McRAE & WILKIE
[2017] FCCA 2469
•13 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| McRAE & WILKIE | [2017] FCCA 2469 |
| Catchwords: FAMILY LAW – Property – where the immediately realisable assets of the parties are limited – where the husband has received significant amounts in to his own control from those limited assets – where a partial property settlement has been effected in favour of the wife – where the primary assets available for distribution constitute superannuation and disability support payments – where the husband is assessed as totally and permanently disabled and the wife has obtained qualifications as a (occupation omitted) – where a significant variation in the entitlements of each party arises as a result of the disparity in future earning capacity and expectations – where an adjustment is made so as to provide the husband with a future entitlement to receive his disability pension and to reflect a “just and equitable” distribution of the parties property. |
| Legislation: Family Law Act 1975 (Cth), ss.65L, 60CC(2)(b), 75(2), 79(2), 79(4) |
| Cases cited: Pastrikos and Pastrikos (1980) FLC 91-987 Stanford and Stanford Lots of Questions – Very Few Answers, Martin Barfeld QC of the Victorian Bar |
| Applicant: | MR MCRAE |
| Respondent: | MS WILKIE |
| File Number: | TVC 1216 of 2014 |
| Judgment of: | Judge Coker |
| Hearing dates: | 24, 25, 26, 27 October 2016 and 1, 2 August 2017 |
| Date of Last Submission: | 2 August 2017 |
| Delivered at: | Townsville |
| Delivered on: | 13 October 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Raeburn |
| Solicitor for the Respondent: | Dillon Bowers Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Fellows |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Queensland |
ORDERS
That the children, V born (omitted) 2002, W born (omitted) 2004, X born (omitted) 2009, Y born (omitted) 2006 and Z born (omitted) 2007 (“the children”), live with their mother.
That the mother have sole parental responsibility for the long term care welfare and development of the children save that:
(a)The mother and the father have joint parental responsibility for any decision concerning the names of the children,
(b)The mother and the father have joint parental responsibility for any decision concerning an international relocation of their residence.
That the mother be permitted to relocate the residence of the child within Australia.
Notwithstanding Order 2 the mother shall ensure that, save in the case of genuine emergency, the father is properly informed in advance of any major long-term decision that she intends to make concerning the education of or medical treatment of a child or the children.
Each parent shall use the talkingparents.com web facility to communicate with each other concerning their respective households and the progress of them and the children in their households and shall do so once per month.
The father shall spend no time with the children save as may be agreed between the parents.
The father shall communicate with the children by:
(a)Using the kidsmail.org web facility, and
(b)By sending appropriate gifts and cards to the children corresponding with the birthday of each of them and Easter and Christmas.
Notwithstanding Order 6, in the event that a child or children request to spend time with their father:
(a)The mother shall promptly inform the father of that fact, and
(b)The parents shall cooperate upon making such reasonable arrangements as may be necessary to facilitate that wish.
Each parent shall ensure the other in informed of their residential, postal, email and telephone addresses and numbers but shall communicate with each other, save in the case of genuine emergency, using the talkingparents.com web facility.
That the passports of the children currently held by this Court be released to the Mother.
The Independent Child Lawyer is discharged.
Property Orders
That the wife retain the total amount received from the sale of the matrimonial home at Property A and this order authorises the release of any such monies retained in the trust account of the wife’s solicitors to the wife.
That the wife retain her interests in her own Superannuation Fund.
That in accordance with Section 90MT (4) of the Family Law Act1975, a base amount equivalent to 100% of the husband’s entitlement is allocated to the wife out of the husband’s interest in (omitted) Superannuation Fund accumulation account.
That, in accordance with Section 90MT (1) (a) of the Family Law Act1975:
(a)The wife (or the wife’s administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding Order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations2001; and
(b)The entitlement of the husband in the (omitted) Superannuation Fund accumulation account (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s superannuation interest) is correspondingly reduced by this Order.
That the Trustee of the (omitted) Superannuation Fund accumulation account (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act1975 the entitlement awarded to the wife in the immediately preceding clause of this Order; and
(b)Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the (omitted) Superannuation Fund accumulation account.
These Orders bind the Trustee of the (omitted) Superannuation Fund accumulation account and these Orders take effect from the operative time being the fourth business day after the date of service of these Orders on the Trustee, (provided however that if the Trustee has not been afforded procedural fairness then the operative time be 28 days from the date of service of this order)
That, after service of the payment of the super split notice in accordance with the Superannuation Industry (Supervision) Regulations1994 (“the SIS Regulations”), the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations, for the retention of the non-member spouse interest in the wife’s name in the (omitted) Superannuation Fund accumulation account.
That the Court notes:
(a)The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(b)Any payments from the husband’s superannuation interest in the (omitted) Superannuation Fund accumulation account made after the trustee has created a new interest in the wife’s name in the (omitted) Superannuation Fund accumulation account are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations2001.
That in the event that either party refuses or neglects to sign any documents or do any act necessary to give effect to the terms of these Orders (within seven (7) days of a written request to do so), the Registrar of the Federal Circuit Court of Australia at Townsville, is hereby appointed pursuant to section 106A of the Family Law Act 1975, to execute all such documents on behalf of the defaulting party and to do all such acts and things as are necessary to give validity and operation to the said Orders.
That in accordance with Section 90MT (4) of the Family Law Act1975, a base amount equivalent to 100% of the husband’s entitlement is allocated to the wife out of the husband’s interest in (omitted) Superannuation Fund defined benefit account.
That, in accordance with Section 90MT (1) (a) of the Family Law Act1975:
(a)The wife (or the wife’s administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding Order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations2001; and
(b)The entitlement of the husband in the (omitted) Superannuation Fund defined benefit account (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s superannuation interest) is correspondingly reduced by this Order.
That the Trustee of the (omitted) Superannuation Fund defined benefit account (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act1975 the entitlement awarded to the wife in the immediately preceding clause of this Order; and
(b)Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the (omitted) Superannuation Fund defined benefit account.
These Orders bind the Trustee of the (omitted) Superannuation Fund defined benefit account and these Orders take effect from the operative time being the fourth business day after the date of service of these Orders on the Trustee, (provided however that if the Trustee has not been afforded procedural fairness then the operative time be 28 days from the date of service of this order).
That, after service of the payment of the super split notice in accordance with the Superannuation Industry (Supervision) Regulations1994 (“the SIS Regulations”), the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations, for the retention of the non-member spouse interest in the wife’s name in the (omitted) Superannuation Fund defined benefit account.
That the Court notes:
(a)The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(b)Any payments from the Husband’s superannuation interest in the (omitted) Superannuation Fund accumulation account made after the trustee has created a new interest in the wife’s name in the (omitted) Superannuation Fund defined benefit account are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations2001.
That in the event that either party refuses or neglects to sign any documents or do any act necessary to give effect to the terms of these Orders (within seven (7) days of a written request to do so), the Registrar of the Federal Circuit Court of Australia at Townsville, is hereby appointed pursuant to section 106A of the Family Law Act 1975, to execute all such documents on behalf of the defaulting party and to do all such acts and things as are necessary to give validity and operation to the said Orders.
That the husband retain his interest in the (omitted) Superannuation Fund policy.
That both parties do all acts and things and execute all such documents as are necessary to give effect to the terms of these Orders.
That otherwise each party retain, as and for their own property absolutely, all their right, title and interest in and to chattels, including motor vehicles, whitegoods, furniture, bank accounts and any other interest held in their name as and for their own property absolutely and indemnify and keep indemnified the other party in relation to any and all liabilities attaching to such property.
That each party be granted liberty to apply within 28 days of the date of this order in relation to any point of clarification of the orders and in respect of costs.
IT IS NOTED that publication of this judgment under the pseudonym McRae & Wilkie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 1216 of 2014
| MR MCRAE |
Applicant
And
| MS WILKIE |
Respondent
REASONS FOR JUDGMENT
Introduction
The application before the Court at the present time is one of the most distressing that I have ever had to deal with. I say that in the sense that I have no doubt whatsoever that both of the parents love their children absolutely and that they seek nothing but what they each consider to be in the best interests of the children. The great tragedy is that over the period from the filing of the application until the final determination, nearly two and a half years, there have been actions by both parents which, in hindsight, would be considered by them and by all others looking on, to have been inappropriate.
It has involved the children, the subject of the proceedings, in the dispute between the parents, has enmeshed them in the hurt that each has experienced as a result of the breakdown in the relationship and perhaps the fact that the father has moved on more quickly than the mother from the breakdown in the relationship has led, tragically, to a total breakdown in the relationship between the father and five much loved daughters.
