McKinney & Freud
[2024] FedCFamC1F 299
•8 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McKinney & Freud [2024] FedCFamC1F 299
File number: HBC 1068 of 2022 Judgment of: MCGUIRE J Date of judgment: 8 May 2024 Catchwords: FAMILY LAW – CHILDREN – Parenting existing shared care arrangement – issue as to husband’s capacity to attend to the children’s needs – whether there is a risk to the children by reason of his stridently held social and pseudo political viewpoints – order for children to live primarily with the wife – order for sole parental responsibility in the wife
FAMILY LAW – PROPERTY – Issues as to the husband holding particular viewpoints such that he refuses to pay mortgage instalments – wife’s superior contributions during marriage and post separation – section 75(2) factors – order for alteration of tangible property pool as to 65 per cent to the wife and 35 per cent to the husband – orders for superannuation split from the husband’s entitlements so as to effect equality of superannuation entitlements
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC, 75(2) and 79
Cases cited: Isles & Nelissen (2022) FLC 94-092; [2022] FedFamC1A 97
Kowaliw v Kowaliw (1981) FLC 91-092
Mazorski & Albright (2007) 37 Fam LR 518, [2007] FamCA 520
McCall & Clark (2009) FLC 93-405, [2009] FamCAFC 92
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Re: F Litigants in Person Guidelines (2001) FLC 93-072
Stanford & Stanford (2012) 247 CLR 108
Division: Division 1 First Instance Number of paragraphs: 249 Date of hearing: 29 and 30 April 2024 and 1 and 2 May 2024 Place: Hobart Counsel for the Applicant: Mrs Mooney Solicitor for the Applicant: Wallace Wilkinson & Webster Solicitor for the Respondent: Litigant in Person Counsel for the Independent Children’s Lawyer: Mr McKenna Solicitor for the Independent Children’s Lawyer: Ogilvie Jennings ORDERS
HBC 1068 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS McKINNEY
Applicant
AND: MR FREUD
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
8 MAY 2024
THE COURT ORDERS THAT:
PARENTING
1.Ms McKinney (“the wife”) have sole parental responsibility for the children X born 2009, Y born 2011 and, and Z born (2013) (collectively “the children”) provided that the wife prudently advise the husband of any medical or education issues in respect of the children or any of them and advise the husband within seven days of any important decisions made by her in respect of the children including but not limited to matters of medical and educational importance.
2.The children live with the wife.
3.The children spend time with the husband, Mr Freud (“the husband”) as follows:
(a)during school terms each alternate weekend from after school Thursday or 4:30pm if a non-school day until 4:30pm the following Tuesday commencing the second Thursday from the handing down of these Orders;
(b)for the first half of each mid-term school holiday being from the conclusion of school on Friday (or 4:30pm if not a school day) until 12 noon on the second Saturday of such holidays;
(c)for one half of each Tasmanian gazetted summer school holidays being on a week about basis with the children to spend the first week of such holidays with the husband in 2024 and in each alternate year thereafter and the first week of such holidays with the wife in 2025 and in each alternate year thereafter with changeovers to occur on Friday’s at 5.00pm;
(d)provided that time for the children with the husband each alternate weekend be suspended during any periods of school holidays; and
(e)such further time or variations of the above as may be agreed between the parents from time to time;
4.The time for the children with the husband pursuant to order 3 hereof is conditional upon the parents agreeing that the husband has “appropriate accommodation” for the children with the wife not to unreasonably withhold her agreement but where such accommodation should have the following traits:
(a)be within one hour drive of the children’s school at Town B;
(b)have a plumbed-in and a working bathroom inside the premises;
(c)have a bedroom specifically for Y’s sole use;
(d)have a bedroom specifically for the joint use of X and Z; and
(e)have a Certificate of Occupancy if an owner occupied dwelling.
5.In order to establish “appropriate accommodation” the husband shall provide to the wife evidence of the any lease or contract for the purchase of property together with, if relevant, a copy of any certificate of occupancy and photographs of the exterior and interior of the home and specifically as to the bedroom provisions for the children.
6.In the event that the parties do not have agreement as to the husband having appropriate accommodation and during such periods the children shall spend time with the husband as follows:
(a)each alternate weekend from 9.00am until 5.00pm on each of the Saturday and Sunday; and
(b)otherwise agreed between the parents.
7.The parents or either of them have liberty to apply in respect of the issue of “appropriate accommodation” proposed by the husband.
8.In any event the children spend time with the parents as follows but also subject to the husband having appropriate accommodation in the terms set out above:
(a)in even numbered years with the husband from 4:30pm on 24 December until 4:30pm on Christmas Day and with the wife from 4:30pm on Christmas Day until 4:30pm on Boxing Day; and
(b)in odd numbered years with the husband from 4:30pm Christmas Day until 4:30pm Boxing Day and with the wife from 4:30pm on 24 December until 4:30pm on Christmas Day.
9.For the purposes of these Orders changeovers occur at school on school days and at other times the wife shall deliver the children to the husband at the commencement of such time and at a park at Town B and the husband shall return the children to the wife at the conclusion of such times at an oval at Town C.
10.The husband be entitled to communicate with the children via electronic means each Wednesday with such call to be initiated by the husband between the hours of 4.00pm and 5.00pm and the wife to ensure that the children are available to take the call.
11.The wife be entitled to communicate with the children via electronic means during school terms on each alternative Sunday should the children be in the husband’s care and each Wednesday during school holidays when the children are in the husband’s care such calls to be initiated by the wife between the hours of 4.00pm and 5.00pm with the husband to ensure that the children are available to take the call.
12.The parents prudently keep each other informed of the that parent’s email, residential address, and telephone numbers.
13.The parents shall use Our Family Wizard to communicate regarding parenting matters being the sole means of communication save and except in the event of emergencies with the husband to set up and maintain the account.
14.The parents will each promptly advise the other of any attendance upon any medical professional for the children and any details of any medication or course of treatment prescribed and each parent then have a positive obligation to ensure that the relevant child is administered such medication or treatment.
15.Each of the parents be and are hereby restrained from denigrating the other parent or that parent’s partner to or in the presence of or hearing of the children or any of them and to take all reasonable steps to restrain any third person denigrating the other parent or the other parent’s partner in the presence or hearing of the children or any of them.
16.The husband and any person on his behalf be and is hereby restrained from posting any material on social media or otherwise for public dissemination which references or identifies these proceedings or the parties or children the subject of these proceedings.
17.The husband be and is hereby restrained from using any illicit substances whilst the children or any of or any of them are in his care and for 24 hours prior to the children or any of them coming into his care and from knowingly permitting the children to be exposed to any illicit substance use or drug paraphernalia.
18.The husband be restrained from transporting the children in any vehicle in which he is the driver unless he is fully licensed and such vehicle is registered and insured and from permitting any other person to transport the children in any vehicle in which that driver is known to the husband as being unlicensed and/or the vehicle unregistered or uninsured.
19.The husband facilitate the children’s attendance at the children’s relevant extracurricular activities that are scheduled during any time that the children are in his care.
20.These Orders, whilst noting the Order in favour of the wife as to sole parental responsibility, do authorise any schoolteacher or medical, mental health or allied health professional to speak with either of the parents in respect of issues for the children or any of them usually conveyed by such professionals to parents.
21.The appointment of the Independent Children’s Lawyer continue for six (6) months from the date of these Orders.
PROPERTY
22.Forthwith the Parties appoint D Real Estate in Tasmania, (“the Agent”) or such other real estate agent as nominated by the wife, as the sole agent to act on behalf of the parties unless otherwise agreed between the parties in writing for the sale of:
(a)E Street, Town F in Tasmania more particularly described in the Register of Titles Volume … Folio 1 (“the Town F Property”); and
(b)G Street, Town C in Tasmania, being more particularly described in the Register of Titles Certificate of Titles Volume … Folio … and Volume … Folio … (hereinafter collectively referred to as “the Town C Property”).
23.Forthwith the parties do all things and sign all documents necessary to market and sell the Town F Property and Town C Property in accordance with the Terms of Sale in Schedule 1 to this Order.
24.The parties jointly appoint Wallace Wilkinson & Webster Lawyers in City W to have principal carriage of the sale of the Town F Property and Town C Property, including but not limited to the conveyancing, with the legal conveyancing fees and disbursements to be paid from the sale proceeds.
25.Upon completion of the sale of the Town F Property pursuant to these Orders, the sale proceeds will be paid and distributed in the following manner and priority:
(a)first, to discharge any monies payable by way of caveat against the Town F Property;
(b)second, the mortgage in favour of National Australia Bank Limited presently secured over the Title of the Property, mortgage number …;
(c)third, to pay the Agents’ costs of the sale, including commission, and advertising expenses;
(d)fourth, to pay the legal conveyancing costs and disbursements in relation to the sale;
(e)fifth, to pay the usual conveyancing adjustments in respect of municipal council rates, land tax, water and sewerage charges payable including arrears of the same;
(f)sixth, in payment to either party for any repair/improvement costs paid to undertake necessary repairs/improvements as recommended by the Agent at the Property;
(g)seventh, such sum as is required to pay a Government service to remove the Enforcement Warrant, dealing number …, presently registered on the Town F Title AND such sum is to be deducted from any monies payable to the husband by way of final order; and
(h)eighth, the balance sale proceeds to be held by Wallace Wilkinson & Webster Lawyers in their trust account pending distribution pursuant to the these Orders such trust accounts to be in the names of the wife and the husband.
26.Upon completion of the sale of the Town C Property pursuant to these Orders, the sale proceeds will be paid and distributed in the following manner and priority:
(a)first, to discharge any monies payable by way of caveat against the Town C Property;
(b)second, to discharge the mortgage in favour of National Australia Bank Limited presently secured over the Title of the Property, mortgage number …;
(c)third, to pay the Agents’ costs of the sale, including commission, and advertising expenses;
(d)fourth, to pay the legal conveyancing costs and disbursements in relation to the sale;
(e)fifth, to pay the usual conveyancing adjustments in respect of municipal council rates, land tax, water and sewerage charges payable including arrears of the same;
(f)sixth, in payment to either party for any repair/improvement costs paid to undertake necessary repairs/improvements as recommended by the Agent at the Property upon the relevant party providing a copy of the tax invoice/s and receipt/s and in accordance with 1.4 and 1.5 of Schedule 1 annexed hereto; and
(g)seventh, the balance sale proceeds to be held by Wallace Wilkinson & Webster Lawyers in their trust account pending distribution pursuant to the these Orders such trust accounts to be in the names of the wife and the husband.
