had been made to the wife, then his likelihood of immediate recovery would be limited, and he, like the wife, would need to re-establish himself following this determination. I do not intend to make the orders sought by the wife in relation to child support.
Finally, a further adjustment was agreed by the parties in respect of the future needs of the children and the parents, to have therapy as a result of the difficulties they are experiencing and would, it appear, continue to experience into the future. Both notionally agreed that $15,000 would be an appropriate sum for such an adjustment, and I intend to deduct that from the asset pool to provide for support counselling for the parties and the children, with the parties obviously contributing equally to that amount.
The fourth step is to consider in its entirety the orders that are to be made and to determine whether they reflect a just and equitable distribution of the assets between the parties. The orders which I intend to make, reflecting a 65%:35% adjustment in relation to the realisable assets, after the deduction of the $15,000 to which I have referred, and a 50:50 split of available superannuation assets, subject to the adjustment referred to previously in these reasons, would mean that the wife would retain her motor vehicle, the $10,000 she received from the part-property payment effected in February 2010, and a payment of $135,209.85 from the proceeds of sale of the former matrimonial home.
The husband, receiving 35% of the realisable assets, would retain his share portfolio, his motor vehicle and the Table claim received by him, as well as the balance of the proceeds of sale of the former matrimonial home. He would also be released from any future adjustment required as a result of his occupation of the home following separation without having paid the entirety of the outgoings attaching to the property, including mortgage payments.
I am satisfied that this properly provides for a just and equitable distribution of the realisable assets available to the parties, and further am satisfied that, making no other superannuation split, results in each party retaining their current superannuation entitlements, with a more significant sum held in superannuation on the part of the husband, being just and equitable.
Accordingly, the orders of the court will be as outlined in the Orders section of these reasons.
I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Judge Coker
Associate:
Date: 24 May 2013
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