The initiating application was filed by Mr McRae. For convenience I shall refer to him as the father. The respondent to the application is Ms Wilkie. For convenience I shall refer to her as the mother. The mother and the father are the parents of five children: V, born (omitted) 2002, W, born (omitted) 2004, Y, born (omitted) 2006, Z, born (omitted) 2007, and X, born (omitted) 2009. The parties were in a relationship for a considerable number of years. They married in (omitted) 2003 and finally separated in August of 2011, however, their dispute in relation to the parenting arrangements with regard to the children has escalated over time, and there are a number of factors which are obviously of significance in relation to those issues.
The Applications
The father filed his initiating application in relation to parenting and property on 13 February 2015. In respect of property, the orders that he sought were basically for the retention by each of the parties of various items, including personal items, motor vehicles, household contents, superannuation entitlements and the like, as owned or held by each of the parents and for there to be an equal division of the proceeds of sale of a jointly owned property, at Property A in the State of Queensland as well as an adjustment in relation to superannuation to effect an equal distribution between the husband and the wife, in relation to their superannuation entitlements.
Thereafter, the husband, in relation to property, sought orders with regard to each parent indemnifying the other in respect of liabilities attaching to property retained by them and sought the inclusion of an order with respect to the appointment of the registrar of this Court, if necessary, to sign documents should there be a default on the part of either of the parties, in relation to the execution of documents.
More particularly, however, the father sought orders with regard to the parenting of the children. To be frank, that was the matter that was the subject of greatest concern, in relation to the proceedings that were before the Court and which took up the vast bulk of the time that was devoted to the hearing. Insofar as the parenting issues were concerned, the father proposed that there should be equal shared parental responsibility for decisions to be made in relation to the parenting of the five children, and that the children should live with each parent on a week‑about basis, with changeovers occurring on a Monday.
He proposed that there should be week-about arrangements generally continuing during the shorter school holiday periods, but in respect of the longer end of term 4 Christmas/New Year school holiday period that there be an arrangement where each parent have the children for the first half or the second half with specific provisions in relation to the opportunity for the parent not having the children in their care to have time with the children during the period around Christmas Day. Additionally, the father sought orders in relation to other special days: birthdays, Mother’s Day, Father’s Day and the like and then went on to propose arrangements with regard to how changeovers should occur, telephone communication be facilitated and arrangements made with regard to each party’s opportunity to obtain information in relation to the children’s educational and medical circumstances.
The father also sought orders with regard to injunctions restraining each parent from acting in a manner which might be harmful to the children, including provision for there to be non-denigration of the other parent or members of the parent’s family in the presence of or hearing of the children. Additionally, orders were sought with regard to proposing that there should be no discussion of the proceedings in the presence of the children or from either parent utilising the children as a means of passing messages to the other parent.
Generally, the father sought that there should be orders with respect to the parents acting in a respectful and appropriate manner towards each other so as to ensure that the children were aware of the respectful, courteous and appropriate exchange between the parents and were satisfied that there would be appropriate involvement by both parents in the decision-making process. The father also sought that there should be orders with regard to provision of information by each parent to the other of any change in relation to residence, telephone or other means of communication that might be utilised and that such information be exchanged within 24 hours of any change occurring so that there was no breakdown in the opportunity for communication between each parent and the children.
Finally, the father proposed that there should be an order that restrains either parent from relocating the children out of the (omitted) area without the consent in writing of the other parent.
The mother’s original response was filed in relation to this matter on 10 April 2015. However, an amended response was filed on 28 September 2016 just prior to the matter first coming before the Court. It was originally listed to proceed for four days, however, was not able to be concluded within that four-day period, and the matter proceeded part heard in August 2017.
Insofar as property orders were concerned the mother detailed orders in her amended response, orders 1 through 5, in the following terms:
1A.That the parties do all acts, sign all documents necessary to list the jointly owned property at Property A for sale with a real estate agent as agreed between them and failing agreement as to an initial listing price by the parties then it is agreed that the listing price shall be that price as recommended by the parties’ agent in order to effect a sale provided however that upon sale the proceeds of sale should be distributed as follows:
a. In payment of the costs of sale including agents commission and the advertising and legal costs associated with the sale,
b. Discharge of the mortgage to the (omitted) Bank,
c. Reimbursement to either party for monies paid with respect to any building work required to be undertaken in order to achieve a sale whether in respect of obtaining final certificates or any other building work necessitated to achieve a sale, and
d. Division of the net proceeds between the husband and the wife so as to effect a 70/30 division of the property pool in the wife’s favour taking into account the post separation disposal of property by the parties.
1B.Should the parties fail to agree as to the appointment of an agent then the wife shall provide to the husband a list of three (3) real estate agents practising in the (omitted) area and the husband must select an agent to represent the parties within seven (7) days of being provided the list of agents by the wife. If the husband fails to nominate a real estate agent within seven (7) days then it is agreed that the wife shall nominate the agent and that agent shall represent the parties in the sale of the property and failing agreement of the parties to an initial listing price the property shall be listed at a price recommended by the agent to effect a sale however that upon sale the proceeds of sale should be distributed as follows:-
a. In payment of the costs of sale including agents commission and the advertising and legal costs associated with the sale,
b. Discharge of the mortgage to the (omitted) Bank,
c. Reimbursement to either party for monies paid with respect to any building work required to be under taken in order to achieve a sale whether in respect of obtaining final certificates or any other building work necessitated to achieve a sale, and
d. Division of the net proceeds between the husband and the wife so as to effect a 70/30 division of the property pool in the wife’s favour taking into account the post separation disposal of property by the parties.
1C.should the parties not do all acts or sign documents necessary to list the jointly owned property or transfer the jointly owned property upon sale within seven (7) days of being provided with such documentation then the parties agree that the Registrar of the Family Court can sign any such documents as may be necessary in terms of these Orders to list or effect the sale of the jointly property.
2. That the wife retain her motor vehicle, all household contents, personal items and other property and all monies in her name in the bank accounts.
3. The husband retain his tools, equipment and other clothing and personal items belonging to him as well as his Nissan (omitted) motor vehicle, the proceeds of sale for the (omitted) Bank shares, any life insurance policy and all monies in his name in the bank.
4. That there be a splitting order with respect to the husband’s superannuation interests in order to effect an equal division of superannuation accumulated by the parties during their relationship.
5. And such further other orders as his Honourable Court deems fit.
In respect of parenting matters, however, the mother proposed that there should be orders very different to those suggested by the father. In particular, the mother proposed that she should have sole parental responsibility for decisions to be made in relation to the long-term care, welfare and development of the children but suggested that there should be an obligation upon her to notify the father in writing of major long-term decisions that need to be made and to appropriately consider the views that might be expressed by the father.
Thereafter, the mother proposed that there should be orders that the children live with her and that there be no specific orders with regard to the father’s time to be spent with the children, but that the children be informed of the fact that they are free to make contact with their father and that the mother would facilitate communication with their father, should they wish to do so. The mother also proposed that there should be orders made with regard to her having the opportunity to relocate with the children as necessary, in order to further her (occupation omitted) training and studies and that the mother provide information to the father with regard to issues relevant to the children’s health or education, as well as for the mother to have the children’s passports in her possession.
Noting the obvious issues of concern with regard to the parenting of the children, orders were made earlier, in relation to the appointment of an independent children’s lawyer. It was clear that there were significant disputes between the parties, in relation to the arrangements with regard to parenting and the opportunity for each parent to be involved in the life of the children. As well, there were concerns with regard to each parent’s capacity or willingness to facilitate the important fostering of a relationship with the other parent, and such factors all gave rise, along with other considerations, to the importance of the appointment of an independent children’s lawyer.
The independent children’s lawyer indicated at the commencement of the hearing that there were difficulties in providing any specific proposals in relation to the parenting of the children, though, the indication was certainly given that the evidence of the parties would need to be tested at considerable length to ascertain what might ultimately be the position of the independent children’s lawyer with regard to any recommendations that were made.
What was noteworthy at the commencement of the hearing in October of 2016, however, was that the father’s position had changed and he did not necessarily suggest that there should be equal time between he and the mother, in respect of the care and provision for the children, but rather, recognising the extreme difficulties that had developed over time, particularly with respect to his interaction and involvement in the children’s lives, that a reunification process should be entered into to seek to re-establish a relationship between he and all of the children but particularly with respect to he and the older children, with whom there had been a significant breakdown in relations.
