McIntyre and McIntyre
[2016] FCCA 2680
•21 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCINTYRE & MCINTYRE | [2016] FCCA 2680 |
| Catchwords: FAMILY LAW − Whether equal time reasonably practical – property. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DAA, 75(2), 79, 106A, 90MT(1), 90MT(2), 90MT(4) Family Law (Superannuation) Regulations 2001 (Cth), rr.12, 13 |
| Applicant: | MS MCINTYRE |
| Respondent: | MR MCINTYRE |
| File Number: | DGC 466 of 2015 |
| Judgment of: | Judge Phipps |
| Hearing dates: | 4 & 5 May 2016 |
| Date of Last Submission: | 5 May 2016 |
| Delivered at: | Dandenong |
| Delivered on: | 21 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr James |
| Solicitors for the Applicant: | Ross Legal Pty Ltd |
| The Respondent: | Appearing on their own behalf |
| Counsel for the Independent Children’s Lawyer: | Mr Whitchurch |
| Solicitors for the Independent Children’s Lawyer: | Robert Halliday & Associates |
ORDERS
Parenting
That the husband and wife have equal shared parental responsibility in relation to the children X born (omitted) 2006 and Y born (omitted) 2011 (“the children”).
The husband and wife make all decisions about major long term issues in relation to the children jointly.
That the husband and the wife are not required to consult the other when making decisions while the children are in their care under this order about issues that are not major long term issues.
That the children live with the wife.
That the husband spend time with the children as follows:
(a)Each alternate weekend from the conclusion of school on Friday or if Friday is a curriculum day then from 5.30pm that day until the commencement of school the following Monday save that should Monday be a public holiday this extends to 5.30pm that day. That this pattern reactivate each year starting from the first Friday of Term 1;
(b)During school terms on each Wednesday as follows:
(i)If the husband is in paid employment from 4.00pm until 7.30pm with both children;
(ii)If the husband is not in paid employment with the child Y from 10.00am to 7.30pm until Y commences school and then at the same time as X from after school until 7.30pm.
(c)For one week during each and all gazetted school holidays save for the long Christmas vacation, commencing from the conclusion of school on the Friday that the husband would usually have been spending time pursuant to order 5(a) & (b) herein until 5.30pm the following Friday;
(d)During the long Christmas vacation as follows:
(i)From 3.30pm Christmas Day 25 December until 5.30pm 1 January each year;
(ii)From 5.30pm 14 January until 5.30pm 26 January each year;
and that otherwise the husband’s time spent pursuant to order 5(a) & (b) herein be suspended during such times.
(e)Each Easter from 5.30pm on Thursday before Good Friday until 5.30pm Easter Saturday in even numbered years commencing 2018 and from 5.30pm Easter Saturday until 5.30pm Easter Sunday in odd numbered years commencing 2017 and that otherwise the husband’s time pursuant to order 5(a) & (b) herein be suspended during such times;
(f)On each of the children’s birthdays if same does not fall during the husband’s scheduled spending time from 5.30pm until 7.30pm that day;
(g)Each Father’s Day from 12.00 noon until 5.30pm that day.
That the husband’s spending time be suspended as follows;
(a)During each of the children’s birthdays from 5.30pm until 7.30pm;
(b)Each Mother’s Day from 12.00noon until 5.30pm that day.
For the purposes of changeover where same does not take place at the children’s school the parties will meet at the McDonalds restaurant that is closest to a halfway point between the parties’ residences. In default of agreement, or should the husband refuse to provide his current address, changeover will take place at the McDonalds restaurant in (omitted).
That each party is hereby authorised to obtain from the children’s schools/care all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
That the parties advise the other of their current telephone number/s and residential address within 24 hours of the date of these orders, and that each party notify the other of any change to their telephone number/s and/or residential address within 24 hours of such change occurring.
That each parent take the children to any commitments, appointments, extracurricular activities or any other important or social occasions for the children that are scheduled to take place during that parent’s scheduled spending time, and that as far as practicable, save for in the event of emergencies or necessity, no party schedules routine doctor’s appointments for the children during the other party’s spending time with the children.
That each party notify the other as soon as is reasonably practicable in the event of emergency and the children becoming seriously ill, sustaining a serious injury or requiring medical attention whilst in their care, and provide the other parent with details of the children’s injury or illness and the name of the treating practitioner and authorise the other parent to attend any medical appointments or otherwise liaise with the treating practitioner/s.
That each parent ensure that they have adequate clothing for the children whilst the children are in that parent’s care and that all the personal clothing of the children that they were wearing or carrying at the commencement of their spending time is returned with the children to the other parent at the conclusion of their spending time.
That the parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the children.
That the parties maintain a Communication Book which shall be passed between the parties at changeover and that the matters raised therein touch only on matters concerning the children’s welfare.
