McMillan and Flint
[2016] FCCA 1325
•26 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCMILLAN & FLINT | [2016] FCCA 1325 |
| Catchwords: FAMILY LAW – Children and property – 10 year de facto relationship – two children – considerations of children’s best interests – contributions to property pool – s.90SF factors. |
| Legislation: Family Law Act 1975 |
| Cases cited: AJO& GRO [2005] FamCA 195; (2005) FLC 93-218 |
| Applicant: | MS MCMILLAN |
| Respondent: | MR FLINT |
| File Number: | LNC 57 of 2015 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 12 & 13 May, 6 & 8 June, 12 July and 23 August 2016 |
| Date of Last Submission: | 23 August 2016 |
| Delivered at: | Burnie |
| Delivered on: | 26 August 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Verney |
| Solicitors for the Respondent: | Matthew Verney |
ORDERS
That within forty-two days of the date of these Orders the Respondent shall:
a)Pay to the Applicant a lump sum of $55,427.
b)Transfer and/or vest all his right, title and interest in the following to the Applicant absolutely:
i)The proceeds of sale of the land at Property E in Tasmania;
ii)The Applicant’s Magna motor vehicle;
iii)The Applicant’s musical equipment;
iv)All personalty and chattels in the possession of or under the control of the Applicant as at the date of these Orders;
v)The balances of any bank accounts in the name of or to the benefit of the Applicant as at the date of these Orders; and
vi)The Applicant’s superannuation policies and entitlements.
c)Be solely responsible for and indemnify the Applicant in respect of the following:
i)Any and all liabilities attaching to any of the assets to be retained by the Respondent pursuant to these Orders including but not limited to the property situate at Property B in Tasmania and the Respondent to make all reasonable efforts and endeavours to re-finance any mortgage liability secured by that property and to provide the Applicant with a release of her liability;
ii)Any and all liabilities incurred by the Respondent since separation in either his name alone or in joint names.
That contemporaneously with the payment referred to in 1 hereof the Applicant shall:
a)Transfer and/or vest all her right, title and interest in the following to the Respondent absolutely:
i)The property situate at Property B in Tasmania;
ii)The Respondent’s camping equipment;
iii)The Respondent’s boat;
iv)All personalty and chattels in the possession of or under the control of the Respondent as at the date of these Orders;
v)Any bank account or like investment in the name of or to the benefit of the Respondent as of the date of these Orders;
vi)The Respondent’s superannuation policies and entitlements but subject to these Orders.
b)Be solely responsible for and indemnify the Respondent in respect of the following:
i)Any liabilities attached to any assets retained by the Applicant pursuant to these Orders;
ii)Any and all liabilities incurred by the Applicant since separation either in joint names or her name alone.
a)That pursuant to section 90MT (4) of the Family Law Act1975 (as amended) a base amount of $27,512 be allocated to the Applicant Ms McMillan out of the interest of the Respondent Mr Flint in the (omitted) Superannuation policy in his name.
b)The following Order has effect from the operative time.
c)That pursuant to s.90MT(1)(a) of the Family Law Act 1975, whenever the Trustee of the (omitted) Superannuation policy in the name of Mr Flint makes a splittable payment in respect of the Respondent’s superannuation interest in (omitted) Superannuation (“the Fund”) the Applicant, Ms McMillan, shall be entitled to be paid by the Trustee the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and that there be a corresponding reduction in the entitlement in which the Respondent Mr Flint would have had in the Fund but for this Order.
d)That having been accorded procedural fairness in relation to the making of this Order, this Order binds the Trustee of the (omitted) Superannuation Fund in respect of the member Mr Flint.
e)That the operative time for this Order is 4 days from the date of these Orders.
f)That the parties agree that the gross value of the Respondent’s accumulation interest in (omitted) Superannuation Fund is $89,792 and that value has been calculated in accordance with the Family Law (Superannuation) Regulations 2001.
PARENTING ORDERS:
That the parties have equal shared parental responsibility for X born (omitted) 2005 (“X”) and Y born (omitted) 2006 (“Y”) (“the children”).
That X and Y live with the mother.
That X and Y spend time and communicate with the father as follows:-
(a) In each alternate week from Thursday at the conclusion of school until the following Tuesday at the commencement of school;
(b)For one half of each school holidays as agreed between the parties but failing agreement then for the first half of school holidays in 2016 and each alternate year thereafter and the second half of such holidays in 2017 and each alternate year thereafter and for these purposes the fortnightly regime of time set out above be suspended during school holidays;
(c)In any event at Christmas in 2016 and each alternate year thereafter from 3.00 p.m. on Christmas Day until 5.00 p.m. on Boxing Day and in 2017 and each alternate year thereafter from 5.00 p.m. on Christmas Eve until 3.00 p.m. on Christmas Day; and
(d)At such other times as may be agreed between the parties from time to time.
That in any event the children will spend time with the mother at Christmas in 2016 and in each alternate year thereafter from Christmas Eve at 5.00 p.m. until 3.00 p.m. on Christmas Day and in 2017 and in each alternate year thereafter from Christmas Day at 3.00 p.m. until 5.00 p.m. on Boxing Day.