The mother’s position also was more particularly articulated at the commencement of the hearing, noting that the mother’s proposal was ultimately to have the opportunity to relocate with the children, noting that she proposed that there should be sole parental responsibility as well as orders with regard to the children living with her and that her studies and future or further opportunities would best be open if she had the opportunity to relocate, as might be necessary, so as to ensure that there were circumstances where she could continue to further her career, as a (occupation omitted).
As indicated, the independent children’s lawyer was not in a position where they considered that they would be able to make a final recommendation in relation to the arrangements to be made. That situation changed, however, and I shall come to the conduct of the trial and the circumstances that arose in due course, but what is important at this stage is to recognise that eventually there was a position taken by the independent children’s lawyer, which was to the effect that orders should be made with regard to the parenting of the children, and there was a strong recommendation as to what those should be.
The orders proposed by the independent children’s lawyer were orders 1 through 10 in these terms:
1.That the children live with their mother.
2.That the mother have sole parental responsibility for the long term care welfare and development of the children save that:
a. The mother and the father have joint parental responsibility for any decision concerning the names of the children,
b. The mother and the father have joint parental responsibility for any decision concerning an international relocation of their residence.
3.That the mother be permitted to relocate the residence of the child within Australia.
4.Notwithstanding Order 2 the mother shall ensure that, save in the case of genuine emergency, the father is properly informed in advance of any major long-term decision that she intends to make concerning the education of or medical treatment of a child or the children.
5.Each parent shall use the talkingparents.com web facility to communicate with each other concerning their respective households and the progress of them and the children in their households and shall do so once per month.
6.The father shall spend no time with the children save as may be agreed between the parents.
7.The father shall communicate with the children by:
a. Using the kidsmail.org web facility, and
b. By sending appropriate gifts and cards to the children corresponding with the birthday of each of them and Easter and Christmas.
8.Notwithstanding Order 6, in the event that a child or children request to spend time with their father:
a. The mother shall promptly inform the father of that fact, and
b. The parents shall cooperate upon making such reasonable arrangements as may be necessary to facilitate that wish.
9.Each parent shall ensure the other in informed of their residential, postal, email and telephone addresses and numbers but shall communicate with each other, save in the case of genuine emergency, using the talkingparents.com web facility.
10.The Independent Child Lawyer is discharged.
The Hearing:
The trial proceeded on an unusual basis. It commenced on 24 October 2016 with cross‑examination of the father. That cross-examination proceeded for the entirety of the first day of the hearing, continued into the second day of the hearing. It was broken down primarily into cross-examination about parenting issues and, then, subsequently dealt with matters in relation to the issue of property settlement between the mother and the father.
Thereafter, evidence was called from the father’s mother and his partner, Ms R. The father’s mother, Ms M gave evidence in relation to the matter, and I would generally say that I was impressed with the evidence given by all in support of the father. I shall come more specifically to the father’s evidence a little later in these reasons, however, it is important that some background be available and understood in relation to the course that was followed.
Subsequent to the cross-examination of the various witnesses called for the father evidence was taken from the mother. Again, her evidence was extensive and was heard over many hours. The mother was cross-examined by the father with her consent to be cross‑examined direct by him, as well as by Counsel for the independent children’s lawyer. The first three days of the hearing was taken up with the evidence of the parents and the father’s support witnesses. The conduct of the trial, however, changed quite radically on the fourth day, 27 October 2016.
It should be noted that the father’s birthday is (omitted), and in an attempt to facilitate some initial communication between the father and some, if not all of the children, it was hoped that some arrangements could be made for the father to communicate with the children, on a day certainly significant to him. Arrangements were made in that regard. It was, however, an unmitigated failure.
It led to enormous distress for the younger children, and from the perspective of the mother and the oldest child, V, it led to a physical altercation between the mother and V, and what I noted in my Judge’s notebook as a dreadful exchange causing distress to all, including the mother, the father and the children that were involved.
Rarely if ever have I heard such distressing recordings of the exchange between children and one parent or the other and, of course, the subsequent altercation, verbal and physical, between the mother and the oldest child, V. At the conclusion of the tape recording of the exchange between the mother and V, V is heard to make statements such as the facilitation of the telephone communication, “makes mum look good in court” and at the end of the recording a statement by V which must have been devastating for the mother, “Everything you’ve said to us has been a frigging lie.”
What that meant, was that there was an unmitigated disaster in the attempts, genuinely facilitated by both the mother and the father, to effect some communication between the father and the younger children and led more specifically to the clash between the mother and the oldest child, V. I should note, in particular, that whilst V was significantly involved in this particular issue, the impression that I gained is that the second-oldest of the children, W, has also become distressed at the attempts by the mother, genuinely made, I believe, to facilitate interaction and a relationship between the younger children and the father, and that also is giving rise to significant concerns and difficulties, in the relationship between the mother and these girls.
As a result, on the fourth day of the hearing, steps were taken to significantly change the way the matter was dealt with. The senior family consultant in North Queensland, Ms V, was called for the purposes of consideration of a possible way forward in relation to this matter. Ms V acknowledged that she was the author of two family reports prepared in relation to these proceedings, the first a report of 20 October 2015 and the second, a report of 14 September 2016.
More particularly, however, Ms V was asked to comment upon her assessment of the exchange between the girls, the father and the mother, on the preceding evening. Ms V was given the opportunity to consider the recording that had been provided. She noted that her assessment was that the mother had attempted to engage the children, or at least the younger children, in communication with their father and that the arrangements had been neutral, friendly and very appropriate. She noted that when the girls refused to engage with their father that the mother had become more forceful, or firm, in relation to arrangements that were to be put into effect, but that the children had refused, point blank, to engage with the father.
Thereafter, Ms V spoke of the dreadful exchange between the mother and V. She spoke of her assessment of V being frightened and feeling betrayed by her mother and of the fact that, rightly or wrongly and however it may have come about, V had become, “caught up in the conflict”, and had become, as Ms V noted, “central to the dispute” and was clearly involved with the difficulties that had arisen between the mother and the father from as early as when the father returned from a (employment omitted) posting to (omitted), some years even before separation.
Ms V was asked about issues with regard to alignment of the children and in particular the older children, especially V. She noted that V would, as the oldest, have been most acutely attuned to changes in the parents’ relationship and that it was, as Ms V suggested, inevitable that V found herself in the middle of the dispute. Ms V was asked whether, excluding suggestions of inadvertent or deliberate encouragement, the mother had been responsible for the children’s enmeshment in the dispute and Ms V noted that the children, but particularly the older children, attempting to cope psychologically with the situation that existed had become aligned and that once that had occurred it did not take much to, “shore up their views”, of what was the situation and who might or might not be responsible, for the difficulties that exist.
Ms V noted that even if not a conscious decision on the part of the children, again, particularly the older children, it would be a situation where the children were choosing one parent or the other and that in this instance where the children were in the care of the mother, they would be recalling only the, “ills of the past”, insofar as their relationship with the father is concerned. Ms V emphasised the extreme concerns that she had with regard to the statements by V, to the effect that what the mother had said was all lies and indicated that her assessment was to the effect, that V had felt betrayed by her mother and that the safety and security that she saw as emanating from her mother, had been questioned.
Ms V was then asked about a process to move forward, a way in which there could be the possible reunification of the father with the children or, at least, initially with the younger children who still had not become so entrenched in the dispute that they had found themselves taking sides though, unfortunately, the indications were clearly to the effect that what occurred on 26 October 2016 suggested that these children already had very established views.
Ms V suggested that there was a process that she would propose with regard to the possible reunification of the father with the children. She acknowledged the mother would need to be supportive of that reunification and that it would be challenging for her but that also, from the father’s perspective, it would need to be the case, to recognise the difficulties in overcoming the entrenched positions of the children and the need to move most cautiously, in relation to any re-establishment of the relationship between the father and the children.
Ms V noted that it would be necessary for the father to be patient and that whilst he sought to move as quickly as possible and to spend as much time with the children as possible, he would need to recognise that it was a slow process and that even when the children made statements that might be distressing or hurtful to the father, he would need to, as she suggested, “park it”, to one side and redirect the children on to more relationship focused considerations.
Ms V, however, noted that in her view she was confident the father could deal with such issues, that he would be able to discuss coping strategies and approaches with both the independent children’s lawyer and his own counsellor, which would enable there to be arrangements made. Ms V also noted that all of the children would need to be on board and whilst there might be different approaches taken with regard to the youngest as opposed to the oldest of the children, they all lived within an extended family group and all must be kept, as she put it, “on track”.