That the parties do not otherwise communicate with each other except in the case of emergencies.
That each party is restrained by injunction from recording telephone or other electronic conversations with the other party or the children.
That each party is restrained by injunction from attending at the other party’s residence except by invitation.
Property
That the husband and the wife shall do all acts and things and sign all necessary documents to effect the sale of the property at Property M in the State of Victoria (“the former matrimonial home”) and more particularly described in Certificate of Title Volume (omitted) Folio (omitted) and for that purpose the following shall apply:
(a)The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of these orders the real estate agent will be as nominated by the then President of the Real Estate Institute of Victoria at the request of the parties or either of them;
(b)In the event that the parties fail to agree between themselves within 14 days from the date of these orders as to who should have conduct of the conveyance, then the firm of Ross Legal Pty Ltd of (omitted), (omitted) in the State of Victoria, be appointed to have conduct of the conveyancing;
(c)The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these orders the list price will be $550,000.00;
(d)The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 90% of the list price shall be accepted by the parties as the sale price;
(e)That upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;
(f)Prior to the settlement of the sale of the property, each of the parties shall do all such acts and things and sign any necessary documents to have the Caveats lodged against the Title of the property removed;
(g)The contract of sale shall provide for completion within 90 days after the date of the contract;
(h)The proceeds of sale of the property shall be paid in the following manner and priority:
(i)To discharge mortgage number (omitted) to (omitted) Bank;
(ii)Payment of the agents commission and advertising or other expenses, if any, payable on the sale;
(iii)Payment of the legal costs and outlays relating to the sale;
(iv)The balance to be divided:
A. 60% to the wife;
B. 40% to the husband.
In the event that the property is not sold by private treaty pursuant to order 18 on or before three months, from the date of this order then the husband and the wife (“the parties”) shall do all acts and sign all documents as are necessary to sell the property by auction and the following shall apply:
(a)The property shall be listed with the agent appointed under order 18(a) (hereinafter called “the Auctioneer”) for sale by auction forthwith;
(b)The parties shall execute all documents requested by the auctioneer for sale of the property by auction;
(c)The reserve price of the property shall be such amount as is agreed between the parties and failing agreement being reached between the parties 14 days prior to the auction, then the reserve price shall be $530,000.00;
(d)The parties shall each pay to the auctioneer one half of any sums requested for advertising or auction expenses and if one of the parties pays all of the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the parties;
(e)The parties shall give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer and in the event that the parties fail to agree between themselves within 14 days from the date of these orders as to who should have conduct of the conveyance, then the firm of Ross Legal Pty Ltd of (omitted), (omitted) in the State of Victoria, be appointed by the parties to have conduct of the conveyancing;
(f)The sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to buy the property at a price that is at least 90% of the reserve price shall be accepted by the parties;
(g)That upon agreement being reached for sale of the property, orders 18(e) to 18(h) inclusive shall apply.
In the event that the property is not sold at the auction pursuant to order 19 or within 14 days after the date of the auction by further negotiation, then the husband and the wife shall cause a further auction of the property to be held within 4 months after the date of the first auction and for that purpose the provisions of order 19 shall apply.
That the husband shall forthwith do all acts and complete and sign all documents as are necessary to remove the wife’s name from any joint bank accounts held by the parties and in particular, the account held with (omitted) Credit Card Account (omitted) (“the (omitted) account”) and that he indemnify the wife in relation to any liability in relation to these accounts and that the husband otherwise retain the balance therein.
That the husband be solely liable for repayment of any loan made by Ms B and indemnify the wife in relation to any such loan.
That from the settlement date and unless otherwise specified in this order except for the purposes of enforcing payment of any money due under these or any subsequent orders;
(a)Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles;
(b)Moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held;
(c)Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other;
(d)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 this order.
That each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of this order within 14 days of being requested to do so.
If either party refuses or neglects to sign or execute and return any document required under these orders within 14 days of a written request to do so then the Registrar of the Federal Circuit Court of Australia at Dandenong is hereby appointed under s.106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
A defaulting party shall pay the other party’s taxed costs of and incidental to such request and production of documents to the Registrar.
That either party have liberty to apply as to implementation or enforcement of these orders upon the giving of 7 days written notice to the other.
That the wife’s solicitors provide procedural fairness to (omitted) Superannuation Fund in respect of minutes of proposed superannuation order set out below and deliver minutes of proposed orders with any amendments as requested by (omitted) Superannuation Fund together with evidence of procedural fairness to the Registry marked for the attention of Judge Burchardt’s Associate.
Minutes of Proposed Superannuation orders
That for the purpose of these orders:
(a)The superannuation fund is (omitted) Superannuation Fund (“the Fund”);
(b)The husband is the member spouse;
(c)The wife is the non-member spouse.