27.From the date of these Orders and pending the sale of the Town C property, the wife shall be solely responsible for all presently outstanding and future demands for outgoings and utility expenses, including arrears, relating to the Town C Property, including but not limited to mortgage loan payments, council rates, land taxes, water and sewerage charges, statutory charges, insurance premiums, and she will indemnify the husband and keep him indemnified against any action, claim or demand in relation thereto.
28.From the date of these Orders and pending the sale of the Town F property, the husband shall be solely responsible for all presently outstanding and future demands for outgoings and utility expenses, including arrears, relating to the Town F Property, including but not limited to mortgage loan payments, council rates, land taxes, water and sewerage charges, statutory charges, insurance premiums, and he will indemnify the wife and keep her indemnified against any action, claim or demand in relation thereto.
29.Forthwith the Parties appoint such Real Estate Agent in Queensland as nominated by the Wife, (“the Agent”) as the sole agent to act on behalf of the Parties for the sale of H Street, City J in Queensland, (“the City J Property”) unless otherwise agreed between the Parties in writing.
30.Forthwith the husband do all things and sign all documents necessary to market and sell the City J Property in accordance with the Terms of Sale in Schedule 1 to this Order.
31.The wife to have principal carriage of the sale of the City J Property, including but not limited to the conveyancing, with the legal fees to be paid from the sale proceeds.
32.Until the sale and transfer of the City J Property to a third party the husband shall be solely responsible for the payment of all expenses and outgoings (including arrears owing at the date of these Orders) relating to the City J Property, including but not limited to mortgage loan repayments, municipal council rates, water and sewerage charges and land tax, and shall make payment of the outgoings as and when such outgoings become due and payable and the husband shall indemnify the wife and keep her indemnified in relation to the same.
33.Pending the completion of the sale of the City J Property, both parties do all such acts and sign all such documents necessary to ensure that the rental income from the City J Property be applied to pay the mortgage, council rates and land tax relating to the City J Property.
34.Upon completion of the sale of the City J Property pursuant to these Orders, the sale proceeds will be paid and distributed in the following manner and priority:
(a)first, to discharge the mortgage presently secured over the Title of the Property;
(b)second, to pay the Agents’ costs of the sale, including commission, and advertising expenses;
(c)third, to pay the legal conveyancing costs and disbursements in relation to the sale;
(d)fourth, to pay the usual conveyancing adjustments in respect of municipal council rates, land tax, water and sewerage charges payable including arrears of the same;
(e)fifth, in payment to either party for any repair/improvement costs paid to undertake necessary repairs/improvements as recommended by the Agent at the Property upon the relevant party providing a copy of the tax invoice/s and receipt/s and in accordance with 1.4 and 1.5 of Schedule 1 annexed hereto; and
(f)sixth, the balance sale proceeds to be held by Wallace Wilkinson & Webster Lawyers in their trust account pending distribution pursuant to the these Orders such trust accounts to be in the names of the wife and the husband.
35.Pending its sale the husband keep the Town F property in a fit, neat and tidy state and that he allow the wife, the real estate agent, and any interested purchasers reasonable and prudent right of entrance for inspection of the property and that the wife have liberty to apply, if necessary on short notice, in respect of this Order.
36.The husband shall vacate the Town F property not less than seven (7) days prior to the advised day of settlement of the sale of that property leaving the property in a fit, neat, and tidy state.
37.In the event of any wilful damage being sustained to the Town F property as at the vacation date ( not including reasonable wear and tear), the costs of an incidental of the repair of such damage shall be the sole responsibility of the husband with the repair costs to be deducted from the from the husband’s share of the share of the net sale proceeds in accordance with paragraph 39 herein.
38.Not less than seven (7) days prior to settlement for the sale of the Town F Property, the husband shall provide the wife’s solicitors with all the keys to the property and all access codes ( if applicable) and security information necessary to facilitate the wife’s entry to the property and failing provision of same, the wife or her agent are permitted to undertake any action reasonably necessary to gain entry to the Town F property and the costs of and incidental to gaining entry to the Town F property shall be paid by the husband and deducted from any amount payable to the husband by way of final order.
39.Upon the husband vacating the property the wife and/or her agent shall have sole use and occupation of the Town F property.
40.The property of the parties in the form of the tangible assets and as to net value then be distributed as to 65 per cent to the wife and 35 per cent to the husband and the proceeds of the sales of real property be distributed so as to give effect to an overall 65 per cent to the wife and 35 per cent to the husband settlement and in accordance with the balance sheet set out in the Reasons for Judgment herein at [209] –[217].
41.Each of the parties be otherwise entitled to the exclusion of the other to all personalty and chattels in that party’s possession or control, bank account balances as at the date of these Orders in the name of or to the benefit of that party, insurance policies and superannuation entitlements (but subject to these Orders), and motor vehicles in the possession or control of that party at the date of these Orders.
42.Each of the parties be solely responsible for and indemnify the other in respect of the following liabilities:
(a)any outstanding liabilities incurred by that party in either that party’s name alone or in joint names; and
(b)any further liability attaching to any asset retained by that party pursuant to these Orders.
43.In accordance with section 90XT(1)(a) of the Family Law Act 1975 (“the Act”) a base amount of $96,722 shall be allocated to the wife from the interest of the husband Mr Freud in his Super Fund 1, member number … (“Super Fund 1”).
44.Pursuant to section 90XT(1)(a) of the Act, whenever Super Fund 1 as the Trustee of Super Fund 1 makes a splittable payment in respect of the husband’s interest in Super Fund 1, the Trustee will:
(a)Pay to the wife or her legal personal representatives, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)make a corresponding reduction in the entitlement that the person to whom the splittable payment would have been made but for this Order.
45.The operative time for paragraphs 43 and 44 above is four (4) business days after service of a certified copy of these Orders on the Trustee of Super Fund 1.
46.The Trustee do all such acts and things and sign all necessary documents to fulfil any obligation set out in the Act and the Family Law (Superannuation) Regulations 2001 so that the Applicant Wife’s entitlement can be calculated and paid to them in accordance with these Orders.
47.In the event that either party refuses or neglects to execute a Deed and/or Instrument in compliance with the provision of these Orders, the Registrar of the Federal Circuit and Family Court of Australia at one of two designated registries are hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all Deeds and/or Instruments in the name of the defaulting party and do all acts and/or things necessary to give validity and operation to the Deed and/or Instruments.
48.The Parties must do all such acts and things, execute and sign all such documents and provide all consents as is necessary to execute to give effect to the terms of these Orders.
49.On the failure or refusal of the husband to execute all relevant documents then the Registrar of the Federal Circuit and Family Court of Australia at City W Registry is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all Deeds and/or Instruments in the name of the husband and do all acts and/or things necessary to give validity and operation to the Deed and/or Instruments.
50.The wife’s solicitors on the record have leave to provide a copy of these Orders to any lawyers acting for National Australia Bank in proceedings against the husband and/or the wife for the recovery of the property being security for mortgage loans provided by National Australia Bank to the parties or either of them.
51.There be leave to the parties or either of them to apply in respect of the execution of any of the Orders above.
52.Pursuant to s 81 of the Family Law Act 1975 (Cth) the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of McKinney & Freud has been approved pursuant to subsection 114(Q)(2) of the Family Law Act 1975 (Cth).
SCHEDULE 1 – TERMS OF SALE
1. The Selling Agent, Price and Terms and Conditions of the Sale
1.1 The listing sale price, manner of advertising for sale and method of sale of the Town F and/or City J and/or Town C will be as agreed between the Parties in writing, or in default of agreement as set out in clause 2 below.
1.1.1The terms and conditions of sale, including acceptance or rejection of any offer to purchase the Town F and/or City J and /or Town C, will be as agreed between the parties in writing, or in default of agreement as set out in clause 2 below.
1.1.2In the event the Agent recommends any repairs, maintenance or improvements be made to the Town F and/or City J Property and /or Town C Property (“Sale Improvements”), those Sale Improvements must be undertaken prior to listing the Town F and/or City J Property and/or Town C Property on the open market.
1.1.3The cost of any Sale Improvements must be equally shared by the parties with any upfront costs agreed between the parties in writing which have been paid by either party to be reimbursed to that party from the balance sale proceeds.
2. In Absence of Parties’ Agreement – Default Provisions
2.1 In default of agreement between the Parties about any of the matters referred to in paragraphs 1.1 and 1.2 and 1.3 above:
(a)The parties shall follow all reasonable advice of the Agent.
(b)Either party may request the President of the Real Estate Institute of the relevant State, or their nominee (“the President”) to determine the matter in dispute.
(c)The cost of the President’s determination must be shared equally between the Parties.
3. For Auctions
3.1 In the event either or both of the Town F and/or City J Property and/or Town C Property has not been sold within a period of three (3) months from the date of the date of these Orders, the parties shall make arrangements to list the Town F and/or City J Property and/or Town C property for sale by public auction.
3.2 In the event the Town F and/or City J Property and/or Town C Property is offered for sale by way of auction the Parties must each pay and be responsible for payment of one half (50%) of all action expenses payable before the relevant property is auctioned.
3.3 The parties shall agree a minimum reserve sale price in writing and in the event the parties cannot reach agreement, the reserve sale price shall be as recommended by the Agent.
3.4 In the event the Town F and/or City J Property and/or Town C Property does not sell by public auction, or by private negotiation within 14 days from the date of the auction, the parties shall do all acts necessary to cause the relevant property to be offered for sale via subsequent auction within a further six (6) weeks until the property is sold.