Ms V spoke at length about the possible consequences for the children if the parties and the children were not able to, “draw a line in the sand”, and noted that particularly for girls, where relationships were poor or non-existent and that there were situations where one parent or the other was not present in a child’s life, then there were negatives with regard to the child’s, or children’s, self-esteem, that there were effects upon their capacity to form relationships and difficulties of a psychological or psychiatric nature that developed over time with regard to a child being unable to focus on what was good or positive in their lives. Further, there were long term consequences of various kinds that needed to be avoided by way of the re-establishment however difficult and however time consuming it might be with the father.
Ms V proposed a way forward. She did not make, or give, any guarantees as to what might be the outcome. She suggested that it was the best that could be proposed in relation to the re-establishment of a relationship and the parties took that on board. There were then quite lengthy discussions in relation to the way forward in relation to this matter and how there might be possible reunification and the re-establishment of a relationship between the father and the children. The parties indicated that they were willing to try.
I was asked to make orders adjourning the trial to a later date and to note that the parties would faithfully take all of the steps that were recommended by Ms V in relation to attempting to re-establish the relationship between the father and the children. To that end Ms V prepared a document that she described as, “the possible pathways for the repair of the children’s relationship with Mr McRae”. She noted a number of factors that needed to be addressed. These included a recognition that the success of any strategy to repair the children’s relationship with their father would depend on the willingness of the mother to support the children’s future relationship with him.
She noted, also, that it would depend on the father’s capacity to be child focused, to be patient and calm and not react negatively to the children’s anger and blame that would inevitably be directed toward him. She also recognised the importance of a family approach being much more likely to lead to a successful outcome and that the involvement of extended family such as grandparents and the father’s partner, Ms R, would all be significant in relation to the way forward.
Ms V then identified possible steps to be taken. She suggested that the father apologise to V, W and Y for causing them emotional harm and distress. She noted that that might be difficult for the father, when deep down, he did not suggest that he was responsible for the hurt or distress that the children experienced but she emphasised the need for there to be an apology. She recognised and suggested the obvious need for an apology to be given to each child individually and to allow the children to respond without criticism or argument with the child. She indicated, also, that the father may need to write down what he plans to say and, if you like, to, “stick to a script”, to enable him to keep on track and to explain to the children not only his apology but his hopes and expectation for the future and of their relationship.
Ms V also emphasised the need for the mother to facilitate a series of family events between the children and paternal grandparents to re-establish those links which had previously been significant and to also take steps to facilitate the paternal grandparents and, perhaps, Ms R, facilitating the children’s introduction to their baby brother, A, a child of the relationship between the father and Ms R. It was suggested that there would be the involvement of the independent children’s lawyer and a section 65L supervisor to oversee the steps to be taken in relation to this matter.
It was noteworthy that at the conclusion of the hearing on 27 October 2016 all left the Court with a hope that there would be some opportunity for the reunification of the father with his daughters and, more particularly, that there was a hope and an expectation that there would not need to be any further litigation, certainly with regard to the parenting arrangements that related to the children. The father’s indication, in fact, was that he would engage to the best of his ability in relation to the proceedings and, by inference, that the mother also would engage in the reunification and that if it could not be established he would not prolong the pain for him and for the children, if it were a case that the relationship could not be re-established.
The matter was then adjourned for a number of months with the hope that there might be an opportunity for the relationship between the father and the children to develop and for there to be the opportunities for the father to be involved in the lives of his children recognising, as all did, that the father’s hopes with regard to parenting were to be nothing other than a father who loves his daughters and children who love and respect their father.
The Reunification Process:
Unfortunately the hopes of all were not realised in relation to the reunification of the father with the children. On 22 May 2017, Ms V provided a memorandum detailing a summary of the events that had taken place pursuant to the orders that were made on 27 October 2016, as well as her assessment of the outcomes and the future directions. It was a document which caused distress to all of the parties, I say that in the sense of explaining that it was simply a recitation of the attempts that were made and of the abject failure to be able to have the children engage to any real degree at all with the father.
Ms V noted that there was a meeting between she and the independent children’s lawyer and the child, V, on 27 October 2016 followed by a meeting between V and the father on 17 November 2016.
There was a further meeting between the child, W, and Ms V and the independent children’s lawyer on 6 December 2016 and a meeting, also, between W and her father, supervised by Ms V and the independent children’s lawyer, on 21 December 2016.
There were then meetings arranged between Ms V and the independent children’s lawyer on 24 February 2017, interviews with the three younger children, Y, Z and X on 8 March 2017, communications between Ms V and the independent children’s lawyer in relation to her assessment of the younger children’s interviews and attitudes and, significantly, on 13 March 2017 communication by email between Ms V and the father cancelling proposed reunification meetings between the younger girls, Ms R, and the baby, A, which had been arranged for 29 March 2017.
Meetings were then held on 30 March 2017 and 8 May 2017 between Ms V and the independent children’s lawyer and, firstly, the mother discussing the difficulties that were encountered in the interviews with the younger children and possible other steps that might be taken with regard to reunification and, on a similar vein, between Ms V and the independent children’s lawyer and the father on 8 May 2017.
Under the heading, “Summary of Events”, Ms V detailed under six dot points her assessment of the various schedule of events and the consequences of that. Those six dot points were as follows:
·As agreed by the parties, V and W were permitted to choose whether or not they spent time and communicated with Mr McRae and the paternal family. Both V and W chose to meet with their father face to face, V to read out a letter to him and W to hand a letter to him. Both girls informed their father they did not want to communicate with or spend time with him or with any members of the paternal family.
·As agreed by the parties, Y, Z and X were to participate in a graduated reunification program with Mr McRae and the paternal family. The first step in this plan was for the report writer to reinterview the children to explain the plan and reinforce that each of their parents had agreed to the plan.
·Each child’s response to their interview was a complete refusal to cooperate with any plan that would lead to spending time with Mr McRae and the paternal family. In addition, each child became very distressed, angry and tearful when the report writer described the plan to them. The report writer ceased the interviews because of the level of distress expressed by the three children.
·The report writer then contacted Ms M to inform her that the children had become so distressed the interviews had to be terminated. The report writer informed Ms M that given the level of distress observed in the children, the report writer considered it would not be in the best interests of the three younger children to be required to participate in any further reunification attempts via interviews with the report writer.
·The report writer and Ms M then arranged to meet with Ms Wilkie to discuss other possible ways for the children to re-establish contact with their father and paternal family. Ms Wilkie suggested an email web site to enable the children to have independent communication with their father.
·The report writer and Ms M then met with Mr McRae to inform him of the outcome of the three younger children’s interviews of 8/3/2017. Mr McRae was understandably upset and disappointed.
In respect of future directions, Ms V then noted that the meetings between V and W and their father were of no surprise, noting the strong views of the older girls, but more concerning for all was the fact that the family consultant’s interviews with the younger children, Y, Z and X, were of such a disturbing nature that Ms V suggested that professionally and because of her ethical and professional obligations, she was unable to proceed further with any meetings between the children and the father, because of her concerns, “for the mental health of the children”.
Ms V noted that there were concerns that arose with regard to their reaction but that the reactions were, to some extent, predictable. She noted, for example, that the children had not really spent meaningful time with their father since May or June of 2013 and that nearly four years had passed in the children’s lives. She noted that with the younger children at that time, and the period prior to separation, when there were difficulties in the relationship between the mother and the father meant that the younger children’s memories were not positive of their relationship with their father and that there were difficulties, therefore, in overcoming those negative perceptions in respect of moving forward.
Quite properly, and I think understandably, Ms V also noted that the younger children were influenced by the actions and behaviours of their two older sisters and in the time that had passed since separation, V and W had been, “outspoken about their negative feelings towards their father”, and that V had seen it as her role to, “protect the younger children”, from their father. Ms V also noted what I, as a lay person, might describe as, “systems abuse”, arising as a consideration with respect to these children. She noted that at the time of the interviews on 8 March 2017 the children had already participated in two family report interviews and that the children had, at those interviews, expressed strong views that they did not want to communicate or spend time with their father.
On the third interview, on 8 March 2017, all three of the younger children had expressed to Ms V their “frustration and resentment”, that they were required to attend a Court interview yet again, when they considered their views and wishes had been made clear on previous occasions. The great tragedy is that these children’s views are entrenched and, whether right or wrong, are now established and to seek to challenge the children, in relation to those views, is of itself damaging and harmful.