That there be an allocation for the purposes of s.90MT(4) of the Family Law Act 1975 (Cth) of the base amount of $37,883.48 to be transferred to the wife from the husband’s interest in the fund.
Pursuant to s.90MT(1)(a) of the Family Law Act 1975 (Cth), when a splittable payment becomes payable in respect of the interest in the fund held by the husband:
(a)The wife shall be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using a base amount of $37,883.48 provided that such base amount shall not exceed the value of interest determined under s.90MT(2) and there shall be a corresponding reduction in the entitlement that the husband would have had in the fund but for this order;
(b)The wife is entitled to be paid, and the Trustee of the fund shall pay her, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth);
(c)There is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders;
(d)This order has effect from the operative time;
(e)That the operative time for the purpose of these orders is the fourth business day, after the date of service of a sealed copy of these orders on the Trustee of the fund: and
(f)The respondent be hereby restrained by himself, his servants, or agents from executing and/or giving to the Trustee of the fund, a binding death nomination in favour of any person, doing any act or thing, which would render any part, or payment from his superannuation interest in the fund a “non splittable payment” within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 (Cth) such as would defeat the wife’s entitlement, pursuant to this order.
That having been afforded procedural fairness in relation to the making of this order, this order binds the Trustee of the fund.
That the Trustee of the fund and the parties in accordance with the obligations set out under the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth) shall do all such acts and things and sign all such documents that be required to calculate the entitlement of and make payment to the wife in accordance with this order.
That within 7 days of this order being made:
(a)The wife shall serve a copy of this order upon the Trustee of the fund;
(b)The wife shall serve upon the Trustee of the fund pursuant to Regulation 72 Notice of the Family Law (Superannuation) Regulations 2001 (Cth).
That otherwise all extant applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym McIntyre & McIntyre is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 466 of 2015
| MS MCINTYRE |
Applicant
And
| MR MCINTYRE |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties disagree about parenting orders for their two children X born (omitted) 2006 aged 10, and Y born (omitted) 2011 aged four. They disagree about the distribution of their matrimonial property.
Both parents and Independent Children’s Lawyer propose that the husband and wife have equal shared parental responsibility for the children. Both the wife and the Independent Children’s Lawyer propose that the children live with the wife.
The wife proposes that the children spend time with the husband each alternate weekend from the conclusion of school on Friday or if Friday is a curriculum day, from 5.30pm that day until commencement of school the following Monday save that should Monday be a public holiday the time extends to 5.30pm that day, one week during school term holidays, from 3.30pm Christmas Day until 5.30pm 1 January and 5.30pm 14 January until 5.30pm 26 January each year. She proposes times at Easter, on the children’s birthdays and Father’s Day.
The Independent Children’s Lawyer makes a similar proposal to the wife with the addition of time during school terms each Tuesday evening from 4.00pm to 7.00pm.
The husband proposes that the children spend equal time with each parent.
For property the wife proposes that the former matrimonial home be sold and that the net proceeds be divided 65% to her and 35% to the husband and that the husband’s credit card be paid out of his share. She proposes superannuation be equalised. The husband proposes that the former matrimonial property be sold, $63,223.41 be repaid to his mother and then $85,591.10 be paid to him. He calculates this as the difference between the improvements to the property he undertook and the net difference between the increase in his superannuation compared to that of the wife. After the payment he proposes that the balance remaining be divided equally and that each party retain their superannuation.
Background
The wife was born on (omitted) 1968 and is aged 47. The husband was born on (omitted) 1967 and is aged 48. The parties first met in 2001 and started dating in (omitted) 2004. They commenced living together in (omitted) 2005 at the wife’s property at Property M with her children from her previous marriage, Ms S born (omitted) 1995 and Mr D born (omitted) 1997. The parties married on (omitted) 2006.
The parties’ first child, X was born on (omitted) 2006. In the middle of 2006 the husband’s daughter from a previous marriage, A came to live with them.
When the parties commenced cohabitation in (omitted) 2005, the husband owned a unit in (omitted) and a rental property in (omitted). He owned a Holden (omitted) motor vehicle and various furniture and chattels. He had a credit card debt and superannuation at 30 June 2005 with (omitted) Super $9,102.14 and at 1 July 2005 with (omitted) Super $19,028.44.
When the parties commenced cohabitation the wife owned (omitted). She purchased it in January 2005 following separation from her first husband in 2004 where she received approximately $150,000 by way of matrimonial settlement. The purchase price was $268,500. She used part of the proceeds of the property settlement and obtained a bank loan of $150,000. She had furniture and chattels, a Hyundai (omitted) motor vehicle which she values at approximately $8,000 at that time. Her superannuation with (omitted) Super on 1 May 2005 was $21,041.72.
The wife sold the (omitted) property for $295,000 and received a net amount of about $145,000. The husband sold his two properties and received a combined net amount of $150,000.