4. Compliance
4.1 The party in possession of the Town F and/or City J Property and/or Town C Property must:
(a)Cooperate in every way with the selling agent/s during the sale of the property, including:
(i)Allowing inspection of the Town F and/or City J Property and/or Town C Property at times reasonably requested by the selling agent;
(ii)Making a key available to the Agent, together with all codes and security information as may be required to gain access to the relevant property;
(iii)Allowing access to all areas of the relevant property and permitting inspections at all reasonable times as requested by the Agent;
(b)Vacate the Town F and/or City J Property and/or Town C Property during the time inspections are taking place and shall not do or say anything to hinder or prevent the sale of the Town F and/or City J Property and/or Town C property.
(c)Ensure the Town F and/or City J Property and/or Town C Property is in a neat, clean and presentable condition at the time of inspection by prospective purchasers.
REASONS FOR JUDGMENT
McGuire J:
APPLICATIONS
The wife is the applicant for final orders in respect of both parenting and property matters.
There are three children of the parties namely X born 2009 (age fifteen years), Y born 2011 (aged 12 years) and Z born 2013 (aged 10 years).
Where the children have for the most part, since the parties’ separation in April 2017, lived in a week-about arrangement between their parents, the wife seeks orders as follows:-
(i)that she have sole parental responsibility for the children;
(ii)that the children live with her;
(iii)that the children spend time with the husband as follows:-
(c)during school term each alternative weekend from after school Thursday or 4.30pm on a non-school day to 4.30pm the following Tuesday;
(d)for the first half of each first, second and third term school holidays;
(e)for half of the Christmas holidays on a week-about basis; and
(f)such further time or variations of the above as agreed.
Importantly, the wife’s proposal is firming couched on the husband being able to provide the children with “appropriate accommodation” which she defines as:
(a)being within one hour drive of the children’s school at Town B, Tasmania;
(b)has a plumbed-in working bathroom inside the house;
(c)has a bedroom specifically for Y’s private use;
(d)has a bedroom specifically for X and Z; and
(e)has a Certificate of Occupancy if owner/occupied.
Should the wife determine that the husband does not have appropriate accommodation in accordance with the above definition then she proposes that during such period the children spend time with the husband each alternate weekend between 9.00am and 5.00pm each of Saturday and Sunday and otherwise as agreed between the parties.
The wife requires the husband to provide her with evidence of any lease or valid purchase of real property together with photographs of the exterior and interior of any proposed home either purchased or rented by him in which he proposes the children to be staying with him.
The wife seeks a number of injunctive orders including but not limited to:
(i)that the husband be restrained from posting any material referring to or pertaining to these proceedings on social media and not knowingly suffer or permit any other person to do so;
(ii)that the husband not use or be under the influence of any illicit substances whilst the children or any of them are in his care or not suffer or permit the children to be exposed to illicit substance use or drug paraphernalia;
(iii)that the husband be restrained from providing the children with any non-prescription medication unless the wife has agreed to the use of such non-prescription medication in writing; and
(iv)that the husband be restrained from driving the children in any vehicle unless he is fully licensed and the vehicle is registered, insured and road-worthy and not permitting any other person to so transport the children.
The wife seeks property orders in general terms whereby she receives 65 per cent of the net tangible property of the parties and that there be a 50/50 division of the parties’ collective superannuation entitlements which would require a split from the husband’s superannuation.
Specifically, the wife seeks urgent orders whereby she has the immediate carriage of the sale of three pieces of real estate being situate at E Street, Town F in Tasmania; G Street, Town C in Tasmania; H Street, City J in Queensland. The parties are joint registered proprietors of the properties at Town F and Town C. The husband is the sole registered proprietor of the property at City J.
The parties are, however, obligated to the S Limited in respect of the mortgages attaching to the titles of all three properties.
It is common ground that S Limited have commenced recovery proceedings in the Supreme Court of Tasmania with the first mention of that application being mid-2024 and where both parties are the respondents to that application by reason of them being the mortgagors.
The wife is represented in these proceedings by Senior Counsel and instructing solicitor.
The husband proposes orders that the three children continue to live in a week-about arrangement between the parents and for an order for equal shared parental responsibility.
The husband argues for orders for a 50/50 division of the parties net property inclusive of superannuation and where he agrees that there should be a split from his superior superannuation entitlement to the wife and so as to give effect to these orders.
Specifically, the husband opposes any orders that this court make in respect of the sale of the three pieces of real property, or any of them, where he intends to defend the litigation commenced by S Limited.
The husband was self-represented in these proceedings. He was therefore provided with information, including relevant sections of the Family Law Act 1975 (Cth), as to the procedure and process in court and with an invitation to ask questions of the court in respect of procedure at any time during the trial.[1]
[1] Re:F Litigants in Person Guidelines (2001) FLC 93-072.
The court has had the benefit of an Independent Children’s Lawyer (ICL) represented by counsel. The ICL proposes parenting orders essentially in the terms of the wife’s position.
RELEVANT BACKGROUND
The husband was born in 1983 and is forty years of age. He has qualifications in two fields but currently works in neither and is unemployed. His income is derived from rental of the City J property.
The husband has re-partnered with Ms L. Ms L did not provide an affidavit but, after discussions with the husband and with the indulgence of counsel for the wife and the ICL, was permitted to give oral evidence.
The husband, Ms L and Ms L’s daughter, M (aged 8 years) live together at the property at E Street, Town F. The children, X, Y and Z are resident in that property on a seven day per fortnight basis.
The wife was born in 1988 and is thirty five years of age. She is employed in the recreational industry and discloses an income of $711 gross per week from that employment. She also receives rental of $350 per week from the Town C property, but contributes to the mortgage on that property albeit where she concedes a gap in payments.
The wife has re-partnered with Mr N. Mr N is a professional with a gross income disclosed of $1,269 per week. Mr N has no children of his own.
The wife, Mr N and the children on a week-about basis live in rented property at O Street, Town C in Tasmania.
The husband and wife are obligated in mortgages to the S Limited with a current outstanding balance of approximately $910,000.00. Both parties are noted as mortgagees on all three properties although the husband alone holds title to the City J property.
It is an agreed fact that the mortgages are not currently being paid and are substantially in arrears. It is agreed that the mortgage liability increases by E$250 per day. The arrears on the property at Town F where the husband resides is $71,046. The arrears on the City J property from which the husband receives rent of $450 per week are $76,017. The arrears on the Town C mortgage, to which the wife now contributes are $28,705.
The Court has not been provided with valuations of the properties but on appraisals obtained by the wife the properties have values as follows:-
(i)E Street, Town F - $600,000
(ii)G Street, Town C - $455,000
(iii)H Street, City J, Queensland - $402,000
TOTAL E$1,457,000
The children attend the Town B school and the evidence is that they are progressing satisfactorily although there have been past issues.
It is generally accepted that Ms L’s daughter, M, has suffered some personal difficulties and that the relationship between M and the Freud children is a problematic one.
The parties separated in April 2017 and initially under the one roof until approximately November 2017 when the wife left the former matrimonial home at E Street, Town F. They have lived separately and apart since. At the conclusion of the evidence in this matter and upon me reserving my judgement, an oral application was made on behalf of the wife for an Order of Divorce. The husband consented to the making of the application of an oral basis and hence time being abridged. Given that the husband was unrepresented, I first satisfied myself that he fully understood the nature and ramifications of a Divorce Order. I was so satisfied. I proceeded to make an order for Divorce in mid-2024 such to become final after the expiration of one month.
The husband presented at court espousing a number of personal principles and pseudo-political views. Specifically, he challenges the legal authenticity of a number of government organisations and facilities such as the Australian Taxation Office. The husband does not, as a matter of principle, pay council rates or utilities invoices. The husband does not accept that he has the responsibility to pay for parking metres or fines given his argument as to lack of legal integrity in the organisations imposing such asserted obligations. The husband does not accept the legitimacy of loans secured by mortgages from banks despite being the recipient of three instances of such largesse.
Similarly, the husband holds strong convictions in respect of many social and medical issues. He does not generally believe in the efficacy or obligations in respect of vaccinations for his children. He does not accept Government mandates in respect of asserted pandemics such as Covid where he will not wear a mask even when mandatory. He does not accept the safety of various hygiene products such as toothpastes and soaps. He does not take accept the safety of various prescribed or non-prescribed medications commonly in use. He does not accept the legal basis for institutions imposing mandatory drivers licences or registrations for insurance of vehicles. He does not, apparently, accept the validity of lawyers instructed by clients and insists on a “contractual” relationship when dealing with those lawyers acting for other parties where he requires venders accounts for his “consultation” payment in the form of gold where the husband seemingly does not accept the basis of money as legal tender.
Relevantly, the husband has publicly demonstrated his various personal and pseudo-political beliefs including attempts to “arrest” numerous members of Parliament. He himself was arrested in a public area with such arrest attracting coverage in the local press.
Most relevantly, the husband says that he intends to vigorously defend the suit commenced in the Supreme Court of Tasmania by S Limited in respect of the substantial arrears of mortgages and presumably for the repossession of the security for those mortgages being the three pieces of real property mentioned above. Whilst the husband has undoubtedly studied various legal principles and doctrine such as the Magna Carta and the Australian Constitution, he presents as an advocate of common law principle and presumably non-accepting of any statute. Fortunately, however, the husband concedes that he would accept and consider himself bound by and orders I might make albeit apparently not accepting the statutory basis of my jurisdiction.
The husband has an avowed aversion to lawyers and indicates that he intends to represent himself, as he did in these proceedings, when his matter is litigated in the Supreme Court of Tasmania.
THE ISSUES
There is a significant issue raised by the wife in respect of the husband’s capacity to attend to the children and, in particular, the provision of adequate accommodation. In circumstances where she says that the husband places the parties’ ownership of three pieces of real property at jeopardy by reason of his refusal to pay mortgages, she says that he has no viable alternative option to house the children. Where the husband offers as the only viable alternative, should he be unsuccessful in his litigation with S Limited, his father’s property at Town B being a former storage facility, the wife and the ICL agree that such property is both unsafe and unsuitable for habitation by children.