The father was understandably distressed at the outcome of the hoped for reunification between he and the children and, in particular, the reunification that might be possible between he and the three younger children. As a result of that the father, though previously indicating that he would not pursue time with the children if they were unable to re-establish a relationship, determined at hearing that he would pursue that relationship. He made it clear that he was concerned with the process that had been engaged in. He felt, particularly, that he had not had the opportunity to even engage with the independent children’s lawyer and the family consultant, in relation to how steps could be taken with regard to re-establishing a relationship with the girls and that there was a feeling that he had been removed from the process.
He suggested that he had been only kept partially advised of what was to occur, and that therefore there was a flaw that existed in the process. Accordingly he was not prepared to walk away, because he did not consider that every real and proper attempt had been made to possibly reunify the relationship between he and the children.
The independent children’s lawyer took a different and understandable approach in relation to the matter. It was submitted at the resumption of the hearing that there was a “complete impasse”, and that on the assessment of the family consultant, all five children were completely resistant to any relationship reunification and that there was a concern, as Ms V had noted, for the mental health of the children, if they were forced to engage in any form of reunification counselling or direct interaction with their father. It was agreed then that Ms V would be called to provide evidence about the attempts at reunification and her professional assessments in relation to it.
The Family Reporter’s Evidence:
It was some of the most distressing evidence that I have ever heard and I noted, during the evidence of Ms V, the distress that I thought she experienced in providing the evidence, as well as the obvious emotional distress that was caused to each of the parents.
Ms V detailed her approach with regard to her role in attempting to affect reunification. She spoke of the need for the two older children to be dealt with differently to the younger children, of her plan of speaking with each of the children to get a sense of a way forward, in relation to each of the children and their relationship with their father. She acknowledged that it was, “her responsibility”, to have a plan with regard to each of the children and noted the particular difficulties that arose, with regard to the two older children.
She indicated that she met with the girls. She explained to them the plan that she had and the encouragement that she directed to the children, not to, “shut the door on their father”. She indicated that they were willing to meet with their father, unfortunately, only to indicate to him that they did not desire a further relationship with him and she explained to them that whilst that might be what they wished to say at the moment, that there was always the opportunity to meet and to re-establish a relationship with their father.
She spoke of the need to recognise that with children of the age of the two oldest children, they could not be forced to meet their father and that it would be only by way of encouragement that that would be able to occur and that she was able to encourage each of the girls, V and W to meet with their father, though W was not willing to enter into direct discussions but, rather, wished simply to provide him with a letter outlining her concerns.
The girls were determined to end their relationship with their father and, tragically, that appears to have been the case.
Ms V was then spoken to about the approach used by her in relation to the younger children and she indicated that she met with them together and, whilst she spoke with Y individually, she spoke with Z and X together. Her assessment was that the children were, “not coping well”. She was asked about the fact that the younger children were not brought to meet with her on that first occasion by the mother and Ms V was not necessarily critical, in any way, of that, noting that she had spoken with the mother and that, in discussions with the mother, the mother had thought that the children would be more, “compliant”, if they came to the meeting with their grandfather because she, the mother, had had previous difficulties in getting the children to co-operate with any meetings.
Ms V then spoke of her discussions individually with Y and of the fact that she was an articulate and intelligent child and that she wanted the, “same rights”, as she saw it, as were given to her older sisters, V and W. Whilst Ms V said that she tried to encourage Y, for example, making reference to the opportunity to meet with and to know her younger brother, there was, as she put it, “complete resistance and a lot of anger”, and the child said words to the effect, “I told you this twice before. Why am I here? I haven’t changed my mind and I won’t.”
Y indicated that she wanted to protect her sisters and Ms V said that she emphasised to this little girl that that was not her job and that it was the responsibility of the mother, the father and, ultimately, the judge if there was no agreement as to a way forward.
When speaking of the joint meeting with Z and X, she noted that each of the children had their own difficulties. Z suffers from Asperger’s and does not like change in routine or disruption. Ms V noted, however, that since her last meetings with the child, she had clearly matured and was more articulate and, like her older sister, Y, indicated some frustration and anger that she was being asked to discuss issues upon which questions had previously been directed to her and she had said what her view was.
Both Z and X were unable to specifically recall “good times” with their father and, as Ms V described it, were unable to draw on positive memories. When asked specifically about that, she was asked to turn her mind to whether the children’s inability to draw on positive memories was reflective of the fact that the mother had not encouraged positive memories and she acknowledged that might be the case but also noted that the influence of two older sisters who had very determined views in relation to the relationship with the father was also of concern.
In respect of the youngest of the children, X, similar concerns were identified and, in fact, the child suggested to Ms V that she was scared about meeting with her father. Ms V noted that as the conversation and encouragement continued, both Z and X became anxious, tearful and restless and despite her many years of experience, Ms V found that she was unable to find any way to encourage interaction with the father, even using their younger brother as “bait”, noting that little girls love babies and that that might have been an ice breaker, but she indicated that neither of the children would be prepared to take that step or to even show any interest in the opportunity to meet with and to know their younger brother.
Ms V, I think indicating the very real issues that arise from the perspective of a professional dealing with the well-being and interests of children, noted that she ceased the interviews, because she had encouraged the children as much as she could and, in her professional assessment, to push them further would have caused more distress and resistance and that she did not consider that it would be in the best interests of the children, to force further attempts at a meeting or discussion with the children.
Ms V emphasised her concerns with regard to the mental health of all of these children, and noted that she was very firmly of the view that she had pushed for the children’s reunification with their father and, giving every possible avenue and opportunity for that reunification to occur, had felt that she had pushed hard enough and that there was a distinct impression that the children were now beginning to feel betrayed by Ms V. Ms V noted that, from the perspective of her profession, she felt that she had pushed as hard as she could and, in fact, had pressed the children more than she would have done if she was attempting to deal with the children, on the basis of a therapeutic intervention.
She noted that she ethically could not put the children through the process again or to ask them to meet with their father when their views were so strong. She though that she would be, as she put it, “harming them”, and that it would be a clear example of system abuse. She then went on, specifically to acknowledge that there was little more that she could see that could be done through any formal Court process and that, in her assessment, if the children were to have a relationship, it would need to move forward very gently and to evolve over years when, as she put it, “the dust settles”.
She acknowledged the need for the mother to speak positively of the father and to encourage any form of communication or inquiry about the father or his family, to seek to have some links with the father. Ms V noted that it was, as she put it, “a tragedy”, and that the children need a father and that the arrangements that had been put in place with the best hopes and expectations of all had not worked out and that the plan, no matter how it had been put, would not have been successful.
Ms V was questioned, specifically, about the concerns that the father had expressed, particularly with his lack of involvement in the arrangements and other steps that were taken with regard to engagement. Ms V noted that she was the professional and had to act upon her own assessments of what was best in relation to the children. She noted that the father was very sad, particularly at the outcome of the exchanges between he and V and W but that she had to make decisions in relation, not only to those two older children, but the three younger children and that she had made a clinical assessment as to what could be done and what could not be pushed further.
The father also sought to engage with Ms V in relation to the process. He questioned her in a respectful and appropriate manner. He challenged her, understandably, in relation his dismay at the process and questioned Ms V about the process and his involvement from the very beginning. Ms V noted that there were legitimate concerns expressed by the father and certainly acknowledged that there might have been a better and more comprehensive way of explaining the process to be engaged, in to work toward reunification. But, in the end, it was clear that, whilst the father wanted more significant engagement, in relation to how the relationship was to be worked on and reunification sought, it fell upon Ms V, as an expert to assess what would be the appropriate way to proceed and the best way to cause least harm to the children.
I was enormously impressed with the evidence of Ms V. I have absolutely no doubt that she acted in the most professional and appropriate of ways in seeking to facilitate the opportunities for reunification between the father and the children. Similarly, I note the concerns that were expressed by the father, particularly with regard to his lack of appreciation of exactly what was to occur and Ms V, to her great credit, acknowledged that there could, perhaps, and should, perhaps, in future be more complete explanation of exactly what would occur with discussions involving both of the parents, either together or individually, before steps were taken in relation to any meeting with the children.