In 2007 the parties purchased the former matrimonial home at Property M for about $400,000. They obtained a bank loan of $470,000 and started an offset account. The wife deposited $145,000 from the proceeds of sale of her property and the husband contributed $155,000. This left a difference between the mortgage and the offset account of approximately $150,000. Both parties had bank accounts and from there transferred money into the offset account.
The husband has a daughter A, who lived with the parties and moved out of the home in 2007. Both the wife’s children, Mr D and Ms S left in 2011.
The parties separated under the one roof on 19 June 2014 and the husband left the home on 7 December 2014.
The husband has re-partnered with Ms D. He lives with her and her three children aged ten, eight and five.
Children
The parties’ relationship was strained for some time prior to separation. During 2013 the wife slept in the bunk in X’s room and then on 19 June 2014 moved to the downstairs area of the house. From then until final separation the parties had an arrangement of caring for the children day about.
In March 2014 the husband left the former matrimonial home taking the children with him and spent a week in his mother’s house. The parties had been arguing, amongst other things, about money.
The parties have different versions of what occurred on 7 December 2014. The wife says that she arrived home on 7 December 2014 to see the husband unloading goods from the main area into her downstairs living area using X as the go-between to bring the goods down. She demanded an explanation and acknowledges she gave the husband a poke in the chest. She says that the husband pushed her backwards and proceeded to push her head down onto the floor. The children ran to a neighbour’s house. She tried to show the husband out the door but he refused to leave. She called the police. She says the husband walked towards the neighbour’s house and collected the children. X stood by the wife and she removed Y from the husband’s car.
The husband says that he was cleaning the house when the wife arrived home. He had put some of her belongings into a basket so they could be taken downstairs. He says she was aggressive. She pressed her finger into his chest and poured a bucket of dirty water over him. He attempted to leave but she shouted and swore at him and commenced punching him in the head, chest and back. He says he did not retaliate. He left to look for the children. He attempted to take the children to his mother’s house but the wife stopped him.
The wife and the children were at the neighbour’s home when the husband left the former matrimonial home. The police arrived. Each applied for an intervention order against the other. The husband left the former matrimonial home with police present and returned the next day, again with police present, to collect some of his belongings.
The children remained with the wife and saw the husband on some occasions. From 4 January 2015 both children were with the husband. The wife says that the husband stated he would return the children on 18 January, although this was not previously agreed to. He did not return them and changed the date to 28 January. X was returned on 29 January 2015. The wife then commenced proceedings for a recovery order and eventually that brought about the return of Y to the wife.
Following a child inclusive conference on 5 March 2015, orders by consent provided for the parties to have equal shared parental responsibility for the children, for the children to live with the wife and spend time with the husband during school terms on alternate weekends from 5.00pm Friday until 5.00pm Sunday and on Wednesdays if the husband is not in paid employment with Y from 10.00am until 7.30pm and with X from after school until 7.30pm. The order provided for the children to spend time with the husband for half school holidays and on Father’s Day and the children’s birthdays.
Significant issues are:
a)The wife’s ability to care for the children, her mental health and her history of previous care of children;
b)The party’s ability to share the care of the children given the relationship between the parties.
The issues have to be decided applying the children’s provisions in Part VII of the Family Law Act 1975 (Cth). The objects and principles are contained in s.60B. Section 60CA provides that the best interests of the child is the paramount consideration in considering parenting orders. The best interest considerations that the court must consider are in s.60CC.
The parties agree there should be an order that they have equal shared parental responsibility. When this order is made s.65DAA of the Family Law Act 1975 (Cth) requires the Court to consider whether equal time with each parent will be in the best interests of the children and reasonably practicable, or if not equal time whether substantial and significant time will be in the best interests of the children and reasonably practicable.
Best Interests Considerations
The benefit to the child of having a meaningful relationship with both of the child's parents
A family report was prepared by Ms J. Ms J’s observations of the children with each parent showed a warm and accepting relationship with each of them, and a warm and accepting relationship with the husband’s partner. Ms J says that while X complained about the husband’s partner in her interview she was fine with her during the observation session.
The current living arrangements have been in place since March 2015. Ms J describes a great deal of animosity between the parents and their affidavits and evidence of the hearing confirms this. The husband’s distrust of the wife is so strong that when, during his evidence, he was asked for his residential address he would not give it. Ms J considers that X should be referred to a counsellor to assist her to emotionally manage how she is affected by her parent’s conflict. Despite this and the parents’ animosity, the children have a meaningful relationship with each parent, a relationship which is important, significant and valuable to each child.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The wife suffers from long-term depression with involvement with doctors and mental health institutions over a number of years. Since July 2007 she has been under the care of a Consultant Psychiatrist, Dr P. Dr P provided an affidavit and gave oral evidence.