That in any event the children spend Father’s Day in each year with the father from 5.00 p.m. on the preceding day until 7.00 p.m. on Father’s Day and with the mother on Mother’s Day from 5.00 p.m. on the preceding day until 7.00 p.m. on Mother’s Day.
IT IS NOTED that publication of this judgment under the pseudonym McMillan & Flint is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BURNIE |
LNC 57 of 2015
| MS MCMILLAN |
Applicant
And
| MR FLINT |
Respondent
REASONS FOR JUDGMENT
These proceedings involve property settlement between the parties and parenting orders for their two children, X born (omitted) 2005 (“X”) and Y born (omitted) 2006 (“Y”) (“the children”).
The applications were listed for final hearing in the Burnie circuit of the court in the week commencing 9 May 2016. On that day both parties were represented. Counsel for the applicant, however, sought an adjournment on that day on a number of bases including that the applicant’s trial material had not been prepared and filed. This is despite the trial directions being made by Judge Roberts as long ago as 1 December 2015. An indulgence was granted the wife until 12 May 2016. Her affidavits reached the court file that morning.
Her counsel then unsuccessfully sought a further adjournment including on the basis that the court would have no valuation evidence in respect of the former matrimonial home in a proper form. Upon the refusal of the adjournment, counsel then sought leave to withdraw ostensibly on the basis that “certain advice had been given to the client but not accepted”.
Obviously, such a situation was quite unsatisfactory given the husband’s position that he claimed to be ready for trial, had filed his material, and had a reasonable expectation that the matter would be dealt with to its final conclusion.
Nevertheless, and despite the difficult position in which she found herself, the wife elected to proceed with the hearing. She did so in a competent and courteous fashion and after the court had gone to some considerable effort to assist her with the procedure of a final hearing with an invitation to seek further assistance throughout the hearing if required.[1]
[1] Re F: Litigants in Person Guidelines (2001) FLC 93-072
The husband was represented during the interlocutory procedures and at the final hearing.
Orders Sought - Wife
The wife sought an alteration of the parties’ tangible net assets as to 60 per cent to her and 40 per cent to the husband. She proposed a superannuation split whereby each of the parties would achieve 50 per cent of their joint superannuation entitlements.
Ms McMillan proposed that the children live with her and spend time with the father each second weekend from the conclusion of school on Friday until 5 pm on Sunday, commencing on the Thursday or concluding on the Monday in the event of student free days or public holidays. The wife proposed that the children spend seven consecutive nights with the father in each term or each “mid-year school holidays” and that the children live on a week-about basis between their parents during the summer holidays. She also suggested arrangements for special days such as Father’s Day and the children’s birthdays.
Both parties sought an order for equal shared parental responsibility despite the wife having the benefit of a police family violence order and the presumption pursuant to section 61DA of the Family Law Act 1975 (“the Act”) not applying.
During the course of the hearing and having ceased her relationship with her solicitors, the wife on occasions punctuated her evidence to the effect that she would be open to flexibility in the children’s living arrangements.
Orders Sought - Husband
By the end of the evidence and in final submissions, the husband’s counsel sought orders whereby there be an equal division of the parties’ net tangible property together with a $40,000 split from the husband’s superannuation entitlement in favour of the wife.
The husband proposed orders whereby X and Y live in a week‑about arrangement between the parties with provisions for special days.
Issues – Parties’ Cases
There was initially some argument in respect of the property pool, although during the course of her evidence the wife made appropriate concessions such that the parties were effectively able to agree the pool of property. Specifically, the wife agreed that her HECS liability of near $30,000 should be quarantined from the property pool on the basis that she brought such debt into the relationship and further accrued that liability post separation by reason of her continuing studies.
The wife seeks 60 per cent of the property pool presumably on the basis of relevant section 75(2) factors and primarily her quest to have the children live primarily with her. Further, she argues that the husband is in employment whilst she pursues her studies and, as she says, the husband is currently in a superior financial position and has a greater capacity for employment.
The wife argues that post separation the parties had trialled children’s living arrangements including, for a short period, a week-about regime and later the children living primarily with her but spending substantial and significant time with the husband. She says that both arrangements were unsuccessful and caused anxiety for the children. She says that the children “voted with their feet” returning early to her and expressly or implicitly the children are desirous of a relationship whereby they spend only weekend time with the father, although she emphasised her willingness to be flexible.
The wife questioned the motivation of the husband for a week‑about arrangement, suggesting that he was influenced by financial considerations including child support assessment and ultimately the division of the property.
The wife claims that she has habitually been the primary carer of the children in the sense of being the parent involved in their education and health matters.
The wife in her evidence claimed superior contributions during the relationship, although I suspect that these claims are as a result of her being a litigant in person and naïve as to the holistic approach of the Act and Court’s to consideration of contributions to a marriage.