It would assist, not only, in the parents’ understanding of what was to occur but, no doubt, would also be helpful in ensuring that one parent or the other was in a position to ensure, that if they were seeking to foster the relationship with the other parent, that they could facilitate the opportunity for the children to fully understand the hopes and expectations of both of the parents and, therefore, to more fully engage with the children, in the encouragement of their interaction. Whilst no system is perfect and whilst there can, as always, be criticisms of the process, the procedure or otherwise, I am satisfied that Ms V has appropriately and properly taken every opportunity to facilitate and foster the opportunity for reunification between these children and their father and that the tragically entrenched views of the children have been unable to be overcome by the most thorough of attempts of the experts involved.
The whole situation in respect of parenting is tragic. It is what must be dealt with and the most overwhelming evidence in relation to this matter, is that any further orders that might be proposed with regard to placement of the children with the father, or even orders with regard to time being spent by any or all of the children with the father, will be met with ultimate resistance and, perhaps, even with the very direct risk of harm to the children both psychologically and, if they were to act out inappropriately, even physically.
It gives rise to a situation which requires a determination generally in line with that suggested by the independent children's lawyer.
The Parent’s Evidence:
The father was disappointed with the process. The father is bitterly disappointed and upset with the breakdown of a very positive relationship that he had with his daughters. The father wrote to each of the children, V and W about his feelings and hopes and expectations. Exhibit 15 to the proceedings is a copy of the letter that the father wrote to W in December 2016. It is heart-rending in its sincerity. This father loves his daughters with all his heart. He, no doubt, wishes that time could be rewritten and that the mistakes that he and the mother have made in their dealings with each other could be put right and that the positive relationship that did exist, could be returned.
I would take the opportunity here to comment upon the evidence of the mother and the father. Though it may assist to take up the submissions that were made by counsel for the independent children's lawyer in relation to the parents. Counsel for the independent children's lawyer indicated that there could be and should be criticism of both parties for their lack of insight as to the effect of their behaviours upon the other parent but, much more significantly, upon the children.
The father failed to appreciate that he returned from his overseas deployment, different to what he had been before he left. He was, as his mother identified, quieter and more reserved. He was on edge and this impacted upon him and the family. He suggests that he received treatment, and was quickly able to overcome the difficulties associated with the traumas arising from his overseas deployment, but the father clearly lacks insight or understanding of the effects of the changes in him, in his relationship with the mother of the children.
His suggestion that the children should now, therefore, live with him because the mother has not encouraged the relationship, is a blunt instrument which cannot be used to influence the children. My assessment would be that any suggestion that any of these children were removed from the care of the mother and placed with the father would lead to the most catastrophic results for the children. I would expect that all, as suggested by Ms V, would suffer severe psychological harm as a result of any such order being made and, more particularly, in relation to all of the girls, would think that were risks of physical harm to the children, either by way of their own self-harm or more specifically by foolish attempts made by them to remove themselves from the father’s care, placing them in danger, directly, as a result of, “running from the father”.
Just as clearly, the mother has lacked insight at all as to the dreadful effects of her hurt at the breakdown of the relationship, and the involvement of the children in her own distress. For what it is worth, I find that so many of the criticisms and the concerns that were directed toward the mother, with regard to alienating behaviours as between the children and the father did occur. Whether they were overt or covert is now not a question that needs to be determined but I would specifically find that, on many occasions, the mother very clearly knew what she was saying in her texts to the father or her communications with the children and knew that such statements were for her own comfort, without any appreciation of the hurt that they caused to the father or, much more significantly, to the children in their relationship with the father that loved them and that they loved very dearly.
The mother is an enormously intelligent woman. She has educated herself and has become a (occupation omitted) with hopes and expectations for further studies and progress within the profession but, with respect, she has totally failed to appreciate the tragic consequences of her own actions with her children. She now experiences the difficulties that are a direct consequence of that. She became distressed when speaking of the situation that evolved between she and V and the physical altercation between them. The mother seemed, unfortunately, to lack any real appreciation, however, of the fact that that physical altercation was, at least in part, a reflection of her failure to have appreciated the hurt that she has caused all of these children over time as a result of her own distress at the breakdown of the relationship between she and the father.
Ms V commented about the fact that the mother allowed the children to make decisions and, as she put it, allowed the children to become empowered in their relationship with their father and, if you like, their determination to not have a relationship with their father. But the unknown consequence of that is that the children, and particularly the older children, have developed an entitlement, they believe, to also be empowered in their exchanges with their mother.
There will be consequences and difficulties for the mother in her relationship with the children as a result of that. It is, indeed, a tragedy and as counsel for the independent children's lawyer observed, it is no wonder that V seeks to be somewhere other than in the households of either the mother or the father.
In the end, after serious consideration of the evidence in relation to this matter and a lengthy recitation of the pros and cons that might arise with regard to the arrangements in respect of parenting, counsel for the independent children's lawyer noted that all of the evidence, and it was comprehensive, led to a regretful determination. That was that it was not possible to recreate the relationship between the father and the children that previously existed or even, at this stage, to recreate any semblance of a relationship between the father and the children.
The independent children's lawyer’s well-considered view was that, there should be no orders made with regard to the father’s interaction with the children but, obviously, the positive obligation to ensure that information is held by each parent but, particularly, the mother about the father and his family and his household and that such information in the appropriate circumstances be communicated to the children. This will ensure that their knowledge of their father and the possible development of their interest in a relationship with him and with others significant to the father including, of course, his younger children, would be able to be fostered and developed.
Counsel for the mother understandably took a conciliatory approach in relation to the issues relating to parenting. It was clear, he said, that the mother had heard what had been raised by counsel for the independent children's lawyer and that she would adopt and follow the independent children's lawyer’s proposals with regard to parenting. It was submitted that the mother, “will try and do all that she can”, to improve her parenting of the children and to work towards co-parenting, even to the limited degree that would be able to be facilitated, in light of the current circumstances.
The father’s submissions were contained within a written document provided to the Court. The father commenced in reading those submissions but became distressed. He acknowledged the changes in him from when he returned from his (employment omitted) in (omitted) in 2007. He acknowledged that those changes in him would have been distressing for him and for the mother. He spoke of the importance to him of being involved in the lives of his five daughters. He indicated the importance to him of being a primary carer for the children when the mother was studying and of his joy in being involved in all of the aspects of the children’s lives.
His submissions were a cry from the heart. He noted that there is not a day that goes by that he does not think about his, “five beautiful girls”. I have absolutely no doubt that that is true and that the distress that the father experiences every day is heart-rending. The father acknowledges the hurt that was caused to the mother and the children as a result of the changes in him upon his return from overseas but his hurt, he indicates, was not intentional and it was borne out of raw emotion and that there was no malice or calculation in what he did.
He spoke of the hurt, not only to him but to his parents, the paternal grandparents and of the fact that his proposal with regard to all of the children being placed in his care was not made out of selfishness but rather was made out of desperation.
His explanation was an understandable one. He suggested that the best evidence was that the children would suffer if they did not have a relationship with both of their parents and that the only way this could be facilitated would be for the children to be with him, with an alternative opportunity for the children to spend time with their mother.
The father’s cry from the heart is genuine but it is, with respect, unable to address the obvious harm concerns arising with respect to these children.
It is a conundrum. I say that in the sense that it is not a problem because a problem has an answer. A conundrum is unanswerable and that is the situation here. What can only be done is to ensure that the best interests of the children are to the fore. The paramount consideration is the welfare of the children. Orders which would remove them from the care of their mother can only cause distress. That would not be in the best interests of the children.
The presumption of equal shared parental responsibility is, at the present time, rebutted obviously from the inability of the parents to properly communicate with each other and of the obvious concerns that arise, as a result of the fact that the children would not be able to accept that steps and decision were being made jointly when there is, at the present time, little relationship or respect for the father in regard to their interaction with their father. The presumption must be rebutted in this circumstance and, on the obvious evidence that is available it can only be the case that sole parental responsibility vests in the mother.
Insofar as the father’s time with the children, the answer, again, is tragically clear. There can be no orders made that will facilitate a relationship at this time between the children and their father. Orders could be made but the absolute certainty is that they would not be abided by. Even if the mother were doing all that she possibly could in that regard, the children would not co-operate and the hurt to them is of great concern being mindful, particularly, of the provisions of section 60CC (2)(b) and of the need to ensure that the children are protected from physical or psychological harm.
The great tragedy is that whilst there is almost a certainty that there would be psychological harm to the children, it is not as a result of any desire or determination on the part of either of the parents but rather as a consequence of the time that has passed and the interaction between the parents and, as I have indicated, the involvement of the children, particularly the older children in the difficulties in the dispute between the mother and the father.