Dr P says that in 2007 the wife presented with symptoms that fitted with a diagnosis of major depressive disorder, moderately severe, without psychotic symptoms. Dr P says this disorder has totally resolved with psychotherapy and ongoing use of antidepressant medication. Dr P expresses the opinion that the wife has been well for over five years. She says she has seen the wife with both children. Dr P says she has never had any concerns about the wife’s ability to parent.
Cross-examination of Dr P did not affect her opinion. A mental health social worker who has dealt with the wife gave evidence. The evidence shows that there is no current risk to the children because of the wife’s mental health, nor that her mental health affects her parenting ability.
Department of Health and Human Services Child Protection files contain allegations of constant abuse by the wife of her daughter Ms S. Ms S eventually left home. While this material is concerning there is no evidence of similar behaviour by the wife towards the children X and Y. The observations Ms J made of the two children with the wife and Ms J’s conversation with X show no cause for concern in the wife’s treatment of X and Y.
The husband, in this trial affidavit, sets out numerous examples he alleges aggressive and abusive behaviour by the wife towards her older two children and instances of aggressive behaviour towards the two children of the parties. The wife, in her evidence, acknowledges the statements Ms S made to child protection authorities. She accepts that was how Ms S saw things. The wife says that she did not realise how sensitive Ms S was. She now has a very good relationship with Ms S. She acknowledged that Mr D left the family home. The husband put to her that she favoured Mr D over Ms S. The wife said she found Mr D easier to parent.
This evidence shows the wife now has a better understanding of the difficulties in parenting children. The evidence of her relationship with her older children and how she treated them does not show there is a risk to the children X and Y.
The husband was charged and found not guilty of sexual offences against the wife’s child Ms S. Nothing suggests he is any risk to the children X and Y.
Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
X said to Ms J that she wanted to spend less time with the husband as in alternate Wednesdays not each Wednesday. She said this was her own view and not her mother’s. Ms J said that at nine years of age X would have no concept of how she may have been influenced by either parent. She would be very aware of how the parents feel about each other. She lives with the wife and so would be more likely to show favour to her mother in the circumstances.
Ms J expressed the view that X was far too caught up between two parents in conflict to be able to make an informed view and that she would have been trying to please her mother.
The outline of case filed by the Independent Children’s Lawyer says that the Independent Children’s Lawyer had an appointment with the two children on 2 May 2016. X said (in effect) she wanted to continue living with her mother and seeing her father in accordance with current arrangements.
Y is too young to express any views.
The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child
Ms J’s observations show the strong relationship between the children and both parents and the husband’s partner. Ms J’s conversation with X shows a close relationship with her mother. I am satisfied that the wife is the children’s primary carer.
The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child; and to communicate with the child, the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The history described above shows the evidence relevant to this consideration.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
There is what Ms J describes as a particularly high level of conflict and lack of trust between the parents. Ms J says this has prevented them from being able to develop a parenting relationship and effective communication. Ms J notes the allegations each has made against the other. She says that long-term children suffer if the animosity remains entrenched. She says there are also short-term effects on the children as the children have to constantly move under the shadow of the animosity but often these effects are not visible. She says that the children want to enjoy their relationship with each parent but they know that at some level they cannot share their joy and love of their other parent with the parent they are with at any one time.
While this is the case both children are enjoying a close relationship with each parent under the current arrangement. If it changes so that the children were to live equal time with each parent the likely effect of the animosity on the children would be an increase.
The capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The children are developing well. The husband acknowledges that the wife is loving and caring. With the wife as their principal carer the children are succeeding despite the animosity between the parents. Ms J expresses the view that a shared care arrangement would not work as the parents are unable to communicate effectively about the children. She says shared care requires parents to be able to work together as otherwise parents cannot share essential daily or weekly information so that the children do not miss out.
Given that shared care would not work I am satisfied that the wife has the greater capacity to provide for the needs of the children including emotional and intellectual needs.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
The evidence relevant to this consideration is set out above.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Both parents want the best for the children. The husband acknowledges the wife is loving and caring. Ms J’s observations of the children with the husband and his partner show their enjoyable relationship and the husband’s responsible attitude to the children.
Any family violence involving the child or a member of the child's family
The wife alleges four instances of family violence. The occasion of the separation as described above. The wife alleges on two of the occasions the husband put his hands around her neck. The husband alleges that the wife was verbally aggressive and that he was passive. The family violence was confined to the situations which existed at the time and there is no evidence that there is any risk of the children being exposed to family violence now that the parents are separated.
Family violence order
At the time of the separation interim family violence intervention orders were made against each parent. These were resolved by each parent giving an undertaking.