The husband claims that contributions were equal on considerations of the roles that the parties played during the relationship. I note that these parties were not married but lived in a de facto relationship.
His proposal is also obviously based on his application that the children spend week-about living between the parents.
The husband says that the wife has qualifications and experience as a (occupation omitted) and hence has the capacity for employment. The implication is that she chooses to pursue her current studies in fields such as (omitted) and that she should therefore not benefit under the section 90SF(3) considerations.
The husband’s evidence is that the trialled arrangements of equal time and substantial and significant time were thwarted by the applicant. He says that the children have a stated preference to spend more time with him and that he has the skills and facilities to accommodate an equal time regime.
I did have the opportunity to see and hear both parties cross‑examined and it is apparent that they are of different personality types. The applicant was both confident and assertive in her evidence. Not surprisingly, she was negative in respect of the respondent and particularly as to his non-financial/parenting contributions as well as his capacity to attend to the children’s needs other than for weekend time.
In respect of the applicant I gleaned from her evidence and demeanour a sense of “parenting as of right” to the exclusion of the respondent. She was critical and unaccepting of reports of the children’s psychologist, Ms R and the family consultant, Ms S, both of whom indicated the children’s preferences to spend more time with the father.
Generally, however, I viewed Ms McMillan to be a witness of the truth although her evidence suffered by reason of her negativity, criticism of the respondent and her own assertive personality.
I observed the respondent to be of a more passive and calm personality. I am also satisfied that Mr Flint was generally a witness of the truth and he presented as child-focused without any of the ulterior motives suggested by the applicant. It is clear to me that the differences in the proposals of the parties emanate principally from their own different personality types.
Background Facts
The parties were not married but lived in a de facto relationship from early 2004 until separation in September 2014.
The applicant is 39 years of age. The respondent is 34 years old.
The respondent continues to live in the former matrimonial home and this is a further point of contention between the parties whereby each of them essentially argues that they retain the home pursuant to any orders for property division I should make.
The applicant is a (occupation omitted). She does, however, have a broader range of (employment omitted) experience. She more lately has been a (occupation omitted) and is pursuing further studies in (omitted). She is otherwise dependent upon Centrelink benefits. She receives child support from the respondent in a quantum of $139 per week.
The respondent is currently employed as a (occupation omitted) for (employer omitted). He has an income of approximately $52,000 per annum. The applicant’s unchallenged evidence is that the respondent was employed in a (occupation omitted) capacity until 30 June 2015 with an income of approximately $128,000 per annum.
The evidence suggests that both parties have repartnered and indeed there has been manifest friction and conflict between the parties and their respective partners.
A police family violence order was made against the applicant in about September 2015. She applied for a family violence order against the respondent in December 2015 although that application was later withdrawn.
The Evidence
Each of the parties relied on trial affidavits and sworn financial statements. The applicant’s financial statement was not updated by her former solicitors from February 2015 and this was done during the applicant’s evidence-in-chief.
The parties are the registered proprietors of two pieces of real property. It is true that neither party came to the trial of this matter with evidence in proper form as to the valuation of the former matrimonial home situated at Property B in Tasmania. The respondent anticipated relying on a real estate agent’s “valuation” of $220,000. No affidavit was filed by the agent and he was not called to give evidence.
The applicant disputed that “valuation” and was able to articulate in her evidence her reasons for doing so. Her estimation of $265,000 value appears to have been based on the purchase price of the property although she conceded that various “renovations” had been made by the respondent, some of which may have decreased its value whilst others may have increased the value. Put simply, the applicant, in my view, suffered from the dilatory preparation of this matter from her former solicitors who, as set out above, sought and attained leave to withdraw from acting only at the commencement of the trial.
Consequently, and given that both parties were anxious to have these matters concluded and given that the initiating application had been filed as long ago as February 2015, I determined to proceed with the evidence on the basis that the matter would then be adjourned part‑heard for the parties to obtain a joint valuation on the Property B property from a registered valuer on affidavit and at their joint expense. It eventuated that each party relied upon separate valuers evidence but finally agreed at $227,500 after a conference of valuers.
Secondly, the parties own a property at Property E in (omitted) Tasmania. That property is the subject of a contract for sale and the parties agree that they will achieve net proceeds of $65,000. This will leave them with an agreed mortgage liability secured by the Property B property of $81,500.
The respondent also adduced evidence from Ms R, registered psychologist. Her affidavit was sworn 21 April 2016. She gave evidence and was cross-examined by the applicant.
Ms R’s report on her dealings with the children dates from August 2015.
Given the conflictual and untrusting relationship between the parties, they were critical of the antecedents to Ms R’s involvement with the children. It seems clear, however, that the motivation for her involvement came from the respondent although there was later involvement by the applicant.
Ms R saw X only once in November 2014. She had six sessions with Y. The respondent initially gave her his version of the historical background and his motivation of being concerned that the children were suffering from emotional distress following the parents’ separation.