There is an issue generally in respect of the husband’s capacity to care for the children by reason of his strongly held views as to medical and hygiene matters set out above.
The Court is required to assess and give weight to the children’s views in respect of their living and parenting arrangements.
Further, there is an issue between the parties as to parental responsibility where the husband seeks an order for equal shared parental responsibility but where the wife and the ICL argue for orders for sole parental responsibility in the wife where the wife says that the presumption at s 61DA of the Family Law Act 1975 (Cth) (“the Act”) is not applicable by reason of historical family violence and/or is rebutted as being contrary to the best interests of the children where, she says, the parties have an entrenched non-communicative and conflictual relationship evidenced by their divergent views in respect of the husband’s strongly held principles.
The wife first seeks a financial settlement with a loading of 15 per cent in her favour by reason of her anticipated primary care of the children, the discrepancy in earning capacities, and the husband’s diminishing of the value of the property pool because of the stance he takes in respect of the non-payment of mortgage, council rates and water. It falls then on the Court to make findings of fact and, if appropriate, apply proper weight to these issues where the wife emphasises the adjustment to her or consideration of factors under s 75(2) of the Act she also argues her greater contribution during the marriage and pos-separation.
PARENTING MATTERS
RELEVANT LAW
Part VII of the Act provides the principles relevant to a Court’s determination of parenting orders for children. Section 60CA offers the fundamental proposition that it is the children’s best interests that are the paramount consideration for the Court. Those best interests are determined by referencing the probative evidence before the Court and the parties’ proposals to the numerous and mandatory factors set out at s 60CC(2) and (3) of the Act against a background of the Objects and Principles of the legislation provided at s 60B as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
…
The Court is required to make findings of fact being in dispute between the parents. It does so on a standard of “on the balance of probabilities” now enshrined in the Evidence Act 1995 (Cth) as follows:
140(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
140(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
It is trite to observe that a party making an assertion of fact has the onus of proving that fact to the requisite standard.
Relevantly, the Act as it currently stands offers a presumption at s 61DA that it be in the children’s best interests for their parents to have “equal shared parental responsibility” for them. Such as normally understood as being the obligations of parents to make long-term and important decisions for children in matters such as religion, education, medical procedure and the like and as opposed to the more mundane decisions that parents make for children on a day‑to-day basis.
The presumption of equal shared parental responsibility does not apply, however, if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parents family or has engaged in family violence. Family violence carries a broad definition for the purposes of the Act and includes violence of physical, emotional, psychological, financial, sexual and/or coercive/controlling types.
Alternatively, the presumption of equal shared parental responsibility may be rebutted by evidence satisfying the court that such an order would not be in the best interests of the children.
Relevantly for the matter now before me, should the presumption of equal shared parental responsibility apply and not be rebutted then the Court is mandated to proceed on a course of statutory and intellectual consideration where it first considers whether it be both in the children’s best interests and reasonably practicable for the children to live in an equal time arrangement between the parents. Notably, of course, these children have lived in an equal time arrangement between their parents for approximately the last seven years. The husband seeks a continuation of that order.
Secondly, if the Court is not satisfied that an order for equal time is both in the best interests of the children and reasonably practicable then it must turn to consider whether an order for the children living in a regime of “substantial and significant time” between the parents is both in the children’s best interests and reasonably practicable. The term “substantial and significant time” is defined in the Act as time for the children with each of the parents on both weekends and weekdays and time which allows mutual enjoyment of activities important to both the parents and the children. The orders sought by the wife and the ICL, subject to the issue of proper accommodation, fit within this definition.
Generally, the wife and the ICL argue that the husband presents variously as a risk to the children’s safety and particularly in respect of issues of appropriate accommodation and the husband’s strongly held principles in respect of vaccinations and the provision of medications.
The question for the Court then is whether such a risk is an “unacceptable risk” where consideration is then a prospective or future one as to “possibility” and hence where the above‑mentioned standard of proof “on the balance of probabilities” of a finding of past or current fact is not applicable.[2]
[2] Isles & Nelissen (2022) FLC 94-092; [2022] FedFamC1A 97.
A further question then becomes whether orders of the Court or proposals of the relevant party may mitigate that risk so as to make it no longer an unacceptable risk.
THE WIFE’S CASE - PARENTING
The wife argues that the husband’s capacity to parent the children is compromised by him putting their accommodation at jeopardy by reason of his refusal to pay mortgages and for other services. She says that the husband offers no viable alternative accommodation for the children. She says that his proposal for housing the children and his father’s property is unsafe and unsatisfactory.
Similarly, the wife argues that the husband compromises the health and safety of the children by reason of his strongly held views as to vaccinations and medications.
Generally, the wife says that the husband’s refusal to work where he has various qualifications and is well-experienced also compromises his capacity to care for children.
The wife says that she and the husband do not directly communicate as to do so leads to arguments and exposure of the children to those arguments. She says that she and the husband offer different role models and different parenting philosophies to the children. She also cites family violence in various forms such that she says that the presumption of equal shared parental responsibility is either not applicable or rebutted as not being in the children’s best interests. She says that she offers a more stable and generally acceptable parenting style than does the husband and for these reasons should have sole parental responsibility for the children.
The wife concedes that the children have an established and good relationship with the husband and proposes that that continue albeit with a more stable home base with her and conditional upon the husband being able to provide proper accommodation for the children and upon she being ultimately responsible for medical matters for the children.
The wife offers Mr N as a mature, stable and objective member of her household and hence as a positive role model for the children. She says she offer a mature and responsible household where both parents work and meet their financial obligations.
The wife says that the children’s views are influenced by the husband who presents as an assertive and dominant member of his own household.
THE HUSBAND’S CASE - PARENTING
The husband emphasises the long-standing status quo of the children living in a seven day arrangement between each of the parents. He says that the children are socially and academically now settled and succeeding. He suggests that there is no evidence from the children wishing to move from this arrangement.
The husband says that he offers his partner Ms L as a responsible female role model in his home and where the evidence is that the children have a strong an established relationship with her.
The husband remains confident in the extreme that he will be successful in defending his litigation with S Limited where such a result would see he and the wife retaining title of the various properties and apparently to do so mortgage-free and having avoided the obligation towards the bank currently standing at the sum of $910,000.
The husband concedes that that he holds various principles not necessarily accepted by the majority of society. He maintains that his adherence to and espousing of those principles is ultimately in the best interests of his children presumably because they will benefit from the social and political issues he argues.
The husband, whilst remaining stridently confident in respect of his S Limited litigation, offers his father’s premises as the only available option to house the children should he unexpectedly not be successful in his litigation. He optimistically expects his father's premises to be renovated from its current state so as to adequately and safely house his family unit of six including his children, X, Y, and Z.
The husband disputes assertions that he places the children’s health at risk by his strongly held views as to vaccinations and various medications. He says that if ordered by a Court then he would comply with the provision of medications. He says, in any event, he offers more natural alternatives where he believes that chemicals in medications, toothpastes, and soaps do, in fact, offer potential harm to the children.
Whilst currently engrossed in his litigation with S Limited, the husband indicates a return to the workforce upon his successful completion of that litigation.
ICL CASE - PARENTING
The ICL says that the husband compromises the children’s safety by the placing his own accommodation in jeopardy without proper alternative.
The ICL argues that the husband compromises the children’s health and safety by reason of the stance he takes in respect of vaccinations and medications.
The ICL argues that the wife offers a more stable and consistent parenting model than does the husband but whilst maintaining that the children have an established, loving, and beneficial relationship with their father.
THE EVIDENCE - PARENTING
THE HUSBAND
The husband relied on his affidavits of 20 September 2023 and 2 April 2024. He refers to himself in those documents as “Chief […] of the Family [Freud]”. Various correspondence tendered during these proceedings references the husband as the Chief of the House of Freud.
The husband’s affidavits provided an historical background of the parties’ relationships.
The husband asserts that the wife is complicit in or condoning of his defence of the S Limited litigation.
The husband asserts a strong and affectionate relationship between his children and his partner Ms L and whilst admitting some difficulties between the Freud children and M, does not see this as a factor impacting on his continuing care of the children.
The husband’s affidavit references various incidents in respect of children including Y being accidentally injured in 2018. The husband’s affidavit notes that the maternal uncle, Mr P, and his two sons also live on his property albeit not in the main house. It is understood that either or both of the husband’s own parents also spend time living at this property.
It is apparent that Mr P may hold view pseudo-political views sympathetic to those of the husband.
At [34] the husband asserts that the wife’s partner, Mr N, and another man intended to “bash us”. No evidence of sufficient probity was given or adduced allowing me to make findings in respect of this assertion.
The husband says he has undertaken and completed various parenting courses. Generally, the husband’s affidavits provide what he says are his efforts to properly care for the children including their accommodation and their medical requirements.
The husband was cross-examined at length by counsel for both wife and the ICL. He was generally responsive and courteous in those responses. He asserted and maintained his particular beliefs of principle and maintained that the children’s best interests were his priority.
I had, of course, the opportunity to see and hear the husband give his evidence. He presented as a man of high principle but one also focused on what he believed to be the best interests of his children. He was, nevertheless, unable to understand or accept that those two positions may be subject to unresolvable conflict. I viewed the husband’s evidence in respect of many of his beliefs as being admirable but naïve and mistakenly based on a gross misunderstanding of legal principle. He remains, however, supremely confident in defending the application brought by S Limited.
MS L
Ms L did not initially provide an affidavit. In circumstances where the husband was unrepresented and where he offered Ms L as the female person in his household, he was offered the opportunity to bring oral evidence from her. He was granted this indulgence by counsel for the wife and the ICL.
Ms L presented as supportive and committed to her relationship with the husband. Cross‑examination, however, elicited that she did not necessarily hold many of his strident pseudo-political and social views and indeed had apparently sought to discourage him in many aspects.
Whilst Ms L herself may have lapsed into some communications and involvement in these proceedings which were not properly her province, she appeared generally repentant and to have gained a greater understanding and respect for the children’s mother.