Reasonable practicality
When an order is made for equal shared parental responsibility the court must consider whether equal time is reasonably practicable. The requirements for what is reasonably practicable are in s.65DAA(5):
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The wife lives in Property M. The husband lives in (omitted). This is close enough to be practical when the children are attending school. The other requirements for reasonable practicality are not met. The parents lacked the capacity to implement the arrangement for equal time and lack the capacity to communicate with each other to resolve difficulties that might arise in implementing equal time. This lack of ability to communicate effectively is the reason for Ms J saying that a shared care arrangement would not work.
The children’s best interests are met by continuing the current arrangement. This is Ms J’s recommendation. The principal reason for this is that equal time would not work. It is not reasonably practicable. It is not in the children’s best interests because the parents lack the ability to communicate effectively so that they can resolve any difficulties that might arise. Despite the high level of animosity between the parents the children are doing well in the current situation.
The wife proposes eliminating the Wednesday. Ms J recommends keeping it. I accept her recommendation. The husband’s proposal for Christmas is that the children should spend each Christmas afternoon with him. He proposes Father’s Day commence at 5.00pm on Saturday and go through to 5.00pm on Sunday and that on their birthdays the children should spend time with him every second year from after school until 9.00pm. The wife’s Christmas proposal commences at 3.30pm each Christmas Day essentially the same as the husband’s. She proposes time on birthdays each year which is appropriate. The wife’s proposal for both Father’s Day and Mother’s Day is 12.30pm until 4.30pm which is reasonable.
Property
The steps in determining a property application under s.79 of the Family Law Act 1975 (Cth) are to determine the parties’ assets and liabilities, whether it is just and equitable to make an order, then determine the parties contributions and then whether any adjustments should be made for the matters set out in s.75(2).
Except for loans from the husband’s mother Ms B, the property is agreed. The value of Property M is agreed at $530,000. I accept that the mortgage, share values and superannuation values used by the wife are more up-to-date and accurate. The wife’s superannuation values are at dates in 2016. The husband uses the difference between superannuation at the commencement of the relationship and the end of the relationship. Usually value is to be determined at the date of the hearing. There is nothing to suggest other dates should be used in determining the assets and liabilities. The value of superannuation at other dates, for instance the commencement of the relationship, may be relevant in the determining contributions.
The property is:
Asset
Value
Ownership
Property M
$530,000
Joint
Hyundai (omitted)
$ 12,000
Wife
(omitted) shares (1200)
$ 6,288
Wife
(omitted) shares (500)
$ 2,620
Husband
Offset account
$ 250
Joint
Total
$551,158
Liabilities
Value
Ownership
Mortgage
$188,717
Joint
Total
$188,717
Net assets
$362,441
Superannuation
Value
Ownership
(omitted) Super
$ 81,965.49
Wife
(omitted) Super year
$ 51,860.92
Husband
(omitted) Super
$105,871.54
Husband
Total
$239,697.95
The husband’s mother, Ms B, filed an affidavit in which she says she loaned the parties money on several occasions. She says she loaned the parties $30,000 in 2007. She says on 19 December 2013 she wrote a cheque, which was cashed on 8 January 2014, for $10,223.41 to Robinson Gill solicitors to pay a barrister. On 22 January 2014 she wrote a cheque for $17,000 to Robinson Gill solicitors, which was cashed on 3 February 2014. She says that all four of her children received the sum of $12,000 as a gift in October 2010 from an inheritance she received in 1996. She says that in addition to this the husband received a further $6,000 as another loan free of interest. She says that the total amount of $63,223.41 was to be repaid to her upon the sale of the house in Property M.
Annexed to Ms B’s affidavit is a copy of the bank account showing the two amounts of $10,223.41 and $17,000 being paid out of Ms McIntyre’s bank account. Also annexed is a statutory declaration declared on 4 October 2007. In addition to Ms B’s declaration the document is signed by Ms I, Mr P, Mr N and Mr McIntyre. It contains a note that “Mr P has had his share (for his house)”.
In her oral evidence Ms B says that the money was to be put into X’s account so it could be used by her (Ms B) for future holidays. She said she did this so that she did not spend it. She said she did not mean it for the wife and husband to spend. She says that on a date which she cannot really remember she was standing in the parents kitchen in Property M when the wife said to her that she had transferred the money out of X’s account and put it into their housing loan because they did not get any interest with X and on the housing loan they were getting 6 or 7%.
Later she said that it was $36,000 she paid. For each of her 12 grandchildren she opened an account with $1,000. The $37,000 was the $1,000 for X and $36,000 to be held in X’s account.
Ms B says of the $27,000 paid to Robinson Gill she expected to get it back and she could not say that the wife specifically said she was responsible for repayment of that money.
Of the $6,000 in October 2010 she cannot remember what it was but something came up which was really important and they needed money.