Ms R’s report notes the applicant’s initial claim that the children’s distress and anxiety was associated with the separation, although she conceded that Y “was struggling and had been having emotional difficulties”. Ms Flint notes the applicant stating “her right to ‘stop’ Mr Flint from seeing his children”. Ms McMillan reported Y’s anxiety and stress from prior to the relationship breakdown.
Ms R reported X’s “satisfaction with the access arrangements, saying that he would prefer to be in his mother’s care more”, whereas Y “was clear and has remained consistent with his desire to see his father more and in expressing his concern that he does not always know when he will be ‘allowed’ to see his father”. Y reported his desire to spend more time with his father and his frustration at not being allowed to call or ask to go to his father.
Ms R noted both boys being cautious in their discussions with her. She considered Y to be “withdrawn and emotionally isolated, confused and unsure”.
Ms R reported the applicant as repeating her plans to restrict Y’s access to the father.
Ms R’s concluding paragraph opines:
Y is showing a number of somatic signs of anxiety that need further investigating and the uncertainty of the care arrangements and the ongoing negatively between Ms McMillan and Mr Flint I feel is having an adverse impact on this quiet and cautious young man.
Ms R’s evidence in court was essentially consistent with her written report and she repeated her concerns that the children’s anxiety was related to ongoing parental conflict.
The court also had the benefit of a short form family report prepared pursuant to section 11F of the Family Law Act by family consultant Ms S in September 2015.
Ms S interviewed both the parents as well as the children. Her interviews and report are approximately nine months later in time than those of Ms R. Ms S’s observations and reporting of each of the children is enlightening and worthy of transcription into these reasons. Thus:
X (10 years) is in grade 4 at (omitted) Primary School:
· X indicated two differing attitudes to the parenting arrangements.
· He initially stated he liked the parenting arrangements “as it is”. This is a two/ten arrangement where he lives primarily with his mother and spends time with his father every second weekend from after school Friday to Sunday morning.
· X indicated he saw his father once or twice and often for an overnight in the week he was not spending the weekend with him. Both his mother and his father said this was not true.
· X described loving his father and mother equally and liking each household with no preference.
· X clearly stated he did not prefer one household or parent over the other and was keen to describe both households with fairness.
· When X was asked how he would feel if he was told he had to live in a week-about parenting arrangement he indicated that this would not be difficult for him and that he had liked doing that in the past. He said he would like to see the non-resident parent during the week, possibly for one or two nights.
· X also indicated he would like to see more of his father than he currently is. X indicated that he would like the acrimony between his parents to cease.
· X indicated that he is tired of not having a firm parenting arrangement and would like this to be sorted soon.
Y (nine years) is in grade 3 at (omitted) Primary School:
· Y also indicated two differing attitudes to the parenting arrangements.
· Y also initially stated he liked the current parenting arrangements. This is a three/ten arrangements where he spends Thursday night with his father in one week and then Friday and Saturday nights with his father in the next week.
· He said he had at first liked the week-about arrangements that were initially put in place after the separation of his parents (September‑November 2014) and was sad that this ceased. He said he had grown accustomed to the new arrangements.
· Y also indicated a lack of preference for one parent over the other and described with ease enjoyable and pleasant times in both households, indicating he equally enjoyed being in them.
· When Y was asked how he would feel if he was told he had to live for a week in both households he stated he would like that.
· Y indicated that he would like to see more of his father.
· Y also indicated he finds the ongoing acrimony between his parents stressful and would like his parents to relate better together.
Ms S gave evidence by telephone and was cross-examined briefly by the applicant and counsel for the respondent. Ms McMillan had indicated in court her concerns that the father had manipulated or induced the children’s responses to Ms S. Nevertheless, she did not raise this point in cross-examination. Ms S agreed that the children would be likely to suffer a continuing anxiety unless their parents’ conflict is resolved. Further, Ms S opined that continued parental conflict and hence anxiety for these children may well result in them being socially dysfunctional adolescents and young adults.
Ms S agreed that there are great benefits for children to see and understand their parents’ cooperatively and communicatively parenting and for both of them to be sharing the full responsibilities of the parenting role.
Consideration of Children’s Issues – Relevant Law
It is trite to state that the children’s best interests are the paramount consideration for the court.[2] For practical purposes, those best interests are determined by reference in the probative evidence and the parties’ proposals to the mandatory considerations set out in section 60CC(2) and (3) of the Act. These sections are to be read against the objects and principles of the Act set out in section 60B.
[2] Family Law Act s60CA.
S 61DA of the Act offers a presumption that it is in children’s best interests for their parents to have equal shared parental responsibility which manifests in relation to the important long-term decisions for children. That presumption does not apply if the court is satisfied that the children have been exposed to family violence or child abuse. Alternatively, the presumption can be rebutted if the court is satisfied that such an order would be contrary to the children’s best interests.
Interestingly, and despite their apparent entrenched conflict and animosity, and mutual allegations of family violence, each party here positively seeks an order for equal shared parental responsibility. It follows and importantly, if the court makes such an order then the legislation stipulates a course of statutory and intellectual consideration in respect of children’s living arrangements.