Ms L presented as a caring person who would, I expect, present as the loving and caring female role model in the husband’s home as she claims. It might be, however, that she herself may not understand a current or potential power imbalance in her home where the husband presents with a dominant and assertive personality if only in his commitments to his various viewpoints may of which do not sit comfortably with the majority of society.
MR Q
Mr Q is the husband’s father. He did not provide an affidavit. Again, however, with the indulgence of counsel for the wife and the ICL, Mr Q gave brief evidence by telephone and following a view and inspection of his premises at Town B.
Mr Q was cross-examined briefly and the substance of that correspondence is set out below under the heading “View”.
THE WIFE
The wife relied on her affidavit affirmed 8 April 2023. Her cross-examination by the husband was limited in both time and challenge and by the husband’s lack of experience in the art of cross-examination. She was, however, cross-examined at greater length and objectively so by counsel for the ICL.
The wife gave evidence in her affidavit, and confirmed in cross-examination, of a relationship with the husband which commenced when she was just 16 years of age. Her evidence was objective and not unduly critical of the husband. She noted, for instance, his previous capacity for hard work and provision for the family unit. She too was a willing and hard worker and undoubtedly the parties' accruing of three pieces of real property is due to their strong work ethic and commitment to their young family.
The wife’s affidavits expresses concern as to the husband’s mental health albeit no recent diagnosis was forthcoming. She references, however, matters which might be found to be instances of family violence including threats to burn down the wife’s partner’s home. Relevantly, however, and it is conceded by the husband, that he was hospitalised for mental health issues in about 2005 but where the wife expresses concern that the husband has since self-medicated with marijuana.
The wife has a major concern as to the standard of accommodation provided by the husband for the children noting that his current four-bedroom home on occasions houses nine people. It is, however, the jeopardy in which he places that home by his refusal to pay mortgage loans that most worries the wife. Where the husband might suggest a complicity or acquiescence in the wife, I saw none.
At [37] and following the wife references matters of family violence including the husband’s previous threats of self-harm in about 2016. She refers to the husband’s controlling and coercive behaviours and perhaps consistent with the strong convictions that he holds in respect of various social and political issues. Specifically, [48] and following the wife references issues of public humiliation and electronic coercion from the husband including his publicising of various Family Court issues.
The wife identifies the husband’s particular and now strongly held beliefs as emanating from around the Covid period of 2019 where he confirms his theories as to a government scheme to create unnecessary fear in the community.
At [85] and following the wife details her concerns in respect of the husband’s beliefs in respect of medical matters for the children including vaccinations. For example, at [85] the wife says:
In or around [early] 2022, [X] had a booster vaccination for HPV at school. [X] asked me to sign the form as he stated “Dad won’t let me have it” or words to that effect. [X] advised me that he had hid the vaccination notice from [the father]. Upon returning to [the father’s] care, [Z] told [the father] that [X] received the vaccination. The children stated that [the father] was angry and forced the children to drink bentonite clay mixed with water to “rid themselves of the vaccine” or words to that effect. The bentonite clay caused the children to have stomach cramps and diarrhoea. [Y] told me the bentonite clay was difficult to drink, that it was “like swallowing dirt” or words to that effect. The children told me they had to bath in Epsom salts after taking the Bentonit Clay. [In early] 2022, [X] sent a photo of the bentonite clay they were forced to drink to me via text message.
At [87] the wife deposes:
[In mid] 2022, when the children returned to [the father’s] care following COVID, the children later described in detail the father’s reaction when he was told that they had taken a Rat test. The children told me their father said that “RAT’s” contain harmful chemicals that give people cancer and COVID was an excuse for the government to try and control people” or words to that effect. [X] told me that he stood up to his dad and said “that’s not true Dad” or words to that effect. [The father] pushed [X’s] phone into [X’s] face and stated, “cotton swabs have harmful chemicals that will give you cancer”, “you’re an idiot for doing the test”, “you never had COVID”, “there’s no such thing as COVID” and “there are nano-bots in the COVID vaccine which go into the brain” or words to that effect.
The wife deposes that the husband does not allow the children any medication such as Panadol, cold and flu tablets.
The wife deposes at [107] and following that the husband does not provide hygienic living conditions. She says that the children informed that they have no access to sanitary items such as toothpaste, washing powder, soap or shampoo and conditioner and that Y does not have access to female sanitary items. She says that the husband (at least until 2023), failed to properly ensure that the children’s clothes were clean and that they would return to her in a smelly and unclean state with the clothes on occasions being disposed of because they were fly blown. In this respect, and generally, the wife indicates the husband’s care of children has recently improved but she says only by reason of the spectre of these proceedings hanging over his head.
At [112] the wife deposes that in 2020 Y told her that students at school had mocked her because she smells. Enquiries from the wife disclosed that Y was restricted to having a shower once a week whilst in the husband’s care.
The wife’s affidavit references incidents involving the safety of the children such as Y’s injury in 2016 and Y receiving serious injuries due to the father’s activity.
The wife asserts that the husband places the childrens safety at risk by driving the children in unregistered and uninsured motor vehicles whilst he is an unlicensed driver.
The wife was an impressive witness. She gave her responses in a calm considered way although being obviously distressed by the prospect of direct cross-examination from her former husband. Nevertheless, she easily calmed in the witness box and the discourse between the parties in her cross-examination was courteous and responsive.
I generally accept that the wife as a witness of truth. Her evidence was highly particularised and unemotive. The majority of her evidence was unchallenged.
MR N
Mr N is the wife’s partner and resides with her and the children who are present on a week-about basis. He has no children of his own. Mr N provide an affidavit sworn 11 April 2020.
Mr N was a very impressive witness. He presented as mature and reasoned and with an appropriate level of commitment and support of his partner but without undue or emotive intervention in the relationship between the parties or the husband and the children. I can easily conclude that he has gained the respect of the three children in his household. He gives evidence of being involved in their education and extra-curricular activities but without any indication of assuming the role of their father. Indeed Mr N appears to have gained considerable respect from the husband himself.
MR R
Mr R is the principal at the Town B school. He affirmed an affidavit on 12 March 2024. He was not required for cross-examination.
Mr R says that all three children do well at school and that they are incredibly resilient. He says that their attendance is currently good albeit where there were previous difficulties with attendance particularly during COVID as mask wearing was required but the husband objected to the children wearing masks at school. He notes in this respect that the husband threatened him.
Mr R also notes previous concerns that the husband sent the children to school in other than their school uniform and would sometimes send them to school for just one day per week advising that “he does not believe in the education system and told me that he kept them home to teach them “real things”describing it as “Dad days”.
Mr R now observes increased compliance by the husband perhaps thereby giving some corroboration to the wife’s assertion that the husband’s position has improved simply by reason of the spectre of these proceedings.
Mr R professes to currently having a good working relationship with both of the parents and sees them as supportive parents working well with the school.
MS T
Ms T provided an affidavit for the ICL affirmed 23 April 2020. She is currently the Acting Principal of the Town B school (with Mr R on leave). She was not required for cross‑examination.
Ms T gives evidence of X consistently achieving a high standard in some aspects of his education and is an inquisitive student who takes great care with his work and is supportive of others.
Ms T sees Y as achieving above standard in many of her subjects and is an engaged and thoughtful student. She sees Y as self-motivated.
Ms T sees Z as a confident and keen learner determined to improve some aspects of his education and is a genuinely caring child trying to form new friendships this current year.
DR U
Dr U is a Clinical Psychologist. She was briefed to prepare a mental health assessment on each of the parents. For reasons that escape me, however, Dr U saw fit to interview the children and gave evidence perhaps more appropriate for a brief to an expert for a “family report”. Of accidental relevance, therefore, is Dr U’s observation of the parents each interacting very well with the children and the children being relaxed and engaged in the company of each of their parents. She says that there was no evidence of the children being apprehensive or reluctant speak or engage in front of each parent.
Dr U opines at [61] that:
There was nothing in either parents’(sic) current presentation to indicate that their mental health was currently impacting their ability to effectively and safely parent. There were no significant concerns noted for either parent during interview, and the information provided suggests that things have been relatively calm for the past few months. The school have no current concerns in relation to the children.
At paragraph [62] despite the wife’s express concerns, Dr U opines that:
…[The husband] did not appear to present with any active symptoms of poor mental health and there are no records provided to indicate that he has recently accessed mental health support or come to the attention of authorities due to mental health.
At [64] Dr U notes the difference in the parents’ lifestyles and value systems which contribute to the conflict between them. She understands that the children have been exposed to and impacted by parental conflict.
At [72] it is clear that the wife has referenced what she sees as the husband’s anti-social behaviour and exposure to the children of such behaviour. Dr U says that the husband denies any anti-social behaviour but stated that he has “strong beliefs”. She notes the husband denying that his behaviour places the children at risk.
At [76] Dr U does not consider any current substance abuse issues for either party.
Generally, the report of Dr U is of limited probative assistance and particularly where the brief was to reference only the mental health of the parties. It appears that she was provided with limited and certainly not recent material in respect of the issues which are relevant to this Court such as the impact on the husband’s capacity to parent his children by reason of his strongly held social and political beliefs and his prioritising his forthcoming litigation with S Limited.
MS V
Ms V is employed with the Court as a Court Child Expert. She provided a “Child Impact Report” dated 15 June 2023 following “remote interviews” being with the wife by video and with the husband by audio.
She did interview the children in person but together. There were no observations of the children with the either of the parents.
Ms V candidly conceded that her report in this form does not hold the degree of detail and intrusive forensic investigation normally attained by a full Family Report.
At [9] Ms V saw X as presenting as self–assured, competent and reasonable where she says:
…[X] presented a narrative that emphasised his tolerance and management of the current arrangements, although he indicated that this might not be the case for his siblings who he reported struggled more in the context of ongoing acrimony and conflict between his parents.
At [12] and [15] Ms V observed Y thus:
[12][Y] presented consistent with her parents reports of being sensitive, kind, caring and eager to get along with and please everyone. [Y] was reported to have difficulties expressing her emotions and a tendency to keep her feelings to herself. She is reportedly resilient and independent in her endeavours. [Y] is reportedly well liked at school but is academically achieving below-average.