I do not see it as helpful to address, at length, any of the issues that might arise with regard to the capacities of each of the parents. I would simply say that both are able to meet the educational and intellectual needs of the children. Both are able to put a roof over these children’s heads and to ensure that their physical needs are met. Both would do all that they could to meet the emotional and psychological needs of the children, but the children’s situation now is such that the best efforts and endeavours of either of the parents are not going to meet the needs of the children. They must be addressed in terms of what currently exists and not what one might hope would exist at some time in the future.
The father’s proposals, though understandable from his perspective, lack any appreciation of the consequences for the children. I am unfortunately satisfied, absolutely, that the only proper orders that can be made are those which are reflective of the proposals of the independent children's lawyer and which are adopted by the mother.
I note that the father’s indication at the conclusion of his submissions in relation to this matter is that he will abide by the umpire’s decision. I have no doubt that that is the case and that, whilst the decision that I make in relation to this matter will cause enormous distress to the father, it is the case that he is a man of honour, a man who wants nothing other than the best for the children and, whilst the decision that I have made is contrary to what he proposes, he will accept that that is the decision made and will do all that he can, through utilising the opportunity of communication with the mother, to seek slowly and determinedly to re-establish a relationship with the children.
The Property Proceedings:
I turn, then, to the issues with regard to a final property settlement insofar as the issue of property settlement is concerned, the parties’ evidence is far less controversial than the issues that were dealt with, in relation to parenting. I say that in the sense that both parties acknowledge that the relationship was one which went for approximately twelve years and involved a birth of the five children of the relationship. The husband initially performed the traditional role of the breadwinner within the relationship though from about 2008 onwards, that changed as a result of the circumstances affecting the husband following his return from (employment omitted), as well as the significant obligations that arose for the mother, as a result of her (omitted) studies.
The parties generally contributed equally, though differently, to the needs of the household both financially and non-financially. At the time that the parties commenced residing together in (omitted) 2001, marrying in 2003 and, finally, separating in June of 2013, they contributed in different ways. Both acknowledge that they brought limited contributions into the relationship and, in 2001, the wife was then 26 years of age and the husband was 28 years of age. It is suggested that both had some savings of approximately equal value, perhaps some shares, and each owned a motor vehicle.
I would think that with the passing of time, the birth of five children and the significant subsequent contributions made by each, that there is little other than could be assumed that there was an equal or equitable contribution at the commencement of the relationship. I am also certainly satisfied that there was an equal contribution during the relationship. Subsequent to separation, however, a significant number of matters have given rise to necessary changes to the eventual distribution of property.
The Law:
I am mindful of the four-step approach which will be required to be followed, in relation to any determination of this matter. Section 79 of the Family Law Act defines the court’s powers in determining applications for property settlement. Subsection (2) of section 79 provides that:
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.
Section 79(4) sets out the matters the court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The approach to the determination of an application under section 79 is well established by authority (see, for example Pastrikos and Pastrikos (1980) FLC 91-987; In the Marriage ofLee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage ofClauson (1995) FLC 92-595 and In the marriage of Whitely and Whitely (1996) FLC 92-684). The process ordinarily involves a multiple part procedure.
The court must first identify the assets, liabilities and financial resources of the parties and attribute a value to all assets, usually at the time of the hearing. Thereafter it must evaluate the contributions made by each of the parties as defined in section 79(4)(a) to (c). Finally, the court must consider the financial resources, means and needs of the parties, and other matters set out in section 75(2) in so far as they are relevant. An adjustment of the amount due to each party by way of contribution is then made by reference to the section 75(2) factors. It is not essential, however, that such an adjustment be made. Generally speaking, an adjustment is made because one party has greater needs and the other has stronger means. Section 75(2) is concerned with the process of arriving at a just and equitable result.
In determining what order the court should make under section 79, the court must be satisfied, in all the circumstances of the case, that the order to be made is just and equitable – not simply that the underlying percentage division of the net value of the parties is appropriate. In other words, in consideration of whether the overall result of the order in the property settlement proceedings is just and equitable (see section 79(2)). It is the justice and equity of the actual orders that the court must consider, Russell v Russell (1999) FLC 92-877.
Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
In the Marriage of Ferraro, the Full Court said:
A now well established line of authority in this Court indicates the approach normally to be taken in the exercise of the discretion in s79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider “contributions” of the parties within paras (a) to (c) of s79(4), and then to consider the matters in paras (d) to (g), more especially para (e) which takes up by reference the provisions of s75(2) and which are generally referred to as the “section 75(2) factors”.
In Hickey and Hickey and A-G for the Commonwealth (2003) FLC93-143 the Full Court of the Family Court approved the four step process to making orders under section 79 of the Family Law Act:
Step 1: Make findings as to the identity and value of the property, liabilities and financial resources of the parties as at the date of the hearing;
Step 2: Identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b) and (c ) and determine the contribution based entitlements of the parties expressed as a percentage;
Step 3: Identify and assess relevant factors in section 79(4)(d), (e), (f) and (g) and section 75(2) and determine any adjustments that should be made to the contribution based entitlements at step 2;
Step 4: Consider the effect of the findings in Step 3 and determine and resolve what order is just and equitable in all the circumstances.
(It is clear it is the Order that must be considered in terms of justice and equity not the percentage split – Russell v Russell (1999) FLC 92-877).
The High Court’s decision in Stanford v Stanford [2012] HCA 52; (2012) 47 FamLR 481 has now modified that approach. In Erdem & Ozsoy [2012] FMCAfam 1323 (5 December 2012) Walters FM, as he then was, said of the majority decision in Stanford:
116. It is arguable that the effect of the High Court's decision in Stanford is that the first step in the property settlement exercise is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in their property. The second step involves ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property. In most cases – relevantly, where the parties have separated and are no longer living in a marital relationship – the underlying assumptions that the parties had to the effect that the existing property ownership arrangements were functional (or perhaps irrelevant) and could be varied by agreement between them, no longer apply. That fact alone should ordinarily persuade the Court that it is just and equitable to make orders altering the parties' interests in their property. It is only after the Court has concluded that it is just and equitable to make such orders that it should proceed to take what might be regarded as the third and fourth steps – namely:
a) assess the extent of each party’s contributions under the various sub-headings described in section 79(4); and
b) thereafter, consider the financial resources, means and needs of the parties and the other matters set out in section 75(2) so far as they are relevant,
and in the process adjust the amount due to each party by way of contribution by reference to the relevant section 75(2) factors.
In Hobbs & Valonz [2013] FCCA 1999 Judge Cassidy adopted the approach set out by Mr Martin Barfeld QC of the Victorian Bar in his paper “Stanford and Stanford Lots of Questions – Very Few Answers”. The paper suggests the following approach which was adopted by Judge Cassidy:
“It can be now said after Bateman v Bowe that the approach is still one involving steps, albeit not to be followed ‘unthinkingly’. These appear to be:
o Declare and value the interest (both legal and equitable) of each party in property:
o Determine whether circumstances exist to make an order adjusting those interests and explain that circumstances. If the answer is yes (as it usually will be);
§ Evaluate and fix contribution;
§ Apply the s.75(2) factors;
o Formulate an order justified to give effect to the production of the evaluation.”
In Stanford, the majority explained in respect of whether it would be just and equitable to make an order would often be dealt with as follows:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of the choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the end of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying section 79(4).
Discussion:
Firstly, it is necessary to consider whether, pursuant to the provisions of section 79(2) of the Family Law Act, it would be just and equitable to make an order. It is perhaps unnecessary to say little more than that the relationship has fundamentally broken down. Both parties have moved on with their lives. The continued financial bind between the parties is a cause of significant distress to both parties and there is every proper reason why the parties need to sever their financial ties and to move forward with their life. To that end, I am absolutely satisfied that it is appropriate, just and equitable to make orders in relation to a property settlement to be affected between the parties.
Then it is necessary, obviously, to assess the assets of the parties. Originally, information was provided, with regard to the expected or hoped for valuations, in relation to the matrimonial home, situate at Property A. It was hoped that as much as $340,000 would be able to be achieved by way of a sale price but, eventually, a sale was agreed for a sum of $250,000. After the payment of the outstanding mortgage, which was a little over $70,000 and other expenses associated with the sale, an amount of $162,785.39 was deposited into the trust account of the wife’s solicitors, Dillon Bowers. It comprises the main bulk of the immediately realisable assets.