Firstly, the court must consider whether it is both in the children’s best interests and reasonably practicable for them to live in an equal time arrangement between their parents.[3] If the findings in respect of either of those questions is in the negative then the court must move to consider whether the children spending a regime of “substantial and significant time” with each parent is both in their best interests and reasonably practicable.
[3] Family Law Act s.65DAA(1)
Section 65DAA(3) of The Act offers a definition of “substantial and significant time” as follows::
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if: (a) the time the child spends with the parent includes both: (i) days that fall on weekends and holidays; and, (ii) days that do not fall on weekends or holidays; and, (b) the time the child spends with the parent allows the parent to be involved in: (i) the child’s daily routine; and, (ii) occasions and events that are of particular significance to the child; and, (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The considerations under section 60CC(2) and (3) are divided into “primary” and “additional” considerations. For all practical purposes, however, there is no hierarchy of importance and the weight to be accorded each consideration turns on the evidentiary platform on a case‑by‑case basis.
Section 60CC Factors
S 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child’s parents
The evidence of the respondent, Ms R and Ms S all tend towards these two boys having a successful, bonded and meaningful relationship with each of their parents. It is the applicant mother who questions such a relationship.
I prefer, however, on the evidence and particularly of the experts, that the danger here is that the children’s relationship with their father is challenged and perhaps undermined by the mother. This may not occur in an overt fashion but the children’s revelations to Ms S, together with my observations of the mother’s strong personality type are suggestive of the children absorbing and assimilating their mother’s negativity towards the father and her tendency to criticise him if only because he may not adopt her preferred parenting model.
It is a truism that children should benefit by the diversity of their parents’ personalities and parenting styles rather than have their loyalties divided and feel conflicted by such diversities. These children should be permitted to openly maintain and develop their relationships with each of the parents and know from their parents that they have permission to do so. This is most easily achieved by the parents putting aside their own residual antagonisms if only to present as a united parenting front for their children.
S 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There have been some instances of family violence between the parents and their partners. It is highly likely that the children are aware of these events and would be reasonably expected to develop anxieties or trauma because of the parents’ behaviour. Of more significance, however, are the anxieties of these children observed by Ms R and Ms S.
It is not difficult to assume again that the parents’ conflict is directly related to their children’s distress. Ms S made it clear that such anxieties if left unaddressed will have an ongoing negative impact on these children into their adulthood. On the facts before me, I would see both parents being culpable to various degrees in this respect.
S 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
Each of the parents was keen in his and her affidavits and evidence in court to emphasise their understanding of the children’s views and preferences.
The father says that the children want to spend more time with him. The mother says the children want to spend less time with the father and it be limited to weekends. Each impliedly challenges the honesty of the other as to this evidence.
In reality, however, it is entirely plausible that these two young children, made anxious by their divided loyalties between parents in entrenched conflict, might simply be telling each of the parents what they understand that parent wants to hear. The evidence makes it clear that each of these parents, in their own ways and reflective of their personalities, have involved and on occasions, permitted these children to become involved in what is fundamentally an adult dispute.
Each of the children variously has been imbued with the views of their parents. As such, and given their young ages, the Court should be cautious in placing any considerable weight on the stated views and preferences of the children. Nevertheless, the evidence of Ms S was of assistance in extracting the children’s views independent of their parental loyalties. There is some support in this respect from Ms R.
Accordingly, I am satisfied on the balance of probabilities that these children want to spend more time with their father than is currently the case and probably more than they feel to be “permitted” by their mother. Significantly, however, I doubt whether either of these young boys is of such maturity that he would feel confident in articulating those views to either of his parents.
S 60CC(3)(b) – the nature of the relationship of the children with each of their parents
The nature of these children’s relationships is highlighted by their reactions to their parents’ conflict and acrimony. I am satisfied that their loyalties are both challenged and divided. This results in situations such as direct challenges to the parents themselves as evidenced by X electing to return to his mother if properly disciplined by his father.
These parents should be aware that, whilst their behaviour causes their sons to become anxious and emotionally troubled, such uncooperative and conflictual parenting will also allow these children to manipulate the parents to their own advantages.
Fundamentally, the nature of the children’s relationships with their parents is a divided one. They have separate but not parallel relationships. The lack of any basic cooperation and communication between the parents results in the boys seeing their mother and their father as divided and competitive parents.
Section 60CC(3)(c) – the extent to which each of the children’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the children; and, (ii) to spend time with the children; and, (iii) to communicate with the children
The mother is extremely critical of the father’s alleged lack of participation in the children’s lives, schooling and extracurricular activities prior to separation. She says that she was primarily responsible for their daily care and matters of schooling. Such situations are, however, not unique or even unusual. Parents evolve and accept certain roles and priorities within a family unit. It is then only upon separation that they are subject to criticism.
Whilst I accept that the mother assumed the primary role for the children’s education prior to separation, this is not necessarily a negative statement in respect of the father, and quality of relationships can be manifested in many ways.