The declaration states that Ms B had lent her son Mr McIntyre $30,000 free of interest. It says that it is agreed that this amount will be repaid on 60 days’ notice. It states that if Ms McIntyre dies the amount is to be shared equally between the three children or their families within six months of her death. Ms I and Mr P and Mr N are the husband’s siblings.
The wife acknowledges that Ms B provided $30,000-$35,000. She says she was uncomfortable about it. She says she never agreed that it was a loan and that they were to repay it. The husband recorded a telephone conversation with the wife which took place in 2014. He says that in that conversation the wife acknowledged that they owed to Ms B, $35,000. The statement he relies on is part of a reasonably lengthy conversation which was about the money which was owed.
The husband recorded the conversation. Extracts from the transcript he prepared and put to the wife are:
The wife: We owe your mother money because it’s my fault that my eldest daughter made accusations against you
So not only do I have to pay half of that debt to you that you spent that your mother gave us, that I never asked for. Did I ever ask for $35,000? Did I ask for $35,000? Did I say, “Gran, please give us money?” Did I say that? Did I ever say, “Mr McIntyre, I don’t like having your mother’s money. Give it back to her. Now, that it spent, who owes half that debt? This fucking dumb (omitted). This dumb (omitted)
The husband: Have I ever told you that the debt-half the debt is yours, ever once?
The wife: No, but it’s the right thing to do, Mr McIntyre. It’s the non-(omitted) thing to do
The wife, when asked if she recalled the conversation, says she recalls being angry about money that she had no control receiving. She said she recalled money being provided by the husband’s mother and one particular lump sum of $30,000-$35,000.
The husband played the recording in court although it was difficult to hear. The wife acknowledged that it was her voice. She said the statement “we owe your mother” et cetera was rhetorical and I accept that is correct.
My analysis of this evidence is that the wife acknowledges that the amount of some $30,000 to $35,000 was provided by the husband’s mother, but she does not acknowledge that it was a loan. Ms B’s evidence, including the statutory declaration evidencing the apparent loan, shows that she provided the money but she is not looking to receive it back herself. She wants there to be fairness in the distribution of her money amongst her children.
In the circumstances I consider that the amount of $35,000 should be treated as a contribution on the husband’s side and not as a loan. I am satisfied that the wife did not agree to the money being loaned. The statement by Ms B that she wanted the money placed in X’s account so that she would not have access to it is hard to accept. The husband describes the amount of $30,000 as a loan made on 4 October 2007. He does not say that it was money which initially went into X’s account. He does not say that it went into the parties’ offset account after first going into X’s account.
The two amounts paid by Ms B to Robinson Gill, $10,223.41 and $17,000, total $27,223.41, were part of the husband’s legal fees for the charges involving Ms S. Ms B does not say that the wife knew about the loan. Ms B says that these amounts are to be repaid from the sale of the house but I do not consider that she does require immediate payment. She does want to be fair to all the children and so at some point she may adjust, for instance through her will, the distribution of her assets among her children.
Given Ms B’s generosity towards her children if, after the distribution of the parties’ matrimonial assets the husband required financial assistance to purchase a residence for himself the probability is that Ms B would help him. If money lent to Ms B was repaid from the sale of the house and then re-lent again by Ms B to her son the practical effect would be that the husband obtained a greater share of the matrimonial assets than he should have. I will not include the amounts totalling $27,223.41 as a liability. I am not satisfied that Ms B requires repayment.
The parties’ assets and liabilities at the commencement of the relationship are described above. When they sold the properties they owned and purchased Property M the contributions of each were more or less equal. Since the assets they sold were the assets they had at the commencement of the relationship it follows that their assets and liabilities at the commencement of the relationship were more or less equal.
The parties’ cohabitation lasted from (omitted) 2005 until 7 December 2014, nine and a half years. The wife worked throughout the relationship as a (occupation omitted) at (employer omitted) except for time off when she had the children. She was made redundant about the time of the hearing.
The wife’s trial affidavit sets out each party’s history of employment. At cohabitation she worked at (employer omitted) on a part-time basis. In 2006, upon the birth of the child X she took maternity leave. She returned to work in 2008 working part-time at (employer omitted) as well as at (employer omitted). In 2009 she commenced part-time work with the (employer omitted). In 2011, the birth of the child Y, she took maternity leave. She returned to work following maternity leave in 2013 where she recommenced employment at (employer omitted) on a part-time basis.
At cohabitation the husband worked full time as a (occupation omitted) at (employer omitted). He was made redundant in 2006 and obtained full-time employment as a (occupation omitted) at (employer omitted). In 2007 he worked part-time at that (employer omitted).
In 2008 the husband suffered a workplace injury at (employer omitted). This resulted in an unfair dismissal claim against the (employer omitted) lasting approximately a year and a half. The parties’ income was from their offset account and any Centrelink payments. The husband received about $50,000 for the claim.
In 2010 the husband commenced work at (employer omitted) for about two terms. Later in 2010 he worked at (employer omitted) for one month. In 2010 he worked at (employer omitted) for two terms. From February 2012 until January 2013 the husband worked full time at (employer omitted).
In 2014 the husband commenced an online (course omitted) at (omitted) which incurred HECS fees. From 2012 to about December 2013 he was involved in defending the charges. The legal fees were approximately $80,000. The husband’s mother helped and the balance was payed from matrimonial funds.
The husband did not work from January 2013 until March 2014 when he commenced work at (employer omitted) on a casual basis while continuing to study.
The husband has provided no financial support since the separation. He says he provided the children with clothing, beds and blankets and toys and games when they are with him and that he collected firewood prior to separation which he left at the house which he claims was worth $2,500. Since January 2013 the wife’s income has paid the mortgage and living expenses as well as contributing to the husband’s legal fees.
The husband carried out various works in and around the house. An annexure to his trial affidavit describes the work he says he did in great detail. He sets out a schedule in which he calculates the value of the improvements he did at $119,882.49. This appears to be his calculation of the value of his labour. He spent $6,682.49 on materials. There is some dispute about the amount of work he did. Whether or not his description is correct the husband’s method of assessing contributions does not comply with the requirements of s.79(4). Contributions must be assessed overall taking into account all of the matters relevant under s.79(4). His work on the house is only part of this evidence.
The wife describes maintenance and gardening work she has carried out.
Whatever the extent of the husband’s work while he was doing it he was not earning income and not caring for the children. The wife worked throughout the relationship except when she was on maternity leave. The husband had significant periods of time out of employment. The wife has made almost the sole financial contribution and done the majority of the child caring contribution since separation.
The inheritance of $12,000 that the husband received and the amount of $35,000 received from Ms B and $50,000 in compensation must be taken into account in assessing contributions. $30,000 of the amount from Ms B was received in 2007 and the rest at some time later. The inheritance of $12,000 was in October 2010. Most if not all of the compensation payment would be for lost income. The period of time which has elapsed since receipt of the money from Ms B and the inheritance must be taken into account. The wife’s combined financial, homemaker and child carer contribution while the parties lived together was greater than the husband’s. Following separation she has made almost the sole financial contribution and done the majority of the child caring. These matters, the length of the relationship and the husband’s lump-sum contributions mean that contributions were equal.
For non-superannuation assets the assessment of contributions taking into account the financial and non-financial contributions and contributions as homemaker and child carer is that they were equal.
The relevant matters for any adjustment under s.75(2) are the parties ages and state of health, the property and ability to earn income and, payment of child support.
The parties are aged 47 and 48. Both are qualified (occupations omitted) and have many years of experience. The husband has some part-time work earning $657.34 a week before tax. His last full-time employment with (employer omitted) was on a salary of $93,558 per annum. The wife was earning an income of $1,018 a week before tax but at the time of the hearing was about to be made redundant. Her future prospects of employment are uncertain.
The husband has paid minimal amount by way of support for the children since separation. The wife has carried the cost of paying the mortgage and maintaining the house as well as supporting the children. The husband has some prospect of support from his mother, probably by way of loans which at some stage will have to be adjusted to ensure fairness of distribution amongst Ms B’s children.
The fact that the wife has the greater care of the children and is likely to have to bear much of the cost of caring for them for an indefinite time, and possibly until each reaches the age of 18 is the significant factor in determining the adjustment. The husband’s likely future income must be taken into account. The parties agree that the house must be sold and the net proceeds distributed. For the sake of simplicity I will treat the wife’s ownership of her motor vehicle as any other matter under s.75(2) and not include it as an adjustment after sale of the property. The adjustment for s.75(2) is 10% in the wife’s favour.
The husband has $81,965.49 in superannuation and the wife $157,732.46. The wife proposes that superannuation be equalised which means a splitting order assigning a base amount of $37,883.48 to the husband. Superannuation received little attention during the hearing. As best as I can determine the husband had more superannuation than the wife at the commencement of the relationship. He sets out a table in an annexure to his trial affidavit in which he says he had $56,873.20 in superannuation at about the time of the commencement of the relationship and that the wife had $21,041.72. There appears to be another account for the wife which had about $9,000. When that is added the difference is about $26,000.
The wife now has substantially more superannuation than the husband. Some of this has accumulated following separation. Since contributions throughout the relationship were equal any additional amount that the husband had at the commencement of the relationship is balanced out by the increase in the wife’s superannuation since separation. Since neither party can obtain access to the superannuation for a number of years there are no adjustment factors. The wife’s proposal for superannuation is the appropriate one.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Phipps
Date: 21 October 2016
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Injunction
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Costs
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Procedural Fairness
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Remedies
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Statutory Construction
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