I accept that there were motor vehicles owned by the parties at the time of separation, including a (omitted vehicle) motor vehicle, which was retained by the wife and sold, and a Nissan (omitted) which the wife says was valued at $6000, but which the husband said was traded for $1500 toward the purchase of a Kia (omitted) motor vehicle. Quite frankly, there is no other information as to the value of those assets and I am satisfied that they simply counterbalance each other, in relation to any determination of the assets for distribution between the parties. I do not intend to include their value or the value of subsequently purchased motor vehicles retained by either of the parties at this time as assets for distribution.
There is, however, an obvious need to include amounts which were retained by the husband at or subsequent to separation. They include, in particular, (omitted) Bank, which have an acknowledged value of $81,652 and a drawdown of the accumulation component of the husband’s (omitted) superannuation interests in the sum of $43,030.45. Those were funds which were available jointly to the parties at the time of separation and it is only appropriate that the total of that drawdown, $124,682, be included in any calculation of the assets of the parties.
Otherwise, there are, no doubt, some limited furnishings, chattels and whitegoods which were the property of the parties and, though I note that the husband indicates that he left at the time of separation with virtually no property whatsoever, there is no information as to the value of those assets. And I am satisfied again, that they should simply fall where they fall, insofar as retention by each of the parties.
There is, however, a need to include consideration of the superannuation entitlements of the parties. The indication in relation to superannuation entitlements, though they may have varied since information was previously provided, is that the wife’s superannuation was valued at $4930, an amount below the threshold which would, in any event, be splittable, as well as a (omitted) accumulation account in the name of the husband valued at $64,152, a (omitted) defined benefit account in the name of the husband valued at $29,468 and an (omitted) account from which the husband’s invalidity pension is paid with a value assessed at $462,900.
The information with regard to the contributions made in relation to those various policies, or the time when contributions commenced, is not clear, but I am certainly mindful of the fact that the husband was in the (employer omitted) prior to the commencement of any relationship and would therefore have commenced contributing to the (omitted) policy prior to any joint endeavours by the parties.
I am satisfied that for the purposes of calculation, however, that the total of superannuation entitlements is $98,550 and the (omitted) amount is valued at $462,900. I intend to adopt those various figures for the purposes of calculations in relation to any distribution to be effected.
The second step of the approach then required is to consider the contributions of the parties. As I have already indicated, during the period of the relationship, about 12 years or so, the parties contributed equally but in different ways both financially and non-financially. I am satisfied, however, that whilst there would have been certain difficulties from the wife’s perspective in relation to her contributions as a wife and homemaker, following the husband’s return from (employment omitted) and with him suffering the obvious consequences of that experience, she was able to continue her studies and in due course, with the assistance of the husband, to further those studies, such that an equal contribution is the only proper assessment that can be afforded during the period of the relationship.
Subsequent to separation, different considerations arise. I accept that the wife made more direct physical contributions toward the role of homemaker and parent than did the father, but note that the father continued to make various payments and continued to seek as much opportunity as possible for time to be spent with the children. An adjustment is appropriate, but in my view, it is only of small compass, up to the time of the making of these orders. The contributions, in my assessment, would properly be assessed at 55 per cent for the wife and 45 per cent by the husband.
The third consideration, however, is one of very great significance in relation to this matter. I say that in the sense that there are obvious and competing considerations which need to be looked at. There is the ongoing responsibility, particularly as a result of the orders to be made, which will require the mother to be primarily if not entirely responsible for the needs of the children, V, W, Y, Z and X. And whilst V is now 15 and a-half years of age, the youngest of the five children, X, is only eight, and there are obviously a considerable number of years ahead, where the wife will be primarily responsible for meeting the needs of the children, including particularly those needs associated with her role as homemaker and parent.
It is a factor which weighs heavily in favour of the wife, when one looks at the various considerations that arise pursuant to the provisions of section 75(2) of the Family Law Act but it is also to be noted, that the wife has particularly significant qualifications now as a (occupation omitted) and indicates that she intends to seek to further those qualifications and to continue her studies which will no doubt lead to further opportunities both with regard to the work that she does and the remuneration that she receives.
Balanced against that is the fact that the husband is 44 years of age and has significant impediments, acknowledged as existing, in relation to his future employability. Whilst there were suggestions that he might seek work as an (occupation omitted) and to further his career in that regard, the real evidence available in relation to this matter at the moment is that the husband is acknowledged by the (employer omitted) as being invalided as a result of his experiences in (occupation omitted), and that he receives a pension as a result of those issues.
I am satisfied that the husband is totally and permanently incapacitated, and that whilst there might be some limited opportunities to obtain some work or employment, the real expectation is that the husband will from now and into the foreseeable future be only able to receive the pension that he receives, as a result of holding his (omitted) Superannuation entitlements.
Additionally, the husband has repartnered and has a child of that relationship and another child on the way. The husband therefore has obligations not only, of course, with regard to the support and provision for the support of the children of this relationship, but has ongoing responsibilities with respect to his partner and the children of their relationship. The husband therefore has far greater limitations now and into the future in relation to his lifestyle and the opportunities that will be available to him, and I am satisfied that there is a very significant and, one would expect, growing disparity between the income and lifestyle expectations of the husband, as opposed to the income earning capacity and expectations of the wife.
It is a factor which, in my assessment, looms large in relation to this matter and significantly outweighs the ongoing responsibilities which the wife will have, in relation to the children but which will, over time, reduce, at least insofar as the nature of its effect upon the wife, her income earning capacity, and her future expectations. In my assessment, such considerations mean that a further adjustment needs to be effected in relation to the property of the parties, and that the adjustment would be in the vicinity of 20 per cent in favour of the husband.
I am satisfied that, over time, that is a reflection of the future expectations of the parties and, accordingly, it results in a final distribution of property, subject to the ultimate consideration as to the justice and equity of any distributions, of 65/35 in favour of the husband.
Calculating, as best I can, the assets available for distribution then, I am satisfied that the immediately realisable assets, including add backs appropriately included for the moneys obtained by the husband post-separation, totals $287,467. I note that the husband has so far received $124,682 from the moneys received by him at the time of separation, and that the wife has, as a result of an interim or partial property settlement, pursuant to orders made earlier in 2017, received $50,000. The balance then available for distribution between the parties is $112,785, though a 65/35 split in total would result in the husband receiving $186,853 and the wife receiving $100,614.
However, that does not end the matter, because there are significant further sums which need to be taken into consideration. As I indicated, there is superannuation entitlements totalling $98,550, as well as the amount of $462,900 which comprises the (omitted) funds, which provide for the husband’s invalidity pension. I am satisfied that there is an obvious need for an adjustment to be made to the property for distribution between the parties, but that when one considers the obvious need for any order, to not only effect a fair distribution but a just and equitable distribution, that a different approach needs to be taken in relation to what is to be effected between the parties.
If simply a global approach were taken, then there would be an assessment of there being assets available for distribution of approximately $850,000. If that were accepted as a pool immediately available for distribution, then the wife would receive $297,500 and the husband would receive the balance. But there are other consequences to be considered, not the least of which is, that to significantly alter the entitlements of the parties, including by way of alteration of (omitted) entitlements and the like, would result in a long term consequence for the husband, which would have serious and inequitable consequences.
I am satisfied therefore that, rather unusually, when one considers the justice and equity of the arrangements to be made, that there should be an adjustment different to that proposed by either of the parties. I am satisfied that it would be appropriate for the wife to retain the totality of funds received from the sale of the former matrimonial home of $162,785. Additionally, it is appropriate and equitable that there should be a superannuation split of the husband’s two superannuation policies and in the circumstances, comprising 100 per cent of the valuation of those policies, as they, along with the wife’s smaller policy, comprise about $98,550.
That would mean that the wife would receive a total sum of approximately $261,335, which is less than would be received if a simple division were to be effected. However, to order a further split or a payment to be effected by the husband to the wife would result in hardship, which far outweighs any equitable characteristics that might arise as a result of a simple mathematical calculation.
I am satisfied that it is not just or equitable to effect a further distribution in favour of the wife, but rather to recognise that each party must have the opportunity to move forward with their life and to be able, with certainty, to know what the future holds.
Accordingly, I intend to make orders which reflect, in my assessment, a just and equitable distribution of the property of the parties but, more particularly, reflective of the opportunity for each party to move forward from this time, knowing their financial circumstances and the expectations now and into the future. The orders therefore that reflect this arrangement are as detailed at the commencement of these reasons.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Coker.
Date: 13 October 2017
0
4
2