It follows that the applicant now criticises the respondent for his greater involvement in the children’s care and their education following separation. The implication is that the respondent is simply trying to place himself in a good light for the purposes of these proceedings. This was not the impression that I gleaned.
The respondent does not have the cooperation of the applicant in his parenting of the children. They do not communicate. Consequently, I prefer that the respondent has elected to take on a more active role in the children’s education and other aspects. I detected no ulterior motive in the respondent.
Similarly, the applicant criticises the respondent in that the children are sometimes brought back to her early from time with their father or simply return of their own volition. My observations of the respondent were that he may need to take a more active and assertive role as a parent of his children although this might also lead to criticism from the applicant.
I am not however persuaded that this is a father who is disinterested or uncommitted to his children. I prefer that this again is a reflection of the differing personalities of the applicant and the respondent with the latter being far more passive and accommodating of his children and sometimes to a fault.
S 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
I find any criticism of either party in this regard to be unjustified. The respondent works and pays child support as assessed. The applicant does not pursue her (omitted) qualifications but provides substantial financial support for the children.
S 60CC(3)(d) – the likely effect of any changes in the children’s circumstances, including the effect on the child of any separation from either of their parents
These parents live within very close proximity in a small coastal village. Effectively, and apparently safely, the children can move between their parents’ homes. The changes anticipated for these children in the applicant’s argument is that they will undoubtedly see one of their parents in a primary or dominant role to the exclusion of the other. As Ms S noted, children often benefit from understanding each of their parents to accept significant responsibility following a separation.
S 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent
This consideration is not relevant.
S 60CC(3)(f) – the capacity of each of the children’s parents to provide for the needs for the children, including emotional and intellectual needs
The applicant mother accepts that the children display symptoms of anxiety. On the evidence before me, I cannot be satisfied that she understands or accepts that she is at least a part of the cause. She maintains her overt hostility to the respondent, a situation which is compounded by her dominant personality.
Despite the insightful reports of Ms R and Ms S, this mother appears oblivious to the emotional dangers her children face. She either disputes or disregards her children’s views and preferences. In this respect, this mother’s capacity is impeached. She does, however, otherwise provide well for the children’s physical and intellectual needs.
Conversely, however, the respondent father’s capacity suffers because of his more passive personality type. He allows the children to challenge him where matters of discipline are concerned. He too can be drawn into conflict which impacts on his children’s emotional health.
The respondent seeks orders for a regime of equal time. His evidence, however, is uncertain in support of such a proposal. He works full time and five days per week. He says simply that he can have some “flexibility” in his work hours. He adduced no evidence from his employer and the respondent’s own evidence in this respect was not persuasive. He gave little and adduced no evidence in respect of support network where he on occasion starts work early and regularly finishes his work after the completion of school.
Whilst his ambitions in respect of being able to care for the children on a week-about basis are admirable, they also seem ambitious and made without the benefit of full consideration.
Interestingly, the mother’s proposal is that the father have the children on a week-about basis during school holidays. This must be some implied concession as to his capacity. Ms McMillan says, however, that it is she who historically has attended to their educational matters.
She criticises the respondent as not being able to complete the basics such as organising school lunches and attending to the children’s clothing. Again, however, I prefer that this is symptomatic only of the mother taking on this role during the relationship. These are skills that can be easily learned together with routines and order in a house during the school week.
S 60CC(3)(g) – the maturity, sex, lifestyle and background of the children
This consideration is relevant in respect of the children’s emotional health. They are still young and reliant upon their parents. They would not reasonably be expected to be of sufficient maturity to deal with their parents’ overt conflict without some negative impact on them.
S 60CC(3)(h) – if the children are Aboriginal or Torres Strait Islander
Not relevant.
S 60CC(3)(i) – the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents
Firstly, it behoves these parents to put aside their residual difficulties and to attempt to cooperatively parent their children. Each of them in their own way has been lacking in this regard.
The mother criticises the father for not being a hands-on responsible parent and from generally taking on the more onerous obligations of parenthood. However, at the same time, she argues vehemently against him having those responsibilities.
S 60CC(3)(j) and (k)
These matters are dealt with above.
S 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
These parents must understand that they have delegated the decision-making role to this Court as to where their children live and the children’s time with their parents. The parties should be aware that it is not simply for this Court to make a choice between the two options offered by the parents. Rather, the Court is charged with making orders which it considers, on the balance, to be in the children’s best interests.
It follows that Courts are not so presumptuous as to expect the parents to like the orders imposed on them and their children. The Courts should, however, be confident that parties will adhere to the orders. The function of such orders is to give some stability and certainty to their children and hopefully to relieve them from what is (in this case) quite obviously a circumstance of emotional upset and trauma for these two young boys.
Consideration – Children’s Matters
I am satisfied on the balance of probabilities that these children have a meaningful relationship with both of their parents. I am persuaded that they wish to spend more time with their father than is currently the case. I am not satisfied, however, that a regime of equal time on a week‑about or similar arrangement is in the children’s best interests.