….
[15][Y] reported that she was “fine” with the current arrangements and enjoyed time in each home, but would preference spending a bit more time in her mother’s care suggesting a 60/40 or 8/6 arrangement. She reported that her only concerns were about [M], her step-sister, at her fathers who she reported threw tantrums and like to have her own way. …
At [16] and [17] Ms V observed Z as being confident, enthusiastic and garrulous. She reports Z as eager to launch a narrative about the dispute between his parents noting that his father wanted “50/50” and that his mother preferred “90/100%”. Significantly, Z reported an understanding of a significant issue before this court being the prospect of being “kicked out” of their home and having nowhere to live.
At [19] Ms V opines that Z’s narrative suggested he was “highly aligned” with his mother in stating that he wished to live full-time with his mother “but to spend two days with his father” with Ms V suggesting that Z has been influenced in his wishes and views by his loyalty and attachment to his mother and her experiences. On reflection of the evidence as a whole and of Ms V’s report, I am unable to reach the same conclusion given the lack of nexus in the premise and that conclusion.
THE VIEW
Where the husband is not represented and despite his best efforts, his inexperience with the trial process caused some difficulty in the full presentation of his case and particularly where there is a significant and major issue as to his only realistic proposal for housing the children, should S Limited resume possession of his home, being the property owned and operated by his father.
The wife provided limited photographic evidence annexed to her affidavit of the exterior of this building which showed a degree of scrap metal, car bodies and similar. She had not, however, apparently had access to the interior of the building.
The husband valiantly attempted to impress the building as being adequate to house his children where there are a mixture of current and previous residents. Frankly, however, his own descriptions caused even greater concern as to the nature, compliancy, and safety of that building as a residence for the children.
As a consequence, I raised with counsel and the husband the prospect of a “view”. All parties readily agreed and the parties, the wife’s solicitor and counsel, the ICL and counsel, and the husband convened at the building on the morning of day three of the trial and together with myself and my associate.
The building is large and a former storage facility. The husband’s father, Mr Q, graciously allowed entrance and inspection of the property and accompanied us for that process.
The exterior of the building is cluttered in the extreme with items of many and varied types. Overtly, it would not ideally present as a “play place” for children.
The relevant wooden structure is of substantial size and two stories. The bottom floor is similarly cluttered and full with many and varied objects. The husband describes his father as a compulsive and long-standing collector or hoarder and this appears to be an adequate and proper description of Mr Q. Access throughout the upper floor is limited by his various “collections” which again range widely across types of items.
I am told that Mr Q occupies one end of the building and a view was not taken of his residence. The other end, however, is anticipated to house the husband, Ms L, and four children. It is currently inhabited by a couple who were not present at our viewing.
There is one “bedroom” realistically being only a partitioned section of the large space. There are as yet no observable separate bedrooms for adults and children and notably where Y is of an age where she would require the dignity of some privacy. Similarly, a bathroom is effectively exposed and of limited utility for a larger family unit.
The building and its exterior itself is observed to have sheets of asbestos removed from the structure and laying free. There is exposed wiring and piping. There is a wood heater without safety guard. There are various first floor doors and exits. There are holes and gaps in the roof leaving the interior open to the weather.
Significantly, and whilst both the husband and his father tell the Court of further ongoing improvements to the property and indeed confirmed from our own observations, of greater concern is the lack of Council approval apparently as to both the fact of and quality of such anticipated building work where Mr Q candidly admits that he does not accept the authority of Council to approve his building work and where, of equal concern, is his admission as to recent receipt of a Notice to Vacate the building as a residence. Frankly, the option of this building as a residence for the children is not one open to me on the evidence of the view or on the evidence candidly volunteered by Mr Q as to his lack of Council imprimatur along with the ongoing threat of eviction.
DOCUMENTS
The wife caused numerous documents to be exhibited. Some refer to the wife’s payment for the children’s extra-curricular activities where she complains that the husband has not been forthcoming with contributions.
The wife tendered photographs of the former storage facility.
SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to the children of having a meaningful relationship with both of the children’s parents
Each of the proposals of the parties and the ICL would accommodate the children maintaining meaningful relationships with each of the parents. The term “meaningful” is not defined in the Act. In Mazorski & Albright[3] Brown J at [24] considered dictionary definitions and says at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[3] (2007) 37 Fam LR 518, [2007] FamCA 520.
The consideration of a meaningful relationship is a prospective one as to the benefits to the child in having such a relationship with a parent into the future[4] where the Full Court observed:
118.(a)…the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
…
118.(c)…the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
Section 60CC2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence are stop
[4](2009) FLC 93-405, [2009] FamCAFC 92.
A dispute exists between the parties in respect of this consideration. Importantly, a later amendment to the Act at s 60CC2(A) mandates the Court in applying the considerations set out at s 60CC(2), to give “greater weight” to the consideration at s 60CC(2)(b).
The wife argues that the husband places the children that at risk of harm physically and/or emotionally. Specifically, she argues that the husband’s alternative accommodation proposal of his father’s property is not child-friendly or safe. It is a former storage facility and without Council approval for residents where Mr Q concedes that he has received a notice in such terms from the local council. My observations of the premises show it to be cluttered with various items. The building itself is not in a condition to house children. There are exposed wires and pipes. There are holes in the roof. The accommodation is sub-standard to normal community expectations.
Secondly, the wife argues that the husband’s strident views in respect of many medical issues could potentially put the children at risk. At the very least, there is potential for conflict as evidenced by the school principal’s affidavit.
The wife says there is a history of non-compliance with the Government regulation such as drivers licences, registration, and insurance of vehicles.
Prima facie, the wife says that such risks either individually or collectively, are unacceptable as an environment for the care of children.
The husband says that he will abide by Court orders such as injunctive orders in respect of the transport of children. He seems content with the accommodation offered by his father’s property and says that action has been taken to renovate that property so as to provide proper accommodation for his family unit of six.
He says that he would provide medications for the children “if necessary” whilst maintaining his beliefs.
The wife’s affidavit deposes to instances of physical, financial, coercive and sexual violence from the husband. She was not challenged in this evidence.
Section 60CC(3)(a) any views expressed by the children and any factors such as the children's maturity or level of understanding that the Court thinks are relevant to the weight it should give to the children’s views
The implication of the wife’s evidence is that she believes the children would prefer to spend more time with her whilst maintaining a relationship with their father. The husband indicates that the children were content with the current week-about relationship. The children were interviewed for the purposes of the Child Impact Report and also by Dr U.
At [9] of Ms V's Child Impact Report, X is reported as “tolerating and managing” current arrangements. It appears, however, that these comments are made within the context of his understanding of ongoing conflict and acrimony between his parents.
Ms V at [15] reports Y as being “fine” with the current arrangements but with a preference towards more time in her mother’s care.
The youngest child, Z, is most assertive in respect of his views. Ms V reports Z as preferring more time with his mother. Where Ms V suggests or concludes that this may be by reason of an alignment between Z and his mother, I am unable to make that finding where Z himself, and despite his age, is able to give empirical reasons for his preference such as being concerned for his father given his lifestyle, including being “kicked out” of their home and having “nowhere to live”.
Section 60CC(3)(b) the nature of the relationship of the children with each of the children’s parents and any other person (including any grandparent or other relative of the children)
The evidence suggests that these children have an established relationship with each of their parents and despite their understanding of the parents offering different role models, parenting styles, and home environments with the wife and Mr N providing a stable traditional home of two adults and the children (seven days a fortnight) and where both the wife of Mr N are employed. To the contrary, the husband’s home has various other occupants. Neither the husband nor Ms L are employed. The husband’s principles and particularly in respect of the payment of mortgages, rates, and water place the continuance of his home for the children in some jeopardy and there is evidence that the children are anxious or unsettled by the prospects resulting from the manifestations of some of the husband’s principles.
There is evidence that the children are aware of these circumstances.
Section 60CC(3)(c) the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children; to spend time with the children; to communicate with the children
The parents have a long established informal arrangement of the children living week-about between their households. In many senses this has been a successful regime. The children appear relatively comfortable in each of the parent’s homes.
Important decision making for the children has caused conflict mainly due to the husband’s strong convictions in respect of many issues such as education, Government institutions, and medical matters. The indication of the school principal’s affidavit is that the husband is now compliant with the requirements for education and that the children’s attendance is satisfactory. This has not always been the case where notably at one instance the husband sought to restrict a school staff member.
Section 60CC(3)(ca) the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain the children
Each parent provides the basics for the children on the week about the basis. Nevertheless, the evidence is that the wife has assumed a greater financial responsibility in respect of matters such as extra-curricular activities where she remains in employment and the husband is unemployed. The husband’s refusal to pay mortgage loans arguably will place in jeopardy the home he provides for the children.
Section 60CC(3)(d) the likely effect of any changes in the children’s circumstances, including the likely effect of the children of any separation from either of their parents or any other child or person with whom the children of the living
As mentioned above, the children have strong and established relationships with each of their parents. The proposals of the wife are therefore subtle in giving the children a more stable home base from which to attend school in moving from a seven/seven arrangement to one of nine nights per fortnight with her and five nights with the husband being effectively a long weekend every second weekend.
The children have complained of issues with the Ms L’s daughter, M (aged eight years), in their household. M is, of course, a permanent resident of the husband’s home where they come there week-about. Undoubtedly there are questions of loyalty and discipline. Nevertheless, the indications from the evidence, including that of Ms L herself, are of ongoing issues between the Freud children and M and where M may unfortunately suffer some behavioural issues herself. The mother’s proposal would give the children some small relief from this situation.
Section 60CC(3)(e) the practical difficulty and expense of the children spending time and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
This consideration is of limited relevance whilst the parties seem committed to remaining living in the same locality.
Section 60CC(3)(f) the capacity of each of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs
This is a significant consideration in the dispute before me. Again, the wife challenges the capacity of the husband in many respects. Specifically, she says that he prioritises his own social and pseudo-political views over the better needs of the children. For instance, the husband chooses not to work whilst pursuing his legal stoush with S Limited.