Firstly, the conflict between the parents is entrenched and unresolved. They present different parenting styles and models and are yet to accept that children might adapt and benefit from this diversity. Rather, that very diversity causes further conflict between the parents. The father works full time and I am not convinced on the evidence before me that he has properly thought through the onerous responsibilities which would fall upon him in an equal time arrangement.
His response in the witness box that he would think it proper to simply return the children to the mother if he had another commitment belies the conflict that he has with his former partner and an understanding that she should be confidently able to make further arrangements and enjoy a respite from the children when they are with him.
These children need more frequent time with their father than each second weekend. He should be given the opportunity to be involved in their education and to take up the full responsibilities of a parent.
The applicant mother needs to understand and respect that her children want a full, successful and beneficial relationship with their father. She must step back from her subjective view that she is the only available option, actually and emotionally for these children.
Ideally, these parents would put aside their animosity, if only when necessary to present as a cooperative and mutually respectful unit in the parenting of their sons. They have been separated since 2014 and unfortunately there was little indication in the evidence before me that they have reached such a level of insight.
In all of the circumstances, I prefer a regime whereby these boys spend block periods of time with each of their parents and without any unnecessary moves between households. These times should involve weekends with both parents and I propose to order that the children live with their father during school terms on each alternate week from Thursday at the conclusion of school until the following Tuesday at the commencement of school.
The boys would then spend a block period of nine nights with their mother, hopefully giving them an easy but certain regime of time with minimal changes between fundamentally different parenting models but giving both weekend and school day time with each parent.
The parents agree that school holidays will be shared and I will make orders accordingly as well as for special days.
Despite my criticisms and reservations in respect of these parents, they are both, in their own ways, committed to their children’s best interests. They both at least espouse the benefits of greater cooperation and communication. I have mentioned above the obvious benefits for the children in seeing their parents in an equal light in respect of important decision-making functions. For all of these reasons, I am persuaded that an order for equal shared parental responsibility is in the children’s best interests.
Property
Section 90SM of the Act provides at subsection (1) that in property proceedings after the breakdown of a de facto relationship, the Court may make such orders as it considers appropriate. The statutory consideration process for the Court is well established. Firstly, the Court must determine the property of the parties as at the date of the hearing, including assets, liabilities and financial resources and for these purposes, superannuation entitlements are to be treated as property.
Section 90SM(3) stipulates that the Court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to do so. In the matter now before me it is clear that the relationship has broken down. The parties are the joint registered proprietors of real property and they each claim contributions. In those circumstances, I am satisfied that an alteration of their property interests is just and equitable.
The Court is then to consider and give weight to the various contributions of the parties to the property pool, including direct and indirect financial contributions, together with non-financial contributions, including as homemaker and parent.
After a consideration of contributions, pursuant to section 90SF(3) of the Act, the Court must consider whether any further adjustment of entitlement should be made.
The property pool
Given the applicant’s concession in the witness box that her HECS debt not be included in the pool, the parties effectively agree that pool of property as follows:
Asset
Property B
$227,500
Land at Property E (equity)
$ 65,000
Boat
$13,000
Magna motor vehicle
$ 2,750
Wife’s music equipment
$ 1,600
Camping equipment
$ 3,000
Respondent’s bank account at separation (August 2014)
$ 5,820
Sub Total
$318,670
Less Mortgage liability – Property B
$ 81,000
Net Tangible assets
$237,670
Applicant’s RBF superannuation
$ 34,767
Respondent’s superannuation
$ 89,792
Total Super
$124,559
$124,559
The only evidence adduced as to the value of the Magna motor vehicle was a Red-Book printout annexed to the applicant’s affidavit showing a range of $1700 – $3800. The applicant estimates the value at $1700. The respondent estimates a value of $2800. Without any valuation in property form, I allocate a median value on the Red-Book evidence at $2750.
The applicant provides hearsay valuation on her music equipment simply annexed to her affidavit at $1600. The respondent provides an estimate only without corroboration. I accept the applicant’s valuation at $1600.
The respondent’s trial affidavit claims his (omitted) Bank credit card liability of $3800. His sworn financial statement as of 21 April 2016 deposes to no credit card liability balance. No further evidence was given or adduced. Consequently, I am unable to be satisfied that this is properly a debt of the relationship and will disregard it.
The applicant in her opening submissions and in her evidence in the witness box deposed to the respondent having a further bank account with a balance of $5820 at separation. Her affidavit is silent as to this claim. Nevertheless, the respondent produced an (omitted) bank statement as at 29 August 2014 showing such a balance and I will therefore include it in the property pool.
Contributions
This relationship endured for some 10 years. Neither party owned substantial property at the commencement of the relationship. Neither introduced significant or unusual contributions during the course of the relationship. The respondent was the primary financial provider. The applicant was the primary parent and homemaker. Her employment since the birth of the children has been as a (occupation omitted) with a minimal income. The parties built a residence as owner-builders on the property at Property B. The respondent claims to have done the majority of the building work and impliedly seeks a loading for this contribution. I prefer that the applicant also assisted by her labours, as well as caring for the children, allowing the respondent to work on the home. I see their contributions therefore as equal.