Generally, the wife argues that the husband’s capacity is compromised by his various beliefs and principles where he places the children’s home with him at jeopardy; he has habitually refused to obtain a drivers licence or register/insure vehicles; he does not follow the Government mandates in matters such as COVID; he has previously held views which compromised the children’s education.
Nevertheless, the orders sought by the wife would leave the husband responsible for the care of the children on block periods of five days during school term and for seven days during school holidays. She argues, however, that the subtle change brought by the orders she seeks would both maintain the children’s relationship with their father and also attend to her concerns as to his capacity
The wife’s capacity to care for the children is not challenged by the husband who, of course, argues for a continuance of the week-about arrangements.
Section 60CC(g) the maturity, sex, lifestyle and background bracket including lifestyle, culture and traditions, of the children and either of the children’s parents and any other characteristics of the children that the court thinks are relevant
None of these children are infants and all have some sense of the self-sufficiency. Nevertheless, there are important issues in respect of Y who the parties agree is negotiating puberty. She requires the dignity of privacy and where the husband's alternative accommodation proposal, should he be unsuccessful in his litigation with the S Limited, is not suitable for Y.
The husband’s own lifestyle where he does not take up employment but pursues his social and political viewpoints directly impacts on his capacity to care for the children to his and their maximum potential.
Section60CC(3)(a) whether any of the children are aboriginal or Torres Strait Islander
The wife is of Aboriginal heritage. Significantly, and to the husband’s credit, he has actively encouraged and been involved himself in Aboriginal activities for the children including only recently attending a school holiday camp with the children conducted by a local Aboriginal Organisation.
Section 60CC(3)(i) the attitude to the children, and responsibilities of parenthood, demonstrated by each of the children’s parents
By reason of the orders that he seeks, continuing the status quo, the husband cannot be seen as being critical of the wife’s responsible parenting of the children.
The wife, however, criticises the husband's attitude towards responsibilities of parenthood. Specifically, she argues that he prioritises his own principles over the best interests and needs of the children.
The wife says that the husband chooses not to be gainfully employed. She says that the husband places the children’s home with him at jeopardy by non-payment of mortgages, rates, utilities and similar.
Section 60CC(3)(j) any family violence involving the children or any member the children’s and family
These matters have been dealt with above.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
The implication of the husband’s argument is that he should be permitted to pursue his defence of the S Limited litigation prior to this Court acting on the wife’s application for the sale of the three pieces of real property mortgaged to S Limited. The task of the Court, however, is to deal with the circumstances of the parties as they stand in respect of the current and ongoing best interests of the children.
FINDINGS AND CONSIDERATION - PARENTING
The evidence allows me to easily find that all three children have established and loving relationships with each of their parents. Whilst they are familiar with the regime of the week‑about between their parent’s homes and transition easily, there are indications that the children are aware of and impacted by the various strongly held principles of their father. Notable is Z’s comments to Ms V as to the jeopardy of their accommodation.
I am satisfied that the children are aware of the historical and ongoing conflict between their parents.
The evidence makes it clear that the parents hold different parenting philosophies, present as different role models, and offer different styles of parenting and residence for the children.
The parents are non-communicative in respect of parenting issues and their differing parenting philosophies have impacted on the children such as the husband’s previous lack of commitment to their education as noted in the school principal’s affidavit.
The parents hold very different views as to medical issues for the children most obviously in the husband’s refusal to adhere to Government mandates for COVID and again noted in the affidavit of the school principal.
The parents hold different views as to day-two-day hygiene of the children. I am satisfied that the husband has not at all times adhered to normal hygiene standards for the children where he holds strong views as to the use of common toothpastes, soaps, and washing powders. There has been an impact on the children noted by Y’s complaint to the wife that she has been ridiculed at her school over hygiene issues.
I am satisfied on the evidence that the husband currently prioritises (by his own admission) his social, legal and pseudo-political views where he himself says that he will not seek employment until his litigation with S Limited is finalised.
For all of the above reasons, I am of the view that the presumption of equal shared parental responsibility at s 61DA of the Act is rebutted as being contrary to the children’s best interests. Whilst the parents have admirably worked a week-about arrangement for some years, their different parenting styles and philosophies have impacted directly on the children’s lives and in particular in their education.
I also detect from the evidence a degree of coercive/control in the personality of the husband evidenced by his strident focus on his various matters of principle and including the S Limited litigation.
In all the circumstances, therefore, I am of the view that an order for sole parental responsibility for the three children resting in the wife is in the best interests of those children. I will order accordingly. There will be an order that the wife give notice to the husband of any major decisions made by her in respect of the children’s education and medical issues within seven days of making those decisions.
There is now a relatively long established status quo for these children living in a week-about arrangement between the parents. Whilst the children are clearly resilient in this arrangement, there are also indicators of impact on them and a preference towards the spending more time in the wife’s residence. Z is most vocal in this respect. The use of words such as “tolerate” in respect of the older child’s position is perhaps indicative of wife’s contention that the children do not wish to be seen as disloyal to either of their parents.
A primary issue has developed in this matter as to the capacity of the husband to provide properly for the day-to-day needs of the children and specifically as to their accommodation. Whilst the husband cannot be criticised for holding particular social and legal viewpoints, it is the task of this Court to reality-test those principles in the context of the best interests of the children. Put bluntly, the husband espouses spurious legal argument in respect of his defence in the Supreme Court of Tasmania of litigation commenced by S Limited. In doing so he places his accommodation for the children in jeopardy and where he offers no viable alternative.
He concedes that he has not met the mortgage obligations and apparently has no intention to do so. At the very least, I am able to find that he holds these principles over prioritising the day-to-day needs of his children and specifically as to accommodation. Ms L candidly concedes that she has sought alternative rental accommodation in their locality but without success. The option preferred by the husband of accommodating the children in his father’s property is not one in the best interests of the children. That property is non-compliant in many local Government respects. It contains open wiring and open piping with holes in the roof leaving the premises open to weather. The interior of the property is cluttered with the products of Mr Q’s collections. The exterior of the property is cluttered with many items. The property currently does not have facilities to accommodate the privacy of the children.
Where the wife and the ICL argue that, should the husband be forcibly removed from his current home and continue to propose his father’s property as an alternative, then there should be no overnight time for the children with the husband then I find some real merit in this argument.
I find that the changes to the current regime sought by the wife’s orders, although subtle and allowing the retention of the good relationship between the children and the husband, also attend to the difficulties presented by the husband’s parenting model.
The wife’s proposal would allow the children a more settled and stable home base from which to attend their schooling. This would accommodate the wife’s commitment to the children’s education and extra-curricular activities such not necessarily shared by the husband where his priorities lie in his litigation and other matters of principle.
The wife’s proposal attends more delicately and selectively in accordance with what I understand to be the preferred wishes and views of the children and again most vocally put by Z.
I am of the view that the children's best interests are served by a living arrangement in accordance with the proposals put by the wife and I will order accordingly.
Where the wife proposes generally an arrangement of the children spending nine nights with her and five nights with the husband during school term and equal time during school holidays but where such is conditional upon the husband being able to provide suitable accommodation for the children, I accept the wife’s submissions in this regard and note that they are supported by the ICL. There will be orders which accommodate this circumstance.
I accept the wife’s requirements for “appropriate accommodation” as being:
(1)within one hours drive of the children’s current school at Town B;
(2)having plumbed-in and working bathroom inside the house;
(3)having a bedroom specifically for the use of Y;
(4)having a bedroom specifically for the use of X & Z; and
(5)having a Certificate of Occupancy if owner occupied.
Whilst there are some obvious potential difficulties in either of the parties being the adjudicator of “appropriate accommodation”, my observation of the wife in the witness box is of one objective in her understanding of the children’s best interests and altruistic and supportive of the children’s continuing relationship with the husband. As such, I would make an order as to “appropriate accommodation as agreed between the parties” but am confident that the wife would not abuse this responsibility.
The parties themselves have agreed a number of orders including time for the children between the parents on special days, attendance at extra-curricular activities, communications between children and parents and some injunctive orders.
The wife seeks a discrete injunctive order preventing any third party, including Ms L, from denigrating the wife and/or her partner to or in the presence of the children. Where Ms L herself made admissions as to such conduct from the witness box albeit now with apparent repentance, such an order would be appropriate. I note in this respect, the propensity of the husband to hold “family meetings” in his household.
The wife also seeks an injunctive order in respect of the husband’s use of illicit substances. The wife has adduced unchallenged evidence that the children have been aware of previous use by the husband and I note the husband’s proposed alternative accommodation for the children being his father’s property comes complete at, this time, with a “[…] room”. I note however the husband’s explanation. Such an order is not prejudicial to the husband.
In circumstances where the husband has particular viewpoints as to prescription and non-prescription medications for the children, the wife seeks particular orders of an injunctive type that are ultimately in the best interests of the children. I will make those orders.
The wife seeks similar orders in respect of the use of unregistered and insured motor vehicles. Where there is evidence that the husband has viewpoints in this regard then I am satisfied that such orders are in children’s best interest.
Where there is no open direct communication between the parents, and where they each concede the use of Our Family Wizard App then I will make an order accordingly.
PROPERTY – RELEVANT LAW
The power to alter the interests of parties in property as provided at s 79 of the Act. “Property” includes assets and liabilities of the parties and with later amendments providing that “superannuation may be treated as property” but where, of course, superannuation interests are not ordinarily able to be crystallised in the sense of an asset.
The discretion in the Court to alter property interests is a broad one limited only by the statute itself. In R V Watson: Ex parte Armstrong[5] the High Court observed:
… The judge called upon to decide proceedings of that kind is not entitled to do what has been described as “palm tree justice”. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down…
[5] (1976) 136 CLR 248 at 257.
Section 79(2) of the Act provides:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
The High Court in Stanford & Stanford[6] placed a renewed focus on the emphasis for Courts requiring a separate, independent and discrete determination as to whether it be just and equitable, in the particular circumstances of each case, to make any order altering the property interests of the parties. That consideration is not simply to be conflated with the consideration of contributions of the parties set out at s 79(4).
[6] (2012) 247 CLR 108.