The children have lived primarily with the applicant since separation, although spending substantial time with the respondent. He has contributed child support.
Taking all of these matters into account, I am satisfied that the contributions of these parties to the property pool has been equal.
Section 90SF(3) factors
The respondent is in full-time employment. His recent change of employment has reduced his income, although I am not satisfied on the evidence that there has been any mala fides in this regard. He deposes to an income of approximately $52,000 per annum.
The respondent claims that the applicant has capacity for full-time employment with an income similar to his own. She has qualifications and experience as a (occupation omitted). She currently works as a (occupation omitted) and is studying (omitted). She has been out of the workforce, however, for a number of years. Her unchallenged evidence was as to some difficulty in returning to full-time work by reason of limited opportunity.
The parenting orders that I make will see X and Y living in a shared care arrangement between their parents. Whilst they will spend mathematically more days with their mother, the respondent will still be required to provide the same facilities for their accommodation, given that they will spend five nights per fortnight with him.
I expect that the respondent will continue to be assessed to pay child support to the applicant unless she returns to full-time employment.
The respondent argued that there should be “add-backs” to the property pool on account of the applicant having disposed of assets since the separation. Specifically, I am satisfied that she sold a caravan for $200 but where the respondent claims it to have had a value of $1600. Similarly, she disposed of a motorbike for $600 where the respondent attributes a value of $1500. Further, the applicant withdrew $70,000 on the parties’ mortgage on one property, repaying $60,000 into the mortgage on the other property. She claims that the balance of “$10,000” was used on “living expenses”.
The corroborative evidence of a self-prepared list of expenditure annexed to her affidavit is unsatisfactory and unconvincing in an evidentiary sense. It appears to comprise only an inventory of expenses and does not justify the need to have disposed of $10,000. Put simply, the applicant’s evidence does not satisfy me that her after-separation disbursement of these moneys should be attributed to necessary living expenses in the sense of AJO & GRO.[4] Further, in February 2016 the applicant withdrew two further amounts, each of $1000, from the mortgage account. Again, I am not persuaded that these moneys were utilised for necessary post-separation living expenses and should be disregarded accordingly. To the contrary and as distinct from making notional add-backs to the property pool, I prefer that the benefits received by the applicant in these moneys should be considered under section 90(3)(r) of the Act. Whilst it is not for the Court to enter into any formal mathematical exercise, I am satisfied that the applicant has had the benefit of cash of $12,000 since separation, as well as the proceeds of sale of the caravan and motorbike. Where the property pool of these parties is not substantial in value, these benefits achieve some relevance in the adjustment process.
[4] AJO & GRO [2005] FamCA 195; (2005) FLC 93-218
Consequently, and whilst I am satisfied that the applicant should receive some loading under the section 90SF(3) considerations for the differences in earning capacity and her greater actual responsibility for the children, this loading is mitigated by these section 90SF(3)(o) factors. In all of the circumstances, I am satisfied an adjustment to the applicant of 2.5% is appropriate and that the applicant should receive 52.5 per cent of the tangible property pool set out above and that the respondent receive 47.5 per cent. The property pool has a value of $237,670. The applicant will therefore receive value of $124,777 and the respondent value of $112,893. With the respondent retaining the Property B property, the boat and camping equipment, I calculate the respondent making a cash payment on the applicant of $55,427 with Ms McMillan to retain the proceeds of the sale of the land at Property E.
Superannuation
The parties agree their entitlements as to $89,792 in the respondent and $34,767 in the applicant.
Strangely, the respondent’s case outline proposes a split of his superannuation to the applicant with a base amount of $40,000. This would leave the respondent with $49,792 of entitlement and the applicant $74,667. The applicant, however, proposes a split to her of $27,512, which would equate to approximately a fifty-fifty division of their entitlements. Consequently, and whilst the respondent’s proposal seems unusually and admirably generous, I am of the view that justice and equity in this matter is served by the parties having equality of entitlement, given the circumstances of their relationship. I will order a superannuation split from the respondent’s entitlement to the applicant of $27,512.
Justice and equity
This is a relationship of medium-length duration. I have found that the overall contributions of the parties are equal and have considered adjustments pursuant to section 90SF(3) of the Act. In all of the circumstances, I am of the view that the orders proposed are just and equitable.
A final issue arises for my consideration. Despite the applicant’s case summary proposing an order whereby she transfer her interest in the Property B property to the respondent in return for a cash adjustment, she volunteered during cross-examination that she would prefer to retain that property herself. Whilst no submissions were forthcoming on behalf of either party in respect of this issue, I am of the view that the respondent should retain that property pursuant to these orders if he is able to finance the cash adjustment on the applicant. He has lived in that property since separation, whereas the applicant chose to move elsewhere. X and Y have enjoyed their ongoing relationship with their father in that environment.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 26 August 16
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Procedural Fairness
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Remedies
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Statutory Construction
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