The consideration of s 79(2) here is not a difficult one. The parties were in a relationship between 2005 and 2017. There are three children of the relationship. The parties have now been separated for some seven years. They have each re-partnered. Indeed, I granted them a Divorce on an oral application of the conclusion of the evidence in this case. The parties are the joint title holders to two pieces of real property and the wife has obligations under mortgages on each of those properties and a further piece of the real property at City J held in the husband’s name.
I am satisfied, that is just and equitable to attend to the considerations necessary to alter the parties property interests and finalise property settlement between them.
The Court must first establish the legal and equitable interests of the parties and either of them in property. It is also normally appropriate to attribute value to each of the items in the property pool and hence the property pool itself. Notably, in the matter now before me, valuations have not been obtained in respect of the major assets being the three pieces of real property. The wife does, however, provide appraisals. The husband’s estimates as to value vary slightly.
In any event, it is the wife’s argument that the three properties be sold which will then, of course, have them attract their own value. The husband’s argument is that, upon his successful defence of the S Limited litigation, the parties can retain or sell the properties at their discretion.
After determining the property pool and its value, the Court considers the various contributions made by and on behalf of the parties to the acquisition, conservation, or improvement of the property pool. Contributions may be of a direct or indirect financial type or of a non-financial type including as home-maker and parent.
After the contributions consideration, the Court turns to consider whether there should be any further adjustment to either of the parties by reason of the factors set out s 79(4)(d)-(g) including any relevant considerations at s 75(2) of the Act.
The notion of justice and equity is to permeate the entire consideration.
The wife in her case summary document gives her understanding of the property pool including appraisals obtained on the three pieces of real property. The husband does not take dispute as to the contents of the property pool suggesting only some minimal differences in opinions as to value. The wife’s property pool is as follows:
Description Value 1. E Street, Town F (average of real estate appraisal) $600,000 2. G Street, Town C (average of real estate appraisal) $455,000 3. H Street, City J, Queensland $402,000 4. Motor Vehicle 1 (husband) $4,500 5. Tools of trade (husband) $20,000 6. Vehicle 4 (husband) $9,000 7. Motor Vehicle 2 (wife) $4,000 8. Motor Vehicle 3 (wife) $800 Total property $1,495,300
The liabilities are:
Description Value 1. S Limited mortgage secured by E Street, Town F (joint) $336,740 2. S Limited mortgage secured by G Street, Town C (joint) $205,052 3. Rates arrears – E Street, Town F (joint) $10,418 4. Utilities Bill arrears – E Street, Town F $1,000 5. S Limited mortgage – H Street, City J (joint) $368,925 6. Rate arrears – H Street, City J (husband) $13,598 7. Water Bill – H Street, City J (husband) $1,300 Total liabilities $937,033
The net tangible property of the parties is $558,267.
The superannuation of the parties is:
Description Value 1. Wife – Superannuation Fund 2 $10,556 2. Husband – Superannuation Fund 1 E$204,000 Total superannuation $214,556
The total net property of the parties including superannuation is $772,823.
It is available to the Court to consider the property of the parties on a one-pool basis being inclusive of superannuation or to consider superannuation and the tangible property of the parties separately on a two-pool basis. The wife advocates the latter approach where she argues for orders distributing the net tangible assets of the parties as to 65 per cent to herself and 35 per cent to the husband but with a splitting order from the husband’s superannuation so as to give equality of superannuation for each of the parties.
The husband’s position is more simply of a 50/50 division of all of the property of the parties inclusive of superannuation although during the trial the husband was altruistic in at times offering the wife the totality of his superior superannuation. I put this down, however, to the husband’s particular non-acceptance of many principles of the fiscal system.
Relevantly, there are substantial arrears in the mortgage to the National Australia Bank in respect of all three properties. The arrears on E Street, Town F are $71,046 as of 5 April 2020. The arrears in respect of G Street, Town C are $28,705 as of that date. The arrears in respect of H Street, City J are $76,017 as of that date.
Where the husband has stated repeatedly, including in conversation directly with S Limited, that he has no intentions of paying the arrears or any further mortgage instalments then it is unsurprising that the S Limited have taken recovery proceedings in the Supreme Court.
I am told and accept that the arrears are increasing by approximately $250 per day or some $88,000 per year.
The parties commenced cohabitation when both were very young. Neither had any wealth as of that date.
During the course of the relationship the parties both worked diligently towards accruing their current wealth. There are, of course, three children of the of the marriage.
The wife’s trial affidavit is unchallenged at [198] and following where she details her superior contributions as home-maker and parent. I accept her unchallenged evidence accordingly.
Neither party has received any financial windfall during the course of the relationship.
During the seven years of post-separation the husband has resided in the parties’ property at E Street, Town F and collected rent from the property at City J. He lives off the rental income. He does not pay instalments on the mortgages of either the City J or Town F properties.
The wife resided in the Town C property between separation in late 2017 and December 2019. She met mortgage payments during that period.
The wife now resides in her partner’s home at Town B. The wife let the property at Town C to tenants between early 2020 in mid-2023. At which time the wife’s unchallenged evidence is that the agent refused to continue in that role due to frequent communications from the husband.
The property was subsequently abandoned by the tenants and left in an unkempt state.
The wife says that she was required to spend $5,500 to restore the property to its habitable state and did not pay the mortgage as a set off for this expenditure.
During this period the wife by her own labours returned the property to a habitable state and made improvements to the property. This explains the lesser mortgage arrears for the Town C property. She now manages the property with responsible tenants and receives $350 per week rental. She again contributes to the mortgage but accepts the mortgage arrears indicated above.
The wife also concedes at [260] of her affidavit that in 2022 she diverted some of the mortgage payments to fund these legal proceedings.
The wife says the current mortgage arrears at $28,705 with arrears of $800 for land tax and $1000 for council rates.
The wife says she has solely been responsible for the children’s school fees, uniforms, school equipment, books, sporting equipment, clothes, registration fees, and costs of sports and extra‑curricular activities for the children since separation.
The wife says that she attends to and finances all the children’s specialist appointments including dentists, doctors and medication.
The wife is included in the S Limited litigation by reason of her name being on all three mortgages. She is not a keen, willing or active participant and I reject any suggestion from the husband to the contrary.
Indeed, the wife vigorously argues for orders in this Court for the sale of all three pieces of real property in the hope that this will avoid less a beneficial sale by the S Limited if successful in their litigation against the husband.
I accept that the wife has made superior contributions during the relationship by reason of her unchallenged evidence as to her home-maker and parenting duties whilst also being employed. This is not to detract from the contributions made by the husband who also worked hard and diligently.
I accept that post separation the wife has finalised a motor vehicle debt of $10,000.
I accept generally the submissions as to the wife’s superior contributions post-separation to the needs of the children. There is an obvious issue as to the diminishing of the value of the property pool by reason of mortgage arrears. I attribute this to the husband by reason of his espousing of various principles but specifically as to his refusal to meet mortgage obligations on the three properties and whilst receiving and benefiting personally from the rental income of the City J property. Where it might be open for me to consider this matter under “contributions” with reference to the well known authority of Kowaliw v Kowaliw [7] I prefer this case to deal with this issue under s 75(2)(o) of the Act where I also take into account the wife’s paid legal fees from the “mortgage”.
[7] (1981) FLC 91-092.
In summary, therefore, I accept that the wife has made superior contributions to the husband by reason of her home-maker and parenting role during the relationship and her post-separation contributions and particularly to the children. Consequently, on the basis of contributions alone I will distribute the property as to 53 per cent to the wife and 47 per cent to the husband.
SECTION 75(2) FACTORS
The husband has a capacity for gainful and remunerative employment. He chooses not to take up that employment and favours his concentration on various matters of principle including forthcoming litigation with S Limited.
He has qualifications in two fields. I am satisfied that his qualifications and experience give him income potential superior to that of the wife who works in the recreational industry.
By reason of the parenting orders that I make above, the wife will have the greater responsibility for the care and financial support of the children. In his current circumstances, the wife cannot expect child support contributions from the husband. I accept, however, that the husband has responsibilities to house and provide for the children during the five day blocks of time they will now spend with him.
I am satisfied that the husband by reason of focus on his various principles has diminished the asset pool in the sense of accruing mortgage arrears. Significantly, he has had the benefit of the income from the City J property whilst not meeting the mortgage obligations. Similarly, he has resided in the Town F property whilst not meeting the mortgage and other obligations. I am satisfied that the wife is not complicit in the husband’s refusal to meet the mortgages. Indeed, she has actively continued to contribute to the Town C mortgage.
I take into account at this point the wife’s conceded use of the Town C property and to directing monies elsewhere other than to the mortgage. I accept, however, her argument generally that those monies were put in part to the improvement and/or maintenance of the Town C property.
In all of these circumstances, I am satisfied that there should be a further adjustment to the wife of 12 per cent of tangible property pool.
In summary, therefore, I am satisfied after consideration of issues of contributions and the relevant s 75(2) factors that the tangible property pool of the partis should be distributed as to 65 per cent to the wife and 35 per cent to the husband.
I accept the apparently now agreed position between the parties that there should be a split from the husband’s superannuation entitlement to the wife so as to give equality of superannuation between them. I will order accordingly.
So as to give effect to these orders I will also order that the properties at City J, Town F, and Town C, be put on the market for sale and the wife to have carriage of the sale of those properties given the husband’s vehement opposition to that course and his commitment to litigation with S Limited.
The wife seeks and immediate order for the husband to vacate the Town F property pending its sale. Where the children will spend five nights per week in that property during school term then I will not accede to that submission. I will instead order specifically that the husband permit the real estate agent and the wife reasonable inspection of the property, exterior and interior, and that he keep the property in a fit and tidy condition for the sale. I will give the wife liberty to apply in this respect.
Where the husband has an avowed dislike of the wife’s solicitor, but where the wife will have carriage of the sale of the property, I will order that the wife’s solicitors, Wallace, Wilkinson and Webster act as lawyers on the conveyance.
I certify that the preceding two hundred and forty-nine (249) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 8 May 